Finch et al v. Owners Insurance Company et al
ORDER denying 68 Motion for Trial Date; granting in part and denying in part 73 Motion to Amend/Correct Scheduling Order. Defendant may within 14 days file a motion regarding (1) reliability of Mr. Gregory's testimony and (2) why he should not be allowed to testify about photographs not in his expert witness report. Signed by Chief Judge J. Randal Hall on 03/29/2018. (jlh)
IN THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF GEORGIA
OWNERS INSURANCE COMPANY,
Scheduling Order allowing Defendant to submit a renewed motion
to exclude the testimony of Plaintiff's expert witnesses.
For the following reasons. Defendant's motion is GRANTED
IN PART and DENIED IN PART.
(Doc. 65, at 3.)
hailstoirm or groundwater.
At the heart of the dispute
Given the technical nature of
this question, expert testimony is critical to both parties.
However, during discovery. Plaintiff failed to timely disclose
expert witness reports for several of her witnesses.
Defendant's motion also challenged the reliability
motion, finding that the prejudice to Defendant could be cured
by re-opening discovery and providing attorney's fees, and that
(Doc. 65, at 19.)
The parties were then given until December 31, 2017 to hold
Defendant alleges that Mr. Gregory's
deposition revealed previously unknown flaws in the methodology
underlying his testimony.
Defendant also claims that Plaintiff
has continued to engage in discovery violations.
during his deposition, Mr. Gregory allegedly relied on three
Parson's updated expert witness report regarding depreciation
until the day of his deposition.^
Order to give Defendant an additional fourteen days to draft a
motion to exclude the testimony of Mr. Gregory and Mr. Parson.
A scheduling order can be "modified only for good cause and with
^ Mr, Parson amended his report after the Court found that the proper measure
of damages should include a depreciation deduction.
the judge's consent."
Fed. R. Civ. P. 16(b).
The movant must
show it could not honor the original scheduling order despite
exercising reasonable diligence.
Sosa v. Airprint Sys., Inc.,
133 F.3d 1417, 1418 (11th Cir. 1998).
Defendant has shown good cause to modify the Scheduling
Yet Defendant was forced to file its motion before
taking Mr. Gregory's deposition because Plaintiff had not timely
disclosed Mr. Gregory's expert witness report.
have the opportunity to challenge Mr. Gregory's testimony using
Accordingly, the Court will modify the Scheduling Order to allow
Defendant's Daubert motion.
An expert witness report must include **the facts or
data considered by the witness in forming [his opinion]."
R. Civ. P. 26(a)(2).
By failing to include these photographs in
Mr. Gregory's expert witness report. Plaintiff violated Federal
Rule of Civil Procedure 26(a)(2).
Accordingly, Defendant will
be given the opportunity to explain why those photographs should
be excluded from Mr. Gregory's testimony.
Defendant fails to show good cause to amend the Scheduling
Order with respect to Mr. Parson's testimony.
that it was unfairly surprised during Mr. Parson's deposition
because Plaintiff failed to disclose Mr. Parson's depreciation
Grand Reserve of Columbus/ LLC v. Prop.-Owners Ins.
Co., 2018 WL 286112 (11th Cir. Jan. 4, 2018), which also dealt
with a depreciation deduction, is almost directly on point.
appeal, the Eleventh Circuit rejected the defendant's argument
that it had been prejudiced by the late disclosure.
explained that depreciation was an uncomplicated process which
the defendant was familiar with and knew was the proper measure
Id. at *2.
As in Grand Reserve, Defendant's
experts are familiar with the software Mr. Parson used to
(See Dukes Dep., Doc. 27-2, at 31.)
Furthermore, given that the Court instructed Plaintiff to make
Defendant knew Mr. Parson's deposition would
Because Defendant was not prejudiced by
Plaintiff's late disclosure, a motion to exclude Mr. Parson's
testimony on such grounds would be futile.
Upon the foregoing, IT IS HEREBY ORDERED that Defendant's
motion to amend the Scheduling Order (doc. 73) is GRANTED IN
PART and DENIED IN PART.
Within fourteen days after this Order
is entered. Defendant may file a motion (1) challenging the
reliability of Mr. Gregory's testimony, and (2) explaining why
he should not be allowed to testify about the photographs that
were not in his expert witness report.^
J.(RANjg^ HALL, CHIEF JUDGE
uniTO^states district court
fERN DISTRICT OF GEORGIA
^ Because Defendant will be allowed to challenge Mr.
Plaintiff's motion for a trial date (doc. 68) is DENIED.
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