FCOA LLC v. FOREMOST TITLE & ESCROW SERVICES LLC
Filing
120
ORDER granting 80 Plaintiff's Motion to Exclude the Expert Opinions of David Milton and Carlos Zuluaga. Signed by Magistrate Judge Edwin G. Torres on 1/28/2019. See attached document for full details. (js02)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 17-23971-Civ-WILLIAMS/TORRES
FCOA, LLC,
Plaintiff,
v.
FOREMOST TITLE & ESCROW
SERVICES, LLC,
Defendant.
______________________________________/
ORDER ON PLAINTIFF’S MOTION TO EXCLUDE
THE TESTIMONY OF DAVID MILTON AND CARLOS ZULUAGA
This matter is before the Court on FCOA, LLC’s (“Plaintiff”) motion to
exclude the testimony of Foremost Title & Escrow Services, LLC’s (“Defendant”)
experts, David Milton (“Mr. Milton”) and Carlos Zuluaga (“Mr. Zuluaga”). [D.E. 80].
Defendant responded on November 26, 2018 [D.E. 101] to which Plaintiff replied on
December 3, 2018.
[D.E. 107].
Therefore, Plaintiff’s motion is now ripe for
disposition. After careful consideration of the motion, response, reply, and relevant
authority, and for the reasons discussed below, Plaintiff’s motion is GRANTED.
I.
APPLICABLE LEGAL PRINCIPLES AND LAW
The decision to admit or exclude expert testimony is within the trial court’s
discretion and the court enjoys “considerable leeway” when determining the
admissibility of this testimony. See Cook v. Sheriff of Monroe County, Fla., 402 F.3d
1092, 1103 (11th Cir. 2005). As explained in Daubert v. Merrell Dow Pharm., Inc.,
1
509 U.S. 579 (1993), the admissibility of expert testimony is governed by Fed. R.
Evid. 702.1 The party offering the expert testimony carries the burden of laying the
proper foundation for its admission, and admissibility must be shown by a
preponderance of the evidence. See Allison v. McGhan Med. Corp., 184 F.3d 1300,
1306 (11th Cir. 1999); see also United States v. Frazier, 387 F.3d 1244, 1260 (11th
Cir. 2004) (“The burden of establishing qualification, reliability, and helpfulness
rests on the proponent of the expert opinion, whether the proponent is the plaintiff
or the defendant in a civil suit, or the government or the accused in a criminal
case.”).
“Under Rule 702 and Daubert, district courts must act as ‘gate keepers’ which
admit expert testimony only if it is both reliable and relevant.” Rink v. Cheminova,
Inc., 400 F.3d 1286, 1291 (11th Cir. 2005) (citing Daubert, 509 U.S. at 589). The
purpose of this role is “to ensure that speculative, unreliable expert testimony does
not reach the jury.” McCorvey v. Baxter Healthcare Corp., 298 F.3d 1253, 1256
(11th Cir. 2002). Also, in its role as Agatekeeper,@ its duty is not Ato make ultimate
1
Rule 702 states the following:
A witness who is qualified as an expert by knowledge, skill, experience,
training, or education may testify in the form of an opinion or otherwise if: (a)
the expert=s scientific, technical, or other specialized knowledge will help the
trier of fact to understand the evidence or to determine a fact in issue; (b) the
testimony is based on sufficient facts or data; (c) the testimony is the product
of reliable principles and methods; and (d) the expert has reliably applied the
principles and methods to the facts of the case.
2
conclusions as to the persuasiveness of the proffered evidence.@ Quiet Tech. DC-8,
Inc. v. Hurel-Dubois UK Ltd., 326 F.3d 1333, 1341 (11th Cir. 2003)
To facilitate this process, district courts engage in a three part inquiry to
determine the admissibility of expert testimony:
(1) the expert is qualified to testify competently regarding the matters
he intends to address; (2) the methodology by which the expert reaches
his conclusions is sufficiently reliable as determined by the sort of
inquiry mandated in Daubert; and (3) the testimony assists the trier of
fact, through the application of scientific, technical, or specialized
expertise, to understand the evidence or to determine a fact in issue.
City of Tuscaloosa, 158 F.3d 548, 562 (11th Cir. 1998) (citations omitted).
The
Eleventh Circuit refers to the aforementioned requirements as the “qualification,”
“reliability,” and “helpfulness” prongs and while they “remain distinct concepts”;
“the courts must take care not to conflate them.” Frazier, 387 F.3d at 1260 (citing
Quiet Tech, 326 F.3d at 1341).
Furthermore, in determining the reliability of a scientific expert opinion, the
Eleventh Circuit considers the following factors to the extent possible:
(1) whether the expert’s theory can be and has been tested; (2) whether
the theory has been subjected to peer review and publication; (3) the
known or potential rate of error of the particular scientific technique;
and (4) whether the technique is generally accepted in the scientific
community. Notably, however, these factors do not exhaust the
universe of considerations that may bear on the reliability of a given
expert opinion, and a federal court should consider any additional
factors
that
may
advance
its
Rule
702
analysis.
Quiet Tech, 326 F.3d at 1341 (citations omitted). The aforementioned factors are
not “a definitive checklist or test,” Daubert, 509 U.S. at 593, but are “applied in
case-specific evidentiary circumstances,” United States v. Brown, 415 F.3d 1257,
3
1266 (11th Cir. 2005). While this inquiry is flexible, the Court must focus “solely on
principles and methodology, not on conclusions that they generate.” Daubert, 509
U.S. at 594-95. It is also important to note that a “district court’s gatekeeper role
under Daubert ‘is not intended to supplant the adversary system or the role of the
jury.’” Quiet Tech, 326 F.3d at 1341 (quoting Maiz v. Virani, 253 F.3d 641, 666
(11th Cir. 2001)). Rather, “[v]igorous cross-examination, presentation of contrary
evidence, and careful instruction on the burden of proof are the traditional and
appropriate means of attacking but admissible evidence.” Daubert, 509 U.S. at 580;
see also Chapman v. Procter & Gamble Distrib., LLC, 766 F.3d 1296, 1306 (11th Cir.
2014) (“As gatekeeper for the expert evidence presented to the jury, the judge ‘must
do a preliminary assessment of whether the reasoning or methodology underlying
the testimony is scientifically valid and of whether that reasoning or methodology
properly can be applied to the facts in issue.’”) (quoting Kilpatrick v. Breg, Inc., 613
F.3d 1329, 1335 (11th Cir. 2010)).
II.
ANALYSIS
Plaintiff’s motion aims to exclude two of Defendant’s experts – Mr. Milton
and Mr. Zuluaga. Mr. Milton is a licensed insurance adjuster with an opinion that
it is unreasonable to expect that any consumer would be confused between Plaintiff
and Defendant because insurance companies and title companies serve different
functions. Mr. Zuluaga, who works for Lion Fuse Digital Media (the company that
4
created Defendant’s website), holds four opinions2 about Defendant’s marketing
practices. Because both Mr. Milton and Mr. Zuluaga fail to meet one or more of the
Daubert requirements, Plaintiff concludes that they must be excluded at trial.
A.
Whether Mr. Milton’s Expert Opinions Should be Excluded
Plaintiff’s first argument is that Mr. Milton’s expert opinion is defective
because he did not conduct any testing, research, analysis, or investigation. In fact,
Plaintiff claims that Mr. Milton did nothing scientific to reach his conclusions and
that his opinions (which took a mere three hours to form) are based solely on his
experience working in the insurance industry, conversations with defense counsel,
and a conversation with his wife.
That is, Plaintiff argues that Mr. Milton’s
opinions lack any scientific methodology and are entirely unreliable because they do
not measure the likelihood of consumer confusion among the general public.
Plaintiff also identifies many other deficiencies in Mr. Milton’s expert
opinions. Plaintiff claims, for example, that Mr. Milton did not conduct a survey or
perform any other type of scientific analysis to determine whether consumers could
be confused by the source of services between an insurance company and a title
company.
Plaintiff even points out that Mr. Milton did not know what type of
scientific analysis experts might use to determine whether consumer confusion
exists. Rather, Mr. Milton purportedly assumed that consumers are likely to know
that an insurance company functions differently than a title insurance company and
Mr. Zuluaga opined (1) that Defendant’s branding is not to be confused with
Plaintiff’s branding, (2) that Defendant is attempting to reach a different market
than Plaintiff, and (3) that the keywords Defendant uses for search engine
optimization are not intended to interference with any other company.
5
2
that he relied on his wife to confirm his hypothesis. Because Mr. Milton relied on
pure speculation, used no methodology, made a series of unfounded assumptions,
and failed to consider any information about consumer perception, Plaintiff
concludes that Mr. Milton’s expert opinions must be excluded as unreliable.
Defendant’s response is that a scientific methodology is not required because
Mr. Milton is qualified to serve as an expert witness because of his twenty-three
years of experience in the insurance industry. Defendant claims that Mr. Milton
possesses extensive knowledge about the insurance industry and that his testimony
is important because it exceeds that of an average layman. That is, Defendant
suggests that Mr. Milton’s testimony is significant because it will help explain the
differences between property and casualty insurance as compared to title insurance.
Defendant also challenges Plaintiff’s contention that a lack of methodology
renders Mr. Milton’s opinions as defective.
Instead, Defendant argues that the
reliability standard does not require “that the opinion is objectively correct, but only
that the witness has sufficient expertise to choose and apply a methodology, that
the methodology applied was reliable, that sufficient facts and data as required by
the methodology were used and that the methodology was otherwise reliably
applied.”
United States v. Crabbe, 556 F. Supp. 2d 1217, 1221 (D. Colo.
2008) (internal citation omitted). Because Mr. Milton is an experienced insurance
adjuster who has ample knowledge of how the property and casualty industries
operate, Defendant concludes that Mr. Milton’s opinions are reliable.
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“The reliability standard is established by Rule 702’s requirement that an
expert’s testimony pertain to ‘scientific . . . knowledge,’ since the adjective ‘scientific’
implies a grounding in science’s methods and procedures, while the word
‘knowledge’ connotes a body of known facts or of ideas inferred from such facts or
accepted as true on good grounds.”
Daubert, 509 U.S. at 580.
This entails an
assessment of whether the “methodology underlying the testimony is scientifically
valid.” Id. at 592. The four non-exhaustive factors used to evaluate the reliability
of a scientific expert opinion include the following:
(1) whether the expert’s theory can be and has been tested; (2) whether
the theory has been subjected to peer review and publication; (3) the
known or potential rate of error of the particular scientific technique;
and (4) whether the technique is generally accepted in the scientific
community.
Frazier, 387 F.3d at 1262 (citations omitted).
“Notably,
however,
these
factors
do
not
exhaust
the
universe
of
considerations that may bear on the reliability of a given expert opinion, and a
federal court should consider any additional factors that may advance its Rule
702 analysis.” Quiet Tech, 326 F.3d at 1341. When determining whether a party
has met its burden, “[a] trial judge has ‘considerable leeway’ in deciding how to
determine when a particular expert’s testimony is reliable and how to establish
reliability.” Coconut Key Homeowners Ass’n, Inc. v. Lexington Ins. Co., 649 F. Supp.
2d 1363, 1371 (S.D. Fla. 2009) (quoting Graff v. Baja Marine Corp., 310 F. App’x
298, 302 (11th Cir. 2009)). Accordingly, “[t]o the extent that expert opinions are
derived from literature review, witness interviews and data analysis, they are not
7
automatically rendered unreliable by their non-susceptibility to empirical
verification.” United States v. Levinson, 2011 WL 1467225, at *4 (S.D. Fla. Mar. 17,
2011) (citing Am. Gen. Life Ins. Co. v. Schoenthal Family, LLC, 555 F.3d 1331, 1338
(11th Cir. 2009)).
Here, Plaintiff’s arguments are well taken because Mr. Milton opined on the
likelihood of consumer confusion in the market but – by his own admission – did not
base his opinions on any scientific testing or methodology. In paragraph 13 of his
affidavit, Mr. Milton opines that it is unreasonable to expect consumers to confuse
an insurance company with a title company:
Therefore, in my opinion, it would not be reasonable to expect that a
consumer could confuse an insurance company with a title company
based upon the two entities having a common word in their names due
to the total lack of any logical relationship between business functions
of the two entities. Moreover, especially where one entity identifies
itself in its company name as an insurance company and the other
company identified itself as a title and escrow services company, there
is no rational basis for there to be any consumer confusion between the
two entities that would be reasonable to expect.
[D.E. 22-3].
The primary problem with Mr. Milton’s opinions is that he failed to use any
methodology. When questioned during his deposition, Mr. Milton conceded that he
did nothing scientific in reaching his conclusions:
Q. Did you do anything to analyze, in reaching your opinions, whether
consumers could perhaps become confused by the source of services
being provided by an insurance company and a title company, if they
don’t know the difference in functions?
A. Did I do anything scientific? No. I did, however . . . ask my wife . . . .
[D.E. 22-3 at 34]. While Mr. Milton stated that he spoke with his wife about his
8
hypothesis, it is entirely unclear how this renders Mr. Milton’s opinion as reliable.
Defendant claims, on the other hand, that no methodology is needed because
Defendant is qualified as an expert. Yet, this argument misses the mark because it
is the reliability of the opinions at issue – not Mr. Milton’s qualifications – and it is
beyond the generic experience of an industry expert to opine on consumer confusion
in the marketplace without a scientific analysis.
A related defect in Mr. Milton’s approach is that he merely assumed (without
any scientific support) that his wife was a fair representation of a layperson. We
are sure she is a lovely person, but even if Mr. Milton’s wife was a fair
representation of a layperson who did not confuse an insurance company with a title
company, it is unclear how Mr. Milton can then conclude with any degree of
confidence that this is a representative sample of how the general public perceives
this issue. Making matters worse, Mr. Milton only spent approximately three hours
developing his opinions and did nothing else to examine whether consumers would
be confused between an insurance company with a title company. Instead of relying
on his wife and making unfounded assumptions, Mr. Milton should have formed his
opinions through consumer surveys or another measurable scientific yardstick. See
Patsy's Italian Rest., Inc. v. Banas, 531 F. Supp. 2d 483, 485–86 (E.D.N.Y. 2008)
(“The usual method to introduce evidence on the issue of likelihood of confusion is
through consumer surveys.”) (citing Rush Indus., Inc. v. Garnier LLC, 496 F. Supp.
2d 220, 227 (E.D.N.Y. 2007) (“A Plaintiff asserting trademark infringement
typically offers evidence of consumer confusion by way of a well designed consumer
9
survey.”) (citations omitted)). That is, Rule 702 does not allow for 3-hour shortcuts.
Because Mr. Milton’s opinions are unsupported, unreliable, conclusory, and
speculative, Plaintiff’s motion to exclude the expert testimony of Mr. Milton is
GRANTED.3
B.
Whether Mr. Zuluaga’s Expert Opinions Should be Excluded
Next, Plaintiff argues that Mr. Zuluaga’s expert opinions should be excluded
because Defendant violated Rule 26(a)(2). Plaintiff claims that Defendant did not
timely disclose Mr. Zuluaga as an expert witness.
In February 2018, Plaintiff
acknowledges that Defendant served its initial Rule 26(a)(1) disclosures identifying
Mr. Zuluaga as a person likely to have discoverable information that Defendant
may use to support its defenses. Defendant states, for example, that Mr. Zuluaga
“is the CEO and Creative Director of Lion Fuse Digital Media, LLC . . . who was
hired by FT&E to perform graphic design services for FT&E, including FT&E’s
website . . .
and to perform ongoing internet marketing and search engine
optimization services for FT&E.” [D.E. 80].
Six months later, on August 15, 2018, Defendant served its expert
disclosures. But, Plaintiff claims that Defendant failed to identify Mr. Zuluaga as
an expert witness or indicate that he prepared an expert report in this case. On
September 28, 2018, Plaintiff deposed Mr. Zuluaga as a corporate representative.
About halfway through the deposition, Plaintiff’s counsel learned for the first time
that Mr. Zuluaga was an expert witness and that Mr. Zuluaga’s November 2017
We note that Plaintiff only challenged Mr. Milton’s opinions as unreliable –
not under the qualifications or helpfulness prongs.
10
3
affidavit in response to a motion for preliminary injunction constituted an expert
report:
Q. Before we left, Mr. Stok said that you’re an expert witness in this
matter; is that accurate?
A. Yes.
Q. Are you retained by Foremost Title & Escrow in this case to serve as
an expert witness?
A. Yes.
Q. On what subjects?
A. On anything pertaining to website, email marketing, online
marketing, and really any marketing efforts for the company.
Q. Did you prepare a Rule 26 expert report?
A. No.
Q. Do you know what a Rule 26 expert report is?
MR. STOK: We filed an affidavit.
MR. HORGAN: Hang on. Let him answer the question first.
MR. STOK: Okay.
THE WITNESS: Can I say I don’t know?
Q. Sure, if it’s true. I mean, you should say whatever is true. Do you
know what Rule 26 is?
A. I don’t.
Q. What opinions do you hold as an expert witness that you intend to
give at trial?
A. Anything that – again, anything that is pertaining to the marketing
efforts and website of Foremost
MR. STOK: That’s the expert report that he filed earlier in the case.
You have known about his involvement as an expert since October of
last year.
Q. Alright. Tell me what opinions you intend to offer. I understand
what the topics are. Tell me what the opinions are.
MR. STOK: Why don’t we show him his report?
MR. HORGAN: You can show him his affidavit.
MR. STOK: Yeah, it’s his report.
MR. HORGAN: I think that may be a point of contention but I
understand your view.
[D.E. 80]. Plaintiff therefore contends that it only became known that Mr. Zuluaga
was an expert witness during his deposition on September 28, 2018 and that
Defendant violated the Court’s Scheduling Order when it failed to disclose Mr.
11
Zuluaga on or before August 15, 2018.
Plaintiff also argues that Mr. Zuluaga should be excluded at trial because he
failed to prepare a Rule 26 expert report. Plaintiff suggests that Mr. Zuluaga’s
November 2017 affidavit is not an expert report because it fails to mention that Mr.
Zuluaga holds any opinions, nor does it identify any facts or data that he reviewed.
And even if the affidavit did constitute an expert report, Plaintiff believes that
Defendant failed to disclose that Mr. Zuluaga was an expert that may be used at
trial when it came time to do so on August 15, 2018 as required in the Court’s
Scheduling Order. Because Defendant disclosed Mr. Zuluaga as an expert witness
on September 28, 2018 in violation of the Court’s Scheduling Order, Plaintiff
concludes that Mr. Zuluaga’s expert opinions are inadmissible at trial.
Defendant’s response is that it disclosed Mr. Zuluaga4 as a witness in
November 2017 and that its failure to prepare an expert report is misplaced.
Defendant argues, for example, that the expert report requirement under Rule
26(a)(2)(B) does not apply to Mr. Zuluaga because that provision only applies “to (i)
a witness who is retained or specially employed to provide expert testimony in the
case; or (ii) to a witness whose duties as an employee of the party regularly involve
giving expert testimony.” In re Tess Commc'ns, Inc., 291 B.R. 535, 537 (Bankr. D.
Colo. 2003). Defendant also suggests that Plaintiff cannot claim that it has been
prejudiced because Plaintiff had almost a year to prepare effective crossDefendant states that Mr. Zuluaga intends to testify about Defendant’s
marketing practices, the geographic regions where Defendant’s goods and services
are marketed, Defendant’s website, marketing themes, and the graphic depictions
of Defendant’s logo.
12
4
examination and arrange for rebuttal witnesses.
Federal Rule of Civil Procedure 26(a)(2)(A) provides that “a party must
disclose to the other parties the identity of any witnesses it may use at trial to
present evidence under Federal Rule of Evidence 702, 703, or 705.” Fed. R. Civ. P.
26(a)(2)(A). This disclosure must include “a written report—prepared and signed by
the witness—if the witness is one retained or specially employed to provide expert
testimony in the case or one whose duties as the party’s employee regularly involve
giving expert testimony.” Fed. R. Civ. P. 26(a)(2)(B). The report must also contain
the following information: a complete statement of all the opinions the expert plans
to express and the basis for them, the data considered by the expert in forming the
opinions, any exhibits intended to be used in summarizing or supporting the
opinions, the experts’ qualifications including a list of all authored publications in
the previous ten years, a list of all the other cases in which the witness testified as
an expert during the previous four years, and a statement of the compensation the
expert is to receive for the study and testimony in the case. Fed. R. Civ. P.
26(a)(2)(B)(i)-(vi).
These disclosures must be made “at the times and in the
sequence that the court orders.” Fed. R. Civ. P. 26(a)(2)(C).
“Because the expert witness discovery rules are designed to allow both sides
in a case to prepare their cases adequately and to prevent surprise . . . compliance
with the requirements of Rule 26 is not merely aspirational.” Cooper v. Southern
Co., 390 F.3d 695, 728 (11th Cir. 2004) (internal citation omitted), overruled on
other grounds, Ash v. Tyson Foods, Inc., 546 U.S. 454 (2006). To this end, Rule
13
37(c)(1) provides a self-executing sanction for untimely expert reports. In relevant
part, Rule 37(c)(1) states that [i]f a party fails to provide the information required
by Rule 26, “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).
Substantial justification is “justification to a degree that could satisfy a
reasonable person that parties could differ as to whether the party was required to
comply with the disclosure request.” Ellison v. Windt, 2001 WL 118617(M.D. Fla.
Jan. 24, 2001) (quotation and citation omitted).
A failure to timely make the
required disclosures is harmless when there is no prejudice to the party entitled to
receive the disclosure. See Home Design Servs. Inc. v. Hibiscus Homes of Fla.,
Inc., 2005 WL 2465020 (M.D. Fla. Oct. 6, 2005).
The party failing to comply
with Rule 26(a) bears the burden of establishing that its non-disclosure was either
substantially justified or harmless. See Surety Assocs., Inc. v. Fireman’s Fund Ins.
Co., 2003 WL 25669165 (M.D. Fla. Jan. 7, 2003).
It is undisputed that Defendant failed to comply with the Federal Rules in
timely disclosing Mr. Zuluaga as an expert in this case.
To excuse its failure,
Defendant claims that Plaintiff suffered no prejudice because Plaintiff had an
opportunity to depose Mr. Zuluaga on September 28, 2018 – one business day before
the discovery period ended on October 1, 2018. But, Defendant’s argument rings
hollow because Defendant has failed to show any reason why the expert disclosure
deadline could not have been met with the exercise of due diligence. While Plaintiff
14
deposed Mr. Zuluaga on September 28, 2018, that was approximately six weeks
after the deadline to disclose Mr. Zuluaga as an expert in this case and one business
day prior to the discovery deadline.
The importance of observing deadlines contained in a Scheduling Order is
recognized in Rule 16(b), where it provides that “[a] schedule shall not be modified
except upon a showing of good cause and by leave of the district judge . . . .” Fed. R.
Civ. P. 16(b). The Advisory Committee notes to Rule 16 also point out that “[t]he
court may modify the schedule on a showing of good cause if it cannot reasonably be
met despite the diligence of the party seeking the extension.” Id. Furthermore, the
Eleventh Circuit has found that “[t]his good cause standard precludes modification
unless the schedule cannot ‘be met despite the diligence of the party seeking the
extension.’” White v. Volvo Trucks of N. Am., Inc., 211 F.R.D. 668, 670 (M.D. Ala.
2002) (quoting Sosa v. Airprint Systems, Inc., 133 F.3d 1417, 1418 (11th Cir. 1998)).
And where a party fails to abide by the deadlines for disclosure in a Scheduling
Order, merely demonstrating a lack of prejudice to the opposing party is insufficient
to justify late disclosures. Id.
Here, there is nothing in Defendant’s response that establishes good cause for
Defendant’s failure to comply with the expert disclosure deadline set in the Court’s
Scheduling Order. And Defendant fails to explain how it exercised due diligence in
disclosing its expert when the time do so passed six weeks prior to Mr. Zuluaga’s
deposition. While Defendant listed Mr. Zuluaga “as a fact witness in its initial
disclosures, the failure to identify him as an expert before the court’s deadline
15
constitutes a failure to disclose.” Scarff Bros., Inc. v. Bullseye Dispatch, Inc., 2016
WL 7365198, at *2 (N.D. Ga. Sept. 14, 2016) (citing Morrison v. Mann, 244 F.R.D.
668, 674 (N.D. Ga. 2007) (striking expert in part because plaintiff failed to identify
him as an expert in its initial disclosures)).
Making matters worse, the disclosure of Mr. Zuluaga as an expert occurred
halfway through a deposition on September 28, 2018 – one business day before the
close of the discovery period.
This effectively limited Plaintiff’s ability to seek
discovery on Mr. Zuluaga as an expert in this case because his status as an expert
only became known at the eleventh hour before the discovery deadline.
See Morrison
v.
Mann,
244
F.R.D.
668,
672–73
(N.D.
Ga.
2007) (“[T]he
appropriateness of a party’s justification turns upon whether the party knew or
should have known that an expert was necessary before the late stages of the
discovery period.”) (citation omitted). Absent the reopening of discovery and the
delay of trial, for which no motion has been made, Defendant’s delay of disclosing
Mr. Zuluaga cannot stand. See Bray & Gillespie Mgmt. LLC v. Lexington Ins. Co.,
2009 WL 1043974 (M.D. Fla. Apr. 17, 2009).
We acknowledge that untimely expert disclosures may in some circumstances
be excused depending on the length of the delay, but motions to exclude experts
have routinely been granted in cases involving a delay of seven weeks and in
circumstances where the party fails to set forth good cause for the delay.
See, e.g.,
White, 211 F.R.D. at 670 (granting defendants’ motion to strike because plaintiff
disclosed an expert witness seven weeks late); see also Ballard v. Krystal
16
Restaurant, 2005 WL 2653972 (M.D. Ala. Oct. 17, 2005) (granting defendant’s
motion to strike because plaintiff waited two and a half months to disclose its
expert). And in this case, Defendant has failed to demonstrate any due diligence in
meeting the Court’s Scheduling Order six weeks after the deadline to do so. We
therefore conclude that Defendant’s failure to timely disclose its expert was not
substantially justified or harmless and that Plaintiff’s motion to exclude the expert
testimony of Mr. Zuluaga is GRANTED.5
III.
CONCLUSION
For the foregoing reasons, it is hereby ORDERED AND ADJUDGED that
Plaintiff’s motion to exclude the testimony of Defendant’s expert witnesses is
GRANTED. [D.E. 80].
DONE AND ORDERED in Chambers at Miami, Florida, this 28th day of
January, 2019.
/s/ Edwin G. Torres
EDWIN G. TORRES
United States Magistrate Judge
While Mr. Zuluaga’s expert opinions are inadmissible at trial, Mr. Zuluaga
may testify as a fact witness and provide lay opinion testimony on subjects on which
he has personal knowledge. See, e.g., Neff v. Kehoe, 708 F.2d 639, 643-44 (11th Cir.
1983) (holding that even though the plaintiff was “not tendered as an expert,” he
should have been permitted to give his “lay opinion” as to the value of his coin
collection, which was “based upon coin collector publications, upon appraisals he
received from various collectors and upon his own experience as owner of the
collection”).
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