Fox et al v. Safeco Insurance Company of Illinois

Filing 53

ORDER granting 45 Plaintiffs' Motion to Strike Defendant's Experts Durham, Stein, and Spruance. Signed by Magistrate Judge Julie S. Sneed on 7/10/2017. (SMC)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
JASON FOX and CHRISTINA FOX,
Plaintiffs,
v.

Case No: 8:16-cv-2665-T-23JSS

SAFECO INSURANCE COMPANY OF
ILLINOIS,
Defendant.
___________________________________/
ORDER ON PLAINTIFFS’ MOTION TO STRIKE
THIS MATTER is before the Court on Plaintiffs’ Motion to Strike Defendant’s Experts
Durham, Stein, and Spruance, and Preclude Any Testimony Therefrom for Non-Compliance with
Rule 26(a)(2) and This Court’s Case Management Order (“Motion”) (Dkt. 45) and Defendant’s
response in opposition (Dkt. 48). For the reasons that follow, the Motion is granted.
BACKGROUND
Plaintiffs bring underinsured motorist and consortium claims against Defendant arising out
of a June 9, 2015, vehicle accident. (Dkt. 2.) On November 9, 2016, the Court entered the Case
Management and Scheduling Order (“Scheduling Order”), and scheduled the case for the October
2017 trial term. (Dkts. 14, 15.) Pursuant to the Scheduling Order, the discovery deadline was May
19, 2017, and the expert disclosure deadline was March 3, 2017, for Plaintiffs and March 17, 2017,
for Defendant. (Dkts. 14, 15.) The supplemental disclosure deadline for all parties was March
31, 2017. (Dkts. 14, 15.) The parties later filed a Joint Motion to Extend Deadlines, which the
Court granted, extending the discovery period through June 19, 2017, and extending the deadlines
for expert disclosures to May 2, 2017, for Plaintiffs and May 16, 2017, for Defendant. (Dkts. 20,
21.) Subsequently, Plaintiffs’ deadline to disclose experts was further extended through May 16,

2017, upon Plaintiffs’ unopposed motion requesting the extension. (Dkts. 25–26.) The deadline
for supplemental disclosures for all parties was extended through May 30, 2017. (Dkts. 20, 21.)
In Plaintiffs’ Motion, Plaintiffs seek to strike three of Defendant’s expert witnesses on the
grounds that Defendant’s expert disclosures were insufficient and untimely under Federal Rule of
Civil Procedure 26 and the Court’s Orders. (Dkt. 45.) According to the Motion, Defendant served
supplemental expert disclosures on May 30, 2017, disclosing Dr. Stephen Durham, Barry Stein,
and Gil Spruance as experts for the first time. (Dkt. 45.) Plaintiffs contend that Defendant’s
deficient disclosures are prejudicial as the three experts at issue have neither provided expert
reports nor examined Plaintiff Jason Fox and trial in this matter is set to occur in approximately
three months. (Dkt. 45 at 6.) Plaintiffs therefore seek to strike Dr. Durham, Mr. Stein, and Mr.
Spruance as expert witnesses.
APPLICABLE STANDARDS
The Federal Rules of Civil Procedure are designed to “narrow and clarify the issues,” “give
the parties mutual knowledge of all relevant facts,” and “prevent[ ] surprise.” Shelak v. White
Motor Co., 581 F.2d 1155, 1159 (5th Cir. 1978) (citing Hickman v. Taylor, 329 U.S. 495 (1947)).
Additionally, 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”).

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Accordingly, Federal Rule of Civil Procedure 26 requires parties to disclose 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).
The parties must supplement their expert disclosures in accordance with Rule 26(e). Rule
26(e) requires a party to supplement or correct its 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). Any additions or changes
to an expert’s report or to information given during the expert’s deposition “must be disclosed by
the time the party’s pretrial disclosures under Rule 26(a)(3) are due.” Fed. R. Civ. P. 26(e)(2).

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ANALYSIS
In the Motion, Plaintiffs seek to strike three experts Defendant disclosed for the first time
on May 30, 2017, the deadline for supplemental expert disclosures.

(Dkt. 45.) According to

Plaintiffs, Defendant’s supplemental expert disclosures violate Federal Rule of Civil Procedure 26
and were untimely served without accompanying expert reports three months before the October
2017 trial date. (Dkt. 45.)
From the supplemental expert disclosures, Defendant disclosed Dr. Durham, Mr. Stein,
and Mr. Spruance as experts on May 30, 2017. Defendant lists Dr. Durham as an economist and
provided Dr. Durham’s fee schedule, expert testimony list, and curriculum vitae. (Dkt. 45-1.)
However, Defendant states in the expert disclosure that Dr. Durham’s “findings will be contained
within his report” and that the report “will be provided upon receipt.” (Dkt. 45-1 at 3.) Defendant
next lists Mr. Stein as a licensed attorney and provides his contract with Defendant, but states that
Mr. Stein’s expert testimony list, curriculum vitae, and report will be provided. (Dkt. 45-1 at 4.)
Last, Defendant lists Mr. Spruance as a certified life care planner and provides Mr. Spruance’s
curriculum vitae. (Dkt. 45-1 at 4–5.) Defendant, however, states that Mr. Spruance’s report, fee
schedule, and testimony list will be provided. (Dkt. 45-1 at 5.) Defendant provides no additional
information as to the opinions of Dr. Durham, Mr. Stein, or Mr. Spruance.
Defendant argues that its “supplemental expert disclosure was within the Court’s deadline
albeit the expert reports are not available.” (Dkt. 48 at 2.) This, however, misstates the purpose
of expert disclosures and the Court’s deadline. The Case Management Report, adopted in the
Court’s Scheduling Order, states that by the expert disclosure deadline, “the parties agree to fully
comply with Fed. R. Civ. P. 26(a)(2) and 26(d).” (Dkts. 14, 15.) Rule 26(a)(2) requires a party to

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provide expert reports at the time of its expert disclosures. Fed. R. Civ. P. 26(a)(2)(B). The Case
Management Report further states:
Expert testimony on direct examination at trial will be limited to the
opinions, basis, reasons, data, and other information disclosed in the
written expert report disclosed pursuant to this order. Failure to
disclose such information may result in the exclusion of all or part
of the testimony of the expert witness.
(Dkt. 14 at 9.) Hence, the production of expert reports is required to fully comply with the expert
disclosure deadline.
Further, the purpose of supplemental disclosures is not to allow parties to untimely disclose
new experts. An expert report may not be supplemented, pursuant to Rule 26(e), 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, 845 F. Supp. 2d at 1248-52 (excluding expert’s untimely second report,
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); cf. 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 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). Rather, Rule 26(e)(1)(A) requires supplementation in
situations where “the party learns that in some material respect the [original] disclosure or response
is incomplete or incorrect[.]” Thus, Rule 26(e) imposes a duty on parties to supplement existing
expert disclosures when the disclosure is incorrect or incomplete. See Goodbys Creek, 3:07-CV-

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947-J-34HTS, 2009 WL 1139575, at *2. Moreover, “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). Thus,
Defendant cannot rely on the duty of supplementation to add three new, previously undisclosed
experts. Providing the belated disclosures in this manner is contrary to Rule 26 and the Court’s
Orders.
Nevertheless, even if Defendant’s supplemental disclosures were proper under Rule 26(e),
Defendant failed to timely provide a complete statement of all opinions Dr. Durham, Mr. Stein,
and Mr. Spruance will express, the basis and reasons for their opinions, and the facts or data
considered by them in forming their opinions. “Expert disclosures” within the meaning of the
Rule 26 contemplates not only the identification of the expert, but also the provision of a written
report containing “a complete statement of all opinions” and “the basis and reasons therefor.” Fed.
R. Civ. P. 26(a)(2)(B). Further, expert disclosures for witnesses that are not required to provide a
report must nonetheless include 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). The required disclosures have not been provided here. Accordingly,
the Court finds that Defendant’s disclosures of Dr. Durham, Mr. Stein, and Mr. Spruance were
deficient under Rule 26(a)(2).
The Court must next determine whether Defendant’s failure to sufficiently disclose its
experts was substantially justified or harmless. Fed. R. Civ. P. 37(c)(1). “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).

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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.
Defendant contends that its supplemental disclosures seek to “rebut and respond” to those
experts identified by Plaintiffs. (Dkt. 48 at 2.) However, Defendant does not make clear which
experts it intends to rebut or how the three new experts will rebut Plaintiffs’ experts. Without
further information, the Court finds that Defendant has failed to establish that Dr. Durham, Mr.
Stein, and Mr. Spruance are rebuttal experts.
Defendant explains that Dr. Durham is an economist who cannot render opinions until the
vocational rehabilitation testing with Defendant’s expert William England is completed. (Dkt. 48
at 2.) Defendant states that Mr. England is conducting additional testing on June 29, 2017. (Dkt.
48 at 4.) However, Defendant previously requested extensions for Mr. England’s testing and
expert report, but failed to include Dr. Durham in its extension requests. (Dkts. 29, 49.) Defendant
further asserts that it identified Dr. Durham “out of abundance of caution” because Plaintiffs have
not provided Defendant the results of Plaintiffs’ vocational rehabilitation expert’s tests. (Dkt. 48

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at 2–3.) Disclosing an expert “out of abundance of caution” does not establish the importance of
the expert or the expert’s testimony. Thus, Defendant’s explanation does not demonstrate that its
untimely disclosure of Dr. Durham was substantially justified.
Defendant next contends that Mr. Stein is a worker’s compensation attorney and potential
witness regarding Plaintiff Jason Fox’s allegations of his inability to earn more than his prior
employment. (Dkt. 48 at 3.) Defendant states that it does not know whether Mr. Stein will testify
at trial in this matter. Defendant disclosed Mr. Stein “out of abundance of caution.” (Dkt. 48 at
3.) Again, this explanation neither demonstrates the importance of Mr. Stein’s testimony, nor any
substantial justification for the insufficient disclosure.
With regard to Mr. Spruance, Defendant states that he was retained to complete a life care
plan as part of Mr. England’s assessment. (Dkt. 48 at 3.) Defendant explains that Mr. Spruance
requested an online interview with Mr. Fox and cannot complete a report until the interview and
Mr. England’s vocational rehabilitation assessment are completed. (Dkt. 48 at 3.) Defendant
states that it has been attempting to schedule the interview since May 30, 2017, and it was not until
June 23, 2017, that Plaintiffs agreed to schedule the interview to take place on July 10, 2017. (Dkt.
48 at 3–4.) However, the Court notes that May 30, 2017, was the supplemental expert disclosure
deadline. Thus, Defendant first attempted to schedule an interview necessary for an expert’s report
past the date the report was due. Further, as stated above, Defendant previously requested two
extensions for Mr. England’s expert disclosure. (Dkts. 29, 49.) However, Defendant did not
request an extension of time for Mr. Spruance’s expert disclosure in either of its extension requests.
Consequently, Defendant’s insufficient disclosure of Mr. Spruance is not substantially justified.
Defendant further contends that its experts should not be stricken because Plaintiffs had an
additional two weeks to provide their expert disclosures since they were due on the same date as

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Defendant’s expert disclosures. In this case, the parties have had ample time to conduct discovery.
The Court extended the discovery deadline several times to accommodate the needs of the parties.
(Dkts. 21, 38, 50.) Nevertheless, Defendant failed to timely comply with the extended deadlines.
Further, despite requesting extensions for its expert disclosures twice, Defendant failed to request
extensions for Dr. Durham, Mr. Stein, or Mr. Spruance’s expert disclosures.
Defendant makes the conclusory statement that Plaintiffs will not be prejudiced by its
failure to comply with Rule 26. However, Defendant did not provide Plaintiffs with the expert
reports or the required disclosures for Dr. Durham, Mr. Stein, or Mr. Spruance as part of the
untimely disclosures. Trial in this matter is scheduled to take place in approximately three months
and discovery closed on June 19, 2017. Thus, Plaintiffs are unable to secure any additional rebuttal
expert witness testimony to respond to the three new experts proposed by Defendant. Further,
Plaintiffs are unable to depose any of the three experts within the discovery period with the
knowledge of what their reports will contain. Defendant’s insufficient disclosures have deprived
Plaintiffs of the opportunity to fully review the experts’ opinions and prepare for effective cross
examination. Mobile Shelter, 845 F. Supp. 2d at 1251. As such, Defendant has not shown that its
failure to disclose was harmless. See OFS Fitel, LLC v. Epstein, Becker and Green, P.C., 549 F.3d
1344, 1363 (11th Cir. 2008) (finding expert’s affidavit which provided “no meaningful analysis of
how and why [the defendant’s] actions breached the standard of care [as the expert opined]” did
not satisfy Rule 26); Romero v. Drummond Co., Inc., 552 F.3d 1303, 1323–24 (11th Cir. 2008)
(concluding the trial court did not abuse its discretion when it excluded expert reports which failed
to comply with the requirements of Rule 26(a)(2)(B)).

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Accordingly, it is ORDERED that Plaintiffs’ Motion to Strike Defendant’s Experts
Durham, Stein, and Spruance, and Preclude Any Testimony Therefrom for Non-Compliance with
Rule 26(a)(2) and This Court’s Case Management Order is GRANTED.
DONE and ORDERED in Tampa, Florida, on July 10, 2017.

Copies furnished to:
Counsel of Record

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