United States District Court, M.D. Florida, Tampa Division
ARNOLD SANSONE UNITED STATES MAGISTRATE JUDGE.
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.
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).
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.).
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.).
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).
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).
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).
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).
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.
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