Colony Insurance Company v. Suncoast Medical Clinic, LLC et al

Filing 132

ORDER: Defendant's Motion to Strike Expert Report and Preclude Expert Testimony and Alternative Motion for Leave to Designate an Expert 121 is DENIED. See order for details. Signed by Judge Virginia M. Hernandez Covington on 8/24/2011. (CAC)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
COLLEEN A. ZIOLKOWSKI, as
Personal Representative of the
Estate of CHARLES J. ZIOLKOWSKI,
Deceased, as Assignee of
SUNCOAST MEDICAL CLINIC, LLC.,
Plaintiff,
v.

Case No. 8:09-cv-776-T-33TGW

LANDMARK AMERICAN INSURANCE
COMPANY,
Defendant.
/
ORDER
This cause comes before the Court pursuant to Defendant
Landmark American Insurance Company’s Motion to Strike Expert
Report and Preclude Expert Testimony and Alternative Motion
for Leave to Designate an Expert (Doc. # 121), filed on August
1, 2011. Plaintiff Colleen A. Ziolkowski filed a response on
August 15, 2011 (Doc. # 127). For the reasons that follow, the
Motion is denied.
I.

Background
This case arises from a negligence action initiated by

Colleen A. Ziolkowski against Suncoast Medical Clinic on or
about August 22, 2008 (Doc. # 40 Ex. 2). Landmark insured
Suncoast under Claims-Made Policy # LHM712725 for the period
of March 1, 2007, through March 1, 2008 (the “2007-2008

Policy”) and March 1, 2008 to March 1, 2009 (the “2008-2009
Policy”). On or about October 22, 2008, Suncoast informed
Landmark of Ziolkowski’s allegations against Suncoast for
deficient policies and procedures. Landmark asserted that
there was no coverage under the 2008-2009 Policy because
Ziolkowski first asserted her claim via a Notice of Intent
(NOI) filed during the 2007-2008 Policy period.
On

March

17,

2010,

Suncoast

filed

a

claim

against

Landmark for breach of contract. (Doc. # 61). Then, on January
21, 2011, Suncoast assigned its rights and interest to all
actions or causes of action against Landmark to Ziolkowski,
who was substituted as a party in this action (Doc. ## 106107).

Ziolkowski

filed

her

second

amended

third-party

complaint against Landmark on February 7, 2011 (Doc. # 108).
The parties filed cross motions for summary judgment on March
28, 2011. (Doc. ## 110-111). The Court denied the motions on
July 1, 2011 (Doc. # 115), finding that whether the NOI
reasonably provided Suncoast with knowledge of the direct
claim against it is a question of fact for the jury.
On August 1, 2011, Landmark filed the instant Motion.
(Doc.

#

121).

Landmark

seeks

to

strike

the

report

of

Ziolkowski’s expert, Robert Santos, Esq., and preclude Mr.

2

Santos from testifying as an expert. In the alternative,
Landmark seeks leave of Court to disclose an opposing expert.
II.

Legal Standard
A district court has broad discretion to determine the

admissibility of evidence, and the appellate court will not
disturb

this

Court’s

judgment

absent

a

clear

abuse

of

discretion. United States v. McLean, 138 F.3d 1398, 1403 (11th
Cir. 1998); see also United States v. Jernigan, 341 F.3d 1273,
1285 (11th Cir. 2003) (finding that “there are difficult
evidentiary rulings that turn on matters uniquely within the
purview of the district court, which has first-hand access to
documentary evidence and is physically proximate to testifying
witnesses and the jury.”).
An abuse of discretion can occur where the district court
applies the wrong law, follows the wrong procedure, bases its
decision on clearly erroneous facts, or commits a clear error
in judgment. Tran v. Toyota Motor Corp., 420 F.3d 1310, 1315
(11th Cir. 2005) (citations omitted). The Eleventh Circuit has
stated: “We will only reverse a district court’s ruling
concerning the admissibility of evidence where the appellant
can show that the judge abused his [or her] broad discretion
and that the decision affected the substantial rights of the

3

complaining party.” Wood v. Morbark Indus., Inc., 70 F.3d
1201, 1206 (11th Cir. 1995).
However, a district court’s discretion “is dramatically
narrowed

where

a

party

seeks

to

admit

expert

testimony

purporting to offer legal conclusions.” Travelers Indem. Co.
of Ill. v. Royal Oak Enter., Inc., 5:02-cv-58-OC-10GRJ, 2004
WL 3770571 at *2 (M.D. Fla. Aug. 20, 2004). The extent of
coverage under an insurance policy, the legal obligations of
parties to a contract and the legal implications of the
parties’ conduct are questions of law to be decided by the
court. Id.
III. Analysis
Suncoast disclosed its expert, Mr. Santos, in accordance
with Federal Rule of Civil Procedure 26(a)(2), and provided an
Amended (2nd) Expert Disclosure of F. Robert Santos dated
December 23, 2010. (Doc. # 121-1). Ziolkowski has adopted Mr.
Santos as expert. Landmark seeks to strike the expert report
and preclude Mr. Santos from testifying as an expert in this
matter. (Doc. # 121 at 2).
The expert report sets forth Mr. Santos’s intent to
testify that “[a] reasonable reading of the notice of intent
would not place an ordinarily prudent person or professional
(including an attorney) on notice that the claims included
4

direct

negligence

claims

that

would

trigger

the

notice

requirements under the policy.” (Doc. # 121-1 at ¶ 11). The
report also states that “[t]he claim was initially presented
as one for medical malpractice” and that such claims need not
be reported to Landmark. (Id.) Ziokowski states that, although
the report sets forth a number of other opinions, the parties
have stipulated that Mr. Santos will testify only as to
whether the NOI would put a reasonable professional on notice
of a direct claim of negligence.1 (Doc. # 127 at 3).
A.

Motion to Strike Expert Report and Preclude Expert
Testimony

Landmark contends that the expert report “establishes
that Mr. Santos will present his opinions regarding whether
there is coverage under Landmark’s policy and whether Suncoast
Medical met its reporting duties under its policy.”2 (Doc. #
121

at

4).

Landmark

contends

that

Mr.

Santos

therefore

“intends to testify regarding legal conclusions that will
determine the outcome of the case,” and “provide opinions that

1

Ziolkowski states that she is “withdrawing the opinion
insofar as it asserts that the policy’s notice requirements
were not triggered.” (Doc. # 127 at 4).
2

Landmark further objects to Mr. Santos’s opinion that
the amount and terms of the Coblentz agreement were fair and
reasonable and negotiated in good faith. However, Ziolkowski
notes that Landmark has since stipulated to this fact, as
stated in the parties’ Joint Pretrial Statement. (Doc. # 124).
5

will tell the trier of fact what result to reach with regard
to the insurer’s liability.” (Id. at 2).
Ziolkowski asserts that Mr. Santos’s expert testimony is
admissible under Federal Rule of Evidence 702, which Landmark
does not appear to dispute. Ziolkowski further asserts that
Mr. Santos’s testimony is permitted under Federal Rule of
Evidence 704, which states that “testimony in the form of an
opinion or inference otherwise admissible is not objectionable
because it embraces an ultimate issue to be decided by the
trier of fact.”
Mr. Santos’s testimony does go to the central issue in
this case – whether Suncoast acted reasonably in presuming
that the NOI only reflected claims for vicarious liability
that would not have been covered under the Landmark policy.
However, “[e]xpert opinion testimony on issues to be decided
by the jury, even the ultimate issue, is admissible where the
conclusion of the expert is one which jurors would not
ordinarily

be

able

to

draw

for

themselves;

i.e.,

the

conclusion is beyond the ken of the average layman.” Goolsby
v. Gain Technologies, Inc., 362 Fed. Appx. 123, 134-135 (11th
Cir. 2010) (internal quotations and citations omitted). The
question

of

whether

the

NOI

would

put

a

reasonable

professional on notice of a direct claim of negligence is not
6

within the knowledge of the average layperson. The Court
therefore finds that Mr. Santos’s testimony in this regard is
admissible.
Ziolkowski notes that Mr. Santos will need to “explain
the nature of a negligence claim and the distinction between
direct and vicarious liability in the context of medical
malpractice claims” in order to provide a framework for his
testimony. (Doc. # 127 at 5). Such testimony is admissible.
See Royal Oak Enter., 2004 WL 3770571 at *2 (finding that
“passing reference to a legal principle or assumption in an
effort to place his opinions in some sort of context will not
justify the outright exclusion of the expert’s report in its
entirety”).
However, Rule 704 was not intended to allow experts to
offer opinions embodying legal conclusions. See

Advisory

Committee Notes to Fed. R. Evid. 704. The Court therefore
cautions that it would be improper, under Rule 704, to allow
Mr. Santos to state unequivocally that the NOI represented a
claim for medical malpractice that Suncoast had no duty to
report under the Landmark policy. The Court will allow Mr.
Santos’s testimony based upon Ziolkowski’s assertion that she
is withdrawing any opinion in this regard.

7

B.

Alternative Motion for Leave to Designate an Expert

Landmark requests in the alternative that this Court
grant it leave to disclose an opposing expert. (Doc. # 121 at
6). Ziolkowski argues that Landmark has known of Mr. Santos’s
report for nearly nine months, and the deadline to disclose
experts has long since passed. (Doc. # 127 at 5-6). Ziolkowski
further asserts that disclosure of an expert on the eve of
trial would be prejudicial to her. (Id. at 6).
Federal Rule of Civil Procedure 26(a)(2) governs the
disclosure of expert testimony:
A party must make these disclosures at the times
and in the sequence that the court orders. Absent a
stipulation or a court order, the disclosures must
be made:
(i) at least 90 days before the date set for
trial or for the case to be ready for trial;
or
(ii) if the evidence is intended solely to
contradict or rebut evidence on the same
subject matter identified by another party
under Rule 26(a)(2)(B) or (C), within 30 days
after the other party’s disclosure.
Fed. R. Civ. P. 26(a)(2)(D). “Because the expert witness
discovery rules are designed to allow both sides in a case to
prepare

their

cases

adequately

and

to

prevent

surprise,

compliance with the requirements of Rule 26 is not merely
aspirational.” Reese v. Herbert, 527 F.3d 1253, 1266 (11th
Cir. 2008) (internal quotations and citations omitted).

8

Pursuant
Scheduling

to

Order

the

Second

(Doc.

#

Amended

104),

Case

filed

Management

January

28,

and

2011,

Landmark’s deadline for disclosing expert witnesses expired
November 30, 2010. Landmark offers no support for why it
should be allowed to disclose an expert at this late date.
Absent any justification, and given the potential prejudice to
Ziolkowski, the Court declines to permit Landmark to disclose
an opposing expert.
IV.

Conclusion
In her response to Landmark’s Motion, Ziolkowski states

that “Mr. Santos will only testify regarding his opinion that
the NOI would not put a reasonable professional on notice of
direct negligence claims. Mr. Santos will not testify as to
ultimate issues of law . . . .” (Doc. # 127 at 5). The Court
finds that this testimony is admissible.
It does not appear that Mr. Santos will testify regarding
the Coblentz agreement between Ziolkowski and Suncoast; in any
event,

the

parties

stipulated

in

their

Joint

Pretrial

Statement that the “consent judgment was reasonable in amount
and entered in good faith.” (Doc. # 124 at ¶ 9(f)). Thus, the
Court finds that Landmark’s objection to this testimony is
moot.

9

The Court therefore declines to strike Mr. Santos’s
entire expert report or preclude his testimony. The Court
further declines to grant Landmark leave to disclose an
opposing expert at this time.
Accordingly, it is now
ORDERED, ADJUDGED, and DECREED:
Defendant’s Motion to Strike Expert Report and Preclude
Expert Testimony and Alternative Motion for Leave to Designate
an Expert (Doc. # 121) is DENIED.
DONE and ORDERED in Chambers, in Tampa, Florida, this
24th day of August 2011.

Copies to:
All Counsel of Record

10