Blakely v. Safeco Insurance Company of Illinois
Filing
37
ORDER granting 31 Motion to Strike Plaintiff's Expert Witnesses for Insufficient Rule 26 Disclosures. Signed by Magistrate Judge Thomas B. Smith on 3/20/2014. (Smith, Thomas)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
GARY C. BLAKELY,
Plaintiff,
v.
Case No. 6:13-cv-796-Orl-37TBS
SAFECO INSURANCE COMPANY OF
ILLINOIS,
Defendant.
______________________________________
ORDER
This case comes before the Court without oral argument on Defendant
SAFECO Insurance Company of Illinois’ Motion to Strike Plaintiff Gary Blakely’s
Expert Witnesses for Insufficient Rule 26 Disclosures (Doc. 31).
Defendant issued a policy of motorcycle insurance to Plaintiff. (Doc. 2, ¶ 4).
The policy provides uninsured/underinsured motorist coverage in the amount of
$50,000 for each person and $100,000 for each accident. (Id., p. 11). On September
30, 2012, Plaintiff was injured in a motor vehicle accident while operating his
motorcycle. (Id., ¶¶ 5-6). The owner and operator of the other vehicle were
underinsured when the accident occurred. (Id., ¶¶ 5-6). Count I of Plaintiff’s
complaint seeks a declaratory judgment that the policy provides stacked
uninsured/underinsured motorist coverage for the damages he sustained in the
accident. (Id.). (Id., ¶¶ 11-13). Count II is an action for breach of the policy. (Id., ¶¶
18-19). Count III alleges that Defendant violated § 624.155 and § 626.9541 Florida
Statutes by, inter alia, misrepresenting pertinent facts about the policy, denying
Plaintiff’s claim without conducting a reasonable investigation, failing to provide a
reasonable explanation in writing for the denial of the claim, and failing to attempt, in
good faith, to pay Plaintiff’s claim under the uninsured/underinsured portion of the
policy . (Id., ¶¶ 20-28).
The Court entered a Case Management and Scheduling Order (“CMSO”)
requiring Plaintiff to disclose his expert reports by February 3, 2014, and for
Defendant to disclose its expert reports by February 19, 2014. (Doc. 20). The CMSO
provides that on or before the dates for “the disclosure of expert reports, the party
shall fully comply with F ED. R. CIV. P. 26(a)(2) and 26(e). Expert testimony on direct
examination at trial will be limited to the opinions, bases, reasons, data, and other
information disclosed in the written expert report disclosed pursuant to this Order.
Failure to disclose such information may result in the exclusion of all or part of the
testimony of the expert witness.” (Id., at 3). The case is set for jury trial during the
term beginning November 3, 2014. (Id., at 2).
Plaintiff served his expert witness disclosure on February 3, 2014. (Doc. 30).
In addition to their contact information, Plaintiff provided the following information
about his experts:
Christian Schuetz, MD (attending)
Expected Testimony: nature and extent of injuries and treatment in the hospital
Sean Dakshawl, DO
Expected Testimony: nature and extent of injuries/treatment
Brad McCollom, DO
Expected Testimony: nature and extent of injuries/treatment
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Igor Genov, DO
Expected Testimony: Dr. Genov is expected to testify concerning the results of
the radiology studies performed at Lawnwood Regional Medical Center
Indian River County Advanced Life Support
Expected Testimony: care at accident scene/air transport Necessary
David Feldman, MD
Expected Testimony: results of lumbar and thoracic MRI Studies conducted on
01/16/13
Joseph Slattery, MD
Expected Testimony: nature and extent of injuries and treatment
Joseph Flinn, DC
Expected Testimony: nature and extent of injuries and Treatment
Ryan Wood, MD
Expected Testimony: nature and extent of injuries and Treatment
Aaron Smith, DO
Expected Testimony: nature and extent of injuries and neurosurgical treatment
Jose A. Alvarez, III, MD
Expected Testimony: nature and extent of injuries and Pain management
treatment
John Donovan, MD
Expected Testimony: nature and extent of injuries and Pain management
treatment
Representative, Florida Office of Insurance Regulation
Expected Testimony: approval status of UM forms
(Doc. 30).
On February 19, 2014, Defendant motioned the Court to strike all of Plaintiff’‘s
experts and not permit them to testify because Plaintiff failed to comply with F ED. R.
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CIV. P. 26(a)(2)(B)(i)-(vi).1 (Doc. 31). As the moving party, Defendant has the initial
burden of showing a valid basis to strike Plaintiff’s expert witness disclosures. In re
Denture Cream Prod. Liab. Litig., Case No. 09-2051-MD, 2012 WL 5199597, at *4
(S.D. Fla. Oct. 22, 2012). Plaintiff, as the party which failed to produce full written
expert reports, bears the burden of demonstrating that under Rule 26(a)(2)(B), written
reports are not required. Id.
“If a party fails to provide information ... as required by [Rule 26(a)(2)(B)], the
party is not allowed to use that information or witness to supply evidence ... at trial,
1
Federal Rule of Civil Procedure 26(a)(2)(B), (E) provides:
(2) Disclosure of Expert Testimony.
(A) In General. In addition to the disclosures required by Rule 26(a)(1), a party must disclose to the
other parties the identity of any witness it may use at trial to present evidence under Federal Rule of
Evidence 702, 703, or 705.
(B) Witnesses Who Must Provide a Written Report. Unless otherwise stipulated or ordered by the
court, this disclosure must be accompanied by a written report--prepared and signed by the witness--if
the witness is one retained or specially employed to provide expert testimony in the case or one whose
duties as the party's employee regularly involve giving expert testimony. The report must contain:
(i) a complete statement of all opinions the witness will express and the basis and reasons for
them;
(ii) the facts or data considered by the witness in forming them;
(iii) any exhibits that will be used to summarize or support them;
(iv) the witness's qualifications, including a list of all publications authored in the previous 10
years;
(v) a list of all other cases in which, during the previous 4 years, the witness testified as an
expert at trial or by deposition; and
(vi) a statement of the compensation to be paid for the study and testimony in the case.
....
(E) Supplementing the Disclosure. The parties must supplement these disclosures when required
under Rule 26(e).
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unless the failure was substantially justified or is harmless.” F ED. R. CIV. P. 37(c)(1).
“The district court has broad discretion in deciding whether a failure to disclose
evidence is substantially justified or harmless under Rule 37(c)(1).” Engle v. Taco Bell
of America, Inc., Case No. 8:09-cv-2102-T-33TBM, 2011 WL 883639, at *1 (M.D. Fla.
Mar. 14, 2011) (quoting Bane v. Breathe Easy Pulmonary Servs., Inc., Case No. 8:06cv-40-T-33MAP, 2009 WL 92826 (M.D. Fla. Jan. 14, 2009)).
Plaintiff failed to provide expert reports for Indian River County Advanced Life
Support and the Representative, Florida Office of Insurance Regulation. And, in his
response to the motion to strike he did not provide any reasons why these witnesses
should not be stricken. Accordingly, these witnesses are properly stricken from
Plaintiff’s expert witness list.
Plaintiff represents that all of his medical experts are treating physicians, none
of whom were retained or specially employed to provide expert testimony in this case.
(Doc. 33, p. 4). Therefore, he argues, Rule 26(a)(2)(B) does not apply to any of these
health care professionals. “In determining whether a Rule 26(a)(2)(B) report is
required, the label of ‘treating physician’ is irrelevant; instead, the determination turns
on the substance of the physician’s testimony.” In re Denture Cream Products, 2012
WL 5199597, at *4 (quoting Singletary v. Stops, Inc., No. 6:09-cv-1763-Orl-19KRS,
2010 WL 3517039, at * 6 (M.D. Fla. Sept. 7, 2010)).
A physician who supplies an opinion procured directly from treatment is not
subject to the expert witness disclosure requirements in Rule 26(a)(2)(B). Cruz v.
United States, Case No. 12-21518-CIV, 2013 WL 395460, at *4 (S.D. Fla. Jan. 31,
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2013); Southard v. State Farm Fire and Cas., Co., Case No. 4:11-cv-243, 2013 WL
209224, at *3 (S.D. Ga. Jan. 17, 2013); The Provident Bank v. Mattson, Case No.
8:10-cv-1338-T-33TBM, 2011 WL 1576582, at *2 (M.D. Fla. April 26, 2011); Bynum v.
MVM, Inc., 241 F.R.D. 52, 53 (D.C. 2007). But, if a health care professional is asked
to give any additional opinions, beyond those procured directly from treatment, then
for those additional opinions to be admissible, Plaintiff must first provide the full
written disclosures required by Rule 26(a)(2)(B).
The Court accepts Plaintiff’s representation that all eleven health care
professionals listed in his expert witness disclosure are treating physicians.
Accordingly, they may testify to their opinions, based upon their personal
observations, made while treating Plaintiff. Any additional opinions Plaintiff might
seek to elicit from these health care professionals are inadmissible because Plaintiff
has failed to provide the full written disclosures required by Rule 26(a)(2)(B). See
Fed. R. Civ. P. 37(c)(1) (“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 . . .”); see also
Goodman v. Staples The Office Superstore, LLC, 644 F.3d 817, 826 (9th Cir. 2011)
(requiring a written report from treating physicians who give expert testimony beyond
the scope of the treatment rendered and who review information provided by
attorneys in rendering their opinions); Southard v. State Farm Fire and Cas. Co., 2013
WL 209224, at *3 n.1.
Although the disclosed health care professionals are exempt from Rule
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26(a)(2)(B)’s written reporting requirements, Plaintiff was still required to comply with
Rule 26(a)(2)(C). Plaintiff timely furnished “the subject matter on which [each] witness
is expected to present evidence under Federal Rule of Evidence 702, 703, or 705.”
See (Doc. 30). He argues that the requirement that he provide “a summary of the
facts and opinions to which [each] witness is expected to testify,” was satisfied by his
Civil Remedy Notice of Insurer Violations filed November 12, 2012 (the “Notice”).
(Doc. 33 at 2). The Notice informed Defendant that Plaintiff’s “injuries include multiple
vertebral fractures in his thoracic spine at T6, T7, T8, T9 (right transverse process)
and T7, T8 (anterior column) as well right rib fractures at 5, 6, 7, 8, 9, 10 & 11,” and
that Plaintiff remains under a doctor’s care. (Id.); (Doc. 1-1 at 19-21). The Notice
does not summarize the facts and opinions about which any of Plaintiff’s health care
professional witnesses are expected to testify. Plaintiff has not complied with Rule
26(2)(a)(C)(ii), and he has not offered any excuse or justification for his failure to
comply with the Rule.
Defendant argues that the insufficient disclosures are prejudicial and render it
unable to “adequately prepare for depositions and trial.” (Doc. 31 at 5). The Court
agrees that without adequate disclosures, Defendant is unable to “know what the
basis of the thirteen experts’ testimony will be and cannot evaluate the conclusions
made by each expert.” (Id.). Accordingly, all of Plaintiff’s remaining expert witnesses
will be stricken.
The issue is whether Plaintiff’s failure to obey Rule 26(2)(a)(C)(ii) has created a
situation that cannot be cured? The answer is “No.” There is still sufficient time
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before trial for Plaintiff to amend his expert witness disclosures without substantial
harm to Defendant. If Plaintiff is allowed to amend his disclosures to comply with Rule
26(2)(a)(C)(ii), and the discovery deadline is extended, that will remove any potential
prejudice to Defendant while still allowing the case to go to trial on the scheduled trial
date.
Therefore, it is ORDERED that Defendant SAFECO Insurance Company of
Illinois’ Motion to Strike Plaintiff Gary Blakely’s Expert Witnesses for Insufficient Rule
26 Disclosures. (Doc. 31) is GRANTED and:
1. All of the witnesses listed on Plaintiff’s Expert Witness List (Doc. 30) are
STRICKEN.
2. Plaintiff shall have 14 days from the entry of this Order to amend his Rule
26 expert disclosures for all witnesses except Indian River County Advanced Life
Support and the Representative, Florida Office of Insurance Regulation.
3. Expert witnesses Indian River County Advanced Life Support and the
Representative, Florida Office of Insurance Regulation are stricken without leave to
amend.
4. The discovery deadline is extended to May 5, 2014. The extension of the
discovery deadline may not be cited as grounds to extend any other deadline in the
case and discovery conducted after the deadline for filing dispositive and Daubert
motions may not be used for any purpose in connection with any dispositive or
Daubert motions.
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DONE AND ORDERED in Orlando, Florida, on March 20, 2014.
Copies to all Counsel
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