Lincoln Rock, LLC v. City of Tampa
Filing
63
ORDER denying 39 Plaintiff's Motion to Compel Better Answers to Interrogatories; denying 41 Defendant's Motion to Strike and Preclude Plaintiff's Damage Claims Not Previously or Properly Disclosed; and granting in part and denying in part 44 Defendant's Motion to Strike Plaintiff's Supplemental Rule 26 Disclosure and Exclude Supplemental Report and Testimony of Henry H. Fishkind, Ph.D. Signed by Magistrate Judge Julie S. Sneed on 10/21/2016. (LBL)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
LINCOLN ROCK, LLC,
Plaintiff,
v.
Case No: 8:15-cv-1374-T-30JSS
CITY OF TAMPA,
Defendant.
___________________________________/
ORDER
THIS MATTER is before the Court on (1) Plaintiff’s Motion to Compel Better Answers to
Interrogatories (“Motion to Compel”) (Dkt. 39), which Defendant City of Tampa opposes (Dkt.
43) (2) Defendant’s Motion to Strike and Preclude Plaintiff’s Damage Claims Not Previously or
Properly Disclosed (“Motion to Strike Damages”) (Dkt. 41), which Plaintiff opposes (Dkt. 50) and
(3) Defendant’s Motion to Strike Plaintiff’s Supplemental Rule 26 Disclosure and Exclude
Supplemental Report and Testimony of Henry H. Fishkind, Ph.D. (“Motion to Strike Report”)
(Dkt. 44), which Plaintiff opposes (Dkt. 53). On October 13, 2016, a hearing was held on the
motions. For the reasons set forth below, the Motion to Compel is denied, the Motion to Strike
Damages is denied, and the Motion to Strike Report is granted in part and denied in part.
BACKGROUND
Plaintiff is a Florida limited liability company that was formed in 2012 and has one
member, Bernard Rock. (Dkt. 1 ¶¶ 1, 5.) Plaintiff alleges it was formed for the purpose of
establishing a residential treatment facility within the City of Tampa to treat those addicted to
alcohol or controlled substances. (Id. ¶¶ 5–6.)
Plaintiff selected a property in Tampa to acquire to house the residential facility
(“Property”), which, Plaintiff alleges, was zoned for professional residential facilities as a special
use. (Id. ¶¶ 13–14.) After inquiring with Defendant concerning what would be required to open
a treatment facility at the Property, Plaintiff alleges that he was instructed to file an application for
special use approval. (Id. ¶¶ 15–16.) Thereafter, Plaintiff purchased the Property and filed the
application with Defendant (“Application”). (Id. ¶¶ 18–19.)
Plaintiff alleges that, at the first level of review of the Application, Defendant’s staff
recommended that the City Council approve the Application. (Id. ¶¶ 21–22.) At the next level of
review, Defendant’s Planning Commission also recommended its approval. (Id. ¶¶ 30–33.)
Meanwhile, neighbors surrounding the Property opposed the Application.
(Id. ¶¶ 24–29.)
Defendant held a public hearing, at which neighbors voiced their concerns regarding the treatment
facility and opposition to approval of the Application. (Id. ¶¶ 34–36.)
In a vote of six to one, the City Council denied the Application. (Id. ¶ 38.) As a result of
Defendant’s denial of the Application, Plaintiff alleges that it was unable to open the treatment
facility and was “forced to sell the Property.” (Id. ¶¶ 39–40.) At the time of the sale, Plaintiff
alleges it “had expended in excess of seven figures to develop and open” the treatment facility on
the Property. (Id. ¶ 40.)
Plaintiff filed a two-count complaint against Defendant, alleging violations of federal antidiscrimination laws, specifically the Fair Housing Act, 42 U.S.C. § 3601 et seq. (“FHA”), and
Title II of the Americans with Disabilities Act, 42 U.S.C. § 12131, et seq. (“ADA”). (Id. ¶¶ 3, 43–
68.) Specifically, Plaintiff alleges that the potential residents of its proposed treatment facility fall
within the FHA’s and ADA’s definitions of disabled and handicapped. (Id. ¶ 7.) Therefore, by
denying Plaintiff the ability to open the treatment facility, and thus denying the potential residents
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housing, on the basis of the disabilities of its potential residents, Defendant violated Plaintiff’s and
the potential residents’ rights under the FHA and ADA. (Id. ¶¶ 43–68.)
Plaintiff seeks declaratory judgment that Defendant illegally discriminated against Plaintiff
and its potential residents in violation of the FHA and ADA, damages under the FHA and ADA,
and attorneys’ fees and costs. (Id. ¶¶ a–d.) In response, Defendant asserts that it acted in good
faith, that its actions were “based on legitimate, non-discriminatory reason[s],” and that Plaintiff
failed to mitigate its damages. (Dkt. 15 at 4–5.)
APPLICABLE STANDARDS
I.
Motion to Strike Report
Pursuant to Federal Rule of Civil Procedure 26, a party must disclose to the other parties
the identity of any expert witness it may use at trial. Fed. R. Civ. P. 26(a)(2)(A). For experts
“retained or specifically employed to provide expert testimony,” the expert disclosure must be
accompanied by a written report that contains, among other things, “a complete statement of all
opinions the witness will express and the basis and reasons for them” and “the facts or data
considered by the witness in forming them.” Fed. R. Civ. P. 26(a)(2)(B). Expert disclosures must
be made “at the times and in the sequence that the court orders.” Fed. R. Civ. P. 26(a)(2)(D).
The parties must supplement their expert disclosures in accordance with Rule 26(e). Fed.
R. Civ. P. 26(a)(2)(E). Rule 26(e) requires a party to supplement or correct its disclosure “in a
timely manner if the party learns that in some material respect the disclosure or response is
incomplete or incorrect, and if the additional or corrective information has not otherwise been
made known to the other parties during the discovery process or in writing.” Fed. R. Civ. P.
26(e)(1)(A). “Any additions or changes” to an expert’s report or to information given during the
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expert’s deposition “must be disclosed by the time the party’s pretrial disclosures under Rule
26(a)(3) are due.”1 Fed. R. Civ. P. 26(e)(2).
An expert report may be supplemented, pursuant to Rule 26(e), when the party learns that
the original disclosure was incomplete or incorrect, but may not be supplemented in order to cure
a major omission or to remedy an expert’s inadequate or incomplete preparation. Goodbys Creek,
LLC v. Arch Ins. Co., No. 3:07-CV-947-J-34HTS, 2009 WL 1139575, at *2 (M.D. Fla. Apr. 27,
2009); see, e.g., Mobile Shelter Sys. USA, Inc. v. Grate Pallet Sols., LLC, 845 F. Supp. 2d 1241,
1248-52 (M.D. Fla. 2012) (excluding expert’s second report, served on the last day of discovery,
which included opinions regarding claims that were not addressed in the initial report); K & H
Dev. Grp., Inc. v. Howard, 255 F.R.D. 562, 567-68 (N.D. Fla. 2009) (striking an expert’s
“supplemental” report that included a new theory of damages, which was based on information
that was available when the expert prepared his initial report); In re Accutane Prods. Liab. Litig.,
No. 8:04-MD-2523T30TBM, 2007 WL 201091, at *1 (M.D. Fla. Jan. 24, 2007) (denying motion
to strike supplemental expert report, served after the close of discovery, where the report revealed
additional literature review and, in some areas, a degree of new or additional rationale in support
of the expert’s conclusions, but the core opinions remained the same).
Thus, “[t]here is nothing in Rule 26 prohibiting a witness, even an expert witness, from
timely providing new or modified opinions to complete or correct information previously provided
or reported” and “[i]ndeed, the witness who learns of new material information not previously
disclosed is obliged to timely disclose the information to the parties.” Tampa Bay Water v. HDR
Eng’g, Inc., No. 8:08-CV-2446-T-27TBM, 2011 WL 3475548, at *5 (M.D. Fla. Aug. 9, 2011)
1
Pretrial disclosures include the names of witnesses whom the party expects to or may call at trial, the designation of
witnesses whose testimony may be presented by deposition, and the identification of each exhibit that the party expects
to or may offer at trial. Fed. R. Civ. P. 26(a)(3)(A). Unless otherwise ordered by the court, these disclosures must be
made at least 30 days before trial. Fed. R. Civ. P. 26(a)(3)(B).
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(denying a motion to strike a supplemental expert report because it was “consistent with [the
expert’s] initial opinions” and there was no prejudice to the other party). Rule 26(e) “permits
supplemental reports only for the narrow purpose of correcting inaccuracies or adding information
that was not available at the time of the initial report.” Companhia Energetica Potiguar v.
Caterpillar Inc., No. 14-CV-24277, 2016 WL 3102225, at *6 (S.D. Fla. June 2, 2016) (internal
quotations omitted).
However, Rule 26(e) “is not a device to allow a party’s expert to engage in additional work,
or to annul opinions or offer new ones to perfect a litigating strategy.” Cochran v. Brinkmann
Corp., No. 1:08-cv-1790-WSD, 2009 WL 4823858, at *5 (N.D. Ga. Dec. 9, 2009). “Rather, Rule
26 imposes a duty on parties to comply with the disclosure deadlines. It grants them no right to
produce information in a belated fashion.” Mobile Shelter, 845 F. Supp. 2d at 1250 (internal
citations and quotations omitted). “Courts have broad discretion to exclude untimely-disclosed
expert witness testimony — even when they are designated as ‘supplemental’ reports . . .
[c]onsequently, a party cannot abuse Rule 26(e) to merely bolster a defective or problematic expert
witness report.” Companhia, 2016 WL 3102225, at *5–6 (striking a supplemental report because
its disclosure was untimely and it was not in fact supplemental).
“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, unless the failure was substantially justified or is harmless.” Fed. R. Civ.
P. 37(c)(1). This sanction is “self-executing” in that it may be imposed without the filing of a
motion under Rule 37(a). Fed. R. Civ. P. 37(c)(1), advisory committee’s note to 1993 amendment.
However, “[t]he evidentiary exclusion sanction is not necessarily ‘automatic,’ even in the absence
of substantial justification and harmlessness, because Rule 37(c)(1) provides that a court may
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impose other appropriate sanctions ‘[i]n addition to or instead of this sanction.’” Collins v. United
States, No. 3:08-CV-923-J-32JRK, 2010 WL 4643279, at *5, n.7 (M.D. Fla. Nov. 9, 2010)
(quoting Fed. R. Civ. P. 37(c)(1)) (citing Prieto v. Malgor, 361 F.3d 1313, 1318 (11th Cir. 2004)).
The court has broad discretion in deciding whether a failure to disclose evidence is
substantially justified or harmless under Rule 37(c)(1). United States ex rel. Bane v. Breathe Easy
Pulmonary Servs., Inc., No. 8:06-cv-00040-T-33MAP, 2009 WL 92826, at *3 (M.D. Fla. Jan. 14,
2009). “The burden of establishing that a failure to disclose was substantially justified or harmless
rests on the nondisclosing party.” Mitchell v. Ford Motor Co., 318 F. App’x 821, 825 (11th Cir.
2009) (internal quotations omitted). In determining whether a failure to disclose evidence is
substantially justified or harmless, courts are guided by the following factors: (1) the unfair
prejudice or surprise of the opposing party; (2) the opposing party’s ability to cure the surprise; (3)
the likelihood and extent of disruption to the trial; (4) the importance of the evidence; and (5) the
offering party’s explanation for its failure to timely disclose the evidence. Mobile Shelter, 845 F.
Supp. 2d at 1250-51.
II.
Motion to Strike Damages
As part of a party’s initial disclosures, a party must provide “a computation of each
category of damages claimed by the disclosing party.” Fed. R. Civ. P. 26(a)(1)(A)(iii). A party
must supplement or correct the disclosures “in a timely manner if the party learns that in some
material respect the disclosure or response is incomplete or incorrect, and if the additional or
corrective information has not otherwise been made known to the other parties during the
discovery process or in writing.” Fed. R. Civ. P. 26(e)(1)(A).
If a party fails to timely supplement its disclosures, as required by Rule 26(e), “the party is
not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at
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a trial, unless the failure was substantially justified or is harmless.” Fed. R. Civ. P. 37(c)(1). A
court, “[i]n addition to or instead of this sanction,” may order “payment of the reasonable expenses,
including attorney’s fees, caused by the failure,” “may inform the jury of the party’s failure,” or
“may impose other appropriate sanctions, including any of the orders listed in Rule 37(b)(2)(A)(i)(vi).” Fed. R. Civ. P. 37(c)(1).
The “party who is alleged to have failed to comply with Rule 26 bears the burden to show
that its actions were substantially justified or harmless.” Parrish v. Freightliner, LLC, 471 F.
Supp. 2d 1262, 1268 (M.D. Fla. 2006). Courts consider “the non-disclosing party’s explanation
for its failure to disclose, the importance of the information, and any prejudice to the opposing
party if the information had been admitted.” Lips v. City of Hollywood, 350 F. App’x 328, 340
(11th Cir. 2009).
III.
Motion to Compel
Through discovery, parties may obtain materials that are within the scope of discovery,
meaning they are nonprivileged, relevant to any party’s claim or defense, and “proportional to the
needs of the case.” Fed. R. Civ. P. 26(b)(1). When an interrogatory is served on a governmental
agency, an officer or agent of the governmental agency “must furnish the information available to
the party.” Fed. R. Civ. P. 33(b)(1)(B). Under Federal Rule of Civil Procedure 37, “[o]n notice
to other parties and all affected persons, a party may move for an order compelling disclosure or
discovery,” including “answer[s to] an interrogatory submitted under Rule 33.” Fed. R. Civ. P.
37(a)(1), (3)(B)(iii).
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ANALYSIS
I.
Motion to Strike Report
A.
Background
On September 4, 2015, the Court entered a Case Management and Scheduling Order,
setting Plaintiff’s deadline for expert disclosures as April 18, 2016, and Defendant’s deadline for
expert disclosures as May 2, 2016. (Dkt. 17.) On April 25, 2016, the Court, upon Defendant’s
motion, entered an Amended Case Management and Scheduling Order, extending Defendant’s
expert disclosures deadline until June 16, 2016, and setting Plaintiff’s expert rebuttal disclosure
deadline for June 30, 2016. (Dkt. 25.) The discovery deadline was August 29, 2016, and the
dispositive and Daubert motions deadline was September 23, 2016. (Dkt. 30.)
Plaintiff’s expert, Henry Fishkind, Ph.D., prepared an expert report dated April 18, 2016
(“Initial Report”). (Dkt. 44-1.) In the Initial Report, Dr. Fishkind gave the opinion that Plaintiff
suffered nearly $5 million in damages. (Dkt. 44-1.) Dr. Fishkind based this conclusion on his
opinion that “Plaintiff reasonably expected to have 21 licensed beds” at the residential treatment
facility it sought to establish on the Property. (Dkt. 44-1 ¶ 18.0.) Because the sales of comparable
facilities, which are “often purchased on the basis of the number of licensed beds,” yielded
$236,998 per bed, Dr. Fishkind concluded that Plaintiff suffered damages in the amount of
$4,976,956. (Dkt. 44-1 ¶ 18.0.) Dr. Fishkind stated that, because he could not measure it to a
reasonable degree of economic certainty, he “decided not to quantify the Plaintiff’s damages based
on the potential profitability of the [residential treatment facility] as the Plaintiff had planned” and,
instead, “valued the damages based on the market value of the licensed beds that the Plaintiff
reasonably expected to be approved.” (Dkt. 44-1 ¶ 24.0.)
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On June 16, 2016, Defendant served its Rule 26(a)(2) expert disclosures, disclosing
Stephen E. Durham, Ph.D. as its expert and attaching Dr. Durham’s written report. (Dkt. 53-2.)
In his report, Dr. Durham concluded that Plaintiff suffered economic damages totaling $90,000,
assuming wrongdoing by Defendant. (Dkt. 53-2.) Dr. Durham based this conclusion on the
difference in value of the Property with and without a special use permit. (Dkt. 53-2 at 2.) Dr.
Durham’s report addresses Dr. Fishkind’s report, noting, among other things, (1) in reaching his
average cost per bed, Dr. Fishkind included a facility in the United Kingdom in the calculus despite
Dr. Fishkind stating that this facility should not be considered as a comparable facility (See Dkt.
44-1 ¶ 30.0); (2) that Dr. Fishkind failed to account for the $1,000,000 Plaintiff received from the
sale of the Property in his damages; and (3) Dr. Fishkind’s comparable facilities offered outpatient
services, unlike Plaintiff’s proposed facility, thus challenging the appropriateness of their use as
comparable facilities. (Dkt. 53-2 at 3–4.)
On July 22, 2016, Defendant served a notice of its intention to serve a subpoena duces
tecum on Dr. Fishkind, commanding Dr. Fishkind to appear for deposition on July 27, 2016, and
to produce at the deposition, among other things, documents upon which he relied in forming his
opinions and conclusions. At the hearing, Defendant’s counsel stated that Dr. Fishkind produced
his files in advance of his July 27, 2016, deposition. However, Defendant canceled the deposition
and Dr. Fishkind was not deposed.
On August 23, 2016, Dr. Durham was deposed. (Dkt. 53-3.) During his deposition, Dr.
Durham answered questions regarding the portion of Dr. Durham’s report that is critical of Dr.
Fishkind’s using comparable facilities that have outpatient services without explaining why they
would still be comparable to Plaintiff’s proposed residential treatment facility. (Dkt. 53-3.)
Specifically, Dr. Durham testified as follows:
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I mean, if we’ve got two facilities and they’re both 21 beds but this one’s got an
outpatient, too, I would expect, assuming that outpatient makes any profits, that
that’s going to have a higher value. And I think you have to control for that, and I
don’t think [Dr. Fishkind] did that.
(Dkt. 53-3 at 88:21–89:1.)
On August 29, 2016, which was the discovery deadline, Plaintiff served a supplemental
Rule 26 disclosure, attaching a supplemental expert report by Dr. Fishkind, dated August 29, 2016
(“Supplemental Report”). (Dkt. 44-9.) In the Supplemental Report, Dr. Fishkind states that the
purpose of the Supplemental Report is to supplement his Initial Report and update his opinions
because, since the time of the report, “additional information has become available.” (Dkt. 44-9 ¶
1.0.) In the Supplemental Report, Dr. Fishkind: (1) corrected his value per bed to $214,992, from
$236,998 in the Initial Report, based on “a coding error that Dr. Durham identified” (Dkt. 44-9 ¶¶
3.0, 10.0); (2) corrected the Initial Report’s failure to deduct Plaintiff’s net proceeds from
Plaintiff’s sale of the Property (Dkt. 44-9 ¶¶ 4.0, 10.0); (3) rebuts Dr. Durham’s criticism of the
Initial Report’s damages calculation (of multiplying the number of licensed beds by the market
rate per bed), by stating that it is an “industry” standard to “value facilities on the basis of licensed
beds” (Dkt. 44-9 ¶ 9.0); and (4) rebuts Dr. Durham’s opinion (See Dkt. 53 at 4) that Dr. Fishkind
did not give proper consideration to Dr. Fishkind’s use of comparable facilities that have outpatient
services (Dkt. 44-9 ¶¶ 5.0–8.00).
As to his rebuttal of Dr. Durham’s opinion regarding the comparable facilities having
outpatient services, Dr. Fishkind defended his use of the comparable facilities, opining that “the
market places little value on outpatient facilities” and residential treatment facilities are more
valuable. (Dkt. 44-9 ¶¶ 5.0–6.0.) Dr. Fishkind based this conclusion on his consultation with
treatment providers “[o]ver the last five years,” who informed him that “outpatient services are
generally only marginally profitable” and the deposition testimony of Jackie Krone, taken July 22,
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2016, in which Ms. Krone testified that insurance companies provide higher reimbursements for
residential treatment facilities than outpatient services. (Dkt. 44-9 ¶¶ 7.0–8.0.)
At the hearing, Defendant’s counsel stated that Dr. Fishkind did not supplement his
responses to Defendant’s July 22, 2016, subpoena duces tecum to Dr. Fishkind when Plaintiff
served Dr. Fishkind’s Supplemental Report. In response, Plaintiff’s counsel stated that they
provided documents related to the Supplemental Report, specifically the deposition transcript of
Ms. Krone.
Defendant moves to strike the Supplemental Report and exclude the testimony of Dr.
Fishkind. (Dkt. 44 at 1.) Defendant contends that the Supplemental Report is not “supplemental”
because it advances a new methodology for calculating damages and was untimely because “Dr.
Fishkind had all the information available to him at the time he prepared his initial opinion.” (Dkt.
44 ¶¶ 1–2, 13, 14, 29.) Further, Defendant contends that portions of the Supplemental Report rebut
Dr. Durham’s opinions, which is an untimely rebuttal because the deadline for rebuttal reports was
June 30, 2016. (Dkt. 44 ¶ 15.) This rebuttal, Defendant contends, also offers new opinions
regarding “insurance reimbursement, the prevalence of [residential treatment facilities] over
outpatient facilities in Florida, and the profitability of residential (high) versus outpatient (low)
services in Florida” and introduces new research upon which these new opinions rely. (Dkt. 44 ¶
15.)
At the hearing, Defendant presented argument about the prejudice it would suffer if the
Supplemental Report is not stricken. Specially, Defendant contends that discovery would need to
be re-opened so that Defendant could (1) depose Dr. Fishkind and any witnesses identified by Dr.
Fishkind in the Supplement Report as providing him information supporting his opinion, (2)
review the facts and data upon which Dr. Fishkind relied in forming his opinions, and (3) engage
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an expert to prepare a rebuttal report, which would necessitate making the rebuttal expert available
for deposition. Further, Defendant argues that the dispositive and Daubert motions filed in this
case would need to be re-filed.
In response, Plaintiff contends that Dr. Fishkind’s supplemental report was timely because
it was made before the deadline for pretrial disclosures (See Fed. R. Civ. P. 26(e)(2) and (a)(3)(B)
and Dkt. 25) and before the close of discovery. (Dkt. 53 at 10–11.) The cases Defendant cites,
Plaintiff argues, are inapposite because they “pertain to situations where the supplementation
occurred after the discovery deadline had passed.” (Dkt. 53 at 10–11.)
Further, Plaintiff argues that Dr. Fishkind prepared the supplemental report to rebut the
testimony of Dr. Durham at his August 23, 2016 deposition, at which, Plaintiff contends, Dr.
Durham offered new opinions not contained in his report—specifically opinions regarding the
Initial Report’s failure to address how the facilities identified as comparable to Plaintiff’s proposed
facility were in fact comparable in light of them having outpatient facilities, which Plaintiff’s
proposed facility would not have had. (Dkt. 53 at 8–9, 11.) Therefore, Plaintiff disputes
Defendant’s claim that the Supplemental Report presents new opinions because Plaintiff contends
that it simply rebuts Dr. Durham’s “new” opinions made during his deposition. (Dkt. 53 at 9, 14–
15.) Also, Plaintiff contends that it offered to make Dr. Fishkind available after serving his
Supplemental Report, but Defendant declined to depose him. (Dkt. 53 at 9.)
Finally, Plaintiff argues that it was obligated to supplement Dr. Fishkind’s report in order
to correct errors Dr. Fishkind made in his Initial Report, which Dr. Durham pointed out. (Dkt. 53
at 13.) Dr. Fishkind would have corrected these errors earlier, Plaintiff contends, at his July 27,
2016 deposition, but Defendant canceled the deposition. (Dkt. 53 at 13.) Also, Defendant cannot
claim surprise by these corrections, Plaintiff argues, because Dr. Durham identified the errors and
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Defendant is not prejudiced because the corrections reduce Plaintiff’s damages claim by over a
million dollars. (Dkt. 53 at 13–14.)
B.
Discussion
Reviewing the Supplemental Report, paragraph 3.0 corrects Dr. Fishkind’s error in his
Initial Report, which Dr. Durham identified in his report (Dkt. 53 2 at 3, n.2), of including in his
calculation a facility that Dr. Fishkind stated was not in fact a comparable facility and thus should
not be included in the calculation (Dkt. 44-1 ¶ 30.0). This adjustment is reflected in paragraph
10.0 of the Supplemental Report. (Dkt. 44-9 ¶ 10.) Paragraph 4.0 of the Supplemental Report
corrects the Initial Report’s failure to deduct Plaintiff’s net proceeds from the sale of the Property
from Dr. Fishkind’s damages, which was also noted by Dr. Durham (See Dkt. 53-2 at 3). (Dkt.
44-9 ¶ 4.0.) Dr. Fishkind reflected this adjustment in his damages conclusion in paragraph 10.0
of the Supplemental Report. (Dkt. 44-9 ¶ 10.0.)
Although, as Defendant contends, Dr. Fishkind’s corrections are based on information
available to him at the time of his Initial Report, Rule 26(e)(1)(A) required Dr. Fishkind to correct
his Initial Report. Tampa Bay Water, 2011 WL 3475548, at *4–5; Companhia Energetica
Potiguar v. Caterpillar Inc., 2016 WL 3102225, at *6 (explaining that supplementing a report to
correct inaccuracies is permissible). These corrections did not advance a new theory of damages,
but instead corrected Dr. Fishkind’s calculation under the method of calculating damages he
espoused in his Initial Report. Accordingly, the Motion to Strike Report is denied as to paragraphs
1.0 through 4.0 and 10.0 of the Supplemental Report.
In part C of his Supplemental Report, which is paragraphs 5.0 through 9.0, Dr. Fishkind
addresses Dr. Durham’s opinion that the Initial Report “did not give proper consideration to the
fact that some of the comparable sales included both [residential] and outpatient activities.” (Dkt.
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44-9 ¶ 5.0.) In paragraphs 5.0 and 6.0 of the Supplemental Report, Dr. Fishkind presents opinions
that outpatient facilities are not as valuable in the marketplace as residential treatment facilities
because residential facilities are “relatively rare compared to outpatient facilities.” (Dkt. 44-9 ¶¶
5.0–6.0.) In Paragraphs 7.0 and 8.0 of the Supplemental Report, Dr. Fishkind states treatment
providers he has consulted “[o]ver the last five years” inform him that residential treatment
facilities yield higher insurance coverage or incidences of self-payment and that “outpatient
services are generally only marginally profitable,” which Ms. Krone’s testimony also reflected.
(Dkt. 44-9 ¶¶ 7.0–8.0.) Finally, in paragraph 9.0 of the Supplemental Report, Dr. Fishkind rebuts
Dr. Durham’s report’s questioning of the Initial Report’s methodology by stating that it is the
“industry” standard to value facilities by the number of licensed beds. (Dkt. 44-9 ¶ 9.0.)
The Court concludes that paragraphs 5.0 through 9.0 of the Supplemental Report are
untimely rebuttal opinions. Dr. Durham served his report on June 16, 2016. (Dkt. 53-2.) As part
of his report, Dr. Durham noted that all of the facilities Dr. Fishkind identified as comparable
facilities, in performing his damages calculation, had outpatient services and thus, the company
acquiring those facilities acquired “substantially more than” the “beds,” which was the basis of Dr.
Fishkind’s measure. (Dkt. 53-2 at 4.) Thus, Dr. Durham concluded that, because of the presence
of outpatient services, among other factors, there was “insufficient evidence to conclude” that the
comparable facilities identified in the Initial Report were in fact comparable to Plaintiff’s proposed
facility. (Dkt. 53-2 at 4.) Further, Dr. Durham called into question the Initial Report’s use of the
measure of multiplying the number of beds by a market average as the damages calculation
because it “explicitly assumes that any and every facility with x beds is worth $236,998 times x.”
(Dkt. 53-2 at 4.)
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Under the Amended Case Management and Scheduling Order, Plaintiff’s deadline to serve
a rebuttal report was June 30, 2016. (Dkt. 25.) Rule 26(a)(2)(D) requires that disclosures relating
to expert testimony must be made “at the times and in the sequence that the court orders.” Fed. R.
Civ. P. 26(a)(2)(D). Here, Dr. Fishkind had nearly two weeks after receiving Dr. Durham’s report
to serve a rebuttal report. However, instead of serving a rebuttal report by the deadline or seeking
an extension of the deadline, Plaintiff served the Supplemental Report on the last day of discovery.
Accordingly, these rebuttal opinions were untimely because they were not made by Plaintiff’s June
30, 2016 deadline.
Because Plaintiff failed to provide the rebuttal opinions in accordance with Rule 26(a), the
Court must next determine whether Plaintiff’s failure was substantially justified or harmless. Fed.
R. Civ. P. 37(c)(1). Plaintiff argues that its delay in serving the rebuttal report until August 29,
2016 was because Dr. Durham, during his August 23, 2016 deposition, provided new opinions that
Dr. Fishkind rebutted in his Supplemental Report. (Dkt. 53 at 14) (citing Marco Island Cable, Inc.
v. Comcast Cablevision of the S., Inc., No. 2:04CV26FTM29DNF, 2006 WL 1722341, at *1 (M.D.
Fla. June 22, 2006) (denying a motion to strike a rebuttal report served after the deadline for
rebuttal because the report rebutted testimony given by the opposing party’s expert after the
deadline for rebuttal reports)). Specifically, Plaintiff contends that Dr. Durham testified that the
Initial Report failed to explain how the facilities Dr. Fishkind identified as comparable could in
fact be comparable because they offered outpatient services. (Dkt. 53 at 14).
Plaintiff’s argument is unavailing because a review of Dr. Durham’s testimony (Dkt 533) and Dr. Durham’s report (Dkt. 53-2) shows that Dr. Durham testified about information
contained in his report and did not offer new opinions at the deposition. Specifically, Dr. Durham’s
report called into question Dr. Fishkind’s identification of facilities as comparable that offered
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outpatient services. (Dkt. 53-2 at 4.) During his deposition, Dr. Durham reiterated his report’s
position that Dr. Fishkind’s Initial Report did not properly address this factor in identifying
comparable facilities and thus did not offer new opinions. (See Dkt. 53-3 at 88.) Accordingly,
because Dr. Durham’s opinions that Dr. Fishkind rebuts in his Supplement Report were contained
in Dr. Durham’s June 16, 2016 report, and not, as Plaintiff contends, raised for the first time during
Dr. Durham’s August 23, 2016 deposition, there is no substantial justification for Plaintiff’s failure
to serve the rebuttal report by the June 30, 2016 deadline.
Plaintiff’s failure to meet the rebuttal report deadline is also not harmless because Plaintiff
served the rebuttal report on the last day of discovery. Thus, as Defendant argues, Defendant
cannot depose Dr. Fishkind regarding these opinions or engage in discovery regarding the facts
and data Dr. Fishkind identified as underlying his rebuttal opinions in paragraphs 6.0 and 7.0 of
the Supplemental Report. For example, Defendant cannot depose the “treatment providers” Dr.
Fishkind states he consulted with in forming his opinions in paragraph 7.0 of the Supplemental
Report.
Accordingly, because Plaintiff failed to provide information as required by Rule
26(a)(2)(D), namely Plaintiff failed to timely serve rebuttal opinions, Plaintiff is “not allowed to
use that information . . . to supply evidence on a motion, at a hearing, or at a trial.” Fed. R. Civ.
P. 37(c)(1). Therefore, the Motion to Strike Report is granted as to paragraphs 5.0 through 9.0 of
the Supplemental Report.
II.
Motion to Strike Damages
A.
Background
On September 11, 2015, Plaintiff served its initial Rule 26(a)(1) disclosures, in which it
disclosed, pursuant to Rule 26(a)(1)(A)(iii), a computation of each category of damages it claimed
as follows:
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- Expenses Related to City’s Conduct – Lincoln Rock is claiming that the City’s
conduct caused Lincoln Rock to lose its investment in the business. Documents
evidencing the expenses incurred to date will be produced to the City.
- Loss of Property Value/Profits: Lincoln Rock is claiming that the City’s conduct
caused the property’s value to be lower than it would have been had the City acted
according to the law, and that the City’s conduct likewise caused Lincoln Rock
to lose profits that would have been enjoyed but for the City’s conduct. An expert
is computing this category of damages, which will be disclosed at that time set
forth in the case management order.
(“Initial Damages Disclosure”) (Dkt. 41-3.)
On June 21, 2016, during the deposition of Plaintiff’s sole member, Mr. Rock, Plaintiff’s
counsel told Defendant’s counsel that Plaintiff’s damages claim was the damages claimed in
Plaintiff’s expert’s report. (Dkt. 41 ¶¶ 7, 10; Dkt. 41-8.) Then, on July 21, 2016, during the
deposition of one of Plaintiff’s attorneys, Plaintiff’s counsel told Defendant’s counsel that it would
not be seeking Plaintiff’s attorneys’ fees as damages. (Dkt. 41-9, 50-7.)
On August 2, 2016, Defendant served notice of a videotaped deposition duces tecum, to
take place on August 22, 2016, of Plaintiff’s corporate representative having knowledge of, among
other things:
The identity, duties, function, contract terms and compensation of all
subcontractors and other persons with whom [Plaintiff] contracted to provide
services to [Plaintiff] or its clients from the date of incorporation to present.
All expenses incurred by [Plaintiff].
Damages alleged to have been suffered by [Plaintiff] as a result of the actions by
the City as alleged in the Complaint.
(Dkt. 50-2.) Further, the corporate representative was instructed to produce at the deposition “[a]ll
records showing [Plaintiff’s] expenses,” “[c]opies of all documents supporting, demonstrating or
substantiating [Plaintiff’s] allegation that [Plaintiff] has suffered damages as a result of the actions
of the City as alleged in the Complaint,” and “[t]o the extent that such documents are not described
in the prior requests to produce, copies of all documents supporting, demonstrating or
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substantiating your claim that you have suffered damages as result of the actions of the City as
described in the Complaint.” (Dkt. 50-2.) On August 19, 2016, however, Defendant served a
notice of canceling the deposition of Plaintiff’s corporate representative. (Dkt. 50-8.)
On August 17, 2016, before the August 29, 2016, close of discovery, Plaintiff served
supplemental Rule 26(a) disclosures regarding damages, disclosing as follows:
Damages: In addition to the damages set forth in Dr. Fishkind’s previouslyserved expert report, Plaintiff will also be seeking as damages the following items
at trial:
1. Consulting expenses for Dr. Eric Kaplan, Jacki Krone, and Althea Greco,
in the amount of $120,000. These amounts and the services rendered by these
consultants have been previously testified to at deposition by these individuals, as
well as by Bernard Rock and Tom Lamb. Similarly, the supporting documentation
for these paid expenses has previously been produced.
2. Expenses for Hill Ward Henderson to prosecute special use application
and subsequent pre-litigation efforts to obtain approval by City of Tampa: $32,174.
Attached hereto are Hill Ward’s bills showing amounts for services rendered in this
regard. Mr. John Grandoff may testify about these amounts and their
reasonableness. Messrs. Rock and Lamb may also testify about these amounts and
that they were paid.
(“Supplemental Damages Disclosure”) (Dkt. 41-1.) Plaintiff attached invoices of Mr. Grandoff’s
firm to Mr. Rock to Supplemental Damages Disclosure. (Dkt. 41-1.)
In the Motion to Strike Damages, Defendant contends that Plaintiff’s Supplemental
Damages Disclosure should be stricken as untimely because Plaintiff failed to (1) disclose these
alleged damages at the time of the Initial Damages Disclosure even though Plaintiff possessed the
billing records attached to the Supplemental Damages Disclosure and (2) update the Initial
Damages Disclosure in a timely manner and only did so shortly before the close of discovery.
(Dkt. 41 ¶ 26.) Further, Defendant argues that the untimely disclosure is prejudicial to Defendant
because the parties have completed “the depositions of the six witnesses Plaintiff identifies as
having knowledge of these damages” and that, at the time of the depositions, Defendant did not
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question these witnesses about their invoices to Plaintiff because Defendant relied on Plaintiff’s
counsel’s representation that Plaintiff did not seek such damages. (Dkt. 41 ¶ 27.) At this juncture,
Defendant contends, it is unable to procure expert testimony to rebut this damages claim. (Dkt.
41 ¶ 27.)
In response, Plaintiff contends that its Initial Damages Disclosure encompassed the
damages disclosed in the Supplemental Damages Disclosure because the Initial Damages
Disclosure included “Documents evidencing the expenses incurred to date will be produced to the
City.”
(Dkt. 50 at 3, 8.)
Further, Plaintiff argues, without citation to authority, that its
Supplemental Damages Disclosure was timely because it was made before the close of discovery.
(Dkt. 50 at 1, 7, 8.) Finally, Plaintiff contends that it served the Supplemental Damages Disclosure
five days before Defendant’s deposition of Plaintiff’s corporate representative on damages and,
because Defendant canceled the deposition, any prejudice Defendant experienced was caused by
Defendant’s canceling the deposition. (Dkt. 50 at 2, 7.) To the extent the Court finds its
supplemental disclosures untimely, Plaintiff argues that the Court should re-open discovery to
ameliorate any prejudice to Defendant. (Dkt. 50 at 10).
With regard to Defendant’s contention that Plaintiff did not produce documents evidencing
Plaintiff’s expenses (Dkt. 41 ¶ 13), Plaintiff contends that it produced the supporting documents
prior to the depositions of the consultants and attorneys. (Dkt. 50 at 4–5.) Specifically, as to the
consulting expenses disclosed in the Supplemental Damages Disclosure, Plaintiff contends that
“[a]s discovery progressed, [Plaintiff] timely produced documents evidencing the expenses
incurred in seeking local and state permits and approvals, including invoices and other documents
showing payments relating to the consulting services of Dr. Eric Kaplan, Jacki Krone, and Althea
Greco.” (Dkt. 50 at 4–5.) At the hearing, Plaintiff stated that production regarding the consulting
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fees was made to Defendant in May 2016. Further, Plaintiff contends that Defendant deposed Dr.
Kaplan, Ms. Krone, Ms. Greco, and Plaintiff’s principal, Mr. Rock, in June and July 2016 “on
these issues” and that “documents pertaining to the consulting work of Kaplan, Krone, and Greco
were produced before they were deposed.” (Dkt. 50 at 5; Dkts. 50-4–50-6.) Thus, Plaintiff
contends, contrary to Defendant’s argument, Defendant “has known literally for months through
the document productions and the above depositions that these consultants were collectively paid
$120,000 for their services” and Defendant had the opportunity to depose them. (Dkt. 50 at 5.)
As to the attorneys’ fees disclosed in the Supplemental Damages Disclosure, Mr. Grandoff was
deposed on July 21, 2016 (Dkt. 41-9), and Plaintiff contends that, before his deposition, Plaintiff
produced copies of Mr. Grandoff’s law firm’s bills, although they were redacted, including as to
the specific dollar charges. (Dkt. 41-9; Dkt. 50 at 5.)
In contrast, Defendant contends that Plaintiff’s Supplemental Damages Disclosure, made
on August 17, 2016, after the depositions of Mr. Kaplan, Ms. Krone, Ms. Greco, and Mr. Grandoff,
“the witnesses with knowledge of these issues,” is prejudicial to Defendant because Defendant is
now “precluded . . . from conducting any defense of over $150,000 the Plaintiff now seeks from
[Defendant.]” (Dkt. 41 ¶¶ 14, 17.) Further, Defendant argues that allowing the Supplemental
Damages Disclosure would be prejudicial based on Plaintiff’s counsel’s representations as to the
damages Plaintiff sought. (Dkt. 41 ¶¶ 10–11.) Specifically, Defendant points to Plaintiff’s
counsel’s representation, made on June 21, 2016, during the deposition of Plaintiff’s sole member,
Mr. Rock, that Plaintiff’s damages claim was the damages claimed in Plaintiff’s expert’s report,
which, Defendant contends was devoid of “any analysis of the expenses incurred by Plaintiff in
this project.” (Dkt. 41 ¶¶ 7, 10; Dkt. 41-8.) Then, during Mr. Grandoff’s July 21, 2016 deposition,
Defendant’s counsel referred to the billing records and stated, “I have not seen any demand for
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reimbursement of his fees in this case . . . are you trying to make a claim for his fees?” (Dkt. 419.) Plaintiff’s counsel replied, “Not at this point. If we are, I will let you know, but I don’t -- I
don’t think that’s the horse we are riding.” (Dkt. 41-9.) After Defendant’s counsel noted that Mr.
Grandoff’s billing records were redacted, Plaintiff’s counsel stated, “If we -- if we are -- if we
decide we are going to move -- add those as damages, you will get a copy that actually has the
number in it, but I don’t anticipate doing that.” (Dkt. 50-7.)
B.
Discussion
The Court must first determine whether, according to Plaintiff’s contention (Dkt. 50 at 3–
4, 7), Plaintiff’s Initial Damages Disclosure encompassed its claim for consulting and attorneys’
fees disclosed in Plaintiff’s Supplemental Damages Disclosure.
Plaintiff’s Initial Damages
Disclosure disclosed “Expenses Related to the City’s Conduct” as a category of damages, in which
it stated that Plaintiff “is claiming that the [Defendant’s] conduct caused Lincoln Rock to lose its
investment in the business,” and that “[d]ocuments evidencing the expenses incurred to date will
be produced.” (Dkt. 41-1). While this is a broad description of a category of damages, Plaintiff’s
argument that its Initial Damages Disclosure encompassed a claim for Plaintiff’s attorneys’ and
consultants’ fees is undermined by Plaintiff’s counsel’s representations to Defendant’s counsel
regarding the type of damages Plaintiff seeks. First, on June 21, 2016, during the deposition of
Plaintiff’s sole member, Mr. Rock, Plaintiff’s counsel stated, “The damages that are being sought
are what’s in the [Fishkind] report.” (Dkt. 41-8.) Then, on July 21, 2016, during the deposition
of Mr. Grandoff, Plaintiff’s counsel stated that Plaintiff would not be seeking Mr. Grandoff’s fees
as damages. (Dkts. 41-9, 50-7.) Thus, while Plaintiff’s Initial Damages Disclosure used broad
language that could encompass its claims for attorneys’ and consultants’ fees disclosed in its
Supplemental Damages Disclosures, Plaintiff made representations to Defendant’s counsel that it
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would not seek such expenses as damages (Dkts. 41-8, 41-9, 50-7), which affected Defendant’s
discovery strategy. Accordingly, Plaintiff’s argument is undermined by its representations through
counsel that it would not be seeking its expenses as damages.
The Court must next determine whether Plaintiff’s Supplemental Damages Disclosure
constitutes a timely supplement under Rule 26(e). Rule 26(e) requires a party to supplement or
correct disclosures made under Rule 26 in a “timely manner” when the party “learns that in some
material respect the disclosure or response is incomplete or incorrect, and if the additional or
corrective information has not otherwise been made known to the other parties during the
discovery process or in writing.” Fed. R. Civ. P. 26(e)(1)(A). Here, the invoices supporting
Plaintiff’s Supplemental Damages Disclosure for Mr. Grandoff’s fees are from 2013 and early
2014 (Dkt. 41-1), more than a year before suit was filed and Plaintiff’s Initial Damages Disclosure
was due. Further, Plaintiff’s claim for the fees of its consultants would likewise pre-date the
lawsuit because these consultants were hired to assist Plaintiff in obtaining the special use permit
(Dkt. 50 at 2), which, according to the Complaint, occurred in 2012 or early 2013. (Dkt. 1 ¶¶ 11–
19.)
Rule 26(a)(1)(E) requires a party to make its initial disclosures “based on the information
then reasonably available to it” and “[a] party is not excused from making its disclosures because
it has not fully investigated the case.” Fed. R. Civ. P. 26(a)(1)(E). Here, the invoices supporting
Plaintiff’s Supplemental Damages Disclosure were available to Plaintiff at the time of its Initial
Damages Disclosure, but Plaintiff did not disclose them at that time. Thereafter, Plaintiff failed to
supplement its Initial Damages Disclosure until nearly a year after the Initial Damages Disclosure
was served and less than two weeks before the close of discovery. The Court holds that Plaintiff’s
notifying Defendant of its intention to seek its attorneys’ and consultants’ fees, of over $150,000
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(Dkt. 41-1), two weeks before the close of discovery, despite having the information available to
it since before the time its Initial Damages Disclosure was served, was untimely. See Caruana v.
Marcum, No. 3:01-CV-1567, 2016 WL 4060691, at *3 (M.D. Tenn. July 28, 2016) (internal
quotations omitted) (“Rule 26(e) does not give license to sandbag one’s opponent with new
information that should have been disclosed earlier.”).
Further, Plaintiff’s failure to timely supplement its Initial Damages Disclosure is not
excused, under Rule 26(e)(1)(A), because “the additional or corrective information [was]
otherwise [ ] made known to the other parties during the discovery process.” Fed. R. Civ. P.
26(e)(1)(A). Although Plaintiff contends that it produced the materials evidencing the consultants’
fees in May 2016, Plaintiff did not disclose to Defendant that these expenses would be sought as
damages until August 2016. Further, although redacted versions of Mr. Grandoff’s invoices were
produced in advance of his July 21, 2016, deposition, the un-redacted invoices, showing the
amounts billed, were not disclosed until they were attached to the Supplemental Damages
Disclosure. (Dkt. 41-1.) Thus, although Plaintiff produced materials supporting the damages
claim for Plaintiff’s attorneys’ and consultants’ fees prior to Plaintiff’s serving the Supplemental
Damages Disclosure, Plaintiff did not notify Defendant of its intention to seek these expenses as
damages until the Supplemental Damages Disclosure and, on two occasions, represented to
Defendant that it would not be seeking these expenses as damages. See Mee Indus. v. Dow Chem.
Co., 608 F.3d 1202, 1222 (11th Cir. 2010) (rejecting plaintiff’s argument that its claim for loss of
goodwill damages was “‘otherwise . . . made known’” to defendant, asserting that it was
encompassed in its initial damages disclosure that claimed damages for an alleged lost sale,
because “[a]lthough there may be evidentiary overlap between the alleged lost sale and a claim of
loss of goodwill, considerable differences exist between the two theories” and thus, “ [t]he district
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court did not abuse its broad discretion in rebuffing [plaintiff’s] belated effort to introduce a new
category of damages”); Goodman-Gable-Gould Co. v. Tiara Condo. Ass’n, Inc., 595 F.3d 1203,
1211–13 (11th Cir. 2010) (affirming the district court’s exclusion of evidence relating to appellee’s
theory of damages based on the appellee’s “discovery violations” because it failed to supplement
answers to interrogatories regarding its damages theories and its supplemental responses
“reveal[ed] no indication that [appellee] had abandoned the price gouging theory in favor of the
misrepresentation and delay theories”); Johnson v. R.J. Reynolds Tobacco Co., No. 2:12-CV-618FTM-29, 2013 WL 1899737, at *1, n.1 (M.D. Fla. May 7, 2013) (reasoning that “Plaintiff’s
revelation to Defendant of the amount of damages he seeks, through mediation or otherwise, does
not alleviate Plaintiff’s duty to supplement his initial disclosures pursuant to Rule 26(e)”).
Finally, the Court must determine, under Rule 37(c)(1), whether Plaintiff’s failure to abide
Rule 26(e)(1) “was substantially justified or is harmless.” Fed. R. Civ. P. 37(c)(1). Factors to be
considered are “the non-disclosing party’s explanation for its failure to disclose, the importance of
the information, and any prejudice to the opposing party if the information had been admitted.”
Lips, 350 F. App’x at 340. In Mee Industries v. Dow Chemical Company, the Eleventh Circuit
upheld the district court’s exclusion of evidence relating to the plaintiff’s theory of damages, for
loss of goodwill, that was not disclosed until it was included by plaintiff in the joint pretrial
statement. 608 F.3d at 1221. There, plaintiff’s initial disclosures did not include a claim for loss
of goodwill damages. Id. Then, in response to an interrogatory asking plaintiff to identify any
other claims for damages, plaintiff again failed to identify loss of goodwill as a category of
damages. Id. Only in the parties’ joint pretrial statement did plaintiff identify loss of goodwill as
a category of damages. Id. The Eleventh Circuit determined that “[t]he district court did not abuse
its discretion in concluding disclosure was required under Rule 26 and that [plaintiff’s] failure to
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meet the Rule 26 requirements was not substantially justified or harmless.” Id. at 1221–22.
Elaborating, the Eleventh Circuit held that “[t]he district court did not abuse its broad discretion
in rebuffing [plaintiff’s] belated effort to introduce a new category of damages, especially in light
of its failure to ever present the required computation of alleged good will damages and the
complexity of the financial calculations that would have required expert testimony” and that failing
to provide a damages calculation was not harmless because such computation would “involve
complex financial calculations.” Id. at 1222. As analyzed earlier, the materials supporting
Plaintiff’s Supplemental Damages Disclosure were available to Plaintiff at the time of its Initial
Damages Disclosure. Plaintiff provides no reason for this delay in disclosure, other than that
Plaintiff did not elect to seek these damages until the time it served the Supplemental Damages
Disclosure. (Dkt. 50 at 5–6.) Therefore, Plaintiff’s delay, until August 2016, less than two weeks
before the close of discovery, in disclosing this category of damages was not substantially justified.
Further, the Court finds that permitting the Supplemental Damages Disclosure is harmful
and prejudicial to Defendant. Specifically, as Defendant contends, the depositions of the witnesses
with knowledge of the invoices—Dr. Kaplan, Ms. Krone, Ms. Greco, Mr. Rock, and Mr.
Grandoff—were completed at least a month before the Supplemental Damages Disclosure was
served and, based on Plaintiff’s counsel’s representations as to its theory of damages, Defendant
“did not inquire in detail or seek relevant discovery of the six witnesses above listed by Plaintiff
with knowledge of these expenses.” (Dkt. 41 ¶¶14, 17, 27.) Further, Defendant contends, “[h]ad
the fees been properly disclosed, Defendant would likely have engaged an expert or experts to
analyze the reasonableness and necessity of both the consulting and attorneys’ fees.” (Dkt. 41 ¶
17.)
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However, Plaintiff’s contention that this Court can ameliorate any prejudice to Defendant
by permitting Defendant additional discovery regarding the Supplemental Damages Disclosure
(Dkt. 50 at 10) is well-taken. Specifically, the trial term for this case has been extended from
December 2016 until January 2017. (Dkts. 25, 62.) Considering the extended time before trial
together with the facts that (1) the language of Plaintiff’s Initial Damages Disclosure was broad
and arguably encompassed the damages sought in the Supplemental Damages Disclosure, (2)
Plaintiff served the Supplemental Damages Disclosure (albeit shortly) before the close of
discovery, and (3) Plaintiff had produced many of the materials supporting its Supplemental
Damages Disclosure earlier in discovery, a limited reopening of discovery is warranted. See Engle
v. Taco Bell of Am., Inc., No. 8:09-CV-2102-T-33TBM, 2011 WL 883639, at *2 (M.D. Fla. Mar.
14, 2011) (declining to strike a party’s untimely-disclosed experts because “in the interest of
fairness . . . the Court reopens discovery for the limited purpose of allowing [plaintiffs] to depose
both experts prior to trial” as “[t]he reopening of discovery cures any prejudice that [plaintiffs]
may have sustained due to untimely disclosures”). Accordingly, the Motion to Strike Damages is
denied, but discovery is reopened for the limited purpose of allowing Defendant to take discovery
regarding the Supplemental Damages Disclosure.
III.
Motion to Compel
A.
Background
In the Motion to Compel, Plaintiff seeks to compel better answers from Defendant in
response to Plaintiff’s interrogatory to Defendant, which requests information regarding whether
members of the City Council who voted on the Application “have any formal education in the field
of land use and zoning,” and, if so, information regarding degrees obtained by the City Council
members. (Dkt. 39-2.) In response to the interrogatory, Defendant raised numerous objections,
including that the interrogatory seeks irrelevant information, the interrogatory’s use of “formal
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education” is vague, and Defendant does not have knowledge of the information requested
sufficient to make an affirmation. (Dkt. 39-2.)
Plaintiff contends that Defendant’s experts at the first two levels of review of the
Application recommended that the Application be approved as “consistent with the applicable
comprehensive plan and zoning criteria.” (Dkt. 39 at 4.) However, Plaintiff contends, the City
Council denied the Application “on its own accord, more or less ignoring the advice of its own
experts.”
(Dkt. 39 at 5.) Discovery of the City Council members’ education in land use and
zoning is necessary, Plaintiff argues, to determine “whether the City councilpersons have any
formal education in zoning or land use which they relied upon when they rejected the findings of
City staff.” (Dkt. 39 at 5.) This information is relevant to the allegations in the Complaint, Plaintiff
contends, because “a city’s decision to disregard the findings of its own zoning staff can provide
evidence of discriminatory intent, particularly when, as here, the plaintiff proffers evidence of
discriminatory animus on the part of neighborhood opposition.” (Dkt. 39 at 4) (citing Ave. 6E
Investments, LLC v. City of Yuma, Ariz., 818 F.3d 493, 507 (9th Cir. 2016) (“A city’s decision to
disregard the zoning advice of its own experts can provide evidence of discriminatory intent,
particularly when, as here, that recommendation is consonant with the municipality’s general
zoning requirements and plaintiffs proffer additional evidence of animus.”).
In response, Defendant first argues that the discovery sought by the interrogatory is
duplicative as to three City Council members because Plaintiff has deposed Charles Miranda, Lisa
Monetelione, and Michael Suarez, during which Plaintiff inquired of their formal training and
education in land use planning. (Dkt. 43 ¶¶ 3–8.) Next, Defendant argues that it does not maintain
the records Plaintiff seeks because the requirement to be a City Council member is to be a Tampa
resident. (Dkt. 43 ¶ 10.) Thus, Defendant does not have records of City Council members’
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education or training other than what the members themselves make public on the City Council’s
website. (Dkt. 43 ¶ 10.) Defendant contends that it is not required to engage in extensive research
to answer this interrogatory and should not be required to seek the discovery that Plaintiff failed
to undertake as to the City Council members Plaintiff did not depose. (Dkt. 43 ¶¶ 11–13) (citing
Miller v. Pruneda, 236 F.R.D. 277, 282 (N.D.W. Va. 2004) (“A party answering interrogatories is
required to provide information that is available to it and can be produced without undue labor and
expense . . . Interrogatories cannot require the responding party to make extensive investigations
or conduct complex research.”)).
Finally, Defendant argues that the discovery is not relevant because Plaintiff
misunderstands and misconstrues the layers of review preceding the City Council’s decision on an
application. (Dkt. 43 ¶¶ 14–20.) Specifically, the layers of review preceding the City Council’s
decision involve an objective comparison of an application to the requirements of the city code
whereas the City Council makes a subjective decision, after a public hearing, about the
compatibility of the application’s proposed use with the surrounding neighborhood. (Dkt. 43 ¶
15.) Thus, the City Council members’ land use and zoning experience is irrelevant to Plaintiff’s
claims because the “City Council is not engaged in the practice of land planning or zoning,” rather
it “applies the framework of the law to the evidence it hears at the hearing.” (Dkt. 43 ¶ 17.)
B.
Discussion
Rule 33(b)(1)(B) requires the officer or agent of a governmental agency to “furnish the
information available to the party.” Fed. R. Civ. P. 33(b)(1)(B); Miller, 236 F.R.D. at 282. When
answering an interrogatory, “[t]he answering party cannot limit his answers to matters solely
within his personal knowledge and ignore information immediately available to him or under his
control” and, “the answering party is required to give the information known to him personally, or
through his attorney, investigators, or other agents or representative employed by him.” Aiges v.
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Ironshore Specialty Ins. Co., No. 15-CV-61300, 2015 WL 12564324, at *1–*2 (S.D. Fla. Dec. 9,
2015) (finding an answer to an interrogatory in which the party deferred to its hired professionals
and experts deficient because the party “must give the information known to him personally, or
through his attorney, investigators or other agents or representative employed by him”); Essex
Builders Grp., Inc. v. Amerisure Ins. Co., 230 F.R.D. 682, 684–85 (M.D. Fla. 2005) (finding that
an assignee of an insurance claim’s response to an interrogatory that the assignor had the
information sought was deficient and ordering the assignee to “make an effort to interview those
witnesses and obtain the requested information”). When the answering party “lacks necessary
information to make a full, fair and specific answer to an interrogatory, then it should say so under
oath and explain the efforts made to obtain the information.” Aiges, 2015 WL 12564324, at *1.
However, as Defendant contends, “[d]iscovery does not mean that a party should have to
prepare the other party’s case” and “[a] responding party is generally not required to perform
extensive research to acquire requested information.” L.H. v. Schwarzenegger, No. CIV S06-2042
LKK GGH, 2007 WL 2781132, at *2 (E.D. Cal. Sept. 21, 2007). The Court must view the
discovery request in “the context of Fed.R.Civ.P. 26(b) which generally instructs that the amount
of discovery requested must be balanced by the need for such discovery.” Id. (emphasis in
original) (“A party must make reasonable efforts to respond, and reasonableness is determined by
the size and complexity of the case and the resources that a responding party has available to put
to the case.”).
Here, Defendant filed the affidavit of Kimberley Marple, Defendant’s Employee Relations
Specialist Supervisor, who maintains the personnel files for Defendant’s employees, including
City Council members. (Dkt. 43-4 ¶¶ 2–3.) Ms. Marple avers that City Council members, as
elected officials, “do not submit resumes, curricula vitae, employment history or verification of
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education” to Defendant. (Dkt. 43-4 ¶¶ 4–5.) Thus, she avers, Defendant “does not possess or
maintain records regarding ‘formal education in the field of land use and zoning’ for its City
Council members.” (Dkt. 43-4 ¶ 6.) Defendant argues that obtaining this information from its
Council members would be burdensome because it would require Defendant to interview the
members, “track down a former member,” and inquire about their educational backgrounds. (Dkt.
43 ¶ 12.)
The Court finds that the interrogatory seeks information relevant to Plaintiff’s allegations
in the Complaint regarding the City Council’s role in reviewing and voting on the Application and
Defendant’s affirmative defenses that its actions, through its City Council, were in good faith,
based upon competent, substantial evidence and legitimate, non-discriminatory reasoning. (Dkts.
1, 15.) However, the Court finds that Defendant has met its burden under Rule 33 in responding
to Plaintiff’s interrogatory.
Defendant’s agent avers that Defendant does not possess the
information sought by the interrogatory. (Dkt. 43-4.) Plaintiff deposed three City Council
members and obtained information from them responsive to the interrogatory. Plaintiff did not,
however, seek to depose the remaining City Council members. Although Defendant could obtain
the information from the City Council members, the Court recognizes that Defendant is not
required prepare Plaintiff’s case. Schwarzenegger, 2007 WL 2781132, at *2. Therefore, the
Motion to Compel is denied.
Accordingly, it is
ORDERED:
1.
Plaintiff’s Motion to Compel Better Answers to Interrogatories (Dkt. 39) is
DENIED.
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2.
Defendant’s Motion to Strike and Preclude Plaintiff’s Damage Claims Not
Previously or Properly Disclosed (Dkt. 41) is DENIED, but discovery is reopened for the limited
purpose of permitting Defendant to take discovery related to the Supplemental Damages
Disclosure (Dkt. 41-1). Defendant may conduct such limited discovery until December 30, 2016.
3.
Defendant’s Motion to Strike Plaintiff’s Supplemental Rule 26 Disclosure and
Exclude Supplemental Report and Testimony of Henry H. Fishkind, Ph.D. (Dkt. 44) is
GRANTED in part, as to paragraphs 5.0 through 9.0 of the Supplemental Report (Dkt. 44-9), and
DENIED in part, as to paragraphs 1.0 through 4.0 and 10.0 of the Supplemental Report (Dkt. 449).
DONE and ORDERED in Tampa, Florida on October 21, 2016.
Copies furnished to:
Counsel of Record
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