1550 Brickell Associates v. Q.B.E. Insurance Corporation

Filing 324

ORDER denying 301 Defendant's Appeal of the Magistrate Judge's May 13, 2010 (D.E. 270) and July 13, 2010 (D.E. 294) Orders. Signed by Judge Joan A. Lenard on 11/1/2010. (mhz)

1 5 5 0 Brickell Associates v. Q.B.E. Insurance Corporation

D o c . 324

UNITED STATES DISTRICT COURT S O U T H E R N DISTRICT OF FLORIDA C A S E NO. 07-22283-CIV-LENARD/GARBER 1 5 5 0 BRICKELL ASSOCIATES, P l a in tif f , v. Q .B .E . INSURANCE C O R P O R A T IO N , D e f e n d a n t. ________________________________/ O R D E R DENYING DEFENDANT'S APPEAL OF MAGISTRATE JUDGE'S O R D E R S (D.E. 301) T H I S CAUSE is before the Court on Defendant Q.B.E. Insurance Corporation's (" Q B E " ) Appeal of the Magistrate Judge's May 13, 2010, Order Granting Motion to Strike R e b u tta l Witnesses and the Magistrate Judge's July 13, 2010, Order Denying R e c o n sid e ra tio n ("Appeal," D.E. 301), filed on July 27, 2010. On August 13, 2010, Plaintiff 1 5 5 0 Brickell Associates ("1550") filed its response in opposition to the Appeal (" R e sp o n s e ," D.E. 308), to which QBE filed its reply ("Reply," D.E. 310)1 on August 23, 2 0 1 0 . Having considered the Appeal, Response, Reply, the Magistrate Judge's May 13, 2 0 1 0 , and July 13, 2010, Orders, the related pleadings, and the record, the Court finds as f o l lo w s .

The Court notes that neither the Federal Rules of Civil Procedure nor the Local Rules for the Southern District of Florida provide for the filing of a reply in support of an appeal.

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I.

B a c k gro u n d2

T h is case involves 1550's attempt to collect the proceeds of an insurance policy u n d e rw ritte n by QBE after Hurricane Wilma severely damaged a pair of insured buildings n e a r downtown Miami. On March 11, 2009, the Magistrate Judge denied QBE's motion to s trik e 1550's expert witness disclosures as untimely but permitted QBE to file an amended e x p e rt witness list to include any rebuttal experts needed to oppose 1550's expert testimony. (S ee D.E. 192.) On February 23, 2010, 1550 filed a renewed motion to strike two of QBE's three listed rebuttal experts, Brian Jarvinen ("Jarvinen") and Dr. John Peterka ("Peterka"). (S e e D.E. 257.) The Magistrate Judge held a hearing on the matter on May 13, 2010. (S ee D.E. 273.) That same day, the Magistrate Judge issued his Order granting 1550's motion to s trik e . The Magistrate Judge specifically found that, "[a]fter hearing oral argument and c o n sid e rin g the filings, it is apparent to the Court that Mr. Jarvinen and Mr. Perteka [sic] w o u ld be testifying on entirely new subject areas cloaked under the guise of the more general to p ic of `causation.'" (D.E. 270 at 3.) The Magistrate Judge found that "QBE is trying to use th e ir rebuttal witnesses to introduce new topics." (Id.) Furthermore, the Magistrate Judge f o u n d allowing testimony from Jarvinen and Peterka would prejudice 1550 and that prejudice c o u ld not be cured through other means. (Id.) Finally, the Magistrate Judge found their

A more detailed explanation of the underlying facts and relevant procedural history can be found in the Court's March 6, 2008, Order denying QBE's motion to dismiss (See D.E. 53) and the Magistrate Judge's Orders that are the subject of this Appeal (See D.E. 270, 294). 2

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testim o n y was cumulative to the testimony of other witnesses disclosed by QBE. (Id.) On May 27, 2010, QBE filed a motion for reconsideration of the Magistrate Judge's M a y 13, 2010, Order. (See D.E. 275.) On July 13, 2010, the Magistrate Judge issued its O rd e r denying QBE's motion for reconsideration and finding QBE's motion was merely a restatem en t of its prior arguments. (See D.E. 294.) II. A p p e a l of Magistrate Judge's Orders

Q B E appeals the Magistrate Judge's striking of its rebuttal expert witnesses and the d e n ia l of reconsideration. QBE argues the Magistrate Judge erred in that: (1) his rulings w e re "premature"; (2) Jarvinen and Peterka's testimony falls within the same subject matter a s that of 1550's experts; and (3) their testimony is not cumulative. First, relying upon S af ran ek v. Wal-Mart Stores, Inc., Case No. 07-61533-CIV-Marra (S.D. Fla. July 14, 2010), Q B E argues the matter is premature until the Court has heard the expert testimony provided b y 1550. Second, QBE argues the Magistrate Judge adopted an unduly narrow reading of R u le 26(a)(2)(C) of the Federal Rules of Civil Procedure and QBE's experts should be able to testify as to wind calculations because 1550's causation expert, John Pistorino (" P is to rin o " ) will rely upon testimony related to wind calculations as part of his opinion. F in a lly, QBE argues the Magistrate Judge could not properly make a determination under R u le 403 of the Federal Rules of Evidence as to whether the rebuttal expert testimony was c u m u la tiv e until such experts had been deposed. In response, 1550 characterizes as immaterial QBE's arguments that the Magistrate

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J u d g e 's determination was premature and its rebuttal testimony is not cumulative. D is tin g u is h in g Safranek, 1550 argues that case involved a threshold determination that the p ro f f ere d rebuttal testimony was properly offered to directly rebut the testimony of the p la in tif f s' expert. As to QBE's second argument, 1550 argues the Magistrate Judge applied a proper reading of Rule 26(a)(2)(C) but merely found that Jarvinen's and Peterka's te stim o n y should be stricken because it pertained to matters distinct from those presented by 1 5 5 0 ' s experts. III. S t a n d a r d of Review

P u rs u a n t to Rule 72(a) of the Federal Rules of Civil Procedure and 28 U.S.C. § 6 3 6 (b )(1 )(A ), this Court reviews the Magistrate Judge's Orders to determine whether they a re "clearly erroneous or contrary to law." See In re Commr's Subpoenas, 325 F.3d 1287, 1 2 9 2 n.2 (11th Cir. 2003). Findings of fact "are `clearly erroneous when, although there is e v id e n c e to support [them], the reviewing court on the entire evidence is left with the definite a n d firm conviction that a mistake has been committed.'" Johnson & Johnson Vision Care, In c ., v. 1-800 Contacts, Inc., 299 F.3d 1242, 1246 (11th Cir. 2002) (citing Univ. of Georgia A thletic Ass'n v. Laite, 756 F.2d 1535 (11th Cir. 1985)). A review of the Magistrate Judge's a p p lica tio n of the law is de novo, as the "application of an improper legal standard . . . is n ev er within a court's discretion." Id. (internal citation omitted). IV . D is c u s s io n

T h e Court finds the Magistrate Judge's rulings were neither clearly erroneous nor

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c o n tra ry to law. Rule 26(a)(2)(C)(ii) sets forth that rebuttal experts may be permitted to p re se n t "evidence [that] is intended solely to contradict or rebut evidence on the same subject m a tte r identified by another party." QBE disclosed Jarvinen as an expert to testify regarding th e weather conditions and wind speeds at the insured property during Hurricane Wilma. (S e e D.E. 203.) QBE disclosed Peterka as an expert to testify regarding wind calculations a n d "the effects of wind on the subject buildings." (Id.) In essence, QBE has contended that th is testimony is necessary because 1550's causation expert Pistorino will rely upon te stim o n y from James Trowbridge ("Trowbridge") regarding causation. 1550 contends T ro w b rid g e is a fact witness who will not testify regarding wind speeds or anything related to causation.3 Rather, 1550 contends Trowbridge's testimony is limited to the conditions of 1 5 5 0 's roof immediately following the hurricane. After considering Trowbridge's deposition te stim o n y and the positions of the Parties at the hearing, the Magistrate Judge determined that Jarv inen 's and Peterka's testimony did not fall within the same subject matter as 1550's e x p e rts . Such a finding was neither unreasonable nor clearly erroneous. This conclusion was n o t based upon a finding that QBE's experts did not possess the same background or s p e c ia lty. Thus, QBE's reliance upon Safranek and related arguments are inapposite. A d d itio n a lly, the Magistrate Judge concluded QBE was attempting to use its opportunity to c a ll rebuttal experts to introduce new areas of testimony. The Magistrate Judge further c o n sid e r e d the testimony cumulative to other causation testimony. The Court agrees and

1550 indicates Trowbridge was only listed on its expert witness disclosure as a precaution due to Pistorino's reliance upon his testimony. 5

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f in d s the Magistrate Judge's conclusions were neither clearly erroneous nor contrary to law. A d d it io n a lly, the Court finds QBE's argument that the determination was premature to be w ith o u t merit. There is no need to delay such a decision where QBE's proffered experts fall s o far outside the gamut of 1550's proposed testimony. The Court also finds that the M a g is tra te Judge did not err in denying reconsideration where QBE merely re-litigated issues alread y decided, as it has done throughout this case. Accordingly, consistent with this Order, it is hereby ORDERED AND ADJUDGED that the Magistrate Judge's May 13, 2010, O rde r (D.E. 270) and the Magistrate Judge's July 13, 2010, Order (D.E. 294) are A F F I R M E D and Defendant's Appeal (D.E. 301) is DENIED. D O N E AND ORDERED in Chambers at Miami, Florida, this 1st day of November, 2010. ____________________________________ J O A N A. LENARD U N I T E D STATES DISTRICT JUDGE

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