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Fox v. Safeco Insurance Co. of Illinois

United States District Court, M.D. Florida, Tampa Division

August 17, 2017

JASON FOX and CHRISTINA FOX, Plaintiffs,
v.
SAFECO INSURANCE COMPANY OF ILLINOIS, Defendant.

          ORDER ON PLAINTIFFS' MOTIONS TO STRIKE

          JULIE S. SNEED UNTIED STATES MAGISTRATE JUDGE.

         THIS 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).

         BACKGROUND

         Plaintiffs 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 below.

         On 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.)

         On May 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.)

         On June 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. 49, 50.)

         Plaintiffs 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.

         APPLICABLE STANDARDS

         Federal 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.” Fed.R.Civ.P. 26(a)(2)(D).

         The 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).

         Pursuant 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. at 683.

         The 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 ...


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