Bostick v. State Farm Mutual Automobile Insurance Company
ORDER: Defendant State Farm Mutual Automobile Insurance Company's Motion to Strike Plaintiff's Newly Disclosed Witnesses (Doc. # 89 ) is GRANTED. Signed by Judge Virginia M. Hernandez Covington on 10/10/2017. (KAK)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
LISA N. BOSTICK,
Case No. 8:16-cv-1400-T-33AAS
STATE FARM MUTUAL AUTOMOBILE
Lisa N. Bostick, a University of Tampa Professor, was
involved in a car accident on November 14, 2013.
to have suffered catastrophic and debilitating injuries,
including a traumatic brain injury.
Her insurer, State Farm,
on the other hand, characterizes the accident as a mere
fender-bender with little to no damage to person or property.
The Court held the final pretrial conference on August 17,
2017, and a jury trial is scheduled for October 16, 2017.
At this juncture, State Farm seeks an Order striking
newly disclosed witnesses. (Doc. # 89). Bostick filed a
Response in Opposition to the Motion (Doc. # 98) on August 31,
The Motion is granted as explained below.
Bostick filed a state court complaint against State Farm
on February 9, 2016, alleging breach of contract and seeking
recovery of uninsured motorist benefits stemming from the
November 14, 2013, car accident. (Doc. # 2).
removed the case on June 2, 2016, predicating subject matter
jurisdiction on complete diversity of citizenship. (Doc. # 1).
Bostick filed a Motion to Remand, which the Court denied.
(Doc. ## 11, 20).
The Court held a Case Management Hearing and entered its
Case Management and Scheduling Order on June 29, 2016. (Doc.
The Court established December 19, 2016, as the
deadline for Bostick to disclose expert reports and January
23, 2017, as the deadline for State Farm’s expert report
The Court set the discovery deadline as
February 28, 2017.
Thereafter, the Court set the
mediation for January 11, 2017, with Robert Lancaster, Esq.
(Doc. # 17).
On the eve of the January 11, 2017 mediation, the
Compulsory Examination of Bostick under Federal Rule of Civil
Procedure 35. (Doc. ## 22, 23, 26, 27, 28, 30, 31).
Order issued on December 13, 2016, the Magistrate Judge
remarked that “Plaintiff concedes that Defendant can likely
demonstrate good cause for the requested examination
Defendant asserts arguments to show good cause” but concluded
that State Farm did not follow the requirements of the
applicable Federal Rules of Civil Procedure. (Doc. # 30).
Ultimately, the mediation was delayed because “the parties
agree that the mediation will not be fruitful until the
results of Plaintiff’s medical examination are received.”
(Doc. # 32).
During that time, the parties also requested
various extensions of all applicable deadlines. (Doc. ## 32,
35, 39). After months of delay, the parties mediated on March
13, 2017, but reached an impasse. (Doc. # 40).
On March 14, 2017, the Court issued an Amended Case
Management and Scheduling Order. (Doc. # 41).
extensions, it augmented the discovery period to April 20,
2017, set an August 17, 2017, pretrial conference, and placed
the case on the September 2017, trial term. (Id.).
pretrial conference, the Court scheduled a second mediation
conference for September 29, 2017. (Doc. ## 91, 93).1
Court also moved the case to the October 2017, trial term to
accommodate the parties’ scheduling conflicts. (Doc. # 99).
A Parade of Tardy Disclosures
On March 10, 2017, prior to the expiration of the
discovery deadline, State Farm disclosed to Bostick that State
Farm retained Ronald Fijalkowski, Ph.D. and provided Bostick
The second mediation took place on September 29, 2017,
and resulted in an impasse.
with Fijalkowski’s address and credentials.
Farm did not provide Bostick with Fijalkowski’s formal expert
report until April 3, 2017.
The deadline for the disclosure
of Fijalkowski’s expert report was March 10, 2017. (Doc. #
testimony based on the untimely disclosure of Fijalkowski’s
(Doc. # 45).
The Court denied the Motion on April 7,
2017, because Bostick was not prejudiced by the untimely
disclosure of the expert report:
The purpose of discovery under the Federal
Rules of Civil Procedure is to require the timely
disclosure of relevant information to aid in the
ultimate resolution of disputes in a civil action.
United States v. Procter & Gamble Co., 356 U.S.
677, 682 (1958). These Rules “make a trial less a
game of blindman’s bluff and more a fair contest
with the basic issues and facts disclosed to the
fullest practicable extent.” Id. “The concept of
trial by ambush has long ago fallen into desuetude
in both state and federal courts.” Perfect Web
Techs. v. InfoUSA, Inc., No. 07-80286, 2008 U.S.
Dist. LEXIS 20761, at *4-5 (S.D. Fla. Mar. 17,
Here, the expert was timely disclosed, but his
report was not turned over until after the
Although the Court does not condone
tardy disclosures of expert reports, it finds that
State Farm’s delay was substantially justified.
And, because the discovery deadline has not yet
expired, Bostick has the opportunity to gather
relevant information from Fijalkowski to fully
investigate his testimony and theories.
expert report been disclosed after the discovery
deadline, the result would be different.
(Doc. # 48).
At this juncture, State Farm seeks to strike five new
witnesses based on Bostick’s untimely disclosure: Steven
“Rusty” Nisbet, Dr. Steven Wu, Ph.D., Dr. Richard Frederick,
Ph.D., Dr. Shelley Tindell-Nodine, and Dr. Alamelu Murugappan,
(Doc. # 89).
and Dr. Frederick.
Bostick responded by withdrawing Nisbet
Thus, the Court will focus on Dr.
Tindell-Nodine, Dr. Murugappan, and Dr. Wu.
III. Legal Standard
Rule 37(c), Fed. R. Civ. P., provides that “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.”
As explained in Mitchell v. Ford
Motor Co., 318 Fed. Appx. 821, 824 (11th Cir. 2009), “[t]he
substantially justified or harmless rests on the nondisclosing
Furthermore, “in determining whether the failure to
disclose was justified or harmless, [the Court] consider[s]
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 Fed. Appx. 328, 340 (11th Cir.
During her February 2, 2017, deposition, Bostick made
mention of Dr. Tindell-Nodine and, in response to the Motion
to Strike, Bostick explains that Dr. Tindell-Nodine “helps Dr.
ideation.” (Doc. # 97 at 3).
Bostick did not include Dr.
Tindell-Nodine in any “formal documents entitled Rule 26
neurologist with Tampa Bay Neurology Clinic, Inc.” (Id. at 5).
Dr. Murugappan started treating Bostick on October 13, 2016,
and Botick mentioned Dr. Murugappan during her February 2,
2017 deposition, but did not formally disclose her as a
The Court strikes Dr. Tindell-Nodine and Dr. Murugappan
witnesses until August 7, 2017.
As explained by State Farm,
neither Dr. Tindell-Nodine nor Dr. Murugappan “were included
in Plaintiff’s Initial, First Amended, or Second Amended Rule
26 Disclosures.” (Doc. # 89 at 4). The discovery deadline
passed on April 20, 2017, and it is too late to re-open
discovery in an effort to allow State Farm the opportunity to
depose these physicians.
The Court also strikes Dr. Wu. Bostick explains that Dr.
psychologist who began seeking Dr. Bostick on March 14, 2017.”
(Doc. # 98 at 2).
Bostick plans to call Dr. Wu to testify as
accident and life stressors.” (Doc. # 89 at 2).
Wu’s care of Bostick began prior to the expiration of the
April 20, 2017, discovery deadline, and, as such, there is no
reason for Bostick to have waited until June 21, 2017, to
disclose Dr. Wu’s identity to State Farm.
As with Dr.
Tindell-Nodine and Dr. Murugappan, Bostick’s decision to name
Dr. Wu as a witness after the expiration of the discovery
deadline deprived State Farm of the option of deposing these
unreasonably late disclosures of the aforementioned witnesses
preparation of its case for trial, as Defendant has no ability
to depose them, or complete any sort of significant discovery,
while conforming with this Court’s Amended Case Management and
Scheduling Order.” (Doc. # 89 at 4)(emphasis in original).
The disclosure of medical providers in a car accident
case months after the passage of the discovery deadline and on
the eve of trial is the quintessential “trial by ambush”
Bostick has not provided any justification for her
untimely attempt to introduce witnesses at the last minute and
without the opportunity for discovery from the witnesses.
Murugappan, and Dr. Wu to testify would be severe prejudice to
The Court takes note of the fact that Bostick already has
a plethora of “will call” and “may call” physician witnesses.
Ten of the thirty witnesses Bostick lists in the August 10,
2017, pretrial statement are health care providers. (Doc. # 83
In addition to these thirty witnesses, Bostick also
has four retained expert witnesses.
Two of her expert
witnesses are physicians. Bostick has a battalion of treating
physicians and medical experts at the ready.
It would be an
additional witnesses at this late juncture.
The Motion to
Strike is thus granted.
Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
Witnesses (Doc. # 89) is GRANTED.
DONE and ORDERED in Chambers in Tampa, Florida, this 10th
day of October, 2017.
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?