Dover Shores Shell, Inc. v. Scottsdale Insurance Company

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

ORLANDO DIVISION

DOVER SHORES SHELL, INC.,

Plaintiff,

v. Case No: 6:22-cv-167-PGB-DCI

SCOTTSDALE INSURANCE

COMPANY,

Defendant.

ORDER

This cause comes before the Court for consideration without oral argument on the

following motions:

MOTION: Plaintiff’s Motion to Extend Deadlines for Discovery and

Dispositive Motions (Doc. 31)

FILED: February 5, 2023

MOTION: Defendant’s Motion to Strike Plaintiff’s Expert Witness

Disclosures and/or Motion for Rule 37 Sanctions (Doc. 33)

FILED: February 6, 2023

THEREON it is ORDERED that Plaintiff’s Motion (Doc. 31) is DENIED and

Defendant’s Motion (Doc. 33) is GRANTED in part.

I. Background

This is a diversity action for breach of contract. Doc. 1. On February 11, 2022, the Court

entered a Case Management and Scheduling Order (CMSO) setting the following relevant

deadlines: (1) Discovery—March 1, 2023; (2) Dispositive Motions—April 3, 2023; (3) Disclosure

of Plaintiff’s Expert Reports—January 3, 2023; and (4) Disclosure of Defendant’s Expert

Reports—February 1, 2023. Doc. 9.

Before the Court is Plaintiff’s Motion to Extend Deadlines for Discovery and Dispositive

Motions (Doc. 31) (Motion to Extend Time) and Defendant’s Motion to Strike Plaintiff’s Expert

Witness Disclosures and Motion for Sanctions (Doc. 33) (Motion to Strike). The parties have filed

their respective Responses to the Motions (Docs. 32, 34) and Defendant has filed a Reply to the

Response to the Motion to Strike (Doc. 38). The Motions are ripe for review.

II. Defendant’s Motion to Strike

The Court will first address the Defendant’s Motion to Strike because the ruling impacts

Plaintiff’s Motion to Extend Time. Pursuant to Federal Rules of Civil Procedure 26 and 37,

Defendant moves to strike “Plaintiff’s disclosure of its proposed expert witnesses and seeks an

Order precluding Plaintiff from calling Mark Buggica and Freddy M Andrade, P.E. as its experts

at trial.” Doc. 33 at 1.

The Court will first examine whether Plaintiff’s disclosures are sufficient under Rule 26

before deciding if sanctions are appropriate pursuant to Rule 37 due to any insufficiency. Rule

26(a) and (e) “require parties to disclose all bases of their experts’ opinions and to supplement

timely their expert disclosures upon discovery of an omission or as required by court order.”

Mitchell v. Ford Motor Co., 318 F. App’x 821, 824 (11th Cir. 2009).

Rule 26(a)(2) provides that a party must disclose the identity of expert witnesses. The

disclosure must include a written report “prepared and signed” by the expert witness if the witness

is retained to provide expert testimony. Fed. R. Civ. P. 26(a)(2)(B). The report must include: (1)

a complete statement of the expert’s opinions and the basis therefore; (2) facts or data considered

by the expert in forming his or her opinions; (3) exhibits that will be used to support or summarize

the expert’s opinions; (4) the expert’s qualifications, including publications; (5) a list of cases in

which the expert has testified within the last four years; and (6) a statement of the compensation

the expert will receive for his or her work on the case. Fed. R. Civ. P. 26(a)(2)(B)(i)-(vi). Further,

a party shall disclose its experts in accordance with the Court’s directives. Fed. R. Civ. P.

26(a)(2)(D).

On February 4, 2023, Plaintiff served its “Rule 26(a)(2) Expert Witness disclosures” and

identified Mark Buggica (Buggica) and Freddy M. Andrade, P.A. (Andrade) as expert witnesses.

Id. at 2, citing to Doc. 31-1. (Original Disclosure). In the Motion to Strike, Defendant contends

that no documents or reports are attached to the Original Disclosure other than the witnesses’

curricula vitae. Id. Additionally, Defendant states that the disclosure does not include any signed

reports or summary of the opinions as Rule 26(a)(2)(B) requires and does not identify any details,

facts, or opinions relating to the experts. Id. at 3. Defendant states that the disclosure also fails to

set forth what the proposed experts have done regarding their investigations, including what

documents have been reviewed and the date and time of any property inspections. Id.

Accordingly, Defendant argues that the disclosures are substantively inadequate under Rule

26(a)(2)(B) and are due to be stricken.

Defendant also argues that striking the experts is appropriate because the Original

Disclosure is untimely. Id. at 2. While the Court set January 3, 2023, as the deadline for Plaintiff’s

expert report disclosure, it was not until February 4, 2023, that Plaintiff served the Original

Disclosure. Id. As such, Defendant argues that Plaintiff did not comply with the CMSO. Id.

In the Response, Plaintiff does not seem to dispute that the Original Disclosure is

substantively insufficient under Rule 26 and admits that it failed to calendar the deadline.

Specifically, Plaintiff states that upon learning that it missed the Court’s deadline due to its

calendaring mistake, it served the Original Disclosure providing Defendant with a summary of the

areas upon which the experts were expected to testify and advised Defendant that the reports would

be forthcoming. Doc. 34 at 1-2. Plaintiff explains further that on February 14, 2023, Plaintiff

served Defendant with Amended Expert Witness Disclosures “providing Defendant with the report

and estimate for each of [Plaintiff’s] expert witnesses.” Id. at 2. (Amended Disclosure).1

Upon due consideration, the Court finds that the Original and Amended Disclosures are

insufficient under Rule 26. First, both disclosures are deficient because they are untimely. Under

Rule 26(a)(2)(D), a party must make the disclosures “at the times and in the sequence that the court

orders,” and Plaintiff concedes that the disclosures were late. Doc. 34 at 4. Second, the Court

agrees with Defendant that both the Original and Amended Disclosures are substantively

inadequate under Rule 26. As to Plaintiff’s Original Disclosure, Plaintiff’s summary and promise

of “forthcoming” reports does not satisfy Rule 26. Plaintiff does not apparently dispute this.

As to the Amended Disclosure (which Plaintiff did not disclose until after Defendant filed

the Motion to Strike), Defendant argues (in its Reply) that it too is substantively insufficient. Doc.

38 at 1. Indeed, the Amended Disclosure as to Buggica is inadequate under Rule 26(a)(2) because

there is no prepared report to support the estimate. Id. at 2, citing to 38-1. While the Amended

Disclosure as to Andrade includes a report, Defendant claims, and the Court agrees, that the report

fails to include a “testimony list” pursuant to Rule 26(a)(2)(B).2 As such, the Amended Disclosure

1 Plaintiff states that because the disclosure was late due to a calendaring mistake, additional

discovery is necessary as explained infra in Plaintiff’s Motion to Extend Time. Id. at 2.

2 Defendant also asserts that Andrade’s report is deficient because it includes vague assertions

regarding the basis for the opinion with respect to damages. Id. “An expert report ‘must not be

sketchy, vague or preliminary in nature.’” Whetstone Candy Co. v. Nestle USA, Inc., 2003 WL

25686830, at *1 (M.D. Fla. June 2, 2003) (quoting Salgado v. Gen. Motors Corp., 150 F.3d 735,

741 n.6 (7th Cir. 1998)). Defendant’s argument without citation to authority on this point does not

necessarily persuade the Court that the report is not compliant with Rule 26.

is inadequate. Regardless, even if the combination of the Original and Amended Disclosures

somehow satisfied the written report requirement of Rule 26(a)(2)(B), the disclosures are still

insufficient as untimely.

But that does not end the analysis. The appropriate sanction for Plaintiff’s failure to comply

with Rule 26(a) is governed by Federal Rule of Civil Procedure 37(c):

(c) Failure to Disclose, to Supplement an Earlier Response, or to Admit.

(1) Failure to Disclose or Supplement. If a party fails to provide

information or identify a witness as required by Rule 26(a) or (e), the party is not

allowed to use that information or witness to supply evidence on a motion, at a

hearing, or at a trial, unless the failure was substantially justified or is harmless. In

addition to or instead of this sanction, the court, on motion and after giving an

opportunity to be heard:

(A) may order payment of the reasonable expenses, including attorney's

fees, caused by the failure;

(B) may inform the jury of the party's failure; and

(C) may impose other appropriate sanctions, including any of the orders

listed in Rule 37(b)(2)(A)(i)—(vi).

Fed. R. Civ. P. 37(c).

Here, Defendants request the sanction embedded within Rule 37(c)(1), i.e., that the Court

strike Plaintiff’s “attempted disclosure” and preclude the experts at issue—Buggica and

Andrade—as witnesses at trial. Doc. 33. The Court has broad discretion in deciding whether a

failure to disclose evidence is substantially justified or harmless under Rule 37(c)(1). Ellingsen v.

Hartford Ins. Co. of the Midwest, 2016 WL 1367223, at *2 (M.D. Fla. April 6, 2016) (citing United

States ex. rel. Bane v. Breathe Easy Pulmonary Servs., Inc., 2009 WL 92826, at *3 (M.D. Fla.

2009)). The expert disclosure requirement in Rule 26(a)(2)(B) “is intended to provide opposing

parties reasonable opportunity to prepare for effective cross examination and perhaps arrange for

expert testimony from other witnesses.” OFC Fitel LLC v. Epstein, Becker and Green PC, 549

F.3d 1344, 1363 (11th Cir. 2008) (quoting Reese v. Herbert, 527 F.3d 1253, 1265 (11th Cir. 2008)).

“Because the expert witness discovery rules are designed to allow both sides in a case to prepare

their cases adequately and to prevent surprise, compliance with the requirements of Rule 26 is not

merely aspirational.” Reese, 527 F.3d at 1266.

“The burden of establishing that a failure to disclose was substantially justified or harmless

rests on the non-disclosing party.” Mitchell v. Ford Motor Co., 318 F. App’x 821, 824 (11th Cir.

2009) (citation omitted). “[C]ourts in this District weigh the following five factors to determine

whether a failure to disclose evidence is substantially justified or harmless: ‘(1) the surprise to the

party against whom the evidence would be offered; (2) the ability of that party to cure the surprise;

(3) the extent to which allowing the evidence would disrupt the trial; (4) the importance of the

evidence; and (5) the non-disclosing party’s explanation for its failure to disclose the evidence.’”

SFR Servs. LLC v. Elec. Ins. Co., 2021 WL 1193284, at *5 (M.D. Fla. Mar. 30, 2021) (quoting

Bendik v. USAA Cas. Ins. Co., 2019 WL 9466018, at *2 (M.D. Fla. Oct. 25, 2019) (collecting

cases)).

A couple of factors weigh in favor of Plaintiff and against striking the witnesses. Namely,

it does not appear to be in dispute that Buggica and Andrade are important to Plaintiff’s case (See

Docs. 33, 34, 38) and Plaintiff is correct that Courts have deemed harmless an honest mistake in

failing to disclose in certain circumstances. Even so, the authority on this issue suggests that an

honest mistake without more is not necessarily harmless—the honest mistake must generally be

coupled with sufficient knowledge on the part of the other party. As one court explained:

The Advisory Committee notes to the 1993 amendments to [Rule 37] state that the

harmlessness provision is intended “to avoid unduly harsh penalties in a variety of

situations.” Illustrative examples are late disclosures of a potential witness known

to all parties, a trial witness already listed by the adverse party, or a witness on

behalf of a pro se litigant ignorant of the requirement. These suggest a fairly limited

concept of “harmless.”

Houston Specialty Ins. Co. v. Vaughn, 2017 WL 11415012, at *8 (M.D. Fla. July 12, 2017), report

and recommended adopted by 2017 WL 11415009 (M.D. Fla. Aug. 23, 2017) (quoting Gagnon v.

Teledyne Princeton, Inc., 437 F.3d 188, 197 (1st Cir. 2006); (Burney v. Rheem Mfg. Co., 196

F.R.D. 659, 692 (M.D. Ala. 2000) (“This commentary strongly suggests that ‘harmless involves

an honest mistake on the part of a party coupled with sufficient knowledge on the part of the other

party.’”) (citations omitted); see also Lanzi v. Yamaha Motor Corp., 2019 WL 9553066, at *9

(M.D. Fla. Sept. 26, 2019) (“Other courts have noted that a party’s misconduct is harmless when

it involves an honest mistake, coupled with sufficient knowledge by the other party of the material

that has not been produced”) (quoting Brown v. State Farm Mut. Auto. Ins. Co., 2015 WL 1176180,

at *1 (N.D. Fla. Mar. 9, 2015)).

While Plaintiff inadvertently missed the date, the Court is not satisfied that Defendant had

sufficient knowledge of the undisclosed material. Plaintiff states that it provided Defendant with

the experts’ curricula vitae and summary of the topics on which the experts were expected to

testify. Plaintiff, therefore, asserts that “Defendant had some knowledge of the relevant

information.” Doc. 34 at 7. Plaintiff’s position, however, ignores the fact that Plaintiff only shared

that information after Plaintiff’s deadline had already passed. The Court is not convinced that

such an after-the-fact disclosure imparted “sufficient” knowledge on Defendant to excuse

Plaintiff’s mistake. Indeed, the Amended Disclosures make clear that Andrade did not even

inspect the property at issue until February 7, 2023, and that Buggica prepared his estimate on

February 9, 2023—both of those dates are after the deadlines for Plaintiff’s and Defendant’s expert

witness disclosures. Docs. 38-1 at 4, 77. And, again, Plaintiff did not serve the Amended

Disclosure until after Defendant filed the Motion to Strike. In any event, even if Plaintiff was

mistaken about the deadline, there is nothing before the Court to reflect that “sufficient knowledge”

on behalf of Defendant existed. See Wright v. Hyundai Motor Mfg. Ala., LLC, 2010 WL 4739486,

at *4 (M.D. Ala. Nov. 16, 2010) (granting a motion to strike declarations when the plaintiff did

not show either an honest mistake or knowledge on the part of the defendant that the individuals

were potential witnesses); Gottstein v. Flying J, Inc., 2001 WL 36102290, at *4 (N.D. Ala. Sept.

26, 2001) (granting the motion to strike finding that “there is absolutely no evidence that Defendant

was aware of the opinions of Dr. Vance, first disclosed by Plaintiff in response to Defendant’s

motion to strike, prior to the deadline for completing discovery.”). In other words, the Court is not

convinced that the mistake did not cause harm.

Moreover, the Court notes that even if harmlessness can generally involve an honest

mistake, Plaintiff’s reason for the delayed and insufficient disclosures seems unreasonable and

unjustified since the Court entered the CMSO a year prior to the deadline. Doc. 9. The Court is

not stating that bad faith exists, but at some point, the missed deadline seems less excusable when

attention to the docket and management of the case during an entire year would have revealed the

deadline and the need to proceed with not just the mis-calendared expert disclosure deadline, but

the entire process of retaining the experts, providing the experts with whatever case materials or

site inspections are necessary for providing an opinion, obtaining the expert reports, and reviewing

and disclosing those expert reports—tasks that apparently did not happen until after the Motion to

Strike was filed.

Additionally, the Court finds that the out-of-time, surprise disclosures are prejudicial to

Defendant. Defendant’s argument on this issue is as follows:

As noted above, [Defendant] would be severely prejudiced if Plaintiff were allowed

to proceed with Mark Buggica and Freddy Andrade as its expert witnesses in this

matter as [Defendant] has timely and adequately complied with its expert disclosure

requirements, in compliance with the Scheduling Order, and [Defendant] would be

denied a meaningful opportunity to determine if Mark Buggica and Freddy

Andrade’s depositions are even necessary and, if so, [Defendant] would be

prejudiced in its ability to take the deposition as the Expert Witness Disclosure does

not even include the purported experts’ written reports. Further, Scottsdale would

be prejudiced if Plaintiff was permitted at this stage to amend its expert disclosure

in an attempt to comply with Rule 26(a)(2) as it would be denied the opportunity to

conduct additional discovery within the deadlines prescribed by the Court and to

determine whether it is appropriate or necessary to retain additional experts.

Doc. 33 at 9.

Even assuming the Amended Disclosure is substantively sufficient—and it is not—

Plaintiff’s lateness puts Defendant at a disadvantage because Defendant’s deadline to disclose its

expert reports expired, and it did so before Plaintiff’s production of the Original and Amended

Disclosures. The sequencing of those disclosures is intentional and was frustrated by Plaintiff’s

conduct. And further, discovery is closed.

So, Plaintiff’s mistake is only harmless if the Court reopens discovery and extends other

CMSO deadlines. As will be discussed, there is not a legally sufficient motion before the Court to

extend any CMSO deadline. But even if there was, the extension would undoubtedly disrupt the

trial, even though Plaintiff does not request a continuance of the trial date. The dispositive motions

deadline is April 3, 2023 and each opposing party has 21 days to respond with an additional 14

days to file a reply. That timeline already puts the Court at just under four months to consider the

motions before the September 5, 2023 trial term commences. As the CMSO explains:

The Court cannot extend a dispositive motions deadline to the eve of trial. In light

of the district court’s heavy felony trial calendar, at least 4 months are required

before trial to receive memoranda in opposition to a motion for summary judgment

and to research and resolve the dispositive motion sufficiently in advance of trial.

Doc. 9 at 6. In the Motion to Extend Time (which the Court will address next), Plaintiff requests

that the Discovery Deadline and the Dispositive Motions Deadline be extended to May 1, 2023.

But even assuming the Motion to Extend Time is due to be granted—and it is not—doing that,

without any extension of the trial term, would result in the Court having approximately three

months to consider any dispositive motions. And that assumes no further extensions whatsoever.

The extension of the discovery and dispositive motions deadlines would, therefore, either

disrupt the trial schedule or unduly constrict the time the Court has to consider dispositive motions.

As such, the Court rejects Plaintiff’s contention that the Court should deny Defendant’s request

because time remains for Defendant to prepare its case alleviating the prejudice. See Doc. 34 at 3.

In sum, the Court finds that the failure to disclose is not substantially justified or harmless and the

reports are due to be stricken.

The Court notes that Defendant initially requests that the Court preclude Plaintiff from

calling Buggica and Andrade as its experts at trial. Doc. 33 at 1. Based on the foregoing, the

Court agrees that this is an appropriate sanction. The Motion to Strike, however, later includes a

more general request to “preclude Plaintiff from calling any expert at trial, on a motion, or at a

hearing” and includes similar relief in the Reply. Docs. 33 at 10, 38 at 3. While the Court

acknowledges that Defendant’s analysis regarding timeliness ostensibly pertains to all experts, the

discussion regarding sufficiency under Rule 26 and prejudice or harm to Defendant focuses on

Buggica and Andrade. See Docs. 33, 38. The Court will limit the scope of relief to those

individuals at this time since striking experts is a drastic sanction. Further, the undersigned makes

no finding concerning whether Buggica and Andrade may testify pursuant to Federal Rule of Civil

Procedure 26(b)(2)(C) or as fact witnesses concerning any matter.

III. Plaintiff’s Motion to Extend Time

The Court’s decision on the Motion to Strike is fatal to Plaintiff’s request in the Motion to

Extend Time. In the Motion to Extend Time, Plaintiff requests to extend the deadlines for

discovery and dispositive motions. Doc. 31. The reason for the request is that Plaintiff mistakenly

and inadvertently failed to timely comply with the Court’s expert witness disclosure deadline. Id.

at 1. Plaintiff states in the Motion—filed on February 5, 2023—that it anticipates that it will

produce full reports on or before February 13, 2023. Id. Plaintiff adds:

Because the late disclosure was due to a mistake and inadvertence, additional

discovery needs to occur due to a witnesses’ failure to appear for a properly noticed

deposition on two (2) separate occasions, and approximately (7) months remain

before the trial period begins, this Court should find the late disclosure was

harmless and grant DOVER SHORES’ motion to extend the deadlines so this case

can be decided upon the merits.

Doc. 31 at 2. Plaintiff argues that the extension will provide Defendant with sufficient time to

review Plaintiff’s expert reports, engage a rebuttal expert, and depose Plaintiff’s experts without

affecting the current trial deadline. Id. at 7.

Since the Court has stricken the late disclosures and rejected Plaintiff’s argument in relation

to the Motion to Strike, the basis for the request is no longer valid. As such, the Motion to Extend

Time is apparently moot or, at the very least, the argument to move the deadlines is inadequate.

Assuming, however, that the basis for the Motion to Extend Time goes beyond the deficient

disclosures, the request is due to be denied for another reason. Rule 16(b)(4) provides that a case

management and scheduling order “may be modified only for good cause and with the judge’s

consent.” “This good cause standard precludes modification unless the schedule cannot be met

despite the diligence of the party seeking the extension.” See Sosa v. Airprint Sys., Inc., 133 F.3d

1417, 1418 (11th Cir. 1998) (per curiam) (internal quotation marks omitted). The CMSO also

warns that an extension will not be extended absent a showing of good cause. Doc. 9 at 6, citing

Rule 16(b).

Here, Plaintiff does not address Rule 16(b)(4) or good cause in the Motion to Extend Time.

See Doc. 31. Instead, Plaintiff spends the entirety of the Motion to Extend Time explaining and

analyzing why the failure to comply with the expert report disclosure deadline was substantially

Justified or harmless under Rule 37. Doc. 31. Without citation to or analysis of the relevant

standard, Plaintiff's request for an extension is not sufficiently supported and is due to be denied.

IV. Conclusion

1. Plaintiff's Motion to Extend Time (Doc. 31) is DENIED; and

2. Defendant’s Motion to Strike (Doc. 33) is GRANTED in part to the extent that

Buggica and Andrade’s Original and Amended Disclosures are STRICKEN

and Buggica and Andrade are precluded from testifying as experts at trial. The

remainder of the Motion to Strike is DENIED.

ORDERED in Orlando, Florida on March 8, 2023.

— =

UNITED STATES MAGISTRATE JUDGE