United States District Court, M.D. Florida, Tampa Division
ARNOLD SANSONE UNITED STATES MAGISTRATE JUDGE.
Mutual Insurance Company (Amica) moves to strike
supplemental/additional hydrostatic testing. (Doc. 28).
Dagmar Leigh and Hernan Leigh (collectively, the Leighs)
oppose the motion. (Doc. 39).
is the Leighs' homeowners' insurance carrier. (Doc.
18). The Leighs claim their property sustained a covered loss
due to water damage. (Id.). Following a dispute
about policy coverage, the Leighs sued Amica for breach of
April 24, 2019, Reynaldo Alvarez, the Leighs' expert,
performed a hydrostatic test for water damage at the
Leigh's home (April hydrostatic test). (Doc. 39, Ex. A).
Alvarez took photographs and three videos during the test.
(Id.). Alvarez's expert report included, among
other things, the April hydrostatic test results, the three
videos, and the photographs. (Id.).
26, 2019, Donald Dunn, Amica's expert, inspected the
Leighs' home but did not perform a hydrostatic test.
(See Doc. 23, Ex. B). Dunn testified he did not
conduct a hydrostatic test because he did not believe it was
a valid test. (Doc. 39, Ex. B).
19, 2019, Alvarez testified about the April hydrostatic test,
as well as the three videos and pictures. (See Doc.
39, Ex. C). Alvarez testified he created a continuous video
of the April hydrostatic test, but he did not have the
continuous video at the deposition. (Id.). After the
deposition, Alvarez attempted to locate the continuous video
but could not. (Doc. 39, p. 5). On July 29, 2019, Alvarez
performed a second hydrostatic test (July hydrostatic test)
and took a continuous video. (Doc. 39, Ex. D). The April
hydrostatic test and the July hydrostatic test were conducted
in the same manner and revealed the same results.
(Id.). On July 30, 2019, the Leighs served Amica
with a copy of the continuous video of the July hydrostatic
test. (Doc. 39, Ex. E).
August 6, 2019, the Leighs timely served Alverez's
rebuttal expert report addressing Dunn's opinions about
the hydrostatic test and Building Codes relating to the
hydrostatic test. (Doc. 39, Ex. G). The rebuttal report also
included the continuous video of the July hydrostatic test.
moves to strike the July hydrostatic test as new and
untimely. (Doc. 28). The Leighs oppose the motion.
Rule of Civil Procedure 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.
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.” However, even
if the court finds that a party's failure to disclose
evidence is neither substantially justified nor harmless, the
sanction of exclusion is not mandatory. Tampa Bay Water
v. HDR Eng'g, Inc., No. 8:08-cv-2446-T-27TBM, 2011
WL 3475548, at *3 (M.D. Fla. Aug. 9, 2011). Moreover,
“‘[t]he Court vastly prefers to decide cases on
their merits, '” rather than excluding evidence.
Collins v. United States, 3:08-cv-923-J-32JRK, 2010
WL 4643279, at *5 (M.D. Fla. Nov. 9, 2010) (citation
July hydrostatic test supplements Alvarez's original
report. (See Doc. 39, Exs. A, D). The July
hydrostatic test followed the same procedures and obtained
the same results as the April hydrostatic test.
(Id.). Alvarez's opinions also remained the
Alvarez performed the July hydrostatic test after service of
his initial expert report, the Leighs acted timely and in
good faith after learning the April hydrostatic test
continuous video could not be located. Within eleven days,
the Leighs' expert Alvarez conducted the July hydrostatic
test and provided Amica with a copy of the continuous video
of that test. (Doc. 39, Ex. E). At the time of production,
the Leighs offered that Alvarez sit for another deposition to
answer any ...