Morrissey et al v. Subaru of America, Inc. et al

Filing 89

ORDER granting 86 Joint Motion to Dispense with the Requirement to Serve Rule 26(a)(2)(B) Expert Reports and for Entry of Expert Disclosure and Deposition Schedule. Signed by Magistrate Judge Julie S. Sneed on 5/25/2016. (LBL)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
AMALIA H. MORRISSEY and GEORGE
E. MORRISSEY,
Plaintiffs,
v.

Case No: 8:16-cv-48-T-27UAM

SUBARU OF AMERICA, INC. and FUJI
HEAVY INDUSTRIES, LTD.,
Defendants.
___________________________________/
ORDER ON JOINT MOTION TO DISPENSE WITH
THE REQUIREMENT TO SERVE RULE 26(a)(2)(B) EXPERT REPORTS
AND FOR ENTRY OF EXPERT DISCLOSURE AND DEPOSITION SCHEDULE
THIS MATTER is before the Court on the parties’ Joint Motion to Dispense with the
Requirement to Serve Rule 26(a)(2)(B) Expert Reports and for Entry of Expert Disclosure and
Deposition Schedule (“Joint Motion”). (Dkt. 86.) In the Joint Motion, the parties agreed to
dispense with the requirement of serving expert reports, under Federal Rule of Civil Procedure
26(a)(2)(B), and instead have agreed to exchange expert disclosures pursuant to Federal Rule of
Civil Procedure 26(a)(2)(C) “for efficiency and case development purposes” after “thoughtfully
consider[ing] the best approach to expert discovery in this case.” (Dkt. 86.) The Court held a
hearing on the Joint Motion on May 24, 2016. Upon consideration and for the reasons stated at
the hearing and below, the Joint Motion is granted.
APPLICABLE STANDARDS
“Unless otherwise stipulated or ordered by the court,” witnesses who are retained
specifically to provide expert testimony must provide a signed report. Fed. R. Civ. P. 26(a)(2)(B).
Such expert reports must contain (1) “a complete statement of all opinions the witness will express

and the basis and reasons for them,” (2) “the facts or data considered by the witness in forming
them,” (3) “any exhibits that will be used to summarize or support them,” (4) “the witness’s
qualifications, including a list of all publications authored in the previous 10 years,” (5) “a list of
all other cases in which, during the previous 4 years, the witness testified as an expert at trial or by
deposition,” and (6) “a statement of the compensation to be paid for the study and testimony in the
case.” Fed. R. Civ. P. 26(a)(2)(B)(i)-(vi).
For witnesses who are not required to provide a written report, parties must disclose (1)
“the subject matter on which the witness is expected to present evidence” and (2) “a summary of
the facts and opinions to which the witness is expected to testify.” Fed. R. Civ. P. 26(a)(2)(C).
ANALYSIS
Federal Rule of Civil Procedure 26(a)(2)(B) permits parties to enter stipulations regarding
the requirement of serving reports for experts retained specifically to provide expert testimony. In
the Joint Motion, the parties request approval of their stipulation and agreement to exchange expert
witness disclosures pursuant to Federal Rule of Civil Procedure 26(a)(2)(C) instead of serving
written reports pursuant to Federal Rule of Civil Procedure 26(a)(2)(B). At the hearing on the
Joint Motion, the parties further agreed that, at the time of exchanging their Rule 26(a)(2)(C) expert
disclosures, the parties shall also exchange:
1.

A list of all other cases in which, during the previous four years, the witness
testified as an expert at trial or by deposition; and

2.

The file, including exhibits, upon which the expert(s) relied in the parties’
preparation of their Rule 26(a)(2)(C) expert disclosures.

As to the exchange of exhibits upon which their experts rely, the parties further agreed to
supplement and provide the exhibits and file of the expert being deposed seven days prior to that
expert’s deposition. See Fed. R. Civ. P. 16, 26(a)(2)(E) and (e); M.D. Fla. Local R. 3.06.

-2-

Here, the parties have agreed to exchange expert disclosures and have proposed a detailed
schedule for expert disclosures and depositions that will not interfere with the deadlines set in the
Court’s Case Management and Scheduling Order (Dkt. 83). Specifically, the parties request
approval of an expert disclosure and deposition schedule that will conclude before the April 6,
2017 close of discovery and the May 4, 2017 deadline for dispositive and Daubert motions. (Dkt.
86.) The parties agree that their stipulation will streamline expert discovery in this case and help
prepare this case for trial. Given the parties’ agreement and good cause shown in the Joint Motion
and at the hearing, it is
ORDERED:
1.

The Joint Motion to Dispense with the Requirement to Serve Rule 26(a)(2)(B)

Expert Reports and for Entry of Expert Disclosure and Deposition Schedule (Dkt. 86) is
GRANTED.
2.

No later than July 18, 2016, Plaintiffs shall disclose their expert witnesses on

liability and damages in compliance with Rule 26(a)(2)(C) and exchange (1) a list of all other cases
in which, during the previous four years, the witnesses testified as an expert at trial or by deposition
and (2) the file, including exhibits, upon which the expert(s) relied in the Plaintiffs’ preparation of
their Rule 26(a)(2)(C) expert disclosures.
3.

No later than September 23, 2016, Defendants shall disclose their expert witnesses

on liability and damages in compliance with Rule 26(a)(2)(C) and exchange (1) a list of all other
cases in which, during the previous four years, the witnesses testified as an expert at trial or by
deposition and (2) the file, including exhibits, upon which the expert(s) relied in the Defendants’
preparation of their Rule 26(a)(2)(C) expert disclosures.

-3-

4.

No later than October 7, 2016, Plaintiffs shall disclose their rebuttal witnesses, if

any and if the Court so permits, in compliance with Rule 26(a)(2)(C) and exchange (1) a list of all
other cases in which, during the previous four years, the witnesses testified as an expert at trial or
by deposition and (2) the file, including exhibits, upon which the expert(s) relied in the Plaintiffs’
preparation of their Rule 26(a)(2)(C) expert disclosures.
5.

No later than October 21, 2016, Defendants shall disclose their sur-rebuttal

witnesses, if any and if the Court so permits, in compliance with Rule 26(a)(2)(C) and exchange
(1) a list of all other cases in which, during the previous four years, the witnesses testified as an
expert at trial or by deposition and (2) the file, including exhibits, upon which the expert(s) relied
in the Defendants’ preparation of their Rule 26(a)(2)(C) expert disclosures.
6.

Plaintiffs shall make their liability expert witnesses available to Defendants for

deposition so that the last deposition is completed by November 18, 2016. No later than seven
days in advance of any scheduled deposition, Plaintiffs shall send Defendants any such expert’s
file, including the exhibits the Plaintiffs intend to rely upon at the deposition or trial.
7.

Plaintiffs shall make their medical and damages expert witnesses available to

Defendants for deposition so that the depositions are completed by January 14, 2017. No later
than seven days in advance of any scheduled deposition, Plaintiffs shall send Defendants any such
expert’s file, including the exhibits the Plaintiffs intend to rely upon at the deposition or trial.
8.

Defendants shall make their liability expert witnesses available to Plaintiffs for

deposition so that all such depositions are completed by February 28, 2017. No later than seven
days in advance of any scheduled deposition, Defendants shall send Plaintiffs any such expert’s
file, including the exhibits the Defendants intend to rely upon at the deposition or trial.

-4-

9.

Plaintiffs shall make their rebuttal expert witnesses, if any, available to Defendants

for deposition so that all such depositions are completed by March 18, 2017. No later than seven
days in advance of any scheduled deposition, Plaintiffs shall send Defendants any such expert’s
file, including the exhibits the Plaintiffs intend to rely upon at the deposition or trial.
10.

Defendants shall make their sur-rebuttal expert witnesses, if any, available to

Plaintiffs for deposition so that all such depositions are completed by April 1, 2017. No later than
seven days in advance of any scheduled deposition, Defendants shall send Plaintiffs any such
expert’s file, including the exhibits the Defendants intend to rely upon at the deposition or trial.
11.

The parties must supplement, as necessary, their exchange of the exhibits upon

which their experts rely in accordance with Federal Rules of Civil Procedure 16, 26(e), and
26(a)(2)(E) and Middle District of Florida Local Rule 3.06.
12.

No more than two expert witness depositions may be taken in one week and expert

depositions shall not exceed twelve hours of actual testimony.
DONE and ORDERED in Tampa, Florida on May 25, 2016.

Copies furnished to:
Counsel of Record

-5-