United States District Court, S.D. Florida
ORDER ON PLAINTIFF'S MOTION TO STRIKE
DEFENDANT'S UNTIMELY EXPERT WITNESS
G. TORRES UNITED STATES MAGISTRATE JUDGE.
matter is before the Court on Zelma Siplin's
(“Plaintiff”) motion to strike against Carnival
Corporation (“Defendant”) for an untimely
disclosure of an expert witness. Defendant responded to
Plaintiff's motion on May 31, 2018. [D.E. 39]. Therefore,
Plaintiff's motion is now ripe for disposition. After
careful consideration of the motion, response, relevant
authority, and for the reasons discussed below,
Plaintiff's motion is GRANTED.
APPLICABLE LEGAL PRINCIPLES AND LAW
Rule of Civil Procedure 26(a)(2)(A) provides that “a
party must disclose to the other parties the identity of any
witnesses 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). This disclosure must include
“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.” Fed.R.Civ.P. 26(a)(2)(B). The report must
also contain the following information: a complete statement
of all the opinions the expert plans to express and the basis
for them, the data considered by the expert in forming the
opinions, any exhibits intended to be used in summarizing or
supporting the opinions, the experts' qualifications
including a list of all authored publications in the previous
ten years, a list of all the other cases in which the witness
testified as an expert during the previous four years, and a
statement of the compensation the expert is to receive for
the study and testimony in the case. Fed.R.Civ.P.
26(a)(2)(B)(i)-(vi). These disclosures must be made “at
the times and in the sequence that the court orders.”
the expert witness discovery rules are designed to allow both
sides in a case to prepare their cases adequately and to
prevent surprise . . . compliance with the requirements of
Rule 26 is not merely aspirational.”
Cooper v. Southern Co., 390 F.3d 695, 728 (11th Cir.
2004) (internal citation omitted), overruled on other
grounds, Ash v. Tyson Foods, Inc., 546 U.S. 454
(2006). To this end, Rule 37(c)(1) provides a self-executing
sanction for untimely expert reports. In relevant part,
Rule 37(c)(1) states that [i]f a party fails to
provide the information required by Rule 26, “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.”
justification is “justification to a degree that could
satisfy a reasonable person that parties could differ as to
whether the party was required to comply with the disclosure
request.” Ellison v. Windt, 2001 WL
118617(M.D. Fla. Jan. 24, 2001) (quotation and citation
omitted). A failure to timely make the required disclosures
is harmless when there is no prejudice to the party entitled
to receive the disclosure. See Home Design Servs. Inc. v.
Hibiscus Homes of Fla., Inc., 2005 WL 2465020 (M.D. Fla.
Oct. 6, 2005). The party failing to comply with Rule
26(a) bears the burden of establishing that its
non-disclosure was either substantially justified or
harmless. See Surety Assocs., Inc. v.
Fireman's Fund Ins. Co., 2003 WL 25669165 (M.D. Fla.
Jan. 7, 2003).
motion aims to strike Defendant's untimely disclosure of
its expert witness. As background, the Court entered its
Scheduling Order [D.E. 10] on December 4, 2017 and set a
deadline of February 21, 2018 for Defendant to disclose its
expert witnesses. The deadline for both parties to exchange
rebuttal expert reports was also set for one week later -
February 28, 2018. On February 21, 2018, the parties filed a
joint motion to extend the time for Plaintiff to
disclose her experts to March 7, 2018. [D.E. 23]. The
Court granted the motion and stated that no further
extensions of time would be granted. [D.E. 25]. On March 30,
2018, Plaintiff appeared for a compulsory medical examination
and Dr. Sinnreich generated a report on April 9, 2018.
Defendant emailed the report to Plaintiff on April 16, 2018.
Three weeks later - on May 7, 2018 - Defendant disclosed Dr.
Sinnreich as its expert witness.
thrust of Plaintiff's motion is that Defendant's
expert witness disclosure on May 7, 2018 is nearly three
months late and that Defendant never disclosed that Dr.
Sinnreich would be an expert in this case. Plaintiff also
claims that Defendant's untimely submission is
prejudicial because discovery closed on May 25, 2018 and
Plaintiff has no opportunity to depose Dr. Sinnreich or
prepare a Daubert motion without another extension
of the Court's pre-trial deadlines (which the Court has
previously stated will not be granted). Because Defendant
disregarded the Court's Scheduling Order and failed to
disclose its expert witness in a timely manner, Plaintiff
concludes that its motion to strike must be
argues in response that its failure to seek additional time
to disclose its expert was a scheduling oversight and that it
was the result of some unspecified difficulty in arranging
Plaintiff's compulsory medical examination. In any event,
Defendant suggests that its oversight should be excused
because its failure to comply with the Court's Scheduling
Order was harmless. For example, Defendant claims that
Plaintiff should have known that Dr. Sinnreich would be an
expert witness in this case because Plaintiff received his
medical report on April 16, 2018 - well before the discovery
cutoff on May 25, 2018. Defendant also believes that
Plaintiff was aware of Dr. Sinnreich as far back as March 30,
2018 when the medical examination took place. Because
Plaintiff has suffered no prejudice or harm as a result of
Defendant's failure to disclose its expert witness,
Defendant concludes that Plaintiff's motion must be
full consideration of the arguments presented,
Plaintiff's motion is well taken because Defendant - by
its own admission - failed to comply with the Court's
Scheduling Order and never filed a motion for extension of
time to disclose its own expert. Indeed, under the
Court's Scheduling Order, Defendant had to disclose its
expert witness by February 21, 2018 (or February 28, 2018 for
a rebuttal expert). But, Defendant failed to do so even when
it mutually agreed on February 21, 2018 that Plaintiff should
be given additional time to disclose its expert witness.
excuse its failure, Defendant claims that it had difficulty
arranging Plaintiff's medical examination and that
Plaintiff suffered no prejudice as a result of
Defendant's actions. Yet, Defendant's argument is
unpersuasive because Defendant waited until April 16, 2018 to
serve its expert report and now discovery has closed leaving
Plaintiff without the chance to depose the expert witness.
And although Defendant believes that its actions have not
prejudiced Plaintiff, there is an abundance of cases that
suggest otherwise. See, e.g. Hewitt v. Liberty
Mut. Grp., Inc., 268 F.R.D. 681, 684 (M.D. Fla. 2010)
(“Plaintiffs' delay in designating Mr. Thompson as
their expert leaves Liberty Mutual without the chance to
depose this expert witness.”) (citing Smith v.
Jacobs Eng'g Group, Inc., 2008 WL 5351047, at *3
(N.D. Fla. Mar. 20, 2008) (prejudice found when required
disclosures were made after the discovery period had lapsed);
Hubbard v. Edwards, 2006 WL 2557904 (M.D. Ga. Sept.
1, 2006) (same)). This means, “[a]bsent the reopening
of discovery and the attendance delay of trial . . . the
self-executing nature of Rule 37(c)(1) should be
preserved.” Hewitt, 268 F.R.D. at 684 (citing
Bray & Gillespie Mgmt. LLC v. Lexington Ins.
Co., 2009 WL 1043974 (M.D. Fla. Apr. 17, 2009)); see
also Smith, 2008 WL 5351047, at *3.
excuse that it encountered difficulty in scheduling a medical
examination of Plaintiff is also unconvincing because it is
conclusory in nature, and bears no relationship to the
untimely disclosure of Defendant's expert witness. Making
matters worse, Defendant argues that Plaintiff should have
known that Dr. Sinnreich would serve as an expert in this
case as far back as on March 30, 2018. But, that contention
undermines Defendant's own argument because the latest
deadline for Defendant to disclose its expert was February
28, 2018. In other words, if Plaintiff should have known of
Defendant's expert as early as March 30, 2018, that date
is still over one month after the deadline passed in the
Court's Scheduling Order. And Defendant offers no
explanation on why that delay should be excused. In any
event, even if we accepted Defendant's conclusory
contention that scheduling Plaintiff's examination
resulted in a scheduling oversight, Defendant's argument
still fails because it clearly had notice of the Court's
deadlines when it consented to Plaintiff receiving an
extension of time to disclose expert witnesses.
Defendant's suggestion that Plaintiff should have known
that Dr. Sinnreich would be an expert witness in this case,
Defendant's misunderstands the purpose of the Federal
Rules. The importance of observing deadlines contained in a
Scheduling Order is recognized in Rule 16(b), where
it provides that “[a] schedule shall not be modified
except upon a showing of good cause and by leave of the
district judge . . . .” Fed.R.Civ.P. 16(b). The
Advisory Committee notes to Rule 16 also point out
that “[t]he court may modify the schedule on a showing
of good cause if it cannot reasonably be met despite the
diligence of the party seeking the extension.”
Id. Furthermore, the Eleventh Circuit has found that
“[t]his good cause standard precludes modification
unless the schedule cannot ‘be met despite the
diligence of the party seeking the extension.'”
White v. Volvo Trucks of N. Am., Inc., 211 F.R.D.
668, 670 (M.D. Ala. 2002) (quoting Sosa v. ...