Jones v. Discount Auto Parts, LLC
Filing
73
ORDER denying 25 Motion for summary judgment; denying 43 Motion to exclude causation testimony of Plaintiff's treating physicians; denying 44 Motion for summary judgment; adopting in part 58 Report and Recommendations; and granting in part and denying in part 65 Motion in limine. Signed by Judge Roy B. Dalton, Jr. on 4/19/2017. (SN)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
LOLA JONES,
Plaintiff,
v.
Case No. 6:16-cv-138-Orl-37KRS
DISCOUNT AUTO PARTS, LLC,
Defendant.
_____________________________________
ORDER
The instant action arises from an alleged slip-and-fall accident, which occurred at
an Advance Auto Parts store operated by Defendant. (See Doc. 15; Doc. 44, p. 1.)
Presently, Defendant has moved for summary judgment on two separate grounds—lack
of breach and causation. (Docs. 25, 44.) In tandem with the latter motion, Defendant has
also moved for the exclusion of causation testimony from Plaintiff’s treating physicians
(Doc. 43), which U.S. Magistrate Judge Karla R. Spaulding recommends that the Court
deny (Doc. 58). Defendant objects to the Report and Recommendation. (Doc. 60.)
Most recently, Defendant filed a motion in limine with respect to proffered
hearsay evidence, the disputed physician causation testimony, and evidence of future
medical expenses. For the reasons set forth below: (1) Defendant’s motions for summary
judgment are due to be denied; (2) Magistrate Judge Spaulding’s Report and
Recommendation is due to be adopted in part; (3) Defendant’s motion to exclude
causation evidence is due to be denied; and (4) Defendant’s motion in limine is due to be
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granted in part and denied in part.
I.
FACTUAL BACKGROUND 1
On the evening of August 14, 2012, Plaintiff Lola Jones visited an Advance Auto
Parts store located at 10473 Moss Park Road in Orlando, Florida. (See Doc. 1, ¶ 2; see also
Doc. 44-1, pp. 4, 9, 13.) After purchasing some glue and a bottle of Dr. Pepper, Plaintiff
walked toward the exit. (See Doc. 44-1, p. 3.) Halfway between the counter and the front
door, Plaintiff’s feet slipped out from underneath her, and she fell to the ground. (Id.
at 4, 6, 16.) Due to the speed at which she fell, she did not have time to drop the items
she was carrying, catch herself, or brace herself for the fall. (Id. at 6.) Consequently,
Plaintiff fell on her right side, hitting her right elbow and anklebone on the ground. (Id.
at 16.)
Following the fall, Plaintiff was approached by two store employees, who were
later identified as Pedro Hernandez and Alejandro Acevedo (“Alex”) (collectively,
“Employees”). (See Doc. 44-1, pp. 8–9, Doc. 44-3, p. 4.) Surprised, shocked, and
embarrassed, Plaintiff quickly got to her feet, told the Employees that she was “okay,”
and declined further assistance. (Doc. 44-1, pp. 9–10.). But in truth, Plaintiff was already
experiencing pain in her hips. (Id. at 10.) The next day, due to worsening pain in her hip
and ankle, Plaintiff visited Central Florida Injury Southwest after corresponding with a
paralegal. (Id. at 10–11.)
The following facts are taken from the evidence submitted to the Court and
viewed in the light most favorable to Plaintiff, the nonmoving party. See Lage v. Ocwen
Loan Servicing LLC, 839 F.3d 1003, 1008–09 (11th Cir. 2016).
1
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At the time of the accident, the store floor was open without obstructions, and
Plaintiff does not recall seeing any merchandise to her right, to her left, or in front of
her. (Doc. 44-1, pp. 4–5.) She did not know why she fell, she did not feel anything wet or
sticky on the floor, and she did not see anything on her shoes or clothing. (Id. at 14, 17.)
Nonetheless, Plaintiff later reported that she had slipped on a substance known
as “Tire Wet” or “Tire Shine” based on information told to her by her husband, William
Joseph Hamilton (“Hamilton”), who had spoken with Alex on the phone the day of the
accident. (Doc. 44-1, p. 15, 18; see also Doc. 44-2, p. 5.) During this conversation, Alex
told Hamilton that: (1) he had spilt Tire Wet on the floor; (2) “they tried to buff it out”;
(3) “they watched a few people slip, but not fall”; and (4) Plaintiff had fallen in the
location
that
the
Tire
Wet
had
been
spilled
(collectively,
“Employee
Statements”)). (Doc. 44-2, p. 4.)
In light of the foregoing, Plaintiff filed the instant negligence action in state court
on December 7, 2015. (Doc. 2.) Defendant later removed the action to this Court,
asserting the existence of diversity jurisdiction. (Doc. 1.) In the operative Complaint,
Plaintiff alleges that Defendant: (1) carelessly and negligently maintained the premises
in an unsafe and dangerous condition; (2) failed to maintain the premises in a
reasonably safe and proper condition; (3) negligently failed to warn Plaintiff of a
dangerous condition on the premises of which it had greater knowledge; and (4) caused
Plaintiff to slip and fall, resulting in substantial and permanent physical injury to her
back, neck, and right ankle. (Doc. 15, ¶¶ 13, 14, 20.)
Defendant now moves for summary judgment. (Docs. 43, 44.) Specifically,
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Defendant argues that there is a lack of evidence demonstrating breach and causation.
(Docs. 25, 44.) Defendant also moves for the exclusion of: (1) opinion testimony
concerning causation by Plaintiff’s treating physicians; (2) the Employee Statements;
and (3) evidence of Plaintiff’s future medical expenses. (Docs. 43, 65.) 2 These motions
have been fully briefed. Additionally, on March 13, 2017, Magistrate Judge Spaulding
issued a Report recommending that the Court deny Defendant’s motion to exclude
physician testimony as to causation. (Doc. 58 (“R&R”).) Defendant objected. (Doc. 60.)
Given the breadth of disagreement raised in these motions, the Court will begin
by discussing the evidentiary disputes with respect to breach and then turn to the issues
regarding causation. The Court will then address Defendant’s request to exclude
evidence of future damages.
II.
A.
DUTY AND BREACH
Legal Standards
1.
Motion for Summary Judgment
Summary judgment is appropriate only “if the movant shows that there is no
genuine dispute as to any material fact and that the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). As
to issues for which the non-movant would bear the burden of proof at trial, the movant
may either: (1) point out an absence of evidence to support the nonmoving party’s case;
or (2) provide “affirmative evidence demonstrating that the nonmoving party will be
Though directed to do so on or before April 13, 2016 (Doc. 62, p. 2), Plaintiff did
not respond to the motion in limine filed at Doc. 65.
2
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unable to prove its case at trial.” U.S. v. Four Parcels of Real Prop. in Green & Tuscaloosa
Cntys. in State of Ala., 941 F.2d 1428, 1438 (11th Cir. 1991) (citing Celotex Corp., 477 U.S.
at 325).
“The burden then shifts to the non-moving party, who must go beyond the
pleadings and present affirmative evidence to show that a genuine issue of material fact
exists.” Porter v. Ray, 461 F.3d 1315, 1320 (11th Cir. 2006) (citing Fitzpatrick v. City of
Atlanta, 2 F.3d 1112, 1115–17 (11th Cir. 1993)). “A factual dispute is genuine ‘if the
evidence is such that a reasonable jury could return a verdict for the nonmoving
party.’” Four Parcels, 941 F.2d at 1437 (quoting Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986)).
The Court must view the evidence and all reasonable inferences drawn from the
evidence in the light most favorable to the non-movant. Battle, 468 F.3d at 759.
However, “[a] court need not permit a case to go to a jury . . . when the inferences that
are drawn from the evidence, and upon which the non-movant relies, are
‘implausible.’” Mize v. Jefferson City Bd. of Educ., 93 F.3d 739, 743 (11th Cir. 1996).
2.
Premises Liability 3
Premises liability refers to “[a] landowner’s or landholder’s tort liability for
conditions or activities on the premises.” Premises Liability, BLACK’S LAW DICTIONARY
(9th ed. 2009). To sustain a premises liability action predicated on negligence, the
“Federal courts sitting in diversity apply the substantive law of the state in
which the case arose.” Pendergast v. Sprint v. Nextel Corp., 592 F.3d 1119, 1132
(11th Cir. 2010). As such, the Court will review Plaintiff’s negligence claim in
accordance with Florida law.
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plaintiff must establish:
(1)
[the] [e]xistence of a duty on the part of the defendant
to protect the plaintiff from the injury or damage of
which he complains;
(2)
[the] [f]ailure of the defendant to perform that duty;
and
(3)
injury or damage to plaintiff proximately caused by
such failure.
See Lake Parker Mall, Inc. v. Carson, 327 So. 2d 121, 123 (Fla. 2d DCA 1976).
Under Florida law, landowners owe different duties of care based on the status
of the person on their premises. See Seeberg v. Steak N’ Shake Operations, Inc.,
154 F. Supp. 3d 1294, 1299 (M.D. Fla. 2015). The highest duties are owed to invitees, id.
at 1299–1300, which include public invitees and business visitors, see Post v. Lunney,
261 So. 2d 146, 148 (Fla. 1972).
“A business visitor is a person who is invited to enter or remain on land for a
purpose directly or indirectly connected with business dealings with the possessor of
the land.” Id. (quoting RESTATEMENT (SECOND)
OF
TORTS § 332). Landowners owe the
following duties to invitees: (1) first “to use ordinary care in keeping the premises in a
reasonably safe condition”; and (2) second, “to give timely warning of latent or
concealed perils which are known or should be known by the owner or occupier.” Krol
v. City of Orlando, 778 So. 2d 490, 492 (Fla. 5th DCA 2001).
But “[t]he mere fact that a person falls in a store does not automatically mean
that the store is liable.” Valles v. Target Corp., No. 14-60723-Civ-Scola, 2015 WL 1640326,
at *1 (S.D. Fla. Apr. 9, 2015) (citing Bucholtz v. City of Jacksonville, 72 So. 2d 52, 53
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(Fla. 1954)). Rather, the plaintiff must show that the store was negligent by proving that
“the store was aware, or should have been aware, of the dangerous condition that
caused her injuries.” Id. To this end, the plaintiff must demonstrate actual or
constructive
notice.
Brooks
v.
Phillip
Watts
Enters.,
Inc.,
560 So. 2d 339,
341
(Fla. 1st DCA 1990). The latter may be established by circumstantial evidence showing
that: (1) “the dangerous condition existed for such a length of time that in the exercise of
ordinary care, the defendant should have known of the condition”; or (2) “the condition
occurred with regularity and was therefore foreseeable.” Id.
B.
Analysis
It is undisputed that Plaintiff was an invitee at the time of the accident, as she
entered the store to purchase items from Defendant’s business. Thus, Defendant owed
Plaintiff a duty to maintain its premises in a reasonably safe condition and a duty to
timely warn her of hidden dangers of which it had, or should have had, notice. Krol,
778 So. 2d at 492.
Defendant argues that it is entitled to summary judgment because Plaintiff
cannot show that it breached its duty of care. (Doc. 44, p. 1.) Relying on Plaintiff’s
deposition testimony, Defendant points out that: (1) she did not know why she had
fallen; (2) she did not see or feel any foreign substance on the floor; and (3) there was
nothing on her shoes or clothing after the fall. (Id. at 2 (citing Doc. 44-1).) Hence
Defendant contends that Plaintiff has failed to present a prima facie case of negligence.
(Id.) The Court disagrees. Critical to this conclusion is the Court’s determination that the
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Employee Statements are admissible, as they are excluded from the definition of
hearsay.
Hearsay is defined as a statement that: (1) the declarant does not make while
testifying at the current trial or hearing; and (2) a party offers in evidence to prove the
truth of the matter asserted therein. Fed. R. Evid. 801(c). It is not admissible unless a
federal statute, the Federal Rules of Evidence, or other rules prescribed by the
U.S. Supreme Court provide otherwise. Fed. R. Evid. 802 (“Hearsay Rule”). Preliminary
questions about the admissibility of such evidence are decided by the Court.
Fed R. Evid. 104(a).
The Employee Statements unquestionably fall within the hearsay definition.
First, neither party has provided the Court with testimony from the declarant, Alex,
concerning such statements. Second, Plaintiff intends to offer such evidence to prove
the truth of its contents—namely, that Defendant’s employees were aware that the floor
was slippery because they had spilled Tire Wet earlier that day and watched multiple
customers slip in that area. Thus, the Employee Statements are presumptively
inadmissible under the Hearsay Rule. But because they are excluded from the definition
of hearsay as a vicarious admission, they are admissible. 4
The Court, however, rejects Plaintiff’s attempt to characterize the Employee
Statements as a statement against interest under FRE 804(b)(3)’s hearsay exception. In
pertinent part, a statement against interest is one that “a reasonable person in the
declarant’s position would have made only if the person believed it to be true because,
when made, it was so contrary to the declarant’s propriety or pecuniary interest or had
so great a tendency to invalidate the declarant’s claim against someone else or to expose
the declarant to civil or criminal liability.” Fed. R. Evid. 804(b)(3)(A). Admittedly, it
would be difficult to imagine a statement more qualifying as a statement against
4
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A vicarious admission is a statement offered against an opposing party that was
made by the party’s agent or employee on a matter within the scope of that relationship
while it existed. Fed. R. Evid. 801(d)(2)(D). The Court must consider the statement in
determining whether it falls within this exclusion, but it does not by itself establish the
scope of the employment relationship. Fed. R. Evid. 801(d)(2). In other words, as made
clear in United States v. Portsmouth Paving Corporation, 694 F.2d 312, 322 (4th Cir. 1982)—
a case cited by both parties—though “specific authorization to speak need not be
shown,” to trigger the exclusion, it is incumbent upon the party offering the hearsay
statement to establish by independent evidence, either circumstantial or direct, that the
scope of the declarant’s agency included the subject matter of the statement. Id. at 321 &
n.12.
interest than the one attributed to Alex by Hamilton—except for one glaring omission:
before the Court may assess whether the Employee Statements fall within this category,
Plaintiff must first prove that the declarant is unavailable, United States v. Acosta,
769 F.2d 721, 722, 733 (11th Cir. 1985) (citing United States v. King, 713 F.2d 627
(11th Cir. 1983)). Hearsay is rejected as admissible testimony because it is inherently
unreliable, not being subject to the crucible of cross examination. Exceptions to the
Hearsay Rule recognize that this inherent unreliability can be overcome in certain
circumstances. Specifically, the 804(b)(3)(A) exception acknowledges that when an
agent speaking within the scope of his agency makes a statement against the interest of
his principal, the truth of the statement becomes more reliable. If the declarant is not
available to be confronted with the statement, it can be admitted as an exception to the
Hearsay Rule. Not only has Plaintiff failed to offer any evidence establishing that Alex
is unavailable, but Defendant has submitted evidence demonstrating that it made Alex
available for deposition prior to the close of discovery (see Doc. 50-1, p. 2). The
Committee notes to the 1974 enactment of FRE 804 make clear that there must be an
attempt made to depose a witness (as well as to seek his attendance) as a precondition
to the witness being deemed unavailable. Having failed to establish this essential
element, Plaintiff has not met her burden of bringing the Employee Statements within
this exception.
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Though slim, 5 there is sufficient independent evidence in the record to establish
the scope of Alex’s employment relationship with Defendant. Importantly, Defendant
identified Alex as a salesperson in an interrogatory answer. (Doc. 44-3, p. 4.) Given
Plaintiff’s testimony that she fell between the sales counter and the store exit,
Defendant’s identification of Alex as a salesperson is enough to demonstrate that the
Employee Statements fell within the scope of his employment, as it is clear that a
salesperson’s job performance would include the observation of occurrences that take
place on the sales floor.6 Hence the Employee Statements are admissible as vicarious
admissions.
Plaintiff’s theory of the case is that Tire Wet was spilled on the floor, improperly
cleaned, and Defendant had knowledge of the resultant dangerous condition yet failed
to warn its customers. (See Doc. 15, ¶¶ 6–11.) This is supported by the Employee
Statements in which Alex admitted that he spilled the substance on the floor,
Defendant’s employees “tried to buff it out,” and thereafter observed multiple people
slip in that area. These statements create a genuine issue of material fact as to actual and
constructive notice on the part of Defendant, which is all that is required to raise a
It is somewhat inexplicable that Plaintiff would fail to depose Alex when her
entire case hangs in the balance of the Court finding the Employee Statements
admissible under the applicable hearsay exclusion. This slender reed of independent
evidence to demonstrate the scope of Alex’s employment and thus avoid summary
judgment seems a precarious approach, at best.
6 Cf. Wilkinson v. Carnival Cruise Lines, Inc., 920 F.2d 1560 (11th Cir. 1991)
(concluding that a cabin steward’s statements regarding prior notice of a dangerous
condition on a cruise ship were inadmissible based, in part, on the plaintiff’s failure to
rebut an affidavit submitted by the defendant stating that room stewards were
restricted to crew areas of the ship and not permitted to be in the passenger area near
where the condition causing injury to the plaintiff was located).
5
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triable issue with respect to breach. Thus, Defendant’s motion for summary judgment
as to breach is due to be denied.
III.
CAUSATION
Turning now to the issue of causation, Defendant’s motions argue that:
(1) Plaintiff inadequately disclosed the testimony of her treating physicians during
discovery; (2) such testimony should be excluded under Federal Rule of Civil
Procedure 37; and (3) in the absence of medical causation testimony, the Court must
grant summary judgment in favor of Defendant. (See Docs. 25, 43.) To place these
motions in context, the Court will first provide the procedural history and the relevant
authority.
A.
Procedural History
On March 30, 2016, the Court issued a Case Management and Scheduling Order
(“CMSO”) (Doc. 20), which set: (1) an April 8, 2016 deadline for the parties’ mandatory
initial disclosures; (2) an August 26, 2016 deadline for Plaintiff’s expert witness
disclosures and reports; (3) a September 23, 2016 deadline for Defendant’s expert
witness disclosures and reports; (4) an October 21, 2016 deadline for the completion of
discovery; and (5) a November 23, 2016 deadline for the submission of dispositive and
Daubert 7 motions (id. at 3).
Pursuant to the applicable deadline, Plaintiff served her initial disclosures on
Defendant on April 8, 2016. (Doc. 36, pp. 5–8 (“Initial Disclosures”).) The Initial
Disclosures included a section entitled “Medical Providers,” which listed the names,
7 Daubert
v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993).
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addresses, and phone numbers of twelve medical practices where Plaintiff was treated—
save for a “Gerald B. Bornstein, DPM,” the sole physician identified by name. (See id.
at 6–7.) In addition, Plaintiff attached a medical chronology to her Initial Disclosures,
summarizing the treatment she received at these locations (“Medical Chronology”) (see
Doc. 36, pp. 9–24) and provided Defendant with a CD containing her medical records
(id. at 7).
The following month, Magistrate Judge Spaulding held a telephonic preliminary
pretrial conference (“PPTC”) on May 16, 2016. (Docs. 22, 23.) At the PPTC, the
magistrate cautioned counsel that “discovery disputes should be resolved within the
discovery period rather than being presented initially to the presiding District Judge
after the discovery period close[s].” (Doc. 58, p. 2.)
Despite this warning, four days after Plaintiff’s August 26, 2016 deadline to
disclose her expert witnesses and reports, Defendant moved for summary judgment on
the ground that Plaintiff could not prove medical causation without offering a medical
expert to support her claims. (Doc. 25 (“Causation MSJ”).) In her response, filed
October 11, 2016, Plaintiff maintained that her Initial Disclosures and Medical
Chronology “listed all of her treating physicians as well as summaries of her
treatment.” (Doc. 36, p. 3.) Closer examination of Plaintiff’s response reveals that
Plaintiff appeared to be under the mistaken impression that the Causation MSJ sought
to exclude the testimony of Plaintiff’s treating physicians pursuant to a Daubert
challenge.
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In any event, Defendant did not file a reply in support of its Causation MSJ.
Rather, in the weeks that followed, Defendant: (1) filed a second motion for summary
judgment after obtaining leave of Court, this time on the issue of breach (Docs. 38, 39,
44); and (2) moved to exclude any causation opinions rendered by Plaintiff’s treating
physicians due to the lack of an expert disclosure (Doc. 43 (“Motion to Exclude”)). In
response to the Motion to Exclude, Plaintiff argued that: (1) she was not required to file
an expert report under Rule 26(a)(2)(B) because her treating physicians acquired their
testimony during treatment; (2) her Initial Disclosures, which listed her medical
providers and contained her Medical Chronology, satisfied her obligations under
Rule 26(a)(2)(C); and (3) any prejudice suffered by Defendant was caused by their
failure to depose Plaintiff’s treating physicians. (Doc. 47.)
In light of these outstanding discovery disputes, Magistrate Judge Spaulding
held a discovery compliance hearing on February 17, 2017 (“Discovery Hearing”).
(Docs. 51, 53, 54.) Prior to the hearing, the parties were directed to submit a joint notice
of discovery topics on which they disagreed. (Doc. 51.) The subsequently submitted
notice indicated that Plaintiff sought to take the depositions of additional fact
witnesses—including David Martinez (“Mr. Martinez”), store manager of the Orlando
Advance Auto Parts store where Plaintiff had fallen, and Alex, the employee who
allegedly admitted to spilling “Tire Wet” on the store floor the day of Plaintiff’s
accident. (Doc. 52.) Also at issue was Plaintiff’s failure to timely supplement her
discovery responses and disclosures concerning subsequent medical care and other
accidents. (See id.)
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At the Discovery Hearing, Plaintiff revealed the names of the treating physicians
from whom she intended to elicit causation testimony: (1) David Peterson, M.D., of
Whitesands Orthopedic; (2) Scott S. Katzman, M.D., of Advance Orthopedics and Pain
Management, PL; and (3) Jerold Fadem, M.D., of Central Florida Injury East, Inc.
(collectively, “Treating Physicians”) (Doc. 58, p. 2.) The Undersigned later referred the
Motion to Exclude to Magistrate Judge Spaulding, who issued the pertinent R&R on
March 13, 2017. (Doc. 58.)
In doing so, Magistrate Judge Spaulding found that: (1) Plaintiff did not serve
clearly identified expert witness disclosures on Defendant under Rule 26(a)(2)(B) or
(a)(2)(C); (2) there was no indication that the Treating Physicians relied on information
obtained outside the course of treatment and, therefore, Plaintiff was not required to
provide expert witness reports under Rule 26(a)(2)(B); (3) the statements of the Treating
Physicians included in the disclosed Medical Chronology and medical records were
sufficient to comply with Rule 26(a)(2)(C); and (4) Plaintiff’s failure to serve a specific
Rule 26(a)(2)(C) disclosure was harmless under the factors enumerated in Kondragunta
v. Ace Doran Hauling & Rigging Co., No. 1:11-cv-1094-JEC, 2013 WL 1189493, at *7
(N.D. Ga. Mar. 21, 2013). (Id. at 3–7.)
Importantly, the Kondragunta court used a five-factor test to determine whether
an insufficient disclosure was harmless, weighing: (1) the surprise to the party against
whom the evidence would be offered; (2) the ability of that party to cure the surprise;
(3) the extent to which allowing the evidence would disrupt the trial; (4) the importance
of the evidence; and (5) the nondisclosing party’s explanation for its failure to disclose
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the evidence. 2013 WL 1189493, at *7. Applying this test, Magistrate Judge Spaulding
found that: (1) Defendant could not justifiably claim surprise because the Treating
Physicians’ testimony had been included in the Medical Chronology and records that
were disclosed; (2) allowing the testimony of the Treating Physicians would not disrupt
the trial; (3) such testimony was essential to Plaintiff’s case as, without it, her claim
would be unable to survive summary judgment; and (4) Plaintiff did not provide an
adequate explanation for failing to serve specifically identified Rule 26(a)(2)(C)
disclosures. (Id.) With respect to the second factor—which appears to have been
weighed most heavily—the R&R faults Defendant for waiting until the close of
discovery to file the Motion to Exclude. (Id. at 2.) In particular, the R&R concludes that
that Defendant could have advised Plaintiff that her disclosures did not comply with
the Federal Rules, requested more specific disclosures, and requested Court
intervention if these attempts failed. (Id. at 7–8.) According to the magistrate, by
forgoing these options, Defendant took a gamble. (Id. at 8.)
Based on these findings, the R&R recommends that the Court deny the Motion to
Exclude but: (1) permit Defendant to seek leave to depose the Treating Physicians; and
(2) similarly afford Plaintiff the opportunity to renew her request to depose Alex and
Mr. Martinez upon a showing of good cause. (Id. at 9.) Defendant vehemently objects.
(Doc. 60.)
The gravamen of Defendant’s objections is that Plaintiff’s Treating Physicians
may not testify as expert witnesses because they did not produce an expert report as
required by Rule 26(a)(2)(B). (Id. at 2–3.) Alternatively, to the extent that Plaintiff was
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only required to produce expert disclosures under Rule 26(a)(2)(C), Defendant argues
that Plaintiff failed to identify any specific witness or provide a summary of the facts
and opinions underlying their expected testimony. (Id. at 5.) Defendant also argues that
“it was prejudiced by Plaintiff’s actions because it was unable to obtain meaningful
expert discovery from Plaintiff’s [Treating Physicians] and [it] was unable to retain its
own rebuttal expert.” (Id. at 6.)
B.
Standard of Review
When a party objects to a magistrate judge's findings, the district court must
“make a de novo determination of those portions of the report . . . to which objection is
made.” 28 U.S.C. § 636(b)(1). The district court “may accept, reject, or modify, in whole
or in part, the findings or recommendations made by the magistrate judge.” Id. The
district court must consider the record and factual issues based on the record
independent of the magistrate judge's report. Ernest S. ex rel. Jeffrey S. v. State Bd. of
Educ., 896 F.2d 507, 513 (11th Cir. 1990).
C.
Analysis
Regrettably, this dispute demonstrates the tension encountered when sloppy
lawyering and cavalier treatment of the discovery rules crosses paths with the opposing
counsel’s implementation of “a dangerous game of gotcha” 8 and tactics that shirk their
obligations under the CMSO and the Local Rules. While neither conduct is
(Doc. 63, p. 2) (quoting Magistrate Judge Spaulding’s opening remarks at the
Discovery Hearing).
8
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commendable, 9 the Court must strike the balance in order to do justice to the parties,
who are the ones ultimately prejudiced by their lawyers’ failings.
As an initial matter, such conduct is prohibited by the CMSO, which, in
accordance with its purpose of securing “the just, efficient, and inexpensive resolution
of this action,” informs the parties that “[a]ll conduct related to this action must civil,
cooperative, [and] conscientious.” (Doc. 20, p. 1.) Additionally, it: (1) requires that the
parties strictly comply with the procedures and requirements set forth in the CMSO, the
Federal Rules of Civil Procedure, and the Local Rules; and (2) explicitly incorporates the
requirements of Rule 26 and Local Rule 3.01(g). (Id. at 4, 5, 19.)
Under Rule 26(a)(2)(A), a party must disclose the identity of any witness it may
use at trial to present expert testimony. In turn, Rules 26(a)(2)(B) and (C) delineate
additional information that must be provided, depending on whether the expert is
required to provide a written report. Meanwhile, Local Rule 3.01(g) provides that,
before filing most motions, the moving party “shall confer with counsel for the
opposing party in a good faith effort to resolve the issues raised by the motion” and file
a statement: (1) certifying that the moving counsel has conferred with opposing counsel;
and (2) advising the Court whether counsel agree on the resolution of the motion. As
elaborated by the CMSO, to comply, the moving party is obligated to “engage in a
See, e.g., Griffith v. Gen. Motors Corp., 303 F.3d 1276, 1283 (11th Cir. 2003) (“We
do not commend either party on its efforts to resolve this dispute. [The defendant]
would do well to make sure that, in the future, its Rule 26 disclosures comport with
both the spirit and the letter of the rule. Nonetheless, [the plaintiff] allowed this impasse
to continue beyond the point of good faith efforts to resolve the issue without court
intervention, never moving for an order requiring any more detailed response under
Rule 26.”).
9
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substantive conversation with the opposing party—in person or by telephone—in a
good faith effort to resolve the issues raised by the motion without Court intervention”;
such duty is not satisfied by mere correspondence. (Doc. 20, p. 5.)
The foregoing juxtaposition becomes all the more significant when one considers
that the discovery rules also “contemplate that discovery will proceed without judicial
intervention unless a party moves for a protective order under Rule 26(c) or an order
compelling discovery under Rule 37(a).” Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340,
356 n. 24 (1978). Here, the Causation MSJ was filed on August 30, 2016—almost two
months prior to the close of discovery. Though both parties had time to take corrective
action, Plaintiff insisted that its disclosures were sufficient, while Defendant insisted
that such disclosures should mark the end of Plaintiff’s case. Had the parties
meaningfully conferred as contemplated by the Local Rules, the CMSO, the discovery
rules, and Magistrate Judge Spaulding’s apt warning at the PPTC, the matter could
have been resolved with minimal Court intervention and disruption to the Court’s trial
schedule. 10 But, presumably in the spirit of “zealous representation,” neither party
conceded its position. Which brings us to where we are today.
For its part, Defendant is correct that, without expert testimony on medical
causation, Plaintiff cannot prove its negligence case. “In the negligence context under
Florida law, lay testimony is legally insufficient to support a finding of causation where
the medical condition involved is not readily observable.” Rementer v. United States,
10 Notably,
the Motion to Exclude was initially filed without the requisite 3.01(g)
certification, as was the pending motion in limine (Doc. 65).
-18-
No. 8:14-cv-642-T-17MAP, 2015 WL 5934522, at *3 (M.D. Fla. Oct. 9, 2015) (quoting Jones
v.
Royal
Carribean
Cruises,
Ltd.,
No. 12-20322-CIV,
2013 WL
8695361,
at *6
(S.D. Fla. Apr. 4, 2013)). Moreover, “Florida courts have held that a plaintiff’s back pain
and other soft tissue injuries are not readily observable medical conditions.” Id. (citing
Crest Prods. v. Louise, 593 So. 2d 1075, 1077 (Fla. 1st DCA 1992)). Therefore, the nature of
Plaintiff’s claimed injuries necessitates the use of expert testimony on medical
causation.
Nonetheless, Plaintiff’s Treating Physicians were not required to produce any
expert reports. As Defendant acknowledges, “if a physician’s opinion regarding
causation or any other matter was formed and based on observations made during the
course of treatment, then no [Rule 26(a)(2)(B)] report is required.” Kondragunta,
2013 WL 1189493, at 12. Indeed, “[o]pinions regarding causation, the need for continued
treatment, and the reasonable cost thereof may be formed during the course of
treatment and do not automatically convert a treating doctor into one retained or
specially
employed
to
provide
expert
testimony
within
the
meaning
of
Rule 26(a)(2)(B).” Guffey v. Dillard’s, Inc., No. 3:14-cv-1469-J-32JBT, 2015 WL 12844949,
at *3 (M.D. Fla. Dec. 29, 2015). Contrary to Defendant’s arguments, a review of
Plaintiff’s Initial Disclosures, Medical Chronology, and relevant medical records
supports Magistrate Judge Spaulding’s conclusion that the Treating Physicians did not
rely on matters outside their treatment; 11 thus no Rule 26(a)(2)(B) report was required.
11 Such
a conclusion is warranted on these facts. In all likelihood, Plaintiff went to
her medical providers complaining of pain. She visited one provider the day after her
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Where an expert witnesses is not obligated to provide a written report, the
disclosure under Rule 26(a)(2)(C) must state: (1) the subject matter on which the witness
is expected to present evidence under FRE 702, 703, or 705; and (2) a summary of the
facts and opinions to which the witness is expected to testify. While Plaintiff did not
explicitly identify this information as a Rule 26(a)(2)(C) disclosure, the Court agrees
with Magistrate Judge Spaulding’s conclusion that the Initial Disclosures, Medical
Chronology, and medical records for White Sands Orthopedic, Advance Orthopedics
and Pain Management, PL, and Central Florida Injury East, Inc. contain the information
required by Rule 26(a)(2)(C). 12 As to whether this constitutes good practice, the answer
is no. Nonetheless, Plaintiff is now bound by what she disclosed, as conceded by her
counsel at the Discovery Hearing.
accident. The natural dialogue with her physicians would have included how she fell
and how she landed in order to determine both the location and impact of the fall on
Plaintiff’s body. See Rementer, 2015 WL 5934522, at *5 (“Because a treating physician
considers not only the plaintiff’s diagnosis and prognosis, opinions as to the cause of
injuries do not require a written report if based on the examination and treatment of the
patient. Treating physicians commonly consider the cause of any medical condition
presented in a patient, the diagnosis, the prognosis, and the extent of disability, if any,
caused by the condition.”).
12 Nor have Defendant’s objections otherwise shown that that the proffered
testimony is substantively inadmissible. Rather, Defendant’s remaining arguments as to
the sufficiency of the contested causation opinions contain no citation to legal authority.
(See Doc. 60, pp. 11, 12, 14.) Further, though Defendants point to the absence of any
differential diagnosis, treating physicians are not required to perform a differential
diagnosis to rule out other possible causes—this is merely one approved methodology.
See Kilpatrick v. Breg, Inc., 613 F.3d 1329, 1342 (11th Cir. 2010). There is also authority for
the proposition that a treating physician who acquires his opinions during the course of
treatment is not subject to the Daubert analysis. See Wilson v. Taser Int’l, Inc.,
303 F. App’x 708, 712 (11th Cir. 2008) (suggesting that it is not until a treating physician
expresses an opinion unrelated to treatment and based on scientific, technical, or other
specialized knowledge, that a witness offers expert testimony for which the Court must
perform its essential gatekeeping function as required by Daubert).
-20-
This finding notwithstanding, Plaintiff’s disclosures were not sufficient under
Rule 26(a)(2)(A) because they did not identify the names of the expert witnesses that she
intended to use at trial. Instead, she merely identified the Treating Physicians’ medical
practices. Arguably then, Defendant could not have sought to depose persons that
Plaintiff did not disclose, although they most certainly could have asked for the names.
In light of Plaintiff’s omission, Defendant’s arguments with respect to prejudice
give the Court some pause. Specifically, Defendant maintains that, due to this omission,
it did not depose Plaintiff’s experts, did not retain its own expert on medical causation
(in tandem with a Rule 35 medical examination) and missed the applicable Daubert
motion deadline. (Doc. 60, p. 18.) This representation from an experienced defense
lawyer is less suggestive of prejudice by the omission and more likely the calculated
risk of lying in wait. Defendant certainly was on notice that Plaintiff was claiming
injury from the fall and had ample time to seek a Rule 35 examination, yet chose not to.
“Prejudice generally occurs when late disclosure deprives the opposing party of
a meaningful opportunity to perform discovery and depositions related to the
documents or witnesses in question.” Paul v. Aramark Healthcare Support Servs.,
No. 1:15-cv-189-MHC, 2016 WL 7888045, at *4 (N.D. Ga. June 2, 2016) (quoting Bowe v.
Pub. Storage, 106 F. Supp. 3d 1252, 1260 (S.D. Fla. 2015)). But “[w]hen, as here, a party
fails to promptly seek enforcement of his rights, any prejudice suffered arises largely
from
the
party’s
own
inaction.”
Ellison
v.
Windt,
No. 6:99-cv-1268-OrlKRS,
2001 WL 118617, at *3 (M.D. Fla. Jan. 24, 2001). So the Court must balance the prejudice
created by improper disclosures and untimely notifications.
-21-
On one hand, any prejudice suffered by Defendant is at least, in part, a
consequence of pursuing exclusion of Plaintiff’s testimony to the exclusion of all other
alternatives. Notably, Defendant had notice of Plaintiff’s intent to rely on her Initial
Disclosures and Medical Chronology as of October 11, 2016, when she responded to its
Causation MSJ. This was prior to the close of discovery, and Defendant could have
moved to extend discovery after conferring with Plaintiff. It chose not to do so. As
Magistrate Judge Spaulding concluded, Defendant chose to invoke a “gotcha” tactic to
procure the exclusion of any such proposed testimony. Because the R&R did not deliver
on Defendant’s bet, it now claims prejudice. But the truth is that it took a gamble, and
risk of loss was a known consequence. Indeed, Rule 37(c)(1) sanctions are discretionary.
Bearint ex rel. Bearint v. Dorel Juvenile Grp., Inc., 389 F.3d 1339, 1348 (11th Cir. 2004).
Moreover, the Court may choose to employ a number of alternative sanctions to
cure any perceived prejudice. Under Rule 37(c)(1),
[i]f 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 trial, unless the failure was
substantially justified or is harmless. In addition to or instead
of this sanction, the court, on motion and after giving an
opportunity to be heard . . . may impose other appropriate
sanctions.
(emphasis added). Perhaps cognizant of the Court’s discretion, Defendant requests that
the Court alter the scheduling of this action to allow it to conduct additional discovery
on the issue of medical causation should the Court deny the Motion to Exclude.
-22-
Upon consideration of the totality of the circumstances and pursuant to its
discretion under Rule 37(c)(1), the Court declines to exclude the Treating Physicians’
causation testimony. But any testimony elicited from the Treating Physicians is limited
to testimony contained in, or necessarily related to, the summary contained in the
Medical Chronology and disclosed medical records. Accordingly, the Treating
Physicians may not be presented with hypotheticals at trial. The Court also finds that
modification of the CMSO deadlines is warranted. As such, the Court will: (1) grant
Defendant leave to depose the Treating Physicians if it so chooses; and (2) continue the
upcoming final pretrial conference and trial term by sixty days.13
With the denial of the Motion to Exclude, so too falls the Causation MSJ. At the
time briefing closed, the record contained the Initial Disclosures and attached Medical
Chronology (see Doc. 36), which includes the Treating Physicians’ opinions on
causation. As the Court declines to exclude their testimony, Plaintiff has created a
material question of fact on the issue of causation, thus precluding summary judgment.
IV.
DAMAGES
In accordance with the preceding rulings, Defendant’s motion in limine is denied
as to the Employee Statements and the causation testimony of the Treating Physicians.
The Court declines to entertain a further request by Plaintiff to depose
Mr. Martinez and Alex out of time. Plaintiff waited nearly four months after the close of
discovery to present this request and has failed to show good cause for the delay.
Though, as represented at the Discovery Hearing, Plaintiff’s counsel was in trial on the
available date provided by Defendant, counsel has provided no reason why his law
partner could not take the deposition, as communicated to Defendant. That two
experienced lawyers could not find a way to accommodate one another to take these
depositions in a case this simple is a further example of how not to conduct litigation.
13
-23-
However, Defendant’s motion with respect to Plaintiff’s future medical expenses is
granted as unopposed, as Plaintiff failed to respond by the April 13, 2016 deadline.
In particular, Defendant argues that Plaintiff failed to provide a specific
computation of the amount of damages sought for future medical expenses in her Initial
Disclosures and also failed to supplement these disclosures. (Doc. 65, pp. 10–12.) As set
forth in the CMSO, the Court routinely grants motions as unopposed when no response
is filed. (Doc. 20, p. 10.) That being the case here, evidence of Plaintiff’s future medical
expenses will be excluded.
IV.
CONCLUSION
Accordingly, it is ORDERED AND ADJUDGED as follows:
1.
Defendant, Discount Auto Parts, LLC’s Motion for Summary Judgment
(Doc. 44) is DENIED.
2.
Defendant, Discount Auto Parts, LLC’s Objections to Magistrate Judge
Spaulding’s Report and Recommendation on Defendant’s Renewed
Motion to Exclude Treating Physicians’ Opinion Testimony on Causation
(Doc. 60) are SUSTAINED IN PART AND OVERULED IN PART as set
forth herein.
3.
U.S. Magistrate Judge Karla R. Spaulding’s Report and Recommendation
(Doc. 58) is ADOPTED IN PART.
4.
Defendant, Discount Auto Parts, LLC’s Renewed Motion to Exclude
Treating Physicians’ Opinion Testimony on Causation Pursuant to
Rule 37(c)(1) (Doc. 43) is DENIED.
-24-
5.
Defendant, Discount Auto Parts, LLC’s Motion for Summary Judgment on
Medical Causation and Incorporated Memorandum of Law (Doc. 25) is
DENIED.
6.
On or before Friday, April 21, 2017, Plaintiff is DIRECTED to provide
Defendant with clearly labeled Rule 26(a)(2)(C) disclosures that identify
each of the Treating Physicians by name and contain the subject matter of
their expected testimony and a summary of the facts and opinions thereof
within the bounds of her prior disclosures.
7.
Defendant is GRANTED LEAVE to depose the Treating Physicians,
provided such discovery is completed by Friday, May 26, 2017.
8.
Defendant Discount Auto Parts, LLC’s Omnibus Motion in Limine
(Doc. 65) is GRANTED IN PART AND DENIED IN PART.
a.
To the extent that Defendant seeks to exclude evidence of Plaintiff’s
future medical expenses at trial, the Motion is GRANTED as
unopposed.
b.
In all other respects, the Motion is DENIED consistent with the
aforementioned rulings.
9.
As this case is not yet ready for trial, the final pretrial conference
scheduled
for
Thursday,
April 20,
2017,
is CANCELLED and
CONTINUED to Thursday, June 15, 2016, at 10:00 a.m. The parties shall
file an amended Joint Pretrial Statement by Monday, June 5, 2017.
10.
Trial is CONTINUED to the term commencing July 3, 2017.
-25-
DONE AND ORDERED in Chambers in Orlando, Florida, on April 19, 2017.
Copies to:
Counsel of Record
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