Kennedy v. Nick Corcokius Enterprises, Inc

Filing 57

ORDER granting 48 Plaintif's Motion in Limine to Exclude Testimony of Nick Corcokius. Signed by Judge Robin L. Rosenberg on 12/16/2015. (dzs)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 9:15-CV-80642-ROSENBERG/BRANNON
PATRICIA KENNEDY,
Plaintiff,
v.
NICK CORCOKIUS ENTERPRISES, INC.,
Defendant.
/
ORDER GRANTING PLAINTIFF’S MOTION IN LIMINE
THIS CAUSE comes before the Court on Plaintiff’s Motion in Limine to Exclude
Testimony of Nick Corcokius [DE 48]. The Court has reviewed the motion, and the response and
reply thereto, and is otherwise fully advised in the premises. For the reasons set forth below, the
motion is GRANTED.
Plaintiff moves to exclude “anything in the nature of expert testimony from Nick
Corcokius,” Defendant’s owner, because Defendant failed to provide expert disclosures, as
required under Federal Rule of Civil Procedure 26(a)(2)(C), prior to the Court’s July 27, 2015
deadline for expert disclosures. See DE 10 (scheduling order establishing deadline for expert
disclosures). Defendant responds that it provided a Rule 26(a)(1) disclosure to Plaintiff on July
14, 2015, and attaches this disclosure. See DE 49. Defendant also argues that the Court should
deny Plaintiff’s motion in limine because the Court already relied on Mr. Corcokius’ affidavit in
finding several of the ADA violations moot. See DE 49.
Federal Rule of Civil Procedure 26 provides in pertinent part:
(2) Disclosure of Expert Testimony.
...
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(C) Witnesses Who Do Not Provide a Written Report. Unless otherwise stipulated
or ordered by the court, if the witness is not required to provide a written report,
this disclosure must state:
(i) the subject matter on which the witness is expected to present evidence
under Federal Rule of Evidence 702, 703, or 705; and
(ii) a summary of the facts and opinions to which the witness is expected
to testify.
Fed. R. Civ. P. 26(a)(2)(C); see also Fed. R. Civ. P. 26(a)(2)(B) (providing that an expert witness
must provide written report only “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”). “If a party fails to provide information or identify a witness as
required by Rule 26(a) . . ., the party is not allowed to use that information or witness to supply
evidence . . . at a trial, unless the failure was substantially justified or is harmless.” Fed. R. Civ.
P. 37(c)(1). See, e.g., Jones v. Royal Caribbean Cruises, Ltd., No. No. 12-20322-CIV, 2013 WL
8695361, *4 (S.D. Fla. Apr. 4, 2013) (finding that, where Plaintiff’s expert witness disclosures
simply listed the names of his treating physicians, this failed to comply with Rule 26(a)(2)(C),
and excluding expert testimony from those physicians).
In the Rule 26 disclosure provided by Defendant (attached to his response), Defendant
listed Mr. Corcokius as an “Individual Likely to Have Discoverable Information” under Rule
26(a)(1)(A), and noted he “has knowledge of the conditions of the underlying property.” See DE
49 at 3-4. However, nothing in the disclosure indicates that Mr. Corcokius would offer an expert
opinion on the issues in this case. Defendant does not point to any other disclosure it made that
would satisfy the requirements of Rule 26(a)(2)(C), or argue that the failure to do so was either
substantially justified or harmless.
Defendant opposes Plaintiff’s motion in limine on the grounds that this Court previously
relied on Mr. Corcokius’ affidavit to find that Defendant had remedied some of the ADA

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violations alleged by Plaintiff. As discussed in the Court’s prior order, the Court considered the
affidavit “because it was made from personal knowledge and [was] not so technical that expert
testimony is required to understand the changes made.” DE 45 at 7. See Norkunas v. Seahorse
NB, LLC, 444 F. App’x 412, 417-18 (11th Cir. 2011) (holding district court properly admitted
testimony of defendant’s owner regarding actions he had taken to bring property into ADA
compliance, such as that he had “leveled a threshold of a door and . . . moved grab bars an inch
or two,” because this “testimony was limited to facts within his personal knowledge”). The Court
also noted that whether the changes Mr. Corcokius had made complied with the ADA was not in
dispute. See DE 45 at 6. The Court therefore did not consider Mr. Corcokius’ affidavit as expert
testimony. To the extent Defendant intends to offer testimony from Mr. Corcokius at trial that is
outside of his personal knowledge or which requires technical expertise, 1 Defendant may not do
so because Defendant failed to disclose this testimony in compliance with Rule 26(a)(2)(B) and
Rule 37(c)(1).
Accordingly, it is hereby ORDERED AND ADJUDGED that Plaintiff’s Motion in
Limine to Exclude Testimony of Nick Corcokius [DE 48] is hereby GRANTED.
DONE AND ORDERED in Chambers, Fort Pierce, Florida, this 16th day of December,
2015.
_______________________________
ROBIN L. ROSENBERG
UNITED STATES DISTRICT JUDGE

Copies furnished to:
Counsel of record

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Courts sometimes allow experts to testify about compliance with ADA regulations, to the extent it is needed to
understand the violations. See Cordoves v. Miami-Dade Cnty., No. No. 14-20114-CIV, 2015 WL 2258457 (S.D. Fla.
Mar. 2, 2015) (noting “courts have found experts qualified to testify about compliance with . . . ADA regulations”
and citing examples).

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