Bostick v. State Farm Mutual Automobile Insurance Company

Filing 48

ORDER: Plaintiff Lisa Bostic's Motion to Exclude Expert Testimony (Doc. # 45 ) is DENIED. Signed by Judge Virginia M. Hernandez Covington on 4/7/2017. (KAK)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
LISA N. BOSTIC,
Plaintiff,
v.

Case No. 8:16-cv-1400-T-33AAS

STATE FARM MUTUAL AUTOMOBILE
INSURANCE COMPANY,
Defendant.
________________________________/
ORDER
This matter comes before the Court pursuant to Plaintiff
Lisa Bostic’s Motion to Exclude Expert Testimony (Doc. # 45),
which was filed on March 24, 2017.

On March 31, 2017,

Defendant State Farm Mutual Automobile Insurance Company filed
a Response in Opposition to the Motion. (Doc. # 46).

For the

reasons that follow, the Motion is denied.
I.

Background
After sustaining injuries in a November 14, 2013, car

accident, Bostic filed a state court complaint against State
Farm alleging breach of contract and seeking recovery of
uninsured motorist benefits. (Doc. # 2).

State Farm removed

the case on June 2, 2016, based on complete diversity of
citizenship. (Doc. # 1).

Referencing Bostic’s interrogatory

answers, State Farm represented that Bostic “claims to have
incurred . . $257,315.95 in total medical bills, with $98,699
plus liens outstanding.” (Id. at 2).

The Court entered its Case Management and Scheduling
Order on June 29, 2016. (Doc. # 13).

Relevant to the present

Motion, the Court established December 19, 2016, as the
deadline for Bostic to disclose expert reports and January 23,
2017,

as

the

disclosure.
expert

deadline

for

State

Farm’s

expert

report

Bostic filed an unopposed Motion to extend the

disclosure

deadlines

and

the

Court

granted

the

extension. (Doc. ## 34, 35). Bostic’s expert disclosures were
extended

to

February

14,

2017,

and

State

Farm’s

expert

disclosures were extended to March 10, 2017. (Doc. # 35).
Then, State Farm sought an extension of the dispositive
motions deadline and other operative dates, which the Court
granted. (Doc. ## 38-39).

On March 14, 2017, the Court

entered its Amended Case Management and Scheduling Order
establishing the discovery deadline as April 20, 2017, and the
dispositive motions deadline as May 4, 2017, setting an August
17, 2017, pretrial conference, and placing the case on the
September 2017, trial term. (Doc. # 41).
On March 10, 2017, State Farm disclosed to Bostic that
State Farm retained Ronald Fijalkowski, Ph.D. and provided
Bostic with Fijalkowski’s address and credentials.

However,

State Farm did not provide Bostic with Fijalkowski’s formal
expert report until April 3, 2017. Bostic now moves the Court
2

to strike Fijalkowski’s testimony.
II.

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
burden

of

establishing

that

a

failure

to

disclose

was

substantially justified or harmless rests on the nondisclosing
party.”

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.
2009).
III. Analysis
State Farm admits that its disclosure of Fijalkowski’s
expert

report

was

untimely,

but

submits

that

the

late

disclosure caused no prejudice because the discovery deadline
of April 20, 2017, as not yet expired. State Farm also
3

explains that Fijalkowski is a rebuttal witness retained to
refute

the

testimony

of

Bostic’s

expert

Stephen

Koontz,

disclosed on February 14, 2017, as a biomechanics expert that
performed an accident reconstruction.

State Farm indicates:

“There is not a plethora of biomechanical engineers that do or
will perform trial related work.

It took some time to find a

biomechanical engineer qualified, capable, and available to be
retained in this matter.” (Doc. # 46 at 2).

State Farm also

notes that Bostic has retained several expert witnesses that
will testify regarding her medical condition and that State
Farm did not anticipate that an accident reconstruction would
be needed as “liability for the accident has never been in
dispute, and rests with a non-party tortfeasor, Blair Alsup.”
(Doc. # 46 at 1).
The Court denies the Motion.

From the Court’s review of

the file, it appears that both sides are preparing the case
for its final resolution and that State Farm’s untimely
disclosure has not prejudiced Bostic such that the Court would
be

justified

in

excluding

Fijalkowski.

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
4

(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, 2008).
Here, the expert was timely disclosed, but his report was
not turned over until after the deadline.

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, Bostic has
the

opportunity

to

gather

relevant

information

from

Fijalkowski to fully investigate his testimony and theories.
Had the expert report been disclosed after the discovery
deadline, the result would be different.
Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
Plaintiff

Lisa

Bostic’s

Motion

to

Exclude

Expert

Testimony (Doc. # 45) is DENIED.
DONE and ORDERED in Chambers in Tampa, Florida, this 7th
day of April, 2017.

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