Boyd v. State Farm Mutual Automobile Insurance Company
ORDER granting 63 Motion to Strike certain of Plaintiff's witnesses and exhibits, and precluding certain expert testimony. Signed by Magistrate Judge Thomas B. Smith on 4/13/2018. (Smith, Thomas)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
Case No: 6:16-cv-989-Orl-22TBS
STATE FARM MUTUAL AUTOMOBILE
Pending before the Court is Defendant State Farm’s Motion to Strike Plaintiff's
Untimely Disclosed Witnesses and Exhibits and Motion to Prohibit Plaintiff's Treating
Physicians from Providing Opinions on Causation, Prognosis, Or Future Implications of
Plaintiff's Alleged Injuries During Trial (Doc. 63). Plaintiff has failed to file a response to
the motion and the time for doing so has expired. When a party fails to respond, that is an
indication that the motion is unopposed. Foster v. The Coca-Cola Co., No. 6:14-cv-2102Orl-40TBS, 2015 WL 3486008, at *1 (M.D. Fla. June 2, 2015); Jones v. Bank of Am.,
N.A., 564 F. App’x 432, 434 (11th Cir. 2014) 1 (citing Kramer v. Gwinnett Cty., Ga., 306
F.Supp.2d 1219, 1221 (N.D. Ga. 2004); Daisy, Inc. v. Polio Operations, Inc., No. 2:14-cv564-FtM-38CM, 2015 WL 2342951, at *1 (M.D. Fla. May 14, 2015) (when defendant did
not respond court could consider motion to compel unopposed); Brown v. Platinum
Wrench Auto Repair, Inc., No. 8:10-cv-2168-T-33TGW, 2012 WL 333803, at *1 (M.D. Fla.
Feb. 1, 2012) (after party failed to respond, court treated motion for summary judgment as
1 “Unpublished opinions are not considered binding precedent, but may be cited as persuasive
authority.” CTA11 Rule 36-2.
unopposed). As Plaintiff has raised no objection to the facts presented in the motion or
the relief sought, and the motion is otherwise meritorious, it is GRANTED.
The uncontroverted facts show that Plaintiff failed to timely and properly disclose
witnesses and corresponding records relating to the treatment of Plaintiff. On March 21,
2018, long after the close of discovery and after the exhibit exchange, Plaintiff first
identified certain witnesses and produced certain exhibits. The belated disclosure of
these witnesses and exhibits is unduly prejudicial to Defendant. Because the disclosure
was not made until after the close of discovery Defendant has not had an opportunity to
depose the witnesses or engage in other discovery concerning their opinions. Plaintiff has
not produced expert reports for the witnesses and, Defendant’s experts have not had an
opportunity to analyze and respond to this new evidence. Therefore, the following witness
designations and records are STRICKEN:
Dr. Mitchell Supler
Dr. Supler —Medical Records
Dr. Stephen Young
Dr. Stephen Young—Medical Records
Dr. Nathan Hanflick
Spine and Brian Neurosurgery Center
Central Florida Imaging Specialists
Care Plus Health
Additionally, Plaintiff is precluded from introducing testimony at trial from these
witnesses and from offering these exhibits, and any corresponding records relating to the
untimely disclosed witnesses’ treatment of Plaintiff, into evidence at trial.
Plaintiff also failed to provide expert reports with respect to opinions on causation,
prognosis, and/or future implications of the injuries he claims to have suffered. While Rule
26(a)(2)(B) reports are not required from treating physicians when their opinions are
formed and based upon observations made during the course of treatment, where the
proponent of the treating physician's testimony fails to demonstrate such opinions were
formed and are based upon observations made during the course of treatment, Rule
26(a)(2)(B) reports are required. See In re Denture Cream Prod. Liab. Litig., No. 09-2051MD, 2012 WL 13008163, at *1 (S.D. Fla. Nov. 14, 2012) (internal citations omitted). Here,
Plaintiff was required to comply with Rule 26(a)(2)(C) for the treating physicians to testify
beyond observations made during the course of their treatment. Because Plaintiff failed to
meet the requirements of 26(a)(2)(C), his treating physicians' testimony shall be limited to
facts and observations made during the course of treatment. Bostick v. State Farm Mut.
Auto. Ins. Co., No. 8:16-CV-1400-T-33AAS, 2017 WL 2869967, at *2 (M.D. Fla. July 5,
This result should not come as a surprise, the Case Management and Scheduling
Order governing this case provides:
Disclosure of Expert Testimony - On or before the date set forth
in the above table for the disclosure of expert reports, the party
shall fully comply with Federal Rule of Civil Procedure 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
(Doc. 25 at 3).
DONE and ORDERED in Orlando, Florida on April 13, 2018.
Copies furnished to Counsel of Record
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