United States District Court, S.D. Florida
ORDER VACATING PRIOR ORDER DENYING MOTIONS IN LIMINE,
GRANTING DEFENDANT'S MOTION IN LIMINE, AND DENYING
PLAINTIFF'S MOTION IN LIMINE
L. ROSENBERG UNITED STATES DISTRICT JUDGE.
matter is before the Court on Defendant's ore tenus
motion in limine made at trial on October 30, 2019.
Defendant's ore tenus motion essentially renews a prior
motion in limine that was denied by the Court at docket entry
140. The Court previously denied the parties' respective
motions in limine so that the Court could evaluate the
arguments therein in the context of the evidence at trial.
After having the opportunity to consider several days'
worth of testimony at trial, after consideration of the
arguments of the parties on October 30, 2019, and after
review of the Court's prior order and the parties'
written motions in limine, the Court VACATES
its prior order denying the parties' motions in limine
without prejudice and substitutes this Order in its
Motion in Limine
moves to exclude certain historical appraisals prepared by
Plaintiff's expert, Mr. Val Chiasson. At trial, Defendant
represented to the Court that it was not moving to exclude
background testimony from Mr. Chiasson about those
appraisals, but Defendant did seek to exclude testimony from
Mr. Chiasson that attributed the conclusions or analysis in
those appraisals to Defendant. Defendant also renewed its
position (from its filed motion in limine) that the
appraisals should not be admitted as substantive evidence in
argues the evidence should be excluded on multiple grounds,
including Rule 37 of the Federal Rules of Civil Procedure.
Under Rule 37, Defendant contends that the appraisals cannot
be used as evidence because the appraisals did not further
Mr. Chiasson's expert opinion and because those
appraisals were not disclosed as grounds supporting Mr.
Chiasson's report. An expert witness must produce a
report that contains, among other things, “a complete
statement of all opinions the witness will express and the
basis and reasons for them, ” and “the facts or
data considered by the witness in forming them.”
Fed.R.Civ.P. 26(a)(2)(B). Such disclosures are mandatory as
Rule 37(c)(1) states: “If a party fails to provide
information or identify a witness as required by Rule 26(a)
or (e), 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.” E.g., United States ex rel. TVA v.
Scott, 324 F.R.D. 267, 273-74 (N.D.Ga. 2017).
produced the Chiasson expert report on April 8, 2019. The
scope of Mr. Chiasson's retention as an expert was
“to opine on the appraisal procedures and standards
that apply to the appraisal of CityPlace located in West Palm
Beach, and which is referenced as the ‘subject
property' in this report.” DE 118-4. Mr. Chiasson
offered expert opinion regarding “whether an appraisal
of ‘fair market value' of a property as of a
specific date, to be performed in compliance with FIRREA, can
consider the contributory value of a potential future zoning
change.” Id. Among the materials that Mr.
Chiasson disclosed that he reviewed in preparing his report
were the Loan Modification Agreement, Title XI of FIRREA, the
Interagency Appraisal and Evaluation Guidelines, the Uniform
Standards of Professional Appraisal Practice, and the
Dictionary of Real Estate Appraisal. Id. at 5. He
also read Cushman & Wakefield's appraisal report,
CBRE's September 2018 and November 2018 appraisal
reports, and Stuart Lieberman's deposition and the
accompanying exhibits. DE 118-5 at 8-9. Mr. Chiasson did not
consider or rely on any other materials. Thus, the Court can
see no basis for Mr. Chiasson's historical appraisals to
be admitted as evidence under Rule 37.
response, Plaintiff takes the position that, even though the
appraisals were not disclosed in Mr. Chiasson's report,
Plaintiff should be able to admit the appraisals as evidence
because of Defendant's litigation strategy:
THE COURT: What about 703 and 26 and 37 whereby, in
essence, I understand the argument to be he was deposed, he
didn't disclose that he relied upon them, they are not
the basis of his opinion, and it would, you know, the notion
is that it is unfair to either party if after you have expert
reports and depositions new opinions, new materials that you
relied upon, come out.
MR. HARRISON: I will note for the record that at
least in this case CityPlace and our expert was deprived of
the opportunity to submit a rebuttal report based on the way
Wells Fargo decided to handle the provision of their expert
report. We were supposed to exchange simultaneous expert
reports and each side would have an opportunity to file a
rebuttal report to each others expert report. Wells Fargo
didn't file an expert report and all they filed was a
rebuttal report, which we never had an opportunity to file a
But taking that aside, these documents have been involved in
the case since at least April 30th. At no time has Wells
Fargo either tried to depose Mr. Chiasson.
THE COURT: He had been deposed.
Transcript). The potential prejudice to Defendant is
exemplified by the following e-mail sent from counsel for the
Defendant to counsel for the Plaintiff. After Mr.
Chiasson's deposition, Plaintiff took the position that
Mr. Chiasson was both an expert witness and a fact witness
and, because he was also a fact witness, Mr. Chiasson's
old, prior appraisals could be used as substantive evidence
in support of Plaintiff's case. In response to that
position, Defendant's counsel sent the following:
I am puzzled as to how Mr. Chiasson can be a
“fact” witness given the statements in both his
report and at his deposition. He has not been involved in any
of the transactions, and lacks personal knowledge of any
events. He can be testifying only in a capacity as an expert
witness. Since that limited role i[n] the case, if you want
to call him for further testimony, under Rule 26, we are
first entitled to a supplemental report before any testimony.
We will consent to such a report, provided that we receive it
in at least three business days in advance of Mr.
Chiasson's deposition. If you do not proceed in
accordance with Rule 26, we reserve our rights to move to
preclude any purported ‘fact' testimony by Mr.
Chiasson in the motions in limine to be filed with the Court.
DE 118-1 at 2. Despite having the opportunity to amend the
expert report, Plaintiff never accepted Defendant's
offer. Upon review of Mr. Chiasson's report and the
evidence in this case, the Court is persuaded that, pursuant
to Rule 37, Plaintiff is precluded from offering Mr.
Chiasson's historical, prior appraisals as substantive
evidence in this case. Plaintiff could have amended Mr.
Chiasson's expert report to make the appraisals part of