Leigh v. Amica Mutual Insurance Company

Filing 52

ORDER denying 28 Motion to strike supplemental/additional hydrostatic testing. Signed by Magistrate Judge Amanda Arnold Sansone on 10/10/2019. (BEE)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
DAGMAR LEIGH and HERNAN
LEIGH,
Plaintiffs,
v.

Case No.: 8:19-cv-267-T-60AAS

AMICA MUTUAL INSURANCE
COMPANY,
Defendant.
___________________________________/
ORDER
Amica

Mutual

Insurance

Company

(Amica)

moves

to

strike

supplemental/additional hydrostatic testing. (Doc. 28). Dagmar Leigh and Hernan
Leigh (collectively, the Leighs) oppose the motion. (Doc. 39).
I.

BACKGROUND
Amica is the Leighs’ homeowners’ insurance carrier. (Doc. 18). The Leighs

claim their property sustained a covered loss due to water damage. (Id.). Following
a dispute about policy coverage, the Leighs sued Amica for breach of contract. (Id.).
On April 24, 2019, Reynaldo Alvarez, the Leighs’ expert, performed a
hydrostatic test for water damage at the Leigh's home (April hydrostatic test). (Doc.
39, Ex. A).

Alvarez took photographs and three videos during the test.

(Id.).

Alvarez’s expert report included, among other things, the April hydrostatic test
results, the three videos, and the photographs. (Id.).
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On June 26, 2019, Donald Dunn, Amica’s expert, inspected the Leighs’ home
but did not perform a hydrostatic test. (See Doc. 23, Ex. B). Dunn testified he did not
conduct a hydrostatic test because he did not believe it was a valid test. (Doc. 39, Ex.
B).
On July 19, 2019, Alvarez testified about the April hydrostatic test, as well as
the three videos and pictures. (See Doc. 39, Ex. C). Alvarez testified he created a
continuous video of the April hydrostatic test, but he did not have the continuous
video at the deposition. (Id.). After the deposition, Alvarez attempted to locate the
continuous video but could not. (Doc. 39, p. 5). On July 29, 2019, Alvarez performed
a second hydrostatic test (July hydrostatic test) and took a continuous video. (Doc.
39, Ex. D). The April hydrostatic test and the July hydrostatic test were conducted
in the same manner and revealed the same results. (Id.). On July 30, 2019, the
Leighs served Amica with a copy of the continuous video of the July hydrostatic test.
(Doc. 39, Ex. E).
On August 6, 2019, the Leighs timely served Alverez’s rebuttal expert report
addressing Dunn’s opinions about the hydrostatic test and Building Codes relating to
the hydrostatic test. (Doc. 39, Ex. G).

The rebuttal report also included the

continuous video of the July hydrostatic test. (Id.).
Amica moves to strike the July hydrostatic test as new and untimely.1 (Doc.

Amica’s motion to strike is limited to the July hydrostatic test and does not include
other testimony, videos, reports, or photographs. (See Doc. 28).
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28). The Leighs oppose the motion. (Doc. 39).
II.

ANALYSIS
Federal Rule of Civil Procedure 26(e)(1)(A) requires a party to supplement its

disclosures “if the party learns that in some material respect the disclosure . . . 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).
Under Rule 37(c)(1), a failure to timely disclose may lead to exclusion of the
information “unless the failure was substantially justified or is harmless.” However,
even if the court finds that a party’s failure to disclose evidence is neither
substantially justified nor harmless, the sanction of exclusion is not mandatory.
Tampa Bay Water v. HDR Eng’g, Inc., No. 8:08-cv-2446-T-27TBM, 2011 WL 3475548,
at *3 (M.D. Fla. Aug. 9, 2011). Moreover, “‘[t]he Court vastly prefers to decide cases
on their merits,’” rather than excluding evidence. Collins v. United States, 3:08-cv923-J-32JRK, 2010 WL 4643279, at *5 (M.D. Fla. Nov. 9, 2010) (citation omitted).
The July hydrostatic test supplements Alvarez’s original report. (See Doc. 39,
Exs. A, D). The July hydrostatic test followed the same procedures and obtained the
same results as the April hydrostatic test. (Id.). Alvarez’s opinions also remained
the same. (Id.).
Although Alvarez performed the July hydrostatic test after service of his initial
expert report, the Leighs acted timely and in good faith after learning the April
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hydrostatic test continuous video could not be located. Within eleven days, the
Leighs’ expert Alvarez conducted the July hydrostatic test and provided Amica with
a copy of the continuous video of that test. (Doc. 39, Ex. E). At the time of production,
the Leighs offered that Alvarez sit for another deposition to answer any questions
about the July continuous video. (Doc. 39, Ex. F). Amica did not respond. Instead,
over a month later, Amica filed this motion.
The Leighs’ inability to produce the continuous video of the April hydrostatic
testing referenced in Alvarez’s initial expert report is harmless. (Doc. 39, Ex. D). The
Leighs produced the July hydrostatic testing continuous video to Amica on July 30,
2019. (Doc. 39, Ex. E). The April hydrostatic test and the July hydrostatic test were
conducted in the same manner and revealed the same results. (Doc. 39, Ex. D).
Alvarez testified at length about the April hydrostatic testing report, three videos,
and pictures. (Doc. 30-1). The Leighs offered Amica the to opportunity to depose
Alvarez about the July hydrostatic test continuous video, and Amica did not. (Doc.
39, Ex. F). Amica had ample opportunity to address the hydrostatic testing and no
further discovery is necessary.
III.

CONCLUSION
Amica’s motion to strike supplemental/additional hydrostatic testing (Doc. 28)

is DENIED.

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ORDERED in Tampa, Florida on October 10, 2019.

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