Goines v. Lee Memorial Health System et al

Filing 173

ORDER denying 106 and 107 Motions to Exclude Expert Testimony. Signed by Judge John E. Steele on 3/8/2019. (FWH)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
DONIA GOINES,
Plaintiff,
v.

Case No:

2:17-cv-656-FtM-29UAM

LEE MEMORIAL HEALTH SYSTEM,
d.b.a. Cape Coral Hospital
and JEOVANNI HECHAVARRIA,
Defendants.
OPINION AND ORDER
This matter comes before the Court on plaintiff’s Motions to
Exclude Expert Testimony (Doc. #106; Doc. #107) filed on November
19, 2018.

Defendant Lee Memorial filed Responses in Opposition

(Doc. #112; Doc. #113) on December 3, 2018.

For the reasons that

follow, the motions are denied.
I.
Lee Memorial, a public health care system codified under
Florida law, hired defendant Jeovanni Hechavarria as a night nurse
for the Cape Coral Hospital in the fall of 2014.
2; Doc. #120-22, pp. 761-62.)

(Doc. #31, p.

In March of 2015, non-party Brianna

Hammer, a patient at the hospital, accused Hechavarria of sexual
assault.

(Doc. #122-1, pp. 3-5.)

Lee Memorial investigated

Hammer’s allegation and determined it was unsubstantiated.
#120-29, p. 1889.)

(Doc.

In July of 2016, Hechavarria was arrested by

the Charlotte County Sheriff’s Office for an unrelated battery.
(Doc.

#120-46,

pp.

2849-50.)

Seven

days

after

the

arrest,

plaintiff was admitted to the Cape Coral Hospital and Hechavarria
was assigned as her night nurse.
20.)

(Doc. #120-49, pp. 3011, 3019-

Plaintiff alleges she was sexually assaulted by Hechavarria

during the evening.
In

April

of

(Id. pp. 3024-36.)
2018,

plaintiff

filed

an

Amended

Complaint

asserting a section 1983 claim and several common law negligence
claims against Lee Memorial, as well as a common law assault and
battery claim against Hechavarria.

(Doc. #31.)

To counter these

allegations, Lee Memorial has retained Denise Kay and Gayle Nash.
(Doc. #112, p. 1; Doc. #113, p. 2.)

Ms. Kay, who Lee Memorial

asserts is an expert in the field of human resources, has been
retained “[t]o address the issue of the standard human resource
practices

for

conducting

background

supervising and investigating employees.”

screenings,

hiring,

(Doc. #113, p. 2.)

Ms.

Nash, who Lee Memorial asserts is “an expert on the federal
standards with which all hospitals must comply to participate in
Medicare and Medicaid,” has been retained “to explain that [Lee
Memorial]’s treatment of the Hammer situation was in-line with
accepted policies and procedures.”

(Doc. #112, p. 1.)

Plaintiff now seeks to exclude both Ms. Kay’s and Ms. Nash’s
testimony

because

(1)

they

were

retained

after

Lee

Memorial

requested an extension to disclose its expert witnesses, and (2)

- 2 -

their opinions fail to meet the standard for admissibility.
#106, p. 1; Doc. #107, p. 1.)

(Doc.

Plaintiff also argues Ms. Nash’s

opinions should be excluded because Lee Memorial “refused” to allow
plaintiff to finish Ms. Nash’s deposition.

(Doc. #107, p. 15.)

The Court will address these arguments in turn.
II.
Plaintiff’s

first

argument

relates

to

misrepresentation Lee Memorial made to this Court.

an

alleged

Per an amended

case management and scheduling order for this case, Lee Memorial
was required to disclose its expert reports by August 24, 2018.
(Doc. #55.)

On August 23rd, Lee Memorial filed a motion to extend

the deadline for expert disclosures and discovery.

(Doc. #68.)

In requesting a two-week extension, Lee Memorial stated its experts
would be unable to finalize their reports by the August 24th
deadline:
The number of Plaintiff’s experts, volume of Plaintiff’s
experts’ reports, the wide scope of information reviewed
by Plaintiff’s experts in preparing their opinions, and
scheduling issues for the undersigned and Defendant [Lee
Memorial]’s experts have resulted in the inability of
Defendant’s experts to finish reviewing the documents
and providing their opinions before the deadline.
(Id. p. 4.)

Over plaintiff’s objection to the requested relief,

(Doc. #69), the Magistrate Judge granted the motion in part and
extended the disclosure date until September 7, 2018.

(Doc. #71.)

Lee Memorial subsequently disclosed Ms. Kay and Ms. Nash as expert
witnesses.

Per plaintiff, it was subsequently discovered that Ms.

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Kay and Ms. Nash were not formally retained by Lee Memorial until
after the motion for extension was filed.
#107, p. 5.)

(Doc. #106, p. 5; Doc.

Since the motion suggested Lee Memorial had already

retained experts who simply needed additional time to complete
their

reports,

plaintiff

now

argues

Lee

Memorial

made

misrepresentations to the Court and Ms. Kay and Ms. Nash should be
precluded from testifying as a sanction.

(Doc. #106, pp. 3-6;

Doc. #107, pp. 3-5.)
Lee Memorial responds that at the time of its motion, its
experts were unable to finish their reports.
Doc. #113, pp. 3-4.)

(Doc. #112, p. 3;

Lee Memorial subsequently determined, based

on the scope and content of plaintiff’s expert reports, that
different experts were required.
4.)

Accordingly,

Lee

(Doc. #112, p. 4; Doc. #113, p.

Memorial

argues

it

did

not

make

misrepresentations in the prior motion.
Having considered the arguments and the record evidence, the
Court denies plaintiff’s request to exclude Ms. Kay and Ms. Nash
based on the alleged misrepresentation.

Lee Memorial’s motion

seeking an extension simply noted that its experts would not be
able to complete their reports prior to the deadline.

In the

order extending the deadline, the Magistrate Judge found Lee
Memorial had demonstrated good cause for the extension “given
Plaintiff’s four experts and reports covering a broad scope of
topics.”

(Doc. #71, p. 3.)

The Court accepts Lee Memorial’s

- 4 -

explanation for obtaining new expert witnesses and, under the
circumstances,

finds

exclusion

of

Ms.

Kay

and

Ms.

Nash

inappropriate.

See NAACP v. Fla. Dep’t of Corr., 2002 WL 34708021,

*1 (M.D. Fla. May 6, 2002) (noting that “excluding evidence and
striking a party’s expert witness is a drastic sanction”).
II.
Plaintiff next argues that Ms. Kay’s and Ms. Nash’s testimony
should

be

excluded

because

their

opinions

are

inadmissible.

Having reviewed the arguments, as well as the expert reports and
depositions, the Court disagrees.
A. Legal Background
The admission of expert testimony is governed by Rule 702 of
the Federal Rules of Evidence, which provides that:
A witness who is qualified as an expert by knowledge,
skill, experience, training, or education may testify in
the form of an opinion or otherwise if:
(a) the expert’s scientific, technical, or
other specialized knowledge will help the
trier of fact to understand the evidence or to
determine a fact in issue;
(b) the testimony
facts or data;

is

based

on

sufficient

(c) the testimony is the product of reliable
principles and methods; and
(d) the expert has reliably applied the
principles and methods to the facts of the
case.

- 5 -

Fed. R. Evid. 702.

Rule 702 contemplates that the district court

will serve as gatekeeper to the admission of scientific testimony
to ensure that any and all expert testimony is both relevant and
reliable.

Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 589

(1993); Tampa Bay Water v. HDR Eng’g, Inc., 731 F.3d 1171, 1183
(11th Cir. 2013).

“The Supreme Court did not intend, however,

that the gatekeeper role supplant the adversary system or the role
of the jury: vigorous cross-examination, presentation of contrary
evidence, and careful instruction on the burden of proof are the
traditional

and

appropriate

admissible evidence.”

means

of

attacking

shaky

but

McDowell v. Brown, 392 F.3d 1283, 1299

(11th Cir. 2004) (marks and citations omitted).
In determining the admissibility of expert testimony under
Rule 702, the Court applies a “rigorous” three-part inquiry.
United States v. Frazier, 387 F.3d 1244, 1260 (11th Cir. 2004) (en
banc).

Expert testimony is admissible if (1) the expert is

qualified to testify on the topic at issue, (2) the methodology
used by the expert is sufficiently reliable, and (3) the testimony
will assist the trier of fact.

Arthrex, Inc., v. Parcus Med.,

LLC, 2014 WL 3747598, *1 (M.D. Fla. July 29, 2014) (citing Tampa
Bay Water, 731 F.3d at 1183).

The burden of laying the proper

foundation for the admission of expert testimony “is on the party
offering the expert, and the admissibility must be shown by a
preponderance of the evidence.”

Kilpatrick v. Breg, Inc., 613

- 6 -

F.3d 1329, 1335 (11th Cir. 2010) (quoting McCorvey v. Baxter
Healthcare Corp., 298 F.3d 1253, 1256 (11th Cir. 2002)).

The

admission of expert testimony is a matter within the discretion of
the district court, which is accorded considerable leeway in making
its determination.

Frazier, 387 F.3d at 1258.

B. Factual Background
Ms. Kay has a juris doctorate and a bachelor’s degree in
organizational communications and industrial psychology.
#106-4, p. 238.)

(Doc.

She is also certified as a senior professional

in human resources from the Human Resource Certification Institute
associated with the Society for Human Resource Management.

(Id.)

For the last nineteen years, Ms. Kay has been employed as a human
resources consultant developing and implementing human resources
policies

and

procedures,

providing

training,

investigations on employment-related matters.

and

conducting

(Id. p. 239.)

Ms.

Kay is also a nationally recognized speaker on employee relations
topics and publishes articles on employment law topics as part of
her employment.

(Id.)

Ms. Kay has offered the following opinions: (1) Lee Memorial
used human resources best practices in screening and qualifying
applicants for employment; (2) Lee Memorial carefully considered
criminal

history

before

disqualifying

an

applicant,

which

is

consistent with human resources best practices; (3) Lee Memorial
met

every

standard

for

effective

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performance

management

of

Hechavarria; (4) Lee Memorial did everything expected and within
standard industry practice and care to educate, inform, practice,
and

demand

accountability

employees;

and

(5)

structure,

policies,

Lee

and

behavioral

Memorial

human

had

resource

standards

appropriate

resources,

and

from

its

staffing,
reporting

mechanisms to properly supervise and oversee employee performance
and behavior. 1

(Doc. #106-4, pp. 242-46.)

Ms. Nash has an associate degree in nursing, a bachelor’s
degree in health services management, and a master’s degree in
health

services

administration.

(Doc.

#107-4,

p.

83.)

In

addition to her education, Ms. Nash has over thirty-five years of
experience in nursing administration, accreditation, and quality
assurance.

(Id. p. 82.)

Ms. Nash has worked as a chief nursing

officer at several institutions, as well as an accreditation
director and consultant.

(Id. pp. 83-86.)

She previously worked

as an integrated nurse surveyor for the Joint Commission, and
continues

to

preparation.

consult

with

organizations

for

accreditation

(Id. pp. 82, 84.)

In her report, Ms. Nash has offered the following opinions:
(1) risk management staff and human resources staff do not collect
evidence; (2) Lee Memorial’s two day investigation of Hammer’s

1

To the extent Ms. Kay is opining on Lee Memorial’s hiring
practices, the Court notes that plaintiff’s negligent hiring claim
was dismissed with prejudice by a prior order. (Doc. #150.)

- 8 -

complaint was within the guidelines of the Centers of Medicare and
Medicaid

Services;

(3)

it

is

not

standard

practice

for

risk

managers to receive specialized training and to interview sexual
assault

victims;

and

(4)

risk

management

investigations as part of its analysis.

can

rely

on

police

(Doc. #107-3, pp. 79-80.)

In seeking to exclude Ms. Kay’s and Ms. Nash’s opinions and
testimony, plaintiff argues both Ms. Kay and Ms. Nash lack the
knowledge, skill, experience, training, or education to offer
opinions on these matters, their opinions are unreliable, and their
opinions would not assist the trier of fact.
Doc. #107, p. 7.)

(Doc. #106, p. 8;

The Court will address these arguments in turn.

C. Qualifications to Render Opinions
As noted, the first inquiry in determining whether an expert’s
testimony is admissible is determining whether the expert is
qualified to testify on the topic at issue.

Arthrex, 2014 WL

3747598, *1 (citing Tampa Bay Water, 731 F.3d at 1183).

Plaintiff

argues Ms. Kay and Ms. Nash are not qualified to offer several of
the opinions listed above.
Ms. Kay
Regarding

Ms.

Kay,

plaintiff

first

argues

her

testimony

should be excluded because Ms. Kay’s opinions regarding “best
practices” are irrelevant.

(Doc. #106, p. 9.)

Plaintiff argues

such opinions do not relate to the elements of plaintiff’s claims
and

the

“best

practice”

standard

- 9 -

is

not

the

legal

standard

applicable to the case.
Kay’s

expert

argument.

report

and

(Id. pp. 9-12.)
deposition,

Having reviewed Ms.

the

Court

rejects

this

To the extent Ms. Kay is opining that Lee Memorial’s

policies or actions were consistent with human resources “best
policy,” it is clear from the record she is referring to standard
human resource practices and industry standards.
Kay’s testimony is relevant.

Accordingly, Ms.

See Silcox v. Hunter, 2018 WL

3633251, *12 (Fla. M.D. July 31, 2018) (finding that expert could
offer opinions on whether policies complied with common industry
standards and practices and whether the defendant complied with
industry

standards

could

bear

on

the

standard

of

care

in

determining negligence). 2
Plaintiff next argues that Ms. Kay’s opinions should be
excluded because she lacks the knowledge and experience to opine
as an expert.

(Doc. #106, p. 15.)

Specifically, plaintiff argues

Ms. Kay cannot testify because she has never been employed as a
hospital
attorney.
Kay’s

human

resources

officer,

(Id. pp. 15-16.)

general

experience

in

risk

manager,

or

in-house

This argument is misplaced.

Ms.

human

her

relations,

along

with

education and training, qualify her to testify on human resource

2

Plaintiff also seeks to exclude Ms. Kay’s opinions on the
grounds they are legal conclusions and may confuse the jury. (Doc.
#106, pp. 12-15.) The Court disagrees. Ms. Kay’s opinions are
in reference to industry standards based on her knowledge and
experience and do not constitute legal conclusions.

- 10 -

topics.

Ms. Kay’s lack of experience working for a hospital goes

to the weight of her opinions, not their admissibility.

See

Anderson v. Techtronic Indus. N. Am., Inc., 2015 WL 12843836, *2
(M.D. Fla. Apr. 14, 2015) (“The qualification standard for expert
testimony is not stringent, and so long as the expert is minimally
qualified, objections to the level of the expert’s expertise go to
credibility

and

weight,

not

to

admissibility.”

(citation

omitted)); Furmanite Am., Inc. v. T.D. Williamson, Inc., 506 F.
Supp. 2d 1126, 1129 (M.D. Fla. 2007) (“An expert is not necessarily
unqualified simply because her experience does not precisely match
the matter at hand.”).
Ms. Nash
Plaintiff argues Ms. Nash is not qualified to offer her first,
third, and fourth opinions.
first

opinion,

Ms.

Nash

(Doc. #107, p. 9.)

states

in

her

report

Regarding her
that

evidence

retrieval is a function of law enforcement and securing evidence
requires “training and specific equipment that is obtained through
the police department or law enforcement.”

(Doc. #107-3, p. 79.)

She further states that “[s]pecialized training for gathering
evidence is not a core competency for Risk Management staff or
Human Resource staff.”

(Id.)

Regarding her third opinion, Ms.

Nash states that risk managers “are not usually and specifically
trained to interview victims of sexual assault because their role
is to investigate an incident and gain information,” and not to

- 11 -

determine whether a crime was committed.

(Id.)

She further

opines that Lee Memorial’s risk management department completed
its function with regards to the Hammer allegation.
80.)

(Id. pp. 79-

Finally, regarding her fourth opinion, Ms. Nash states that

“[a] police investigation is an important part of a risk management
investigation”

and

can

management’s conclusions.

be

used

“as

an

adjunct”

for

risk

(Id. p. 80.)

Plaintiff argues Ms. Nash is not qualified to offer these
three opinions because they pertain to risk management and “Ms.
Nash fails to have any qualifications that would permit her to
opine regarding risk management matters.”

(Doc. #107, p. 7-9.)

Having reviewed Ms. Nash’s report and deposition testimony, the
Court disagrees.
While Ms. Nash has never been a risk manager or director,
she has been a chief nursing officer in multiple facilities and
responsible for overseeing risk management departments.
#107-1, p. 22; Doc. #107-3, p. 75.)
she

has

gained

management

in

her
a

knowledge

hospital

(Doc.

It is in this capacity that

and

setting.

experience
(Doc.

regarding

#107-3,

p.

risk
75.)

Regardless, Lee Memorial is not offering Ms. Nash as an expert in
risk management.

Rather, Ms. Nash is being offered as an expert

“on how hospitals develop, enact, and implement policies and
procedures

designed

to

comply

with

Medicare and Medicaid standards.”

- 12 -

the

federal

government’s

(Doc. #112, p. 5.)

It is in

this role that Ms. Nash examines hospital policies and procedures,
including

risk

compliance.

management

(Id. p. 10.)

procedures,

to

determined

federal

To the extent Ms. Nash’s three opinions

relate to compliance with federal Medicare and Medicaid standards,
the

Court

finds

she

possesses

the

experience to render such opinions.

requisite

knowledge

and

See StoneEagle Servs., Inc.

v. Pay-Plus Sols., Inc., 2015 WL 3824170, *4 (M.D. Fla. June 19,
2015) (noting the “relatively low threshold for qualification” of
expert testimony).

Plaintiff’s argument that Ms. Nash does not

have sufficient experience or knowledge of risk management goes to
the weight of her opinions rather than their admissibility.

See

Anderson, 2015 WL 12843836, *2.
D. Reliability of Testimony
The

second

inquiry

for

determining

the

admissibility

of

expert testimony is whether the methodology used by the expert is
sufficiently reliable.

Arthrex, 2014 WL 3747598, *1 (citing Tampa

Bay Water, 731 F.3d at 1183).

The reliability prong is distinct

from an expert’s qualifications; thus, an expert can be qualified
but his opinions unreliable.

See Frazier, 387 F.3d at 1261.

The

Supreme Court has provided a non-exhaustive list of factors to
guide courts in assessing the reliability of expert opinions: “(1)
whether the expert’s theory can be and has been tested; (2) whether
the theory has been subjected to peer review and publication; (3)
the known or potential rate of error of the particular scientific

- 13 -

technique; and (4) whether the technique is generally accepted in
the

scientific

community.”

Kilpatrick,

(citing Daubert, 509 U.S. at 593-94).

613

F.3d

at

1335

Although these criteria are

more applicable to assessing the reliability of a scientific
expert’s opinions, they “may be used to evaluate the reliability
of non-scientific, experience-based testimony.”

Frazier, 387 F.3d

at 1262 (citing Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137,
152 (1999)).

“Exactly how reliability is evaluated may vary from

case to case, but what remains constant is the requirement that
the trial judge evaluate the reliability of the testimony before
allowing its admission at trial.”

Id.

Ms. Kay
Plaintiff argues Ms. Kay’s testimony should be precluded
because

it

disagrees.

is

unreliable.

(Doc.

#106,

p.

14.)

The

Court

Ms. Kay analyzed Lee Memorial’s policies and the

depositions in this case based on her years of experience in the
human resources field.

She also utilized guidance from the Equal

Employment Opportunity Commission, the Society for Human Resource
Management,

and

various

published

articles

background checks, and workplace safety.

regarding

hiring,

(Doc. #106-4, p. 240.)

The Court finds Ms. Kay’s opinions are sufficiently reliable. 3

3

Plaintiff argues Ms. Kay’s opinions are unreliable because
she misunderstands the law.
(Doc. #106, p. 14.)
However, Lee
Memorial is not offering Ms. Kay as a legal expert. To the extent
Ms. Kay’s legal knowledge (or lack thereof) is relevant, it would

- 14 -

See Silcox,

2018

WL

3633251,

*11

(“Eisner

explains

that

his

experience and education have made him familiar with several
publications concerning jail standards and practices, and that he
analyzed the facts of the case in accordance with those standards
and what he knowns from his education and substantial experience
in formulating his opinions.” (citations omitted)).
Finally,

plaintiff

argues

Ms.

Kay’s

opinions

should

be

excluded because she “has been precluded from testifying as an
expert witness in Federal Court and failed to admit it during her
deposition.”

(Doc. #106, p. 18.)

Even assuming the preclusion

of Ms. Kay’s testimony in a different case in a different court
was relevant to the admissibility of her testimony in this case,
plaintiff has offered no evidence as to why Ms. Kay’s opinions
were

precluded

qualified

and

in
her

the

previous

opinions

case.

sufficiently

Having

found

reliable,

Ms.

the

Kay

Court

declines to exclude her testimony based on an unrelated case from
ten years ago.
Ms. Nash
Plaintiff argues Ms. Nash’s opinions are unreliable because
they contradict Lee Memorial’s own policies and are “likely the
result of contriving an opinion to reach a particular result.”
(Doc. #107, pp. 10-13.)

Further, plaintiff states Ms. Nash’s

be an issue of credibility and not admissibility.

- 15 -

opinions “are really mere bare-bone assertions as opposed to actual
expert opinions.”

(Id. p. 11.)

The Court disagrees. 4

Regarding plaintiff’s first argument, Lee Memorial’s Sexual
Abuse Prevention and Reporting policy states “[c]are shall be taken
to preserve any physical evidence.”
#120-7, p. 64.)

(Doc. #120-6, p. 61; Doc.

Plaintiff argues this policy directly contradicts

Ms. Nash’s opinion that a hospital risk management department does
not “collect” evidence.
this

argument.

Memorial’s

policy

affirmative

(Doc. #107, p. 11.)

Plaintiff

is

regarding

preservation

collection

of

the

essentially
of

evidence.

The Court rejects
arguing

that

evidence
Lee

requires

Memorial,

contrast, argues the policy does not require such action.
#112, pp. 12-13.)

Lee

in

(Doc.

Given the different ways in which the term

“preserve” can be interpreted, the Court disagrees Ms. Nash’s
opinion is “in direct contradiction” of Lee Memorial’s policy.
Plaintiff also argues that Ms. Nash failed to utilize a
reasonable
assertions.”

methodology

and

instead

(Doc. #107, p. 11.)

argument as well.

simply

makes

“bare-bone

The Court disagrees with this

Ms. Nash examined Lee Memorial’s policies and

procedures, as well as the various depositions and documents, and

4

Plaintiff also argues the opinions are unreliable because
Ms. Nash has “previously testified in direct contrast to the
opinions that she has proffered in this case.” (Id. p. 13.) The
Court rejects this argument. To the extent Ms. Nash has provided
prior inconsistent statements relevant to the opinions she is now
asserting, those statements would go to Ms. Nash’s credibility.

- 16 -

then determined based on her experience and knowledge that Lee
Memorial “acted within standards of practice and in compliance
with the Centers for Medicare and Medicaid Services and their own
policies and procedures.”

(Doc. #107-3, p. 80.)

The Court finds

Lee Memorial has demonstrated Ms. Nash’s opinions are sufficiently
reliable.

See Silcox, 2018 WL 3633251, *11.

E. Assistance to Jury
The final criteria for the admission of expert testimony is
the requirement that the testimony assist the jury.
WL

3747598,

*1

(citing

Tampa

Bay

Water,

731

Arthrex, 2014

F.3d

at

1183).

“[E]xpert testimony is admissible if it concerns matters that are
beyond the understanding of the average lay person . . . Proffered
expert testimony generally will not help the trier of fact when it
offers nothing more than what lawyers for the parties can argue in
closing arguments.”

Frazier, 387 F.3d at 1262-63.

Ms. Kay
Plaintiff makes a brief argument that Ms. Kay’s testimony
will not assist the jury “because her opinions are not outside the
common knowledge and understanding of jurors.”

(Doc. #106, p. 8.)

Plaintiff also states that Ms. Kay’s testimony regarding standard
human resources practices will also not help the trier of fact.
(Id.)

The Court disagrees.

Ms. Kay’s opinions regarding standard

human resource practices are based on knowledge and experience
unlikely to be held by the average juror.

- 17 -

As the Court has already

determined the opinions are relevant to plaintiff’s claims, the
Court finds they will assist the jury.

See Silcox, 2018 WL

3633251, *11.
Ms. Nash
Plaintiff makes a general assertion that Ms. Nash’s opinions
will not assist the trier of fact, (Doc. #107, p. 7), but provides
no further argument or legal support for this claim.
plaintiff has waived this argument.

Accordingly,

See Wilson v. Astrue, 2012

WL 3628679, *10 (M.D. Fla. Aug. 16, 2012) (“Issues raised in a
perfunctory manner, without supporting arguments and/or citation
to authorities, are generally deemed to be waived.” (citing Cont’l
Tech. Serv., Inc. v. Rockwell Int’l Corp., 927 F.2d 1198, 1199
(11th Cir. 1991)).
III.
Plaintiff’s final argument concerns only Ms. Nash.

Plaintiff

argues Ms. Nash’s testimony should be excluded because Lee Memorial
“refused” to allow plaintiff to finish deposing Ms. Nash.
#107, pp. 15-16.)

(Doc.

Per plaintiff, Lee Memorial concluded the

deposition after roughly two hours because Ms. Nash had a scheduled
flight.

(Id. p. 15.)

Plaintiff states she was unaware there

would be a “hard time restriction” on the deposition and Lee
Memorial has refused to allow plaintiff to complete the deposition.
(Id.)

Lee Memorial responds that plaintiff was aware Ms. Nash

had a limited availability for the deposition.

- 18 -

(Doc. #112, p.

16.)

In an email exchange provided to the Court, Lee Memorial

informed plaintiff Ms. Nash would be available for a deposition on
October 22, 2018 from 8 am to 10:30 am.

(Doc. #107-9, p. 96.)

Plaintiff informed Lee Memorial she would “take that date,” having
previously told Lee Memorial each expert deposition would take “23 hours.”

(Doc. #112-2, p. 22; Doc. #112-3, p. 24.)

The Court denies plaintiff’s request to exclude Ms. Nash on
this basis.
was

The record shows that plaintiff was aware Ms. Nash

available

on

October

22nd

until

selected that date for the deposition.

10:30am

and

nonetheless

Furthermore, to the extent

plaintiff argues Lee Memorial has refused to allow Ms. Nash’s
deposition to be completed, plaintiff could have filed a motion to
compel such a result.

Rather than pursuing this avenue of relief,

plaintiff instead waited and used it as a basis to seek the
exclusion of Ms. Nash’s testimony.
such gamesmanship.
App’x

364,

371

The Court declines to reward

See Steed v. EverHome Mortg. Co., 308 Fed.

(11th

Cir.

2009)

(“[W]hile

EverHome

raised

boilerplate objections to certain discovery requests, the district
court did not abuse its discretion in declining to impose sanctions
against EverHome on this ground.

Steed could have filed a motion

to compel that would have enabled the district court to address
the problems of which he complained.

Instead, he waited and filed

a motion for sanctions, contributing to the problem.” (citation
omitted)); Devore v. Howmedica Osteonics Corp., 658 F. Supp. 2d

- 19 -

1372, 1380 n.13 (M.D. Fla. 2009) (recognizing that the Court does
not countenance gamesmanship).
Accordingly, it is hereby
ORDERED:
Defendant’s Motions to Exclude Expert Testimony (Doc. #106;
Doc. #107) are DENIED.
DONE and ORDERED at Fort Myers, Florida, this
March, 2019.

Copies:
Counsel of Record

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8th

day of