Henns v. Mony Life Insurance Company of America

Filing 45

ORDER denying as moot 42 Motion to strike. Signed by Magistrate Judge Thomas B. Smith on 9/19/2011. (Smith, Thomas)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
OCALA DIVISION
THERESA HENNS,
Plaintiff,
v.

Case No. 5:11-cv-55-Oc-37TBS

MONY LIFE INSURANCE COMPANY OF
AMERICA,
Defendant.
______________________________________
ORDER
Pending before the Court is Defendant Mony Life Insurance Company of
America’s Motion to Strike Plaintiff’s Designation of Expert Witnesses and Preclude
Expert Testimony at Trial. (Doc. 42). In its Motion, Defendant seeks to strike as
untimely Plaintiff’s designation of Bill Hager as an expert witness and bar his testimony
at trial. There is no dispute that Plaintiff disclosed Mr. Hager on August 2, 2011, after
Plaintiff’s expert disclosure deadline.1
In response, Plaintiff contends that if defense counsel had complied with Rule
3.01(g) and conferred with opposing counsel before filing the instant motion, he would
have learned that Mr. Hager’s disclosure was “not an official designation under
Fed.R.Civ.P. 26(a)(2)(B)” and that he is a “rebuttal witness to Defendant/CounterPlaintiff’s expert if one is properly disclosed.” (Doc. 43). According to Plaintiff, Mr

1

Pursuant to the Case Management Report, Plaintiff’s expert disclosure deadline was July 1,
2011. (Doc. 14). The parties subsequently agreed to an extension of this deadline until July 15, 2011.
(Doc. 42, Exhibit A).

Hager will provide expert testimony in support of Plaintiff’s defenses to Defendant’s
counterclaim -- and not in support of Plaintiff’s case in chief.
After reading the Motion and response thereto, the Court is left to wonder why
this Motion is pending before the Court. First, had defense counsel conferred with
opposing counsel before filing the instant motion, they could have resolved this dispute
without involving the Court. Counsel is reminded of their ongoing obligations under
Local Rule 3.01(g). Second, assuming (as Plaintiff represents) that Mr. Hager is a
rebuttal expert, it necessarily follows that he need not be disclosed unless and until
Defendant discloses an expert witness. However, based on the record before the
Court, it appears that Defendant has not designated any expert witnesses and its time
for doing so has passed.2
Accordingly, Defendant Mony Life Insurance Company of America’s Motion to
Strike Plaintiff’s Designation of Expert Witnesses and Preclude Expert Testimony at
Trial. (Doc. 42) is due to be DENIED as MOOT.
IT IS SO ORDERED.
DONE AND ORDERED in Ocala, Florida, on September 19, 2011.

Copies to:
All Counsel

2

Pursuant to the parties’ Case Management Report, Defendant’s deadline for disclosure of expert
reports was August 1, 2011. (Doc. 14). It appears, however, that the parties agreed to an extension of
this deadline until August 15, 2011. (Doc. 42, Exhibit A).

2