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 Troy Eldridge's
(“Plaintiff”) motion to strike against Pet
Supermarket, Inc. (“Defendant”) for an untimely
disclosure of an expert witness. [D.E. 50]. Defendant
responded to Plaintiff's motion on June 28, 2019. [D.E.
56] to which Plaintiff replied on July 8, 2019. [D.E. 62].
Therefore, Plaintiff's motion is now ripe for
disposition. After careful consideration of the motion,
response, reply, relevant authority, and for the reasons
discussed below, Plaintiff's motion is GRANTED in
part and DENIED in part.
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 seeks to strike Defendant's untimely disclosure of
its expert witness, Thomas Blackburn (“Mr.
Blackburn”), because Defendant failed to disclose him
until seven days before the end of the discovery period. As
background, the Court entered a Scheduling Order on October
18, 2018. [D.E. 22]. Pursuant to that Order, Plaintiff timely
disclosed his expert on March 15, 2019. In turn, Defendant
was required to disclose its expert on April 12, 2019 and the
parties were directed to exchange rebuttal reports on or
before May 10, 2019. See id. Defendant then
consulted and obtained Plaintiff's consent for an
extension of time to disclose its expert. Having been advised
of the parties' agreement, the Court extended
Defendant's deadline to serve its expert report to May 7,
2019 and postponed the deadline for the disclosure of
rebuttal experts to May 31, 2019. [D.E. 33]. The Court did
not, however, extend any of the earlier deadlines in this
case, including the discovery deadline of June 12, 2019, the
dispositive motion deadline of July 26, 2019, and the trial
date of December 9, 2019. [D.E. 22, 33].
claims that Defendant failed to disclose Mr. Blackburn until
June 5, 2019, a mere seven days before the end of the
discovery period and in violation of the Court's extended
deadlines. Plaintiff also argues that Defendant refused to
produce its expert for a deposition during the final week of
the discovery period and instead proposed a day
after the discovery cut-off. Making matters worse,
Plaintiff alleges that Defendant never requested another
extension of time to disclose its expert or to conduct
additional discovery. Because Defendant violated the
Court's Scheduling Order, waited until the eve of the
discovery period to produce its expert, and prevented
Plaintiff from deposing Defendant's expert before the
discovery cutoff, Plaintiff concludes that he has been
materially prejudiced and requests that we strike Mr.
Blackburn as untimely. See, e.g.,
Woliner v. Sofronsky, 2019 WL 125704, at *4 (S.D.
Fla. Jan. 8, 2019) (“It is clear that Plaintiff's
late disclosure of his expert would severely prejudice
Defendants, and wreak havoc with the Court's dispositive
motion deadline and trial date. Therefore, striking
Plaintiff's expert is both necessary and
concedes in its response that it failed to timely serve Mr.
Blackburn's expert report. Defendant argues, however,
that the rebuttal report was served a mere five days after
the deadline of May 31, 2019. Defendant also claims that the
reason for the untimely disclosure is because the only date
that Plaintiff made its expert available for a deposition was
on May 20, 2019, leaving Defendant with only nine business
days from the May 31, 2019 rebuttal deadline. In other words,
Defendant suggests that Plaintiff is at fault because
Plaintiff failed to make his expert available at an earlier
date for a deposition and that a rebuttal report could not be
crafted during the interim. Notwithstanding Plaintiff's
delay, Defendant maintains that it served its rebuttal report
on June 5, 2019 and insists that the parties could have
coordinated (but failed to do so) Mr. Blackburn's
deposition during the final week of the discovery period.
Defendant states that, as an accommodation, it also offered
to make Mr. Blackburn available after the discovery cut-off
to alleviate any prejudice but that the parties failed to
confer or agree upon a revised date for a deposition.
Therefore, Defendant concludes that there is substantial
justification for the delay of its rebuttal expert and that
any prejudice can be cured with a revised date for Mr.
initial matter, Defendant should have done much more to
comply with the Court's Scheduling Order. Defendant could
have filed, for example, a motion for an extension of time to
serve its rebuttal report or could have sought relief from
the Court's discovery deadline. Defendant could have also
offered Plaintiff several specific dates before the end of
the discovery cut-off to take Mr. Blackburn's deposition.
But, Defendant failed to do so and there is an abundance of
cases to support Plaintiff's position that
Defendant's failure was prejudicial. 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)). Plaintiff therefore concludes that “[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.
certainly true, as Plaintiff suggests, that a failure to
provide deposition dates before the end of the discovery
period can be grounds to exclude an expert at trial. See,
e.g., St. Louis Condo. Ass'n, Inc. v. Rockhill Ins.
Co., 2019 WL 2008665, at *2 (S.D. Fla. Mar. 11, 2019)
(granting plaintiff's motion to strike “[b]ecause
Defendant could not provide a single date when Mr. Warner was
available for a deposition before the expert discovery
deadline”). It is equally true that a failure to
disclose an expert - depending on the length of the delay -
can be grounds to strike an expert. See, e.g.,
Ballard v. Krystal Restaurant, 2005 WL 2653972 (M.D.
Ala. Oct. 17, 2005) (granting defendant's motion to
strike because plaintiff waited two and a half months to
disclose its expert); White v. Volvo Trucks of N. Am.,
Inc., 211 F.R.D. 668, 670 (M.D. Ala. 2002) (granting
defendants' motion to strike because plaintiff disclosed
an expert witness seven weeks late).
given the procedural posture of this case, the shortness of
Defendant's delay (approximately five days), and a trial
date scheduled five months away in December 2019, there is
ample time to cure any prejudice that Plaintiff suffered for
Defendant's failure to comply with the Court's
Scheduling Order. This is not a case where trial is imminent
nor is this a situation where a party was materially late in
disclosing its witness. It is therefore difficult to conclude
that the prejudice Plaintiff suffered cannot be cured in a
timely fashion and far in advance of trial. See Avramides
v. Liberty Mut. Fire Ins. Co., 2014 WL 202662, at *4
(M.D. Fla. Jan. 17, 2014) (finding that a defendant's
untimely disclosure was harmless as a rebuttal expert because
the “disclosure of [the expert] as a rebuttal witness
was only one day late, due to inadvertence, and his expert
report, although late, was provided approximately six months
before trial.”); see also Ferguson v. Bombardier
Servs. Corp., 244 Fed.Appx. 944, 950 (11th Cir. 2007)
(finding that a district court's decision to permit an
expert report submitted after the deadline, but approximately
eight months before the start of trial, was not an abuse of
discretion). Therefore, Plaintiff's motion is
GRANTED but only to the extent that
Defendant is compelled to make Mr. Blackburn available for a
deposition within fourteen (14) days from the date of this
Order. As for Plaintiff's motion to strike Mr. Blackburn
as an expert witness, Plaintiff's motion is