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)

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,