State Farm Mutual Automobile Insurance Company v. Health and Wellness Services, Inc.

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Case No. 18-23125-Civ-WILLIAMS/TORRES

STATE FARM MUTUAL AUTOMOBILE

INSURANCE COMPANY AND STATE

FARM FIRE AND CASUALTY COMPANY,

Plaintiffs,

v.

HEALTH AND WELLNESS SERVICES, INC. et al,

Defendants.

______________________________________/

ORDER ON DEFENDANTS’ MOTION

TO STRIKE PLAINTIFFS’ UNTIMELY WITNESS

This matter is before the Court on Medical Wellness Services, Inc.’s, Noel

Santos’s, and Lazaro Muse’s (“Defendants”) motion to strike State Farm Mutual

Automobile Insurance Company’s and State Farm Fire and Casualty Company’s

(“Plaintiffs”) untimely witness. [D.E. 254]. Plaintiffs responded to Defendants’

motion on January 2, 2020 [D.E. 264] to which Defendants replied on January 6,

2020. [D.E. 265]. Therefore, Defendants’ motion is ripe for disposition. After

careful consideration of the motion, response, reply, relevant authority, and for the

reasons discussed below, Defendants’ motion is DENIED.1

1 On January 21, 2020, the Honorable Robert N. Scola referred Defendants’

motion to the undersigned Magistrate Judge for disposition. [D.E. 273].

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I. APPLICABLE LEGAL PRINCIPLES AND LAW

Federal Rule of Civil Procedure 26(a)(2)(A) provides that “a party must

disclose to the other parties the identity of any witnesses it may use at trial to

present evidence under Federal Rule of Evidence 702, 703, or 705.” Fed. R. Civ. P.

26(a)(2)(A). The disclosing party is under a continuing obligation to “supplement or

correct its disclosure or response . . . in a timely manner” if additional persons

become known and that “information has not otherwise been made known to the

other parties during the discovery process or in writing.” Fed. R. Civ. P. 26(e)(1)(A).

The Rule 26 disclosure requirements are enforced by Rule 37(c). “If a party

fails to provide information or identify a witness as required by Rule 26(a) . . . 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.” Fed. R. Civ. P. 37(c). “The burden of establishing that a failure to

disclose was substantially justified or harmless rests on the nondisclosing

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

curiam) (quotation omitted). “In addition to or instead of [exclusion], 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 [to disclose];

(B) may inform the jury of the party's failure; and (C) may impose other appropriate

sanctions.” Fed. R. Civ. P. 37(c)

Substantial justification is “justification to a degree that could satisfy a

reasonable person that parties could differ as to whether the party was required to

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comply with the disclosure request.” Ellison v. Windt, 2001 WL 118617(M.D. Fla.

Jan. 24, 2001) (quotation and citation omitted). A failure to timely make the

required disclosures is harmless when there is no prejudice to the party entitled to

receive the disclosure. See Home Design Servs. Inc. v. Hibiscus Homes of Fla.,

Inc., 2005 WL 2465020 (M.D. Fla. Oct. 6, 2005). The party failing to comply

with Rule 26(a) bears the burden of establishing that its non-disclosure was either

substantially justified or harmless. See Surety Assocs., Inc. v. Fireman’s Fund Ins.

Co., 2003 WL 25669165 (M.D. Fla. Jan. 7, 2003).

Ultimately, in deciding whether to exclude a nondisclosed or untimely-

disclosed document, courts “consider ‘(1) the importance of the testimony, (2) the

reason for the [the nondisclosing party’s] failure to disclose the witness earlier, and

(3) the prejudice to the opposing party if the witness had been [admitted at

trial.]’” Pete’s Towing Co. v. City of Tampa, Fla., 378 F. App’x 917, 920 (11th Cir.

2010) (quoting Bearint ex rel. Bearint v. Dorell Juvenile Group, Inc., 389 F.3d 1339,

1353 (11th Cir. 2004)).

II. ANALYSIS

Defendants’ motion seeks to strike the untimely disclosure of Plaintiffs’ trial

witness, Anet Perez (“Ms. Perez”). Plaintiffs filed this case on August 1, 2018 [D.E.

1] and served their initial disclosures on October 25, 2018. On August 14, 2019,

Plaintiffs deposed Ms. Perez but Defendants allege that Plaintiffs never amended

their initial disclosures. Instead, Defendants argue that Plaintiffs waited a year2

2 Plaintiffs supplemented their initial disclosures on December 18, 2019.

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after the deadline for initial disclosures and four months after Ms. Perez’s

deposition to disclose Ms. Perez as a trial witness. Because Plaintiffs failed to

comply with the Court’s Scheduling Order and failed to present any good cause for

the untimely disclosure of Ms. Perez, Defendants request that the Court strike her

as a trial witness.

The Federal Rules of Civil Procedure make clear that “[i]f 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.” Fed. R. Civ. P. 37(c)(1). The Rules’ Committee Notes also explain that

“[l]imiting the automatic sanction to violations ‘without substantial justification,’

coupled with the exception for violations that are ‘harmless,’ is needed to avoid

unduly harsh penalties in a variety of situations: e.g., the inadvertent omission from

a Rule 26(a)(1)(A) disclosure of the name of a potential witness known to all

parties[.]” Fed. R. Civ. P. 37(c)(1) advisory committee’s note to 1993 amendment.

This exception is consistent with the purpose of Rule 26, which is to provide the

parties with an adequate opportunity to conduct discovery on relevant sources of

information about which they would otherwise remain ignorant. See Fed. R. Civ. P.

26(e) (requiring that a “party who has made a disclosure under Rule 26(a) . . .

supplement or correct its disclosure” only if “the party learns that in some material

respect the disclosure or response is incomplete or incorrect, and if the additional or

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corrective information has not otherwise been made known to the other parties

during the discovery process or in writing”).

Defendants complain that Plaintiffs’ failure to supplement their initial

disclosures has prejudiced them because discovery is now closed and the deadline to

file dispositive motions has passed. Defendants’ motion is entirely without merit

because on June 27, 2019, Defendants identified Ms. Perez, in their own Rule 26

disclosures [D.E. 122], as an individual with knowledge relevant to the facts of this

case. Defendants also attended Ms. Perez’s deposition on August 14, 2019 and,

after Plaintiffs finished with their questions, Defendants deposed Ms. Perez for two

additional hours. Because Defendants identified Ms. Perez as a relevant witness

and then deposed her, it is hard to fathom how Defendants can claim that Plaintiffs’

failure to supplement their initial disclosures is prejudicial.

Indeed, courts in our Circuit routinely hold that a party’s failure to disclose a

witness is “harmless” for purposes of Rule 37(c)(1) where, as here, the opposing

party knew of the undisclosed witness. See Brown v. Chertoff, 2009 WL 50163, at

*4-5 (S.D. Ga. Jan. 7, 2009) aff’d sub nom. Brown v. Napolitano, 380 F. App’x 832

(11th Cir. 2010) (denying motion in limine where the plaintiff “was aware of the

identities of [non-disclosed witnesses] during discovery and could have sought to

depose them had he chose to do so”); Wajcman v. Inv. Corp. of Palm Beach, 2009 WL

465071, at *5 (S.D. Fla. Feb. 23, 2009) (denying motion in limine where party was

well aware of non-disclosed witness’ existence and significance); Burden v. City of

Opa Locka, 2012 WL 4764592, at *8 (S.D. Fla. Oct. 7, 2012) (finding that plaintiffs

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were unable to demonstrate that the failure to provide them with [non-disclosed

witness’s declaration] was not harmless because the witness was referenced in the

plaintiffs’ own complaint); Wolfe v. Sec’y, Dep’t of Corr., 2012 WL 6740732, at *1

(M.D. Fla. Dec. 30, 2012) (“The Court agrees that the identity of [non-disclosed

witness] was made known to Plaintiff during the discovery process, and thus, his

testimony will be permitted. [Non-disclosed witness] was identified . . . during the

deposition of Defendant’s medical expert.”); Cardinal Health, Inc. v. Delivery

Specialists, Inc., 2011 WL 845915, at *5 (S.D. Fla. Mar. 8, 2011) (denying motion to

strike declaration submitted in support of summary judgment where party should

have known of undisclosed witness’ existence prior to the filing of the opposing

party’s summary judgment motion in light of the witness’ identification during

discovery).

The same reasoning applies in this case because Defendants have long known

that Ms. Perez is a significant witness in this case. While it is undisputed that

Plaintiffs did not amend their initial disclosures until December 18, 2019,

Defendants knew of Ms. Perez’s relevance when they amended their own initial

disclosures and when they took her deposition. Defendants cannot, as a result,

argue that they have suffered any prejudice. See Berryman–Dages v. City of

Gainesville Fla., 2012 WL 1130074, at *2 (N.D. Fla. Apr. 4, 2012) (“Prejudice

generally occurs when late disclosure deprives the opposing party of a meaningful

opportunity to perform discovery and depositions related to the documents or

witnesses in question.”). Accordingly, Plaintiffs’ failure to supplement their initial

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disclosures is harmless and Defendants’ motion to strike Ms. Perez as a trial

witness must therefore be DENIED.

III. CONCLUSION

For the foregoing reasons, it is hereby ORDERED AND ADJUDGED that

Defendants’ motion to strike Ms. Perez as a trial witness is DENIED. [D.E. 254].

DONE AND ORDERED in Chambers at Miami, Florida, this 31st day of

January, 2020.

/s/ Edwin G. Torres

EDWIN G. TORRES

United States Magistrate Judge

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