United States District Court, M.D. Florida, Tampa Division
ORDER ON PLAINTIFFS' MOTIONS TO STRIKE
S. SNEED UNTIED STATES MAGISTRATE JUDGE.
MATTER is before the Court on Plaintiffs' Motion to
Strike Defendant's Expert William England and Preclude
Any Testimony Therefrom for Non-Compliance with Rule 26(a)(2)
and This Court's Case Management Order (“Motion to
Strike Mr. England”) (Dkt. 52), Plaintiffs' Motion
to Strike Defendant's Expert Rodney Vanderploeg and
Preclude Any Testimony Therefrom for Non-Compliance with Rule
26(a)(2) and this Court's Case Management Order
(“Motion to Strike Dr. Vanderploeg”) (Dkt. 55),
Defendant's responses in opposition (Dkts. 60, 61), and
Plaintiffs' reply (Dkt. 65).
sued Defendant asserting underinsured motorist and consortium
claims arising out of a June 9, 2015, automobile accident
involving Plaintiff Jason Fox. (Dkt. 2.) The case was filed
with the Court on September 16, 2016, and the parties were
permitted to proceed with discovery as early as November 8,
2016, after they filed their Joint Case Management Report
(“CMR”). See Fed. R. Civ. P. 26(d)(1).
Although the parties have had ample time to conduct
discovery, they have sought numerous extensions of the
discovery deadlines and thereafter failed to comply with
certain deadlines and disclosure requirements as explained
November 9, 2016, the Court entered the Case Management and
Scheduling Order (“Scheduling Order”) and
scheduled the case for the October 2017 trial term. (Dkts.
14, 15.) Pursuant to the Scheduling Order, the discovery
deadline was May 19, 2017, and the expert disclosure deadline
was March 3, 2017, for Plaintiffs and March 17, 2017, for
Defendant. (Dkt. 14, 15.) The supplemental disclosure
deadline for all parties was March 31, 2017. (Dkts. 14, 15.)
The parties later filed a Joint Motion to Extend Deadlines,
which the Court granted, extending the discovery period
through June 19, 2017, and extending the deadlines for expert
disclosures to May 2, 2017, for Plaintiffs and May 16, 2017,
for Defendant. (Dkts. 20, 21.) The deadline for dispositive
motions was extended through July 19, 2017, and the deadline
for Daubert motions was extended through July 30,
2017. (Dkts. 20, 21.) Subsequently, Plaintiffs' deadline
to disclose experts was further extended through May 16,
2017, upon Plaintiffs' unopposed motion requesting the
extension. (Dkts. 25-26.) The deadline for supplemental
disclosures for all parties was extended through May 30,
2017. (Dkts. 20, 21.)
17, 2017, Defendant requested an extension for four defense
experts, including neuropsychologist Dr. Vanderploeg and
vocational rehabilitation expert Mr. England, to conduct
examinations of Plaintiff Jason Fox and serve expert reports.
(Dkt. 29.) Specifically, Defendant sought an extension
through June 30, 2017, for Mr. England to complete
examinations of Plaintiff and provide his expert report.
(Dkt. 32, 34.) Defendant further sought an extension through
July 6, 2017, for Dr. Vanderploeg to conduct his examination
and provide his expert report. (Dkt. 33.) The Court granted
Defendant's extension requests for the limited purpose of
allowing the experts to examine Plaintiff and submit their
reports. (Dkt. 38.)
30, 2017, Defendant sought further extensions for Dr.
Vanderploeg and Mr. England to complete their expert reports.
(Dkt. 49.) The Court granted Defendant an extension through
July 7, 2017, for Dr. Vanderploeg's report but declined
to grant an additional extension for Mr. England's report
as it was unclear why Mr. England was unable to complete his
testing and report within the June 30, 2017, deadline. (Dkts.
now seek to strike Mr. England and Dr. Vanderploeg on the
grounds that Defendant's expert disclosures were
insufficient and untimely under Federal Rule of Civil
Procedure 26 and the Court's Orders. (Dkts. 52, 55.)
Plaintiffs contend that Defendant did not produce a Rule 26
report for Mr. England within the June 30, 2017, deadline.
(Dkt. 52 at 2.) Instead, Defendant provided Mr. England's
report on July 6, 2017, and supplemented the report on July
19, 2017. (Dkt. 66 at 3.) Plaintiffs further contend that Dr.
Vanderploeg's expert report should be stricken.
Specifically, Defendant sent Plaintiffs a two-page letter
from Dr. Vanderploeg on July 7, 2017. (Dkt. 55 at 2.)
Although this letter was within the Court's deadline for
Dr. Vanderploeg's disclosure, Plaintiffs assert that the
letter is insufficient and does not comply with Rule 26.
(Dkt. 55 at 2.) Plaintiffs further argue that Defendant's
July 14, 2017, supplemental report for Dr. Vanderploeg is
untimely. (Dkt. 65 at 4.) Plaintiffs argue that
Defendant's failure to comply with Rule 26 and this
Court's deadlines has resulted in prejudice because trial
in the matter is set to occur in October 2017. (Dkt. 65 at
4.) Plaintiffs therefore seek to strike Mr. England and Dr.
Vanderploeg as expert witnesses.
Rule of Civil Procedure 26 requires parties to disclose the
identity of any expert witness it may use to present evidence
at trial. Fed.R.Civ.P. 26(a)(2)(A). For experts
“retained or specifically employed to provide expert
testimony, ” the expert disclosure must be accompanied
by a signed, written report that contains the following:
“a complete statement of all opinions the witness will
express and the basis and reasons for them, ”
“the facts or data considered by the witness in forming
them, ” “any exhibits that will be used to
summarize or support them, ” “the witness's
qualifications, including a list of all publications authored
in the previous 10 years, ” “a list of all other
cases in which, during the previous 4 years, the witness
testified as an expert at trial or by deposition, ” and
“a statement of the compensation to be paid for the
study and testimony in the case.” Fed.R.Civ.P.
26(a)(2)(B). Expert disclosures must be made “at the
times and in the sequence that the court orders.”
parties must supplement their expert disclosures in
accordance with Rule 26(e). Rule 26(e) requires a party to
supplement or correct its disclosures “in a timely
manner if the party learns that in some material respect the
disclosure or response is incomplete or incorrect, and if the
additional or corrective information has not otherwise been
made known to the other parties during the discovery process
or in writing.” Fed.R.Civ.P. 26(e)(1)(A). Any additions
or changes to an expert's report or to information given
during the expert's deposition “must be disclosed
by the time the party's pretrial disclosures under Rule
26(a)(3) are due.” Fed.R.Civ.P. 26(e)(2).
to Rule 37(c)(1), a failure to disclose may result in
exclusion of the information “unless the failure was
substantially justified or is harmless.” Substantial
justification exists if there is “justification to a
degree that could satisfy a reasonable person that parties
differ as to whether the party was required to comply with
the disclosure request.” Hewitt v. Liberty Mut.
Grp., Inc., 268 F.R.D. 681, 682 (M.D. Fla. 2010)
(quotation and citation omitted). A harmless failure to
disclose exists “when there is no prejudice to the
party entitled to receive the disclosure.” Id.
court has broad discretion in deciding whether a failure to
disclose evidence is substantially justified or harmless
under Rule 37(c)(1). United States ex rel. Bane v.
Breathe Easy Pulmonary Servs., Inc., No.
8:06-cv-00040-T-33MAP, 2009 WL 92826, at *3 (M.D. Fla. Jan.
14, 2009). “The burden of establishing that a failure
to disclose was substantially justified or harmless rests on
the nondisclosing party.” Mitchell v. Ford Motor
Co., 318 Fed. App'x 821, 825 (11th Cir. 2009)
(internal quotations omitted). In determining whether a
failure to disclose evidence is substantially justified or
harmless, courts are guided by the following factors: (1) the
unfair prejudice or surprise of the opposing party; (2) the
opposing party's ability to cure the surprise; (3) the
likelihood and extent of disruption to the trial; (4) the
importance of the evidence; and (5) the offering party's
explanation for its failure to timely disclose the evidence.
Mobile Shelter Sys. USA, Inc. v. Grate Pallet Sols.,
LLC, 845 F.Supp.2d 1241, 1250-51 ...