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Leigh v. Amica Mutual Insurance Co.

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

August 21, 2019

DAGMAR LEIGH and HERNAN LEIGH, Plaintiffs,
v.
AMICA MUTUAL INSURANCE COMPANY, Defendant.

          ORDER

          AMANDA ARNOLD SANSONE UNITED STATES MAGISTRATE JUDGE.

         Amica Mutual Insurance Company (Amica) moves to strike Dagmar Leigh's and Hernan Leigh's (collectively, the Leighs) supplemental disclosure and report of their expert Mason Chickonski. (Doc. 22). The Leighs oppose the motion. (Doc. 23).

         I. BACKGROUND

         Amica is the Leighs' homeowners' insurance carrier. (Doc. 18, ¶ 4). The Leighs claim their property sustained a covered loss due to water damage. (Id. at ¶ 4). Following a dispute about policy coverage, the Leighs sued Amica for breach of contract. (Docs. 1, 18).

         Under the case management and scheduling order, the Leighs' expert disclosure deadline was June 1, 2019. (Doc. 10). On May 31, 2019, the Leighs served their expert disclosures (May 31 disclosure). (Doc. 23, Ex. A). The Leighs expert disclosures identified several experts, including Mr. Chickonski. (Id.). The report contained Mr. Chickonski's opinions about the Leighs' plumbing system, the water damage to the property, and the method and cost of repairing the failed plumbing system. (Id.).

         On June 25, 2019, without requesting an extension of the expert disclosure deadline, the Leighs provided a “supplemental” disclosure and report of Mr. Chickonski (June 25 disclosure). (Doc. 22, Ex. B). In the June 25 disclosure, Mr. Chickonski advised that on June 18, 2019 he obtained moisture readings at the Leighs' home. (Doc. 22, Ex. B). Mr. Chickonski opined “that the failed plumbing system caused the observed elevated moisture and [] resulted in damage to the interior of the home.” (Id.). The supplemental disclosure contains several photographs of the moisture readings. (Id.).

         Amica moves to strike Mr. Chickonski's June 25 disclosure as untimely and not substantially justified. (Doc. 22). The Leighs oppose the motion and argue the June 25 disclosure is timely and appropriate. (Doc. 23).

         II. APPLICABLE STANDARDS

         Federal Rule of Civil Procedure 26 requires parties to disclose the identity of any expert witness it may use to present evidence. Fed.R.Civ.P. 26(a)(2)(A). The parties must provide their expert disclosures “at the times and in the sequence that the court orders.” Fed.R.Civ.P. 26(a)(2)(D). For experts retained or employed to provide expert testimony, the expert disclosure must include “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, ” among other requirements. Fed.R.Civ.P. 26(a)(2)(B).

         Rule 26(e)(1)(A) requires a party to supplement its disclosures “if the party learns that in some material respect the disclosure . . . 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) (emphasis added).

         Under Rule 37(c)(1), a failure to timely disclose may lead to exclusion of the information “unless the failure was substantially justified or is harmless.” The party that failed to timely disclose bears the burden of establishing that the failure was substantially justified or harmless. See Mitchell v. Ford Motor Co., 318 Fed.Appx. 821, 824 (11th Cir. 2009).

         III. ANALYSIS

         Mr. Chickonski's June 25 disclosure is not a supplemental report required under Rule 26(e). The June 25 disclosure included moisture readings from tests performed at the Leighs' home on June 18, 2019, over two weeks after the Leigh's expert disclosure deadline.

         A party may not supplement an expert report to cure an omission or to remedy an expert's inadequate or incomplete preparation. See Goodbys Creek, LLC v. Arch Ins. Co., No. 3:07-cv-947-J-34HTS, 2009 WL 1139575, at *2 (M.D. Fla. Apr. 27, 2009) (excluding an expert's untimely second report because it contained opinions not addressed in the initial report); K&H Dev. Group., Inc. v. Howard, 255 F.R.D. 562, 567-68 (N.D. Fla. 2009) (striking an expert's ...


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