Finch et al v. Owners Insurance Company et al

Filing 65

ORDER finding as moot 44 and 50 Motions for Hearing; denying 28 and 57 Motions to exclude expert testimony; granting in part and denying in part 27 Motion for Summary Judgment. Discovery is reopened for specific depositions to be complete d no later than 12/31/2017 and parties are to notify the Court when discovery is complete. Within 10 days thereafter, Defendant will submit an itemized affidavit of additional attorney's fees incurred and Plaintiff will have 5 days to respond. Signed by Chief Judge J. Randal Hall on 12/6/2017. (jlh)

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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF GEORGIA STATESBORO DIVISION CARRIE FINCH, * * Plaintiff, * * v. * OWNERS INSURANCE COMPANY, CV 616-169 * • Defendant. * ORDER Before (doc. the 28) Court motions Defendant's motion has given the summary are to for Plaintiff Plaintiff exclude summary notice judgment of rules, in opposition, Therefore, notice 772 F.2d the 822, 825 judgment. (Doc. Cir. the summary right of 1985) For the following reasons, motions exclude expert to Defendant's testimony 27.) judgment file The and Clerk motion and affidavits or and the consequences of default. satisfied. to and witness requirements (11th 57) expert of the other materials (doc. testimony Griffith (per v. curiam), Wainwright, have been Plaintiff and Defendant's (docs. and Defendant's motion for summary judgment 28, (doc. 57) 27) are DENIED is GRANTED IN PART and DENIED IN PART.1 1 Both parties have also moved for a hearing on Defendant's motions. Because the Court concludes there is no need for oral argument in this matter and has I. In Finch, January 2016, discovered Plaintiff Carrie damage (Donna Finch Dep., BACKGROUND Doc. to the 27-1, Finch's roof of 33:17-21.) daughter, Plaintiff's Donna house.2 The damage was caused by a hailstorm that passed over the house in June 2015. Dep., Doc. 27-2, 31:2-4.) After noticing the damage, (Dukes Plaintiff filed a claim with Defendant Owners Insurance Company under the Plaintiff's homeowners insurance policy Finch Dep., on January 19, was claim adjuster 2016. damaged John (Dukes Dep., by hail, Dukes roof Doc. sometime 27-4, between Defendant April she learned Finch Dep., Mr. and Dukes Doc. that 27-3, brought the house 57-60.) engineer had check for the Plaintiff replaced 2016. (Minick mold damage. Plaintiff filed a Ron Powers Dep., to new claim and inspect the parties' (Darrell motions the home (docs. on 44, 50) DENIED. 2 Plaintiff's house was purchased in 1996. originally her (Id.) a before Plaintiff had replaced her resolved all pending motions before it, are house After deciding the mailed May the 25:19-21.) Around mid-February 2016, roof, inspected 32:2-14.) estimated cost of repairing the roof. the (Donna 46:12-14. ) Defendant's roof ("the Policy"). shared children equally Darrell and between Donna Plaintiff, Finch. (Id.) (Doc. her In 27-12, 1.) husband, 1998, a Ownership was Juvay Finch, one-fifth and interest was conveyed to Debra Minick. (Id. at 3.) Despite the house's shared ownership, the homeowners insurance policy only lists Plaintiff and Juvay Finch. (Doc. 27-8, 3.) February 23, Dukes that improper 2016. the (Dukes Dep., cause of construction, 84:3-6.) (Dukes Dep., inadequate claims an contract Court 2016, removed agreement, Screven the March (Doc. 9.) County, 2016. (Doc. to 19, On the 2017, March witness reports of Tim Durden.3 complained Durden and on According until did maintenance. the water, (Id. Policy does at not cover Plaintiff received Defendant's (Compl., 1 38.) action December 13, surface Plaintiff sent a demand to have Defendant Plaintiff and bad faith refusal of was letter refusing to pay for the mold damage. pay for the mold damage. to Powers told Mr. 78:13-16.) On July 25, come 2016, Mr. damage and On March 10, coverage position mold however, Defendant, such damages. the 54:7-15.) basis (Id. of original not at for breach the 1.) diversity to 16, scheduling furnish 2017, reports satisfy of any of Superior Defendant jurisdiction Mr. Federal order, expert Plaintiff Stuart Gregory, the suit on 1-2.) (Doc. 28, Exs. A.-C.) that filed to pay a claim in Georgia. the The parties could not Plaintiff witness disclosed Frank Parson, the had report. expert Susan Cox, and On May 9, 2017, Defendant Gregory, Rule of Ms. Cox, Civil and Mr. Procedure 3 Although Defendant was presumably satisfied with Mr. Parson's first report, Plaintiff gave Defendant a modified report on the day of Mr. Parson's deposition. (Frank Parson Dep., Doc. 27-5, 35:13-16.) Whereas the original report was limited to mold damage, the new report included structural damages. (Id. at 36:14-19.) 26(a)(2)(B). reports for However, still (Doc. 34-1, 27.) those experts Defendant claims during May Mr. damage. 2017, 5, 2017, May 23, 2017. Plaintiff's Gregory's Defendant's (Id. supplemental counsel investigation (Rountree Aff., Doc. 51-1, into Cox's (Doc. 34-1, more challenge Mr. testimony because of 99.) met the St 4.) Defendant informed Plaintiff that Gregory and intended to a on at 37, reports 42) were insufficient. On Ms. Plaintiff disclosed supplemental with cause However, report. Gregory, Plaintiff's close of discovery on July 3, (Id. 2017, Gregory of the mold on June 26, it would not depose Mr. Mr. at Mr. Durden, and untimely disclosure. Plaintiff subsequently had Mr. comprehensive Mr. 141.) Gregory submit However, Gregory, Mr. at the Durden, and Ms. Cox had still not been deposed. II. A. Defendant's Motion to Exclude Expert Testimony Initially, should were be Defendant excluded untimely and intends trial or expert at to use a date witness argues because at that Under a party must trial. Fed. expert Federal Additionally, R. Civ. Plaintiff's experts witness Rule reports of Civil identify any expert witness set by the Court, report. all Plaintiff's inadequate. Procedure 26(a)(2)(B), it DISCUSSION ninety days before the party must produce an P. 26(a)(2)(B). An expert witness report helping parties experts. (S.D. 1. prepare 2012). 1349 or the discovery cross-examination Klosinski, District inadequate Bearint ex rel. 1339, facilitate See Abdulla v. Ga. exclude should 898 find F. Supp. have courts untimely and "wide expert witness 2d 1348, latitude" Inc., by rebuttal reports. Bearint v. Dorell Juvenile Group, (11th Cir. process 1357 to See 389 F.3d 2004). Stuart Gregory's Testimony Will not be Excluded Defendant complains that Mr. Gregory's which was disclosed by March 19, 2017, initial was inadequate. report, Pursuant to Rule 26(a)(2)(B), an expert witness report must contain: (i) a complete statement of witness will express and the all opinions the basis and reasons for them; (ii) the facts or in forming them; data considered by the witness (iii) any exhibits that will be used to or support them; summarize (iv) the witness!s qualifications, including a list of all publications authored in the previous 10 years; (v) a list of all other cases in which, during the previous 4 years, the witness testified as an expert at trial or by deposition; and (vi) a statement of the compensation to for the study and testimony in the case. A report Rule must do 26(a)(2)(B) 3463608, at *3 more than promise requires. (S.D. Ga. Sept. See 1, to reveal Sommers 2010) be v. paid the information Hall, 2010 WL (stating that a " xmaybe someday I'll tell 26(a)(2)"). Additionally, to the approach mocks the duty to the Sommers, an supplement initial Fed. original supplement. duty expert Goodbys of Gregory's Creek, initial Gregory's (Doc. request months LLC close of its by timely v. failed Ex. A.) and be Ins. to to cured Co., meet additional by 2009 a WL requirements three timely regarding water information did Although Plaintiff's third Accordingly, failing disclosure. Plaintiff's response to 26(a)(2)(B), deadline end-run glaring omissions cannot Arch an The report contained little more provide Rule discovery. 26(a) (2) (B) and However, 27, 2009). report 28, to satisfied past facilitate report nothing to cure these deficiencies. disclosure not promise to "render opinions intrusion . . . ." Defendant's 26(a)(2)(E). Accordingly, witness (i)-(iii) of Rule 26(a)(2)(B). than Mr. P. complete at *3. 1139575, at *2 (M.D. Fla. Apr. Mr. R. Civ. a report does 2010 WL 3463608, very purpose of Rule a party has a continuing obligation supplement her report. around in you' it was submitted business days Plaintiff disclose an three before violated adequate the Rule expert witness report. When a plaintiff disclosure deadline, fails to meet a Rule 26(a)(2)(B) she must demonstrate her mistake was justified or harmless. Fed. R. Civ. either P. 37(c)(1); Mitchell v. Ford Motor Co., of 318 F. App'x 821, establishing justified or that An to Durden Citicorp (M.D. v. Fla. rests Pfizer, untimely reasonable believe Nov. to on Inc., timely the 2008). An justified. under Rule deadline delay's the Expert not Plaintiff is set by the so FSB, harmlessness, to toured witness the house reports Gregory give the if Ga. it was unnecessary. WL that Mr. Order during (N.D. See 11318338, is at *3 harmless Id. at *4. Plaintiff's Mr. party.'" 691 untimely disclosure Plaintiff argues ask 687, was 2008 that Scheduling substantially justified demonstrated concedes 26(a)(2)(B) opportunity counsel to has was 233 F.R.D. if a defendant suffers no prejudice. Plaintiff ("'The burden nondisclosing disclosure Bank, 2009) disclose disclosure Trust 25, (11th Cir. failure harmless (quoting Leathers v. 2006))). a 824 Gregory duty was that to delay is an comply clear. As Defendant questions Mr. her when Gregory's opposing party was expert with the for the was given Defendant's investigation. the opportunity consult with their own experts and generate useful questions before meeting with a party's 2009 WL 1139575, *3. at he was conducting his Plaintiff Gregory to also See Goodbys A brief meeting with Mr. Creek, LLC, Gregory while investigation is not a fitting substitute. points suggest expert. that to Defendant's any harm was refusal to depose self-inflicted. Mr. Asking Defendant to depose an expert witness without an expert witness report would be asking Defendant to "fly blind." not punish Defendant Plaintiff's for untimely refusing disclosure to do was The Court will so. Accordingly, neither justified nor harmless. Even though 26(a)(2)(B), result. the Plaintiff excluding Mr. While Federal has failed this Fed. R. Civ. Rule sanction . P. . comply with Gregory's testimony would be of Civil Procedure courts discretion to exclude witnesses, outcome. to 37(c)(1) ." a harsh 37(c)(1) gives it does not require that ("In addition to (emphasis Rule added)). or instead of Additionally, "[wjithout a finding of bad faith or gamesmanship on the eve of trial, many courts precluding Inc., are expert loathe to testimony." 193 F. Supp. 2d 1252, 1259 invoke McClain the v. (N.D. Ala. strong medicine Metabolife 2002). 9, 2010); United States, Durden, 2008 2010 WL 4643279, WL 11318338, at at *6 *5 Intern., This caution is magnified when exclusion would lead to dismissal. Collins v. of See, (M.D. e.g., Fla. (refusing to Nov. exclude testimony of plaintiff's only expert despite plaintiff's failure to produce an expert witness report before the close of discovery). Mr. to Gregory's testimony is the demonstrate the source of the only evidence Plaintiff has water damage, which is an essential does part not of Plaintiff's condone 26(a)(2)(B), complaint. Plaintiff's Although failure comply to the Court with Rule there is nothing to suggest Plaintiff was acting in bad-faith or intentionally sandbagging Defendant. Additionally, the by Court may discovery, Gregory, also Plaintiff.4 is prejudice its allowing testimony to scope the Accordingly, Defendant to the associated Defendant's because of reopening deposition costs motion Plaintiff's to to of be borne exclude untimely testimony Rule to by Mr. disclosure of Defendant because Evidence testimony also his 702, is seeks methods expert based on to are exclude Mr. unreliable. testimony may sufficient be facts or Gregory's Under admitted data; Federal if (2) testimony is the product of reliable principles and methods; (3) Mr. DENIED. Next, the any restricting and Gregory's cure the the expert facts has of reliably the case. Pharmaceuticals, 509 focus expert's is exclude on the expert A Reopening is See U.S. testimony discovery applied 579, the also Daubert 588-89 principles if principles it appropriate in this methods, a large case the and and methods Merrell Dow Although (1993). and contains v. (1) the court may analytical gap because a trial is not imminent, reopening discovery for the sole purpose of deposing expert witnesses will avoid prejudice to Defendant, and further discovery is likely to lead to additional evidence. See Fed. R. Civ. P. 16(b)(4) ("[A scheduling order] may be modified only for good cause and with the judge's consent."); Durden, 2008 WL 11318338, at *7 (listing the factors considered to determine good cause). between the data relied upon and the States v. Frazier, Defendant 387 F.3d 1244, argues that opinion rendered. 1260 Mr. (11th Cir. Gregory's United 2004). conclusions are entirely based on temporal proximity between when the storm hit and when Circuit solely Plaintiff has on Inc. , 613 Int'l, first noticed repeatedly held that temporal proximity. F.3d 1329, Inc., 401 1343 F.3d water expert See, (11th Cir. 1233, damage. 1248 The testimony may not e.g., 2010); (11th Kilpatrick McCain v. Cir. expert's 7377226, *6 opinion. (S.D. Gregory's Mr. sources of Fla. report Dec. For frequency of v. Carnival 16, 2016). reveals support. location and Sampson Corp., Additionally, fleshed out opinions have example, Mr. Gregory points on the second multiple to floor (Doc. the and 34-1, the Court is reluctant to exclude an expert through motion to exclude Mr. 2. WL A cursory examination of witness before the strengths and weaknesses be support 2016 his stains Breg, However, that water rely Metabolife used to excludes other possible sources of water intrusion. 108.) v. 2005). this does not mean temporal proximity cannot be an Eleventh deposition. of his opinions can Accordingly, Defendant's Gregory's testimony is DENIED. Frank Parson's Testimony Will Not be Excluded Although Mr. repairing Parson's initial report—detailing the cost of Plaintiff's house—complied 10 with Rule 26(a) (2) (B), Defendant complains that on Plaintiff provided included mold cost a modified report. estimates damage, the day of Mr. whereas based the on Parson's deposition, The supplemental structural original only damage included Defendant moves to exclude any portion of Mr. based on the report. A when it time party may initial v. discovers Columbia 2014). report structural supplement WL damage no was was as damage. supplemental witness unavailable *3 at the LLC (S.D. unavailable report Investors, Creek explanation report. mold the expert at well Parson's testimony in Jones 12618171, offered first an that disclosed. 2014 has identified information was Cnty., Parson's damage only new Plaintiff regarding Mr. structural as report Ga. why when Oct. 29, information she Accordingly, disclosed Plaintiff's supplemental report is untimely and violates Rule 26. However, available Parson's Mr. as option mentioned to supplement Gregory's alleviated. itemized Plaintiff. list handle is Defendant of the untimely not testimony, as incurred, Defendant's is disclosures. to prejudice re-depose costs exclusion essential the may Accordingly, above, Mr. only Although Plaintiff's to which motion will to and be as may be submit an borne by exclude Parson's testimony based on his supplemental report is DENIED. 3. Tim Durden's Testimony Will Not be Excluded 11 Mr. case Defendant Parson one Mr. Finally, Mr. Durden Defendant moves to exclude Mr. has never turned in an would satisfy Rule 26(a)(2)(B). expert However, Durden's testimony. witness report that Plaintiff argues that Mr. Durden is not required to produce an expert witness report.5 Expert witness "retained or Fed. R. Civ. witness 2013 expert 209224, who at was one Plaintiff claims and the *3 that has Mr. to not when provide a witness expert required to v. State Farm Ga. (S.D. to deposition Court Accordingly, is Jan, Southard hired attended required is testimony." An expert whose opinion arises from his involvement See only employed 26(a)(2). report. WL are specially P. ground-level reports was Mr. not repair Durden exempt is given exempt 17, Fire from hired any from Rule and Co., an only 26(a) (2) (B)) . repair reason expert (finding home Rule to an & Cas. 2013) plaintiff's Durden was been produce to her home, doubt this. 26(a) (2) (B) , and Defendant's motion to exclude his testimony is DENIED. B. In Mr. Plaintiff's Motion to Exclude Ron Powers' her Powers Plaintiff 5 While motion and Mr. argues Defendant to exclude, Plaintiff Gregory employ the that if correctly the points Court out only Testimony points out same methodology. excludes that Mr. Plaintiff's Defendant's motion to exclude expert testimony (doc. 53) Court finds Defendant has suffered no prejudice and that that Thus, Gregory's response to is untimely, the Plaintiff's delay will have no impact on these proceedings. Advanced Estimating Sys., Inc. v. Riney, 77 F.3d 1322, 1325 (11th Cir. 1996) ("[When analyzing excusable neglect,] [p]rimary importance should be accorded to the absence of prejudice to the nonmoving party and to the interest of efficient judicial administration."). Therefore, the Court will consider Plaintiff's response. 12 testimony, it must Court not does litigation. exclude Mr. condone Since this Powers' kind Plaintiff basis for excluding Mr. of has Powers' testimony as well. "tit not for tat" provided testimony, The approach an to independent Plaintiff's motion is DENIED. C. Defendant's Motion for Summary Judgment Defendant's motion for summary judgment will there is no disputed material judgment as must view party draw Co., (1986). and facts and Indus. a matter of the all Ltd. The must in law. Fed. light most inferences v. moving point fact and Defendant to Zenith party in U.S. 317, reasonable on the 1115 1116. elements. (11th Cir. non-movant evidence showing The find must non-movant is The Court the non-moving Matsushita the which U.S. burden of v. party must also the non-moving forward with a material cannot simply 13 party on rely carries in on dispute. its the show no any 2 of F.3d its burden, significant, fact proof Catrett, City of Atlanta, If the movant 587 demonstrates Celotex Corp. for Elec. 574, fact. 1993) . there file Fitzpatrick v. come to 475 bears entitled to 56(a). favor. Corp., is The moving (1986). jury could the essential 1112, 323 its initially evidence P. favorable Radio absence of a disputed material 477 R. Civ. be granted if probative Id. pleadings at and must respond with affidavits or other forms provided by Rule 56, Id. 1. at 1116 n.3. Plaintiff's Evidence of Replacement Cost Defendant argues it Plaintiff has by the failed to Policy. provided under the Policy, may only "Actual (Doc. points demonstrating cash 27-8, is the value 32.) so out that replacement damages Mr. covered Parson cost. only However, Plaintiff must repair her house before she is replacement cost. receive her house produce any evidence of Defendant testimony entitled to is entitled to summary judgment because If Plaintiff fails to do actual cash includes a Plaintiff severe, value of the deduction argues that damaged for she house. depreciation." because actual cash value so, the damage and replacement to cost are one in the same. Plaintiff provides little support for this argument. If cash cost, Policy's the superfluous. actual value were same between distinctions the the as replacement two would Such a reading violates the well-established canon that courts should give effect to every term in a contract. Thomas v. Restatement be Kumar, 525 (Second) of S.E.2d 735, Contracts 736 § (Ga. 203 cmt. Ct. b App. (Am. Law See 1999); Inst. 1981) . Plaintiff has not repaired the mold or structural damage to her house so she is only entitled to its actual cash value. 14 However, value is is not Mr. fatal replacement Mr. to cost with age how the age of its damages value Reserve of 2618952, Columbus, *9 (M.D. failure Plaintiff's Parson's testimony is describe the Parson's to case. and Ga. Since condition still useful. and condition is LLC testify about v. Jan. of actual actual taken into Allowing Mr. Plaintiff's an appropriate Parson to solution. Ins. 9, court the value account, house Property-Owners 2017), cash cash affect In Grand Co., 2017 allowed WL the plaintiff to reopen its case so its damages expert could testify about depreciation. The court reasoned that the defendant knew how the plaintiff was calculating damages and had an opportunity to address defendant depreciation was Additionally, insurance instant required a Id. case. used over to unfairly made ten prejudiced. him qualified Defendant knew deduction and Parson's deposition. years' estimate 6 See Xactimate, Therefore, Id. the at *8. to testify on The facts in Grand Reserve are analogous to depreciation issue during Mr. has discovery. the court found that the expert's experience as an adjuster depreciation. the not during experience using depreciation.6 the could measure have of explored Additionally, Xactimate, Defendant damages Mr. which that Parson can concedes be that Valuation ACV, http://xactware.xactimate.archive.s3-website- valuation avc. htm. 15 Xactimate is the industry standard. Accordingly, Defendant's motion for summary judgment in this regard is DENIED. 2. Insurable Interest Limitation on Damages Defendant insurable claims interest Plaintiff's the in "will not pay more damages The house. than the in the covered property at 31.) in are Policy provides insurable interest the time of the by that her it insured has the loss." (Doc. 27-8, An insurable interest is any substantial economic interest the insured O.C.G.A. § property. 33-24-4 (b) prerequisite to O.C.G.A. makes recovery, § an "once such insurable an having 33-24-4 (a) . insurable shown to exist, it is the policy at issue, that the Ga. limited determines Farm (2013) Bureau (emphasis amount Mut. in the Ins. insured Co. v. original). is interest interest a is and not the statute, entitled Franks, Where Although a 739 to recover." S.E.2d party has 427, a 431 divided interest in land, an insurance policy can limit coverage to that interest. (Ga. Ct. See Allstate App. Plaintiff full points policy. misplaced. common. Co. v. Amnions, 286 S.E.2d 765, 767 1981) . possess the house as the Ins. Franks and argues that her right to a tenant in common entitles her to recover However, Franks Franks, to Plaintiff's involved 739 S.E.2d at reliance Franks tenants is joint tenants, 431. The distinguishing feature 16 not on in of joint tenancy is that although title is shared, not divided into fractional shares." the other hand, 510 S.E.2d do 895, have 897 recovery may be Id. fractional (Ga. Ct. limited to Tenants in common, shares. App. the title "is See 1999). Glover Thus, the forty-percent v. on Ware, Plaintiff's interest she holds in the house. Plaintiff when it an next of the insurer policy is issued, S.E.2d 543, Defendant since Defendant waived knew that purchased it. the facts of full value. ownership Co. v. Moreover, If when the 545 Ins. (Ga. Ct. App. Plaintiff argues that was not the in the house's reflected Whether 1977). Defendant's sole agent Co. owner title v. of Woodward, the when knew about Swanson, Defendant 662 has argument that would ignorant of Plaintiff's F.2d 1098, not 1102 produced convince this ownership.7 any Court n.2 Plaintiff's that Travelers (5th Cir. evidence house Plaintiff ownership is ordinarily an issue reserved for a jury. Indem. defense See American Reliable Plaintiff was knows this the insurer is estopped from using those facts limit recovery. 239 that collected premiums based on the house's agent to argues or its Accordingly, 1981). made agent an was Defendant's motion for summary judgment on this ground is DENIED. 7 to At summary judgment, the Court must view facts in the light most favorable Plaintiff and draw all inferences in 587. 17 her favor. Matsushita, 475 U.S. at 3. Defendant's Bad Faith Denial Defendant inappropriate coverage. when argues because O.C.G.A. her that insurer Plaintiff's bad faith there was a legitimate dispute § 33-4-6 (a) denies a v. Worthington, 299 is regarding provides a remedy for an insured claim in bad faith. frivolous and unfounded denial of liability. Co. claim S.E.2d 567, 571 Bad faith is a First of Ga. Ins. (Ga. Ct. App. 1983). Whether a denial was made in bad faith is usually a question for the jury. S.E.2d Stegall 575, 576 entitled to legal an (Ga. Guardian Ct. App. Life for denying 779 S.E.2d 459, insurer does not a Ins. 1984). summary judgment if ground Sanders, v. claim. coverage damage after 571 factual or in bad faith Ct. App. Mr. Powers informed surface was is Ct. App. (Ga. 567, insurer (Ga. 299 water, which was 320 an Arnica See First of Ga. America, a reasonable it has advice of an expert. S.E.2d of However, 463 act Co. Mut. 2015). when Ins. it Co. 1983). Defendant not Ins. Co. v. For example, relies on the v. Worthington, Defendant the source covered by the denied of the Policy. Defendant was entitled to rely on the advice of its expert when it denied Plaintiff's claim. Accordingly, Defendant's motion for summary judgment with respect to Plaintiff's bad faith claim is GRANTED.8 8 Attorney's Cary v. not act fees are only available if provided by statute or agreement. Guiragossian, 508 S.E.2d 403, 406 (Ga. 1998). in bad faith and the Policy does not permit 18 Since Defendant did Plaintiff to recover III. Upon the foregoing, Defendant's motions to CONCLUSION IT IS HEREBY ORDERED that Plaintiff and exclude expert testimony (docs. is GRANTED motions AS IN and for hearings on MOOT. permit PART Discovery the (2) IN PART. these matters shall following: Defendant and DENIED (1) be Deposition ready the for Defendant court that pre-trial shall 44, and 50) are DENIED extended of Stuart both solely to Gregory by deposition of Frank Parson by Defendant to be completed by no later than December 31, notify 27) Additionally, (docs. reopened 57) (doc. are DENIED and Defendant's motion for summary judgment 28, discovery is proceedings. submit an 2017. The parties shall complete Within affidavit and ten the days itemizing Court is thereafter, any additional attorney's fees it incurred in this endeavor and Plaintiff shall have respond. five precise days amount to to be The awarded Court after will then reviewing determine the the materials submitted by both parties. ORDER December, ENTERED at Augusta, Georgia, this & day of 2017. HALL, 'CHIEF JUDGE DISTRICT IRN COURT DISTRICT OF GEORGIA attorney's fees, Plaintiff has no claim for attorney's fees. Since Ms. Cox's testimony is no longer needed, Defendant's motion to exclude Ms. Cox's testimony (doc. 28) is DENIED AS MOOT. 19

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