United States District Court, M.D. Florida, Tampa Division
THE COURT are GEICO's Motion to Exclude or Limit
Expert Witness Testimony (Dkt. 31), and Defendant's
Opposition (Dkt. 39). Upon consideration, GEICO's motion
(Dkt 31) is GRANTED.
issued a marine insurance policy covering Defendant's
vessel. (Policy, Dkt. 1 at pp. 14-35). Its Complaint seeks
declaratory judgment that the policy does not cover a claimed
loss because of Defendant's breach of a navigational
warranty (Count I), breach of the implied warranty of
seaworthiness (Count II), and breach of the duty of utmost
good faith. (Count III). (Complaint, Dkt. 1). In its motion,
GEICO moves to preclude Defendant from using marine surveyors
Steven Berlin and Rich Parrey, or any other person, to
present expert opinion evidence because of his failure to
comply with the Federal Rules of Civil Procedure and the Case
Management and Scheduling Order. (Dkt. 39).
and Parrey inspected Defendant's vessel and prepared
marine survey reports. (Parrey marine survey report, Dkt.
35-2 at pp. 123-142); (Berlin marine survey report and
addendum, Dkt. 35-2 at pp. 144-151). Those reports include
findings about the vessel's condition and opinions based
on those findings. (Id.).
Case Management and Scheduling Order required the parties to
disclose expert witnesses by July 1, 2017. (Dkt. 10).
Defendant identified Berlin as a witness who was
"[b]elieved to have knowledge of the condition of the
vessel" in his initial disclosure. (Dkt. 31 at p. 2).
His initial disclosure did not identify Parrey as a witness,
or identify any witnesses who would present expert opinions.
(Id.). Defendant served Answers to Plaintiffs First
Set of Interrogatories on January 13, 2017. (Id. at
p. 3). His answers identified Parrey and Berlin as witnesses
with knowledge of "seaworthiness of vessel as of date of
his report and thereafter." (Id.). One
interrogatory asked if Defendant intended to call any expert
witnesses, to which he replied "[y]es, but unknown at
this time." (Id.).
never provided a Rule 26(a)(2) expert disclosure or report
for any witness. And Berlin and Parrey's marine survey
reports do not qualify as Rule 26(a)(2)(B) reports because
the reports do not state their qualifications, a list of
cases in which they have testified as experts, or the
compensation they are to be paid. (Survey reports, Dkt. 35-2
at pp. 123-151).
also argues that Parrey should be precluded from presenting
expert opinion evidence because his opinion that the vessel
is "a good insurance risk for its intended use" is
irrelevant, particularly with respect to GEICO's claim
that Defendant breached an implied warranty of seaworthiness.
(Dkt. 31 at p. 7). A seaworthy vessel is one that "is
reasonably fit for the intended use." Aguirre v.
Citizens Cas. Co. of N.Y., 441 F.2d 141, 144 (5th Cir.
ostensibly opposes GEICO's motion, although he contends
that Berlin and Parrey are not expert witnesses. (Dkt. 39).
He does not dispute that he failed to comply with the
disclosure requirements of Rule 26 and the Case Management
and Scheduling Order. Nor does he argue that his failure was
substantially justified or harmless. Accordingly, it is
unnecessary to consider the guiding factors. See
Singletary v. Stops, /«c., No.
6:09-cv-1763-Orl-19KRS, 2010 WL 3517039, .at *8 (M.D. Fla.
Sept. 7, 2010). Rather, he argues that "the reports are
evidence of what Geico thought material to removing port risk
ashore restrictions" from the policy, and that
GEICO's motion is not supported by case law. (Dkt. 39 at
1ft 9, 11) (citing Reliance Nat 7 Ins. Co.
(Europe) Ltd v. Hanover, 222 F.Supp.2d 110, 117 (D.
Mass. 2002) (denying cross motions for summary judgment after
concluding that whether the insureds satisfied their duty of
good faith by providing survey reports and other information
was a question of fact that could not be resolved as a matter
first argument is inapposite, because GEICO has not moved to
exclude Berlin and Parrey from testifying as fact witnesses
or to exclude their reports. Rather, it moves to exclude them
from presenting expert opinions. And, contrary to
Defendant's second argument, GEICO's motion is
supported by binding case law. See Reese, 527 F.3d
at 1265 (no abuse of discretion in excluding a witness's
affidavit containing expert opinions because plaintiff failed
to disclose the witness pursuant to Rule 26); A. A.
Profiles, Inc. v. City of Ft. Lauderdale, 253 F.3d 576,
585 (11th Cir. 2001) (court should have excluded testimony of
witness because witness's opinion was irrelevant).
GEICO's Motion to Preclude or Limit Expert Witness
Testimony is GRANTED. Pursuant to Rules
26(a)(2)(A) and 37(c)(1), Fed. R. Civ. Pro., Defendant is
prohibited from using Berlin or Parrey as experts during
trial because he failed comply with Rule 26 and the Case
Management and Scheduling Order, see Fed. R. Civ. P.
37(c)(1); Reese, 527 F.3d at 1265, and because
Parrey's opinion that the vessel was a "good
insurance risk for its intended use" is irrelevant to
GEICO's claims against Defendant, see A.A.
Profiles, 253 F.3d at 585. Berlin and Parrey, therefore,
are fact witnesses, who may testify to their findings about
the condition of the vessel, but without expressing opinions.
 "[A] party must disclose to the
other parties the identity of any witness it may use at trial
to present evidence under Federal Rule of Evidence 702, 703,
or 705." Fed.R.Civ.P. 26(a)(2)(A). "Unless
otherwise stipulated or ordered by the court, this disclosure
must be accompanied by a written report-prepared and signed
by the witness-if the witness is one retained or specially
employed to provide expert testimony in the case or one whose
duties as the party's employee regularly involve giving
expert testimony." Id. at 26(a)(2)(B). "A
party must make these disclosures at the times and in the
sequence that the court orders." Id. at
26(a)(2)(D). "If a party fails to provide information or
identify a witness as required by Rule 26(a) or (e), the
party is not allowed to use that information or witness to
supply evidence on a motion, at a hearing, or at a trial,
unless the failure was substantially justified or is
harmless." Fed.R.Civ.P. 37(c)(1). The revelation of a
witness' name is not sufficient to discharge a
party's Rule 26 obligation to identify expert witnesses.
See Reese v. Herbert, 527 F.3d 1253, 1265 (11th Cir.
Decisions of the Fifth Circuit Court of Appeals prior to
September 30, 1981 are binding as precedent within the
Eleventh Circuit. Bonner v. City of Prichard, 661