United States District Court, M.D. Florida, Ocala Division
R. LAMMENS UNITED STATES MAGISTRATE JUDGE
matter is before the Court on Defendants' motion to
strike Plaintiff's experts. (Doc. 45). Plaintiff has
filed a response in opposition. (Doc. 48). Although the
Court initially set this matter for hearing, the Court finds
it unnecessary. Accordingly, the hearing set for June 25,
2019 is CANCELLED.
action arises out of a motor vehicle accident. On July 14,
2017, Plaintiff Victor Torres-Torres was severely injured
when Defendant Sung Il Lee, who was driving an 18-wheeler for
his employer, Defendant KW International, Inc.
(“KW”) crashed into his stopped car. Plaintiff
filed this action asserting a claim against Lee for
negligence and against KW for vicarious liability. (Doc. 2).
Defendants have admitted liability, so the only remaining
issue is damages.
current motion focuses, again, on Plaintiff's expert
disclosures. The Court previously addressed the issue on
Plaintiff's motion to serve late expert witness
disclosures. (See Docs. 32, 41). On May 14, 2019,
the Court held inter alia:
Plaintiff shall be excluded from offering testimony from any
retained or specially employed expert witnesses under Rule
26(a)(2)(B) other than Mr. Langley or Mr. Cody, or expert
testimony pursuant to Rule 26(a)(2)(C) from any witness other
than Dr. Highsmith. On or before May 24, 2019, Plaintiff
shall redraft and serve upon Defendant his existing
disclosure. In doing so, Plaintiff shall be limited to
supplementing the disclosures of witnesses Highsmith, Cody,
and Langley, and shall bring his disclosures into full
compliance with Fed.R.Civ.P. 26(a)(2)(B) and (C). If
Defendant wishes to file a motion on the grounds that
Plaintiff's redrafted expert disclosures are
insufficient, it must do so on or before June 10, 2019.
41 at 5). Now, Defendants have filed a motion to strike the
opinions of all three experts.
Court previously ruled that Plaintiff can offer testimony
from Dr. Highsmith pursuant to Rule 26(a)(2)(C), which does
not require the filing of an expert report. Nevertheless,
Plaintiff apparently produced a report for Dr. Highsmith in
an abundance of caution. Defendants claim that Dr.
Highsmith's report should be stricken because Plaintiff
is “trying to convert Dr. Highsmith into a retained
expert.” (Doc. 45 at 7). In response, Plaintiff
reiterates that “Dr. Highsmith is not an expert, but a
treating physician” and that he “intends to
introduce Dr. Highsmith at trial to testify regarding his
opinions surrounding the care and treatment of Plaintiff . .
. as it relates to the subject incident” (Doc. 48 at
of what the report says, based on the Court's prior
ruling that Dr. Highsmith is a Rule 26(b)(2)(C) expert
witness, his testimony is limited to opinions based on his
examination and treatment of plaintiff, which might include
opinions about the cause of plaintiff's injuries, the
diagnosis, and the extent of disability. See Levine v.
Wyeth, Inc., 2010 WL 2612579, at * 1 (M.D. Fla. June 25,
2010); Baratta v. City of Largo, 2003 WL 25686843,
at *2 (M.D. Fla. March 18, 2003). If Dr. Highsmith attempts
to testify on information gathered outside the course of
treatment, it may be excluded. Id. The exact
boundaries of Dr. Highsmith's testimony “may need
to be addressed with specific objections to specific
testimony in the context of trial.” Id. at *3
(citing Tzoumis v. Tempel Steel Co., 168 F.Supp.2d
871, 876 (N.D.Ill.2001)).
Lawrence Stuart Cody and Thomas Langley
respect to Mr. Cody and Mr. Langley, the Court previously
ruled that Plaintiff can offer their testimony pursuant to
Rule 26(a)(2)(B), which does require the filing of an expert
report. Defendants nitpick both reports but fail to raise any
compelling arguments as to why either should be stricken.
generally argue that Mr. Cody's expert report should be
stricken because it is “woefully inadequate.”
However, Defendants have not identified any purported
deficiencies nor have they submitted a copy of the report;
and thus, the Court is unable to evaluate its sufficiency.
Likewise, while Plaintiff had not attached Mr. Cody's