Holmes v. Parker et al
Filing
56
ORDER granting in part and denying in part 50 Motion in Limine to exclude from evidence the opinions of two of Plaintiff's experts from whom expert reports have not been filed. Signed by Magistrate Judge James E. Graham on 8/14/2012. (csr)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
BRUNSWICK DIVISION
2012 AUG 14 PM 2
CLE-
13 . 13F
MEGAN HOLMES, Individually
and as Administrator of the Estate
of Cathy J0 Holmes,
CIVIL ACTION NO.: CV2II-111
Plaintiff,
V.
JOSEPH PARKER; UNITED STATES
OF AMERICA; and MARGARET'S
KEY, LLC,
Defendants.
ORDER
This lawsuit arises out of a recreational boating accident near the jetty at the
north end of Jekyll Island, Georgia, wherein Plaintiffs decedent died. Plaintiff alleges
that Defendant United States of America ("Defendant") is liable for the wrongful death of
her decedent because the United States Coast Guard improperly marked, illuminated,
and maintained the jetty. Plaintiff has also sued two other Defendants.
The United States filed a Motion in Limine (Doc. No. 50) to exclude from
evidence the opinions of two of Plaintiffs experts from whom expert reports have not
been filed. The United States also seeks to exclude from evidence lay witness
testimony regarding the design or placement of navigational markings in the vicinity of
AO 72A
(Rev. 8/82)
the Jekyll Island jetty. Plaintiff filed a Response, and Defendant filed a Reply. The
Court rules as follows:
1. PlaintifFs experts from whom expert reports have not been filed - An
expert witness who is "retained or specially employed to provide expert testimony in the
case" must provide a written report containing "a complete statement of all opinions the
witness will express and the basis and reasons for them." FED. R. Civ. P. 26(a)(2)(B). If
a party fails to comply with this mandate, "the party is not allowed to use that
witness to supply evidence on a motion, at a hearing, or at trial, unless the failure was
substantially justified or is harmless." FED. R. Civ. P. 37(c)(1).
Plaintiff does not dispute that expert reports are required for her experts, Larry E.
Credle and James W, Sloan; nor does Plaintiff dispute that she has not provided the
necessary expert reports. However, Plaintiff argues that her delay in filing the
necessary expert reports is substantially justified. Plaintiff relies on the opinion of the
Court of Appeals for the Eleventh Circuit in OFS Fitel, LLC v. E pstein, Becker & Green.
PC., 549 F.3d 1344 (11th Cir. 2008), in support of her position. In Fitel, the Eleventh
Circuit decided that a delay in filing an expert report was substantially justified. The
court considered five factors in determining whether the delay was in good faith.
First, Fitel timely identified the expert and filed an affidavit from the expert with at
least some information about her opinions. By Order dated December 23, 2011, the
Court informed the parties in this case that the last day for Plaintiff to serve expert
witness reports was February 10, 2012, and that the close of discovery was May 12,
2012. (Doc. No. 27). On February 10, 2012, Plaintiff filed expert witness disclosures,
consistent with Federal Rule of Civil Procedure 26(a)(2)(C)(i), even though she did not
AO 72A
(Rev. 8/82)
file the reports mandated by Rule 26(a)(2)(B). (Doc. No. 31). Because Plaintiff timely
identified the experts and provided some information, this factor weighs in Plaintiffs
favor.
Second, Fitel repeatedly told the defendant that it needed to depose defendant's
employees before the expert could complete her report. Third, the Eleventh Circuit
considered the fact that defendant itself moved for an extension of discovery in part
based on its knowledge that the plaintiff could not provide the expert report without the
necessary depositions. It should be noted that those depositions were not done at the
time originally scheduled,' but had they been, Fitel's expert's report would have been
timely filed. Moreover, the depositions Fitel needed were delayed by Fitel in an effort to
cooperate with defendant and its employees, the deponents. In her expert witness
disclosures, filed on the date the expert reports were due, Plaintiff explained that the
disclosures were limited because of her inability, up to that point, to schedule
depositions and otherwise complete discovery. (Doc. No. 31, pp. 1-2). However, those
limitations were caused by the other two Defendants in this action. (j; Doc. No. 53).
Plaintiff did not identify any actions of Defendant causing her discovery limitations, and
Plaintiff did not identify a need for any depositions of individuals identified by Defendant.
(Doc. No. 31, pp. 1-2). It was not until more than three months after her expert reports
were due, and 11 days after the close of discovery, that Plaintiff, on May 23, 2012,
contacted Defendant in an effort to schedule depositions of "one or more of those
individuals identified by [Defendant] in response to discovery and who has knowledge
and information [pertinent to Plaintiffs claim]." (Doc. No. 53-1, p. 1). Had Defendant
agreed to those depositions, Plaintiffs experts' reports still would not have been timely.
They were, however, still completed before the close of discovery.
AO 72A
(Rev. 8/82)
3
Additionally, there is no evidence tending to show that the delay in Plaintiffs request for
those depositions was in any way procured by Defendant or in an effort to
accommodate Defendant. Plaintiff offers no reason for the delay in her request for
depositions of individuals identified by Defendant, and Plaintiff at no time prior to the
close of discovery moved for an extension of the discovery period. Additionally, in
.Ejl,
the Eleventh Circuit commented that there was no element of surprise to the defendant
about when the expert report would be filed. Conversely, in the instant case, there is no
evidence tending to show that Defendant knew to expect the experts' reports to be filed
late until the deadline for filing those reports. Furthermore, in
Ejl, the Eleventh Circuit
noted that the defendant's motion to exclude expert testimony was the first time the
defendant complained of or objected to Fitel's disclosed plan to submit its expert's
report after the defendant's employees' depositions were completed. Conversely,
Defendant informed Plaintiff on March 23, 2012—two months before Plaintiff belatedly
sought to depose individuals identified by Defendant—that Plaintiff had not complied
with the Rule 26 expert report requirement and that Defendant would move to strike any
late reports. (Doc. No. 50-1). Ultimately, Plaintiffs efforts to meet deadlines, and
excuses for not, and Plaintiffs notice to Defendant regarding its inability to meet
deadlines are simply not on par with those of the plaintiff in
Ejl.
Factors two and three
weigh in favor of Defendant.
Fourth, in Fitel, the Eleventh Circuit considered that no trial date was set or
imminent for the case. Likewise, a trial date has not been set in the instant case, which
is favorable to Plaintiff. However, discovery closed in May without a request from
AO 72A
(Rev. 8/82)
Plaintiff for an extension of the discovery period. Plaintiff has failed to be proactive in
dealing with deadline issues.
Finally, the court determined that Fitel reasonably needed the depositions of
defendant's employees for the expert to complete her report because Fitel did not know
all of the facts of the case without those depositions. Plaintiff has failed to state what
additional discovery she needs and why she needs that discovery in order for her
experts to complete their reports. Without showing an "actual need,"
fjl, 549 F.3d at
1365, for this unidentified additional discovery, the Court cannot find that this factor
weighs in Plaintiffs favor.
The Court cannot find that Plaintiff has failed to produce her experts' reports
because of "a good-faith attempt to accommodate," id., Defendant and individuals
identified by Defendant as possible deponents. The Court also cannot find that Plaintiff
maintained "a good-faith belief," j, that her plan to provide expert reports months after
their due date was productive and acceptable to Defendant. Plaintiffs delay of, to date,
over six months is not substantially justified. This portion of Defendant's Motion is
GRANTED.
2. Lay witness testimony - Defendant also moves to exclude "any lay witness
testimony regarding the design or placement of navigational markings in the vicinity of
the Jekyll Island jetty" because "it is properly the subject matter of expert testimony and
not lay testimony." (Doc. No. 50, p. 7). Defendant argues that the "optimal marking and
illumination of the nearby aids to navigation is a technical question." (j). The Court
agrees, to an extent. To the extent that any lay witness intends to testify regarding
"proper" navigational markings as determined by, for example, compliance with any
AO 72A
(Rev. 8/82)
5
regulations for navigational markings or any sort of engineering standard, such
testimony would fall within the realm of expert testimony. However, to the extent that
any lay witness intends to testify regarding observations he or she made, such
testimony is proper. Plaintiff anticipates calling lay witnesses to testify regarding the
following: whether the jetty was visible, whether lights in and around the jetty were
defective or not working, whether the jetty was visible to boaters navigating Jekyll
Creek, whether there were any signs or markings in place at the time of the accident,
and whether any signs and/or lights were properly maintained and working. At this time,
it does not appear that Plaintiff intends to elicit improper testimony from any lay
witnesses. This portion of Defendant's Motion is DENIED at this time. Defendant may
object to any lay witness testimony it finds objectionable at trial.
SO ORDERED, this
/1'
day of August, 2012.
MES E. GRAHAM
NITED STATES MAGISTRATE JUDGE
AO 72A
(Rev. 8/82)
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?