Cardona v. The Mason and Dixon Lines, Inc. et al
ORDER granting 61 Motion in Limine; granting 82 Motion to Strike ; denying as moot 94 Motion to Strike. Signed by Magistrate Judge John J. O'Sullivan on 5/31/2017. (mkr)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 16-22704-CIV-O’SULLIVAN
THE MASON AND DIXON LINES,
INCORPORATED, et al.,
THIS MATTER came before the Court on the Defendants' Motion in Limine
Regarding the Florida Traffic Crash Report (DE# 61, 1/9/17) and the Defendants'
Motion to Strike Plaintiff's Expert Witnesses (DE# 82, 3/27/17).1
Florida Traffic Crash Report
This action arises from a vehicular accident which took place on July 19, 2013
when the truck driven by defendant Timothy Leverette collided with the plaintiff’s car.
The defendants seek to exclude portions of the accident report2 prepared by Trooper
On May 30, 2017, the defendants filed Defendants’ Amended Motion to Strike
Plaintiff’s Expert Witnesses (DE# 94, 5/30/17). The defendants acknowledge that they
are filing this amended motion to include exhibits which were not attached to their initial
Defendants' Motion to Strike Plaintiff's Expert Witnesses (DE# 82, 3/27/17). Because
the substance of both motions is the same, the Court will address the initial motion and
DENY as moot Defendants’ Amended Motion to Strike Plaintiff’s Expert Witnesses
(DE# 94, 5/30/17).
There were two accident reports in the instant case: the original report dated on
the day of the accident and an updated report dated September 26, 2013. The updated
report indicated that the plaintiff did not contribute to the accident whereas the original
report stated that the plaintiff had “OPERATED MOTOR VEHICLE IN CARELESS OR
H.E. Gracey of the Florida Highway Patrol, who responded to the accident. See Motion
in Limine Regarding the Florida Traffic Crash Report (DE# 61, 1/9/17). The defendants
argue that “the narrative contained in the accident report” should be excluded as
inadmissible hearsay under Fed. R. Evid. 802 because Trooper Gracey did not observe
the accident and therefore, necessarily relied on statements of witnesses in drafting the
narrative. Id. at 1, 5. The defendants further argue that Trooper Gracey’s “opinions and
legal conclusions, including estimates of damage to the vehicles involved, speculations
regarding the drivers’ actions and whether or not each drivers’ actions contributed to the
accident” should be excluded as unduly prejudicial under Fed. R. Evid. 403 because
they are “speculative and not findings of fact.” Id. at 5.3
The plaintiff maintains that the narrative should not be excluded because
Trooper Gracey was already on the scene by the time Mr. Leverette’s truck came to a
stop and therefore “it is entirely possible that Trooper Gracey actually witnessed the
incident.” Response (DE# 80 at 3). The plaintiff noted that Trooper Gracey did not
appear for deposition. Therefore, the plaintiff has not established that Trooper Gracey
in fact witnessed the accident. The plaintiff also argues that “[s]kid marks are an
effective indicator of what lane vehicles are in at the time of accidents, and also of
which vehicle was intruding on the other’s lane of travel at the time of impact.”
NEGLIGENT MANNER.” See Updated Report (DE# 1-4 at 14) (capitalization in
original). The plaintiff characterizes this change in the updated report as a clerical error.
The defendants also argue that the traffic citation issued to Mr. Leverette
should be excluded. Motion (DE# 61 at 6, 1/9/17). However, the plaintiff does not intend
on introducing this evidence. See Response (DE# 80 at 2, 3/15/17) (stating that the
“citation is not being offered to the jury in this lawsuit.”).
Response (DE# 80 at 2-3). However, the plaintiff does not cite to any portion of the
report indicating that Officer Gracey observed skid marks on the highway. The plaintiff
also relies on Fla. Stat. §316.066, Florida’s accident report privilege, for the proposition
that “[t]he privilege does not preclude admission of the tangible evidence of an
automobile accident, such as ‘location of accident, vehicles’ locations, skidmarks,
damage to vehicles, all observed by the investigating officer. . . . All this information
ordinarily appears on the accident report prepared by the investigating police officer and
it is clearly admissible at trial.’” Id. at 4-5 (quoting Brackin v. Boles, 452 So.2d 540, 544
The plaintiff further argues that the defendants have waived the issue of
admissibility of the accident report because the defendants’ accident reconstructionist
relied on the accident report in forming her opinions. Response (DE# 80 at 3). The
plaintiff also argues that the defendants opened the door to this evidence by providing it
to their accident reconstructionist. Id. at 5. This argument lacks merit because it is
entirely reasonable, and indeed expected, for an accident reconstructionist to review
the accident report in formulating her opinions. See Knight through Kerr v. Miami-Dade
Cty., No. 15-10687, 2017 WL 1755573, at *6 (11th Cir. May 5, 2017) (stating “we have
long recognized, an expert may rely on hearsay evidence as part of the foundation for
his opinion so long as the hearsay evidence is the type of evidence reasonably relied
upon by experts in the particular field in forming opinions or inferences on the subject.”)
(citation and internal quotation marks omitted).
In their reply, the defendants add that “crash report diagrams based on the
observations and statements of persons other than the reporting officer are [also]
improper.” Reply (DE# 81 at 2).
The parties are in agreement that Florida’s accident report privilege applies to
the instant case. See Response (DE# 80 at 4); Reply (DE# 81 at 2) (stating that “Florida
law . . . restricts the admissibility of crash reports, in that reports and statements made
by a person involved in a crash to a law enforcement officer for the purpose of
completing a crash report may not be used as evidence in any trial.”).
Under the accident report privilege:
[E]ach crash report made by a person involved in a crash and any
statement made by such person to a law enforcement officer for the
purpose of completing a crash report required by this section shall be
without prejudice to the individual so reporting. Such report or statement
may not be used as evidence in any trial, civil or criminal.
Fla. Stat. §316.066(4). Accordingly, the portions of the crash report and the updated
crash report which are based on the statements and observations of individuals
involved in the crash (including the diagrams) are excluded from the evidence
presented at trial. See Hammond v. Jim Hinton Oil Co., 530 So. 2d 995, 997 (Fla. 1st
DCA 1988) (stating that “[b]ecause some of the information used to construct the
diagrams was not based on first-hand knowledge and was based in part on the
testimony of a driver of one of the vehicles involved in the accident, the diagrams were
privileged under § 316.066 and it was error to admit them into evidence.”). Estimates of
damage to the vehicles are within Trooper Gracey’s observations and therefore not
excluded from trial.
Officer Gracey’s assessment of fault for the accident is excluded as unduly
prejudicial under Rule 403. See Angelucci v. Gov't Employees Ins. Co., 412 F. App'x
206, 210 (11th Cir. 2011) (noting that “Florida courts have observed that juries accord
special weight to the testimony of a police officer.”).
The defendants seek to exclude the plaintiff’s experts for failure to produce
expert reports. Rule 37(c)(1) of the Federal Rules of Civil Procedure states 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.
Fed. R. Civ. P. 37 (c)(1). “‘[T]he sanction of exclusion is automatic and mandatory
unless the sanctioned party can show that its violation of Rule 26(a) was either justified
or harmless.’” Dyett v. North Broward Hosp. Dist., 2004 WL 5320630, *1 (S.D. Fla. Jan.
21, 2004) (citation omitted). Courts consider the following factors in assessing
substantial justification or harmlessness:
(1) the surprise to the party against whom the evidence would be offered;
(2) the ability of that party to cure the surprise; (3) the extent to which
allowing the evidence would disrupt the trial; (4) the importance of the
evidence; and (5) the nondisclosing party's explanation for its failure to
disclose the evidence.
Mobile Shelter Sys. USA, Inc. v. Grate Pallet Sols., LLC, 845 F. Supp. 2d 1241, 125051 (M.D. Fla. 2012), aff'd in part, 505 F. App'x 928 (11th Cir. 2013) (citation omitted).
The plaintiff has failed to show substantial justification for her failure to provide
timely expert reports. The plaintiff argues that the expert reports cannot be completed
until her treating physicians have been deposed and additional documents have been
obtained relating to Mr. Leverette’s truck. Response (DE# 83 at 5-6).4 On January 19,
In their reply, the defendants assert that they have “followed up with Mr.
Leverette” and that there are “no additional documents in his possession.” Reply (DE#
84 at 5).
2017, the Court entered a Scheduling Order establishing the March 1, 2017 deadline
for expert reports. See Order Setting Pretrial Conference and Trial Date (DE# 65,
1/19/17). If the plaintiff believed that she needed additional time to obtain deposition
testimony or additional documents to complete the expert reports, it was incumbent
upon her to file a motion well in advance of the expert report deadline. The plaintiff has
also failed to show that there was no harm to the defendants. Fact discovery and expert
discovery deadlines have expired and trial is set for July 10, 2017. For these reasons,
the Court finds that the plaintiff’s failure to produce expert reports was neither
substantially justified nor harmless.
The plaintiff seeks to strike the defendants’ accident reconstruction expert and
orthopedic expert on the ground that those expert reports were not timely produced.
Response (DE# 83 at 6). This argument lacks merit. The attachment to the Response
shows that the defendants served an Amended Notice of Serving Experts’ Reports on
March 2, 2017, the day after expert report deadline. See Attachment J to Response
(DE# 83-10, 4/10/17). The notice itself indicates that the amendment was necessitated
“only to include Google Earth Photographs to [the defendant’s accident reconstruction
expert]’s report.” Id. at 1 (capitalization omitted). The plaintiff has not cited to any
authority prohibiting a party from making an amendment to an expert report one-day
after the expert reports deadline has passed. Moreover, the plaintiff has not shown that
the defendants’ March 2, 2017 service of amended expert reports or the addition of
Google Earth photographs caused her prejudice.
Having reviewed the applicable filings and the law, it is
ORDERED AND ADJUDGED that the Motion in Limine Regarding the Florida
Traffic Crash Report (DE# 61, 1/9/17) is GRANTED in accordance with this Order. It is
ORDERED AND ADJUDGED that the Defendants' Motion to Strike Plaintiff's
Expert Witnesses (DE# 82, 3/27/17) is GRANTED. The plaintiff’s experts, Kevin Breen
and Paul Ramos, are hereby STRICKEN. It is further
ORDERED AND ADJUDGED that the Defendants’ Amended Motion to Strike
Plaintiff’s Expert Witnesses (DE# 94, 5/30/17) is DENIED as moot.
DONE AND ORDERED in Chambers at Miami, Florida this 31st day of May,
JOHN J. O’SULLIVAN
UNITED STATES MAGISTRATE JUDGE
Copies to: All counsel of record
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