Bradenton Beauty & Barber Academy, Inc. v. First National Insurance Company of America et al

Filing 34

ORDER denying 22 Motion to Strike Plaintiff's Experts as Untimely and/or for Failure to Provide Written Expert Reports and Sufficient Information Required by Rules 26(a)(2)(B) and 26(a)(2)(C), provided, however, that Plaintiff shall suppl ement its disclosure as to Mr. Barral as directed in the Order within fourteen (14) days, and that discovery is reopened for the limited purpose of permitting Defendant to depose Mr. Russell and Mr. Barral, which depositions must be completed within thirty (30) days. Signed by Magistrate Judge Julie S. Sneed on 3/8/2017. (LBL)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
BRADENTON BEAUTY & BARBER
ACADEMY, INC.,
Plaintiff,
v.

Case No: 8:16-cv-456-T-27JSS

FIRST NATIONAL INSURANCE
COMPANY OF AMERICA,
Defendant.
___________________________________/
ORDER
THIS MATTER is before the Court on Defendant First National Insurance Company of
America’s Motion to Strike Plaintiff’s Experts as Untimely and/or for Failure to Provide Written
Expert Reports and Sufficient Information Required by Rules 26(a)(2)(B) and 26(a)(2)(C)
(“Motion”) (Dkt. 22), and Plaintiff’s response in opposition (Dkt. 26). For the reasons that follow,
the Motion is denied.
BACKGROUND
This case involves a coverage dispute under a commercial property insurance policy issued
to Plaintiff by Defendant First National Insurance Company of America.1 (Dkt. 1.) Plaintiff
alleges that one of its covered properties was damaged by a sewage backup, and that Defendant
failed to pay Plaintiff the amount it is owed under the policy for this damage. (Dkt. 1 ¶¶ 7, 11–
12.) Plaintiff sues Defendant for breach of the policy. (Dkt. 1 ¶¶ 15–20.) In its answer, Defendant

1

Defendants American States Insurance Company and Liberty Mutual Insurance Company were dismissed as
defendants pursuant to Plaintiff’s notice of voluntary dismissal. (Dkts. 10, 12.)

admits that the damage caused by the reported sewage backup was paid as a covered loss, and thus
contends that Defendant has met its obligations to Plaintiff under the policy. (Dkt. 3.)
During discovery, Plaintiff disclosed that it intends to rely, in part, upon the testimony of
expert witnesses. Defendant seeks to strike two of Plaintiff’s expert witnesses on the grounds that
Plaintiff’s disclosures under Federal Rule of Civil Procedure 26 were insufficient and/or untimely.
(Dkt. 22.)
APPLICABLE STANDARDS
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 to present evidence 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 signed, written report that contains the following: “a
complete statement of all opinions the witness will express and the basis and reasons for them,”
“the facts or data considered by the witness in forming them,” “any exhibits that will be used to
summarize or support them,” “the witness’s qualifications, including a list of all publications
authored in the previous 10 years,” “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 “a statement of the compensation
to be paid for the study and testimony in the case.” Fed. R. Civ. P. 26(a)(2)(B). For witnesses not
providing a written report, the expert disclosures must contain “the subject matter on which the
witness is expected to present evidence,” and “a summary of the facts and opinions to which the
witness is expected to testify.” Fed. R. Civ. P. 26(a)(2)(C). Expert disclosures must be made “at
the times and in the sequence that the court orders.” Fed. R. Civ. P. 26(a)(2)(D).
“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

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a hearing, or at a trial, unless the failure was substantially justified or is harmless.” Fed. R. Civ.
P. 37(c)(1). 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. Breathe Easy, 2009 WL
92826, at *3.
ANALYSIS
In its Case Management and Scheduling Order, the Court set November 1, 2016, as the
deadline for expert witness disclosures, with rebuttal experts disclosures due twenty days
thereafter. (Dkt. 15.) On November 1, 2016, Plaintiff timely served its expert disclosures,
disclosing Michael Barral and Bruce Smith as experts. (Dkt. 22 ¶ 3; Dkt. 22-1.) Defendant
contends that Plaintiff did not disclose written reports pursuant to Rule 26(a)(2)(B), or, for
witnesses who do not provide reports, information as required by Rule 26(a)(2)(C). (Dkt. 22 ¶ 3.)
Thereafter, on November 16, 2016, Plaintiff served an amended expert witness disclosure, listing
only Mr. Barral as an expert. (Dkt. 22-2.) Defendant contends that this disclosure also did not
comply with the requirements of Rule 26(a)(2)(B) or (C).

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Next, on December 20, 2016, four days after the Court’s December 16, 2016 discovery
deadline (Dkt. 15), Plaintiff served a second amended expert witness disclosure, listing Mr. Barral
and Scott Russell as experts. (Dkt. 22-3.) Plaintiff disclosed that Mr. Barral “is expected to testify
in accordance with his opinions expressed in his report provided to the Defendant prior to
litigation,” and Mr. Russell is expected to testify in accordance with his opinions expressed in his
report, which Plaintiff attached to the second amended disclosure. (Dkt. 22-3.) Defendant
contends that the second amended disclosure was untimely and failed to comply with Rule
26(a)(2)(B) and (C). (Dkt. 22 ¶¶ 9–10.)
Finally, in response to the Court’s order (Dkt. 31), Plaintiff submitted, among other
materials, Plaintiff’s third amended expert witness disclosure, served March 7, 2017, in which
Plaintiff disclosed Mr. Barral pursuant to Rule 26(a)(2)(C), as a witness not providing a written
report, and Mr. Russell pursuant to Rule 26(a)(2)(B), as a witness providing a written report.
A.

Mr. Barral

With regard to Plaintiff’s second amended disclosures, Defendant argues that Plaintiff did
not provide a written report for Mr. Barral that complies with Rule 26(a)(2)(B), but instead
provided a pre-litigation claim package submitted by Mr. Barral to Defendant. In response,
Plaintiff argues that it timely disclosed Mr. Barral as an expert witness and provided Defendant
with Mr. Barral’s report and other supporting records well before its timely November 1, 2016
disclosure.
Plaintiff explains that it hired Mr. Barral as its public adjuster during the insurance claims
process that preceded this lawsuit. (Dkt. 26 at 3.) Mr. Barral, on Plaintiff’s behalf, submitted a
claim package and supporting materials to Defendant before this lawsuit was filed. (Dkt. 26 at 3.)
Plaintiff disclosed Mr. Barral, in its April 2016 initial Rule 26(a) disclosures, as an individual

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likely to have discoverable information, and listed the files of Mr. Barral’s employer, ClaimQuest,
Inc., and all demand packages as documents supporting Plaintiff’s claim. (Dkt. 26-1.) At
Defendant’s request, Plaintiff served amended Rule 26(a) initial disclosures, in which it stated that
Plaintiff had provided Defendant with Mr. Barral’s claim package, and that these documents
remained available at Plaintiff’s counsel’s office. (Dkts. 26-3, 26-4.) Further, in response to
Defendant’s counsel’s inquiries in September 2016, Plaintiff’s counsel provided Defendant with
Mr. Barral’s claim package. (Dkt. 26-6.) Finally, Plaintiff states that Mr. Barral confirmed the
following at his December 2016 deposition: that his opinions related to the value of Plaintiff’s
claim, which is set forth in Mr. Barral’s claim package; that all documents upon which he relied
had been provided to Defendant; that he had not been deposed nor testified at trial in the past four
years; and that he was to be paid ten percent of Plaintiff’s total gross recovery exceeding $130,000.
(Dkt. 26 at 5–6.)
The Court finds that Mr. Barral was timely disclosed as an expert. (Dkts. 15, 22-1.)
Further, Plaintiff provided Defendant with Mr. Barral’s claim package in advance of the expert
disclosure deadline. Upon review of Plaintiff’s third amended expert witness disclosure, in which
Mr. Barral has been disclosed as a witness pursuant to Rule 26(a)(2)(C), the Court finds that
although the disclosure meets the requirements of Rule 26(a)(2)(C)(i), it fails to provide “a
summary of the facts and opinions to which the witness is expected to testify,” as required by Rule
26(a)(2)(C)(ii). Specifically, although the third amended disclosure states that Mr. Barral will
testify in accordance with the facts and opinions expressed in his claim package and at his
deposition, it does not summarize the facts and opinions about which Mr. Barral will testify.
Because Plaintiff failed to make appropriate disclosures under Rule 26(a), the Court must
determine whether Plaintiff’s failure was substantially justified or harmless. Fed. R. Civ. P.

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37(c)(1). It is unclear why, despite disclosing Mr. Barral pursuant to Rule 26(a)(2)(C), Plaintiff’s
third amended disclosure omits the information required by Rule 26(a)(2)(C)(ii). However,
because Plaintiff disclosed Mr. Barral as an individual with relevant information in its initial
disclosures, timely disclosed him as an expert, and made the claim package and supporting
documentation available to Defendant well before the expert disclosures deadline, the Court finds
that there is no prejudice to Defendant.
Nonetheless, Plaintiff shall supplement its third amended disclosure with the information
required by Rule 26(a)(2)(C)(ii) within fourteen days of this Order. This supplement shall not
expand the scope of Mr. Barral’s expected testimony from the scope previously disclosed in
Plaintiff’s expert disclosures and in Mr. Barral’s deposition testimony. Further, to the extent
Defendant believes that a second deposition of Mr. Barral is necessary as a result of the
forthcoming supplement, Defendant is granted leave to depose Mr. Barral. The deposition must
be completed within thirty days of this Order.
Finally, Defendant argues that Mr. Barral should be precluded from testifying because he
(1) “is not qualified to testify as an expert witness in federal court,” (2) has a financial interest in
the outcome of the case as Plaintiff’s public adjuster, and (3) was involved in the case prelitigation, which “casts serious doubt on the credibility of any opinion he might have.” (Dkt. 22
at 7–8.) These bases for disqualification are not bases for striking Mr. Barral as a witness based
on discovery violations, under Rules 26(a), 26(e), and 37(c), but instead appear to be better suited
as part of a Daubert motion or as a topic for cross examination. Accordingly, the Motion is denied
as to Mr. Barral, but, as previously ordered herein, Plaintiff shall supplement its disclosure
pursuant to Rule 26(a)(2)(C)(ii) and Defendant is granted leave to conduct a second deposition of
Mr. Barral.

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B.

Mr. Russell

As to Mr. Russell, Defendant contends that his disclosure was untimely and that Plaintiff
failed to provide all information required by Rule 26(a)(2)(B). (Dkt. 22 ¶ 11.) In response,
Plaintiff contends although it disclosed him as a rebuttal expert on December 20, 2016 (Dkt. 223), which was after the Court’s November 21, 2016 rebuttal expert deadline (Dkt. 15), it disclosed
Mr. Russell as soon as it became apparent that his testimony, as an industrial hygienist, was
warranted due to deposition testimony from depositions commencing November 21, 2016. (Dkt.
26 at 9–10.) Plaintiff elaborated as follows:
Specifically, this case involves a “black water” sewage backup that caused
catastrophic damage to the Plaintiff’s insured property. During depositions, it
became apparent that the Defendant intended to argue that the Plaintiff did not
establish that some of the property claimed in the proof of loss was actually
damaged as a result of the black water flood. It also became apparent that the
Defendant did not perform any type of inspection or testing to determine the extent
of water intrusion, potential mold or bacterial growth, or moisture levels. To rebut
these defenses, the Plaintiff contacted a certified industrial hygienist, Scott Russell,
to provide testimony regarding the nature of black water floods and the type of
damage that accompanies it. Mr. Russell’s disclosure was accompanied by a copy
of his report, containing his opinions. Because depositions did not even commence
until November 21, 2016, there was no way for the Plaintiff to know that the
testimony of an industrial hygienist might be relevant until after that date.
(Dkt. 26 at 9–10.) Further, Plaintiff states that because Plaintiff and Defendant stipulated to an
extension of the discovery deadline to January 17, 2017, Defendant cannot show prejudice because
it had the opportunity to depose Mr. Russell before the expiration of the parties’ stipulated
discovery deadline. (Dkt. 26 ¶¶ 18, 21.)
Mr. Russell was not disclosed by the November 21, 2016 deadline for rebuttal experts (Dkt.
15), but was disclosed about one month later in Plaintiff’s second amended disclosures.
Accordingly, this rebuttal opinion was untimely. Fed. R. Civ. P. 26(a)(2)(D). Further, Defendant
is correct that Mr. Russell’s report, which was attached to Plaintiff’s second amended disclosures
(Dkt. 22-3), does not contain all the elements required by Rule 26(a)(2)(B)(i)–(vi). Specifically,
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Mr. Russell’s report lacked Mr. Russell’s “qualifications, including a list of all publications
authored in the previous 10 years,” “a list of all other cases in which, during the previous 4 years,
the witness testified as an expert at trial or by deposition,” “a statement of the compensation to be
paid for the study and testimony in the case, and “the facts or data” Mr. Russell considered in
forming his opinions. See Fed. R. Civ. P. 26(a)(2)(B). Thus, Plaintiff’s disclosure of Mr. Russell
was untimely and incomplete.
Because Plaintiff’s disclosure of the rebuttal opinion and report was deficient under Rule
26(a)(2)(B) and (D), the Court must next determine whether Plaintiff’s failure was substantially
justified or harmless. Fed. R. Civ. P. 37(c)(1). As part of this consideration, the Court recognizes
that the rules governing expert disclosures are “intended to provide opposing parties reasonable
opportunity to prepare for effective cross examination and [ ] arrange for expert testimony from
other witnesses.” Reese v. Herbert, 527 F.3d 1253, 1265 (11th Cir. 2008) (internal quotations
omitted); Mobile Shelter Sys. USA, Inc. v. Grate Pallet Sols., LLC, 845 F. Supp. 2d 1241, 1248
(M.D. Fla. 2012) (internal quotations omitted) (explaining that “the expert witness discovery rules
are designed to allow both sides in a case to prepare their cases adequately and to prevent surprise,”
and “compliance with the requirements of Rule 26 is not merely aspirational”).
As to the untimeliness of the disclosure, Plaintiff argues that it served Mr. Russell’s rebuttal
opinion, although after the deadline, as soon as it learned that his testimony would be necessary
during depositions that did not commence until November 21, 2016. (Dkt. 26 ¶¶ 18, 20.)
Specifically, Plaintiff states “[n]otably, the parties began the first depositions in this case on
November 21, 2016.” (Dkt. 26 ¶ 20) (emphasis in original.) In light of this deposition testimony,
the Court finds Plaintiff’s untimely disclosure of Mr. Russell substantially justified, albeit barely
so. See Marco Island Cable, Inc. v. Comcast Cablevision of the S., Inc., No.

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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). As to the second
amended disclosure’s failure to contain all the information required by Rule 26(a)(2)(B), Plaintiff’s
third amended disclosures, served on March 7, 2017, contain the information missing from
Plaintiff’s second amended disclosures. As such, although untimely, the disclosure is now
complete. Accordingly, the Motion is denied as to Mr. Russell.
However, to ameliorate any prejudice to Defendant, the Court finds it appropriate to reopen
discovery for the limited purpose of permitting Defendant to depose Mr. Russell. 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, but reopening discovery to allow
plaintiffs to depose the experts before trial, reasoning that “[t]he reopening of discovery cures any
prejudice that [plaintiffs] may have sustained due to untimely disclosures”).

Defendant’s

deposition of Mr. Russell must be completed within thirty days of this Order.
Accordingly, it is ORDERED that Defendant’s Motion to Strike Plaintiff’s Experts as
Untimely and/or for Failure to Provide Written Expert Reports and Sufficient Information
Required by Rules 26(a)(2)(B) and 26(a)(2)(C) (Dkt. 22) is DENIED, provided, however, that
Plaintiff shall supplement its disclosure as to Mr. Barral as directed herein within fourteen (14)
days, and that discovery is reopened for the limited purpose of permitting Defendant to depose Mr.

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Russell and Mr. Barral, which depositions must be completed within thirty (30) days.
DONE and ORDERED in Tampa, Florida, on March 8, 2017.

Copies furnished to:
Counsel of Record

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