Finch et al v. Owners Insurance Company et al

Filing 83

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)

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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF GEORGIA STATESBORO DIVISION CARRIE FINCH, * * Plaintiff, * * V. * CV 616-169 * OWNERS INSURANCE COMPANY, * * Defendant. * ORDER Before the Court is Defendant's motion to amend the Scheduling Order allowing Defendant to submit a renewed motion to exclude the testimony of Plaintiff's expert witnesses. 73.) (Doc. For the following reasons. Defendant's motion is GRANTED IN PART and DENIED IN PART. This case insurance claim. is whether the involves Defendant's (Doc. 65, at 3.) damage to hailstoirm or groundwater. of Plaintiff's At the heart of the dispute Plaintiff's (Id.) denial house was caused by a 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. responded witnesses by in 26(a)(2)(B). moving to accordance exclude with four Federal of Rule Defendant Plaintiff's of Civil expert Procedure Defendant's motion also challenged the reliability of Plaintiff's Daubert v. (1983). causation expert, Merrell Dow On December Phartns., 12, 2017, Stewart Gregory, Inc., the 509 Court pursuant U.S. 579, denied to 588-89 Defendant's motion, finding that the prejudice to Defendant could be cured by re-opening discovery and providing attorney's fees, and that Mr. Gregory's testimony was based on reliable methodology. (Doc. 65, at 19.) The parties were then given until December 31, 2017 to hold depositions for Frank Parson. Mr. Gregory (Doc. 65.) and Plaintiff's damages expert, 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. Specifically, during his deposition, Mr. Gregory allegedly relied on three photographs Defendant that also were claims not that included in Plaintiff his did expert not report. disclose Mr. Parson's updated expert witness report regarding depreciation until the day of his deposition.^ Defendant now moves the Court to modify its Scheduling 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 Order with Gregory's respect testimony. reluctance to deposition. grant to challenging In its the Order, Defendant's reliability the motion Court before of Mr. voiced its Mr. Gregory's 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. Defendant should have the opportunity to challenge Mr. Gregory's testimony using all of the infoirmation to which Defendant was entitled. Accordingly, the Court will modify the Scheduling Order to allow Defendant's Daubert motion. Defendant Gregory's violation. has testimony also due shown to good cause Plaintiff's to challenge alleged Mr. discovery An expert witness report must include **the facts or data considered by the witness in forming [his opinion]." R. Civ. P. 26(a)(2). Fed. 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. Defendant claims that it was unfairly surprised during Mr. Parson's deposition because Plaintiff failed to disclose Mr. Parson's depreciation deduction. 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. There, the actual cash plaintiff's value expert after the was allowed defendant to rested testify its case. about On appeal, the Eleventh Circuit rejected the defendant's argument that it had been prejudiced by the late disclosure. The court explained that depreciation was an uncomplicated process which the defendant was familiar with and knew was the proper measure of damages. Id. at *2. As in Grand Reserve, Defendant's experts are familiar with the software Mr. Parson used to calculate depreciation. (See Dukes Dep., Doc. 27-2, at 31.) Furthermore, given that the Court instructed Plaintiff to make these changes. Defendant knew Mr. Parson's deposition would involve depreciation. 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.^ ORDER ENTERED at Augusta, Georgia this day of 2018. 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. Gregory's testimony,

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