MHG Hotels, LLC v. Studio 78, LLC

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 21-60980-CIV-SINGHAL/VALLE

HOTELS OF DEERFIELD, LLC, an

Indiana limited liability company, and

MHG HOTELS, LLC, an Indiana limited

liability company,

Plaintiffs,

v.

STUDIO 78, LLC, a Georgia limited

liability company, SHAILESH

KALYAN, an individual, PALMER

ENGINEERING COMPANY, a Georgia

company, BAKULESH M. PATEL,

P.E., an individual, PROMUS, INC., a

Georgia corporation, DARIN FRICK,

PE., an individual,

Defendants.

___________________________________/

OPINION AND ORDER

THIS CAUSE is before the Court upon Defendant Studio 78, LLC and Shailesh

Kalyan’s (“Defendants”) (I) Motion to Strike Plaintiff, Hotels of Deerfield, LLC’s Expert

Witness Disclosure, and (II) Daubert Motion to Exclude Expert Opinion, filed on May 18,

2022 (the “Motion”) (DE [100]). Plaintiff Hotels of Deerfield, LLC (“Plaintiff”) filed a

Response on June 1, 2022 (DE [112]). Defendants filed a Reply on June 7, 2022 (DE

[124]). The Motion is now ripe for this Court’s consideration.

I. BACKGROUND

Plaintiff Hotels of Deerfield, LLC alleges two counts of professional negligence

against Studio 78, LLC and Shailesh Kalyan. See Second Am. Compl (DE [52]). The

parties were required to disclose experts and exchange expert witness summaries or

reports by January 27, 2022 (DE [25]). Defendants state they retained an architectural

served contemporaneously with his expert witness disclosure on January 27, 2022. See

Motion, at 2. Plaintiff served its expert disclosure on January 27, 2022 (DE [100-1]). This

disclosure designates Eric Anderson, the replacement architect for the Project

(“Anderson”), as a “hybrid fact-expert witness.” Id. The disclosure indicates Anderson was

not retained to provide expert testimony in this case and is subject to Fed. R. Civ. P.

26(a)(2)(C). Id. at 1. The disclosure states Anderson is a licensed architect in Florida with

over 35 years of experience and substantial experience in preparation of plans and

specifications for projects. Id. at 2. The disclosure asserts that Anderson will testify how

the plans prepared by Defendants were incomplete, unbuildable as drawn, improper for

their intended use, noncompliant with the Florida Building Code, and ultimately

unsalvageable. Id. The disclosure adds that Anderson will testify as to the standard

degree of care and skill ordinarily exercised by architects in south Florida and whether

Defendants’ work and plans met that standard. Id. The disclosure includes Anderson’s

resumé and retention contract. Id. In Anderson’s signed affidavit attached to the

disclosure, he describes specific reasons why Defendants’ plans violate the Florida

Building Code. Id. at 6. The disclosure also includes a memorandum prepared by

Anderson that further elaborates his review and findings. Id. at 10–13. This memorandum

provides a detailed summary of the items analyzed and opinions reached during

Anderson’s initial review of Defendants’ plans. Id.

Defendants contend that Plaintiffs’ expert disclosure is inadequate under Fed. R.

Civ. P. 26(a)(2)(A)-(B) because the disclosure fails to provide a formal expert summary

or report and provides no basis for the expert opinion. See Motion, at 5–9. According to

Defendants, it is evident from Anderson’s deposition that he is not an expert witness

expert opinion on whether Defendants’ design fell below the architectural standard of

care. Id. Moreover, Defendants submit, Anderson testified that he had not drafted an

expert report for this litigation. Id. Defendants add that the memorandum was prepared in

October 2018 by Anderson just before he was retained as a replacement architect. Id.

Thus, according to Defendants, this memorandum cannot function as an expert report.

Defendants conclude that, because Anderson has not provided a formal expert report

and has testified that he is not rendering expert opinion, his disclosure should be stricken

and he should not be allowed to provide expert testimony. Id. at 9–12.

Second, in the alternative, Defendants contend that Anderson should be stricken

under Daubert and FRE 702. Id. at 13 –16. Defendants assert that any opinions held by

Anderson were held at a snapshot in time in October 2018 upon being hired to perform a

peer review of Defendants’ design and replace Defendants. Id. at 16. Thus, according to

Defendants, the Court has no way of knowing the method or analysis conducted by

Anderson because his disclosure contains mere conclusory statements. Id. Moreover,

Defendants add, Anderson even testified in his deposition that he was not aware of the

precise design phase at the time of his review. Id.

Plaintiff responds that Anderson was properly disclosed as an expert under Fed.

R. Civ. P. 26(a)(2)(C). See Response, at 4. Thus, according to Plaintiff, Anderson’s

testimony that he was not retained as an expert in this matter is consistent with his

classification as a hybrid fact and expert witness under Rule 26(a)(2)(C) because he was

retained to review work of design professionals and serve as a replacement professional,

not to provide expert testimony at trial. Id. Plaintiff asserts that Defendants cite no

authority for the proposition that a witness’s deposition testimony regarding their

expert witness. Id.

Second, Plaintiff argues the sufficiency of the report served along with Plaintiff’s

expert disclosure is irrelevant to whether Anderson was properly disclosed. Id. at 5–7.

According to Plaintiff, hybrid witnesses are only required to disclose a summary of facts

and opinions to which the witness is expected to testify under Rule 26(a)(2)(C). Id. Plaintiff

asserts that its expert disclosure set forth detailed summaries of the facts and opinions to

which Anderson is expected to testify. Id.

Third, Plaintiff argues Anderson cannot be excluded under Daubert because it is

likely inapplicable to Anderson. Id. at 8–14. Plaintiff submits that the testimony of a hybrid

witness is not subject to Daubert unless the testimony goes beyond the witness’s own

observations and technical experience. And nevertheless, Plaintiff argues, Anderson

would survive Daubert because he is qualified to testify regarding (i) deficiencies in

Defendants’ design plans, (ii) the degree of care and skill ordinarily exercised by

architects in South Florida, (iii) whether Defendants fell below that standard, and (iv) all

other topics for which he is designated. Id. at 9. Moreover, Plaintiff adds, Anderson’s

conclusions are based upon his review of all Defendants’ files and application of his

professional judgment formed by four decades of experience as an architect. Id. Thus,

Plaintiff concludes, Anderson’s opinions will assist the trier of fact because the

professional standard of care in the field of architecture falls outside the common

knowledge of lay persons. Id. at 13–14.

II. LEGAL STANDARD

A. Motion to Strike Expert Witness Disclosure

“Compliance with Rule 26's expert witness disclosure requirements is mandatory

*1–2 (S.D. Fla. July 30, 2014) (citing Lohnes v. Level 3 Commc'ns, Inc., 272 F.3d 49, 51

(1st Cir.2001)). “The purpose of the rule is to safeguard against surprise.” Id. (citing

Thibeault v. Square D Co., 960 F.2d 239, 244 (1st Cir.1992)). Furthermore, the trial

court’s scheduling orders “control the course of the action unless the court modifies it.”

United States v. Marder, 318 F.R.D. 186, 189–90 (S.D. Fla. 2016) (citing Fed. R. Civ. P.

16(d)). “As scheduling orders set the expectations of the parties and the Court during the

pretrial process, such orders ‘should not be ignored blithely nor trifled with, without some

peril or consequence.’” Id. (quoting Hudson v. I.R.S., 2007 WL 2295048, at *10 (N.D.N.Y.

Mar. 27, 2007)). “Veritably, ‘a scheduling order is the critical path chosen by the trial

judge and the parties to fulfill the mandate of Rule 1.’” Id. at 190 (quoting Executive Risk

Indem., Inc. v. Charleston Area Med. Ctr., Inc., 2010 WL 4117050, at *1 (S.D. W. Va. Oct.

19, 2010) (internal citation and quotation omitted).

“A failure to comply with the expert witness disclosure requirements may result in

the striking of expert reports or the preclusion of expert testimony.” Warren, 2014 WL

3764126, at *1–2 (citations omitted). “Under Rule 37(c)(1), a district court clearly has

authority to exclude an expert's testimony where a party has failed to comply with [expert

witness disclosure] unless the failure is substantially justified or is harmless.” OFS Fitel,

LLC v. Epstein, Becker & Green, P.C., 549 F.3d 1344, 1363 (11th Cir. 2008); Fed. R. Civ.

P. 37(c)(1).

B. Daubert

“Federal Rule of Evidence 702 imposes a special obligation upon a trial judge to

‘ensure that any and all scientific testimony . . . is not only relevant, but reliable.’” Kumho

Tire Co. v. Carmichael, 526 U.S. 137, 147 (1999). This gatekeeping function directs the

Inc., 400 F.3d 1286, 1291 (11th Cir. 2005). The Court must “determine at the outset,

pursuant to Rule 104(a), whether the expert is proposing to testify to (1) scientific

knowledge that (2) will assist the trier of fact to understand or determine a fact in issue,”

which includes, “a preliminary assessment of whether the reasoning or methodology

underlying the testimony is scientifically valid and of whether the reasoning or

methodology properly can be applied to the facts in issue.” Daubert v. Merrell Dow

Pharm., Inc., 509 U.S. 579, 592–93 (1993).

The Court must apply a three-prong test to qualify an expert witness, identifying

whether: “(1) the expert is qualified to testify competently regarding the matters he intends

to address; (2) the methodology by which the expert reaches his conclusions is sufficiently

reliable as determined by the sort of inquiry mandated in Daubert; and (3) the testimony

assists the trier of fact, through the application of scientific, technical, or specialized

expertise, to understand the evidence or to determine a fact in issue.” Rink, 400 F.3d at

1291–92. “The party offering the expert has the burden of satisfying each of these three

elements by a preponderance of the evidence.” Id.

“Because of the powerful and potentially misleading effect of expert evidence,

sometimes expert opinions that otherwise meet the admissibility requirements may still

be excluded by applying Rule 403.” United States v. Frazier, 387 F.3d 1244, 1244 (11th

Cir. 2004). Under Federal Rule of Evidence 403, relevant evidence may nevertheless be

excluded “if its probative value is substantially outweighed by the danger of unfair

prejudice, confusion of the issues, or misleading the jury.” A court enjoys broad discretion

in applying the Rule 403 balancing test. Ostrow v. GlobeCast Am. Inc., 825 F. Supp. 2d

1267, 1274 (S.D. Fla. 2011). In Daubert, the Court described the gatekeeping function

relevant, but [also] reliable.” Daubert, 509 U.S. 579 at 589. While the Court must play

this important gatekeeping function, “it is not the role of the trial court to make ultimate

conclusions as to the persuasiveness of proffered evidence.” See Rosenfeld v. Oceania

Cruises, Inc., 654 F.3d 1190, 1193 (11th Cir. 2011). Rather, “vigorous cross-examination,

presentation of contrary evidence, and careful instruction on the burden of proof are the

traditional and appropriate means of attacking shaky but admissible evidence.” Daubert,

509 U.S. at 596.

1. Qualifications

Under Daubert, a witness is qualified as an expert if he or she possesses

specialized knowledge, skill, experience, training, or education. See Allison v. McGhan

Med. Corp., 184 F.3d 1300, 1310 (11th Cir. 1999); see also FED. R. EVID. 702. An

“expert[] may be qualified in various ways.” U.S. v. Frazier, 387 F.3d 1244, 1260 (11th

Cir. 2004). Therefore, “[w]hile scientific training or education may provide possible means

to qualify, experience in a field may offer another path to expert status.” Id. at 1260–61.

The proffered expert must not only meet the basic qualification requirements, but also be

qualified specifically in the area on which he or she proposes to testify—on topics that are

“sufficiently within his expertise.” Maiz v. Virani, 253 F.3d 641, 665 (11th Cir. 2001).

Finally, “[t]he qualification standard for expert testimony is ‘not stringent,’ and ‘so long as

the expert is minimally qualified, objections to the level of the expert’s expertise [go] to

credibility and weight, not admissibility.’” Fitzgibbon v. Winnebago Indus., Inc., 2020 WL

1172495, at *2 (S.D. Fla. Jan. 29, 2020) (citations omitted).

2. Reliability

expert’s methodology can be tested; (2) whether the expert’s scientific technique has

been subjected to peer review and publication; (3) whether the method has a known rate

of error; [and] (4) whether the technique is generally accepted by the scientific

community.” Rink, 400 F.3d at 1292. Of course, this does “not constitute a definitive

checklist or test.” Kumho Tire, 526 U.S. at 150 (emphasis in original). These factors are

“a mere starting point.” Allison, 184 F.3d at 1312. The focus should be on “principles

and methodology, not on the conclusions that they generate.” Daubert, 509 U.S. at 595.

“The Eleventh Circuit has occasionally hinted that this methodology inquiry may

be the most critical of the Daubert analysis.” Nunez v. Coloplast Corp., 2020 WL

2315077, at *3 (S.D. Fla. May 11, 2020). “Rulings on admissibility under Daubert

inherently require the trial court to conduct an exacting analysis of the proffered expert’s

methodology.” McCorvey v. Baxter Healthcare Corp., 298 F.3d 1253, 1257 (11th Cir.

2002). The court’s gatekeeping role requires more than simply “taking the expert’s word

for it.” Frazier, 387 F.3d at 1261. The “basic foundation for admissibility” is that the

expert’s opinions be firmly supported “by appropriate validation.” Id.

3. Assist the Trier of Fact

To be admissible under Rule 702, expert opinions must “assist the trier of fact to

understand the evidence or to determine a fact in issue.” FED. R. EVID. 702. “This

condition goes primarily to relevance,” a court must “ensure the relevancy of expert

testimony,” meaning that it must determine whether the testimony will assist the trier of

fact. Daubert, 509 U.S. at 591. As the Supreme Court has recognized, such opinions

must be “relevant to the task at hand.” Daubert, 509 U.S. at 597. To be relevant, expert

testimony must be sufficiently tied to the facts of the case. “Rule 702’s helpfulness

admissibility.” Id. at 591–92. In other words, the evidence must have a “valid scientific

connection to the disputed facts in the case” and “logically advance[] a material aspect of

the proposing party’s case.” Allison, 184 F.3d at 1312 (citing Daubert).

III. DISCUSSION

A. Motion to Strike Expert Witness Disclosure

Fed. R. Civ. P. 26(a)(2) imposes alternative requirements for disclosure of expert

testimony. Generally, “a party must disclose to the other parties the identity of any witness

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). Under Fed. R. Civ. P. 26(a)(2)(B), “this disclosure must be

accompanied by a written report—prepared and signed by the witness—if the witness is

one retained or specially employed to provide expert testimony in the case or one whose

duties as the party's employee regularly involve giving expert testimony.” Under Fed. R.

Civ. P. 26(a)(2)(C), “if the witness is not required to provide a written report, this disclosure

must state: (i) the subject matter on which the witness is expected to present evidence

under Federal Rule of Evidence 702, 703, or 705; and (ii) a summary of the facts and

opinions to which the witness is expected to testify.” Stated differently, Rule 26(a)(2)(C)

applies if the witness is not one who is “retained or specially employed to provide expert

testimony in the case or one whose duties as the party’s employee regularly involve giving

expert testimony.” This interpretation of the rule is consistent with the text’s plain meaning,

particularly in light of Congress’ 2010 amendment to Rule 26(a)(2).

The most thoughtful and well-written analysis this Court has found on this

important and relatively common issue happens to be authored by the stentorian and

erudite Judge Roy K. Altman, a learned colleague in this District, who aptly explained in

[T]he difference between an expert who must provide a full report under

Rule 26(a)(2)(B) and an expert who must submit only a summary under

Rule 26(a)(2)(C) boils down to whether the expert was “retained ... to

provide expert testimony in the case.” FED. R. CIV. P. 26(a)(2)(B), (C); see

also Goncharenko v. Royal Caribbean Cruises, Ltd., 734 F. App'x 645, 646

n.1 (11th Cir. 2018) (“If the expert is one retained ... to provide expert

testimony in the case ... the party must provide a written report from that

expert.” (cleaned up)). As the advisory committee's notes to Rule 26 make

clear, treating physicians generally function as non-retained experts: “The

requirement of a written report in paragraph (2)(B) ... applies only to those

experts who are retained or specially employed to provide such testimony

in the case or whose duties as an employee of a party regularly involve the

giving of such testimony. A treating physician, for example, can be deposed

or called to testify at trial without any requirement for a written report.” FED.

R. CIV. P. 26 advisory committee's notes to 1993 amendment.

. . .

[D]espite the plain language of the Federal Rules, courts in this District have

repeatedly held that “treating physicians offering opinions beyond those

arising from treatment are experts from whom full Rule 26(a)(2)(B) reports

are required.” In re Denture Cream Prod. Liab. Litig., 2012 WL 5199597, at

*4 (S.D. Fla. Oct. 22, 2012) (Altonaga, J.) (emphasis added); see also

Pringle v. Johnson & Johnson, 2019 WL 6723822, at *2 (S.D. Fla. Dec. 11,

2019) (Marra, J.) (“[T]reating physicians may be subject to section (2)(B) if

they offer opinions that extend beyond their treatment of a patient or if they

form opinions upon review of information provided by an attorney or in

anticipation of litigation.”); Cajule Cedant v. United States, 2021 WL

2895714, at *4 (S.D. Fla. July 9, 2021) (Scola, J.) (“[W]hen a treating

physician or provider ventures beyond observation, diagnosis, and

treatment ..., then he or she must provide a full report[.]” (cleaned up));

Torres v. First Transit, Inc., 2018 WL 3729553, at *2 (S.D. Fla. Aug. 6, 2018)

(Bloom, J.) (“When a treating physician testifies regarding opinions formed

and based upon observations made during the course of treatment, the

treating physician need not produce a Rule 26(a)(2)(B) report. By contrast,

treating physicians offering opinions beyond those arising from treatment

are experts from whom full Rule 26(a)(2)(B) reports are required.” (cleaned

up)).

But this artificial division—between opinions the treating physician formed

during the course of treatment and opinions he formulated after—has no

basis in law. So, for instance, the distinction appears nowhere in the plain

text of the Federal Rules. Cf. Sargeant v. Hall, 951 F.3d 1280, 1283 (11th

Cir. 2020) (“We give the Federal Rules of Civil Procedure their plain

meaning.” (quoting Bus. Guides, Inc. v. Chromatic Commc'ns Enters., Inc.,

498 U.S. 533, 540 (1991))); A. SCALIA & B. GARNER, READING LAW: THE

are of paramount concern, and what they convey, in their context, is what

the text means.”). To be “retained,” after all, means “to [be] ke[pt] in pay or

in one's service,” Retain, MERRIAM-WEBSTER’S UNABRIDGED DICTIONARY; to

be “engaged in service” or “employed,” Retain, OXFORD ENGLISH

DICTIONARY; or to be “hire[d]” or “engage[d] for the provision of services,”

Retain, BLACK’S LAW DICTIONARY.

Under the text's ordinary meaning, then, we ask only whether the medical

professional was “hired,” “employed,” or “engaged” to provide expert

testimony in the case. United States v. Lopez, 590 F.3d 1238, 1248 (11th

Cir. 2009) (“To ascertain ordinary meaning, courts often turn to dictionary

definitions for guidance.”). Experts who are so employed must supply a full

written report; those who aren't can get by with only a summary. And, in the

usual slip-and-fall case, the treating physician is involved in the litigation,

not because he's been hired to provide testimony, but because he's been

treating the plaintiff's injuries. In most cases, treating physicians are not, in

other words, the classic “retained” expert—the kind that's hired to testify for

(and can be fired by) the plaintiff's legal team.

What's clear from this textual exegesis, in sum, is that the question courts

typically ask—did the treating physician form his opinion during or after

treatment?—is really irrelevant to the inquiry. That's because whether the

physician formed his opinion during or after treatment has no bearing on

whether the physician has been “retained.” In this respect, of course, the

analysis courts typically engage in is both over- and under-inclusive: a

treating physician who was hired to provide testimony has been “retained”

even if he formed his opinion during treatment; and a treating physician who

was not hired to provide testimony isn't “retained” even if he formed his

opinion after treatment. And there's nothing about the questions the

physician is asked or the answers he gives—about causation or anything

else—that suddenly transforms him from a non-retained to a retained

expert. The point is this: in distinguishing between those experts who must

provide written reports and those who don't, the Federal Rules instruct us

to look, not at what the expert examines, but only at what he is (i.e., hired

or not hired). And we needn't speculate further about whether this Rule

makes sense because, “[i]f Congress had wanted” us to use a different

metric, “it would have said so.” Fla. State Conference of N.A.A.C.P. v.

Browning, 522 F.3d 1153, 1172 (11th Cir. 2008).

. . .

In reaching the opposite result, most courts entertain (improperly, to our

mind) a-textual reflections that elevate considerations of policy over the

plain meaning of the Rule's text. Cf. Fielden v. CSX Transp., Inc., 482 F.3d

866, 871 (6th Cir. 2007) (acknowledging that the after-treatment limitation

is based on a “purposive reading of Rule 26” (emphasis added)). “[S]everal

[c]ourts,” in fact, “have pointed to, and struggled with, an absence of

treating physicians are sufficiently disclosed prior to expert discovery and

trial” and—to promote these “sufficient[ ] disclos[ures]”—have “required

expert reports under FRCP 26(a)(2)(B) where the treating physician intends

to offer opinions based upon information the opposing side cannot easily

glean from medical records.” In re World Trade Ctr. Lower Manhattan

Disaster Site Litig., 2014 WL 5757713, at *5 (S.D.N.Y. Nov. 5, 2014).

Those policy considerations may have been persuasive—compelling

even—before Rule 26 was amended in 2010. Before the 2010

amendments, there were vast differences in the disclosure requirements

that applied to retained and non-retained experts: whereas retained experts

had to disclose full expert reports, non-retained experts didn't have to

disclose anything. Because of this disparity, courts understandably felt a

strong impulse, whenever the call was close, to classify the expert as

retained and to require disclosure. This was necessary, many courts

believed, to give the other side adequate notice of the physician's testimony.

But, in the 2010 amendments, Congress added Section (C) to Rule

26(a)(2)—which, as we've seen, requires non-retained experts to submit

written summaries. See FED. R. CIV. P. 26(a)(2)(C) (requiring non-retained

experts to supply “a summary of the facts and opinions to which the witness

is expected to testify”); FED. R. CIV. P. 26 advisory committee's notes to

2010 amendment (noting that non-retained expert must also provide “the

facts supporting [the expert's] opinions”). Under this framework, then,

there's little reason to fear that the other side . . . will be surprised by an

expert whose testimony it never had the chance to (fully) examine. In this

respect, the committee's notes make clear that the “amendment resolves a

tension that has sometimes prompted courts to require reports under Rule

26(a)(2)(B) even from witnesses exempted from the report requirement.”

FED. R. CIV. P. 26 advisory committee's notes to 2010 amendment.

And, to the extent any individual judge remains concerned that, in a given

case, a Rule 26(a)(2)(C) summary would constitute insufficient notice to the

other side, the new rules expressly give district courts the discretion to

require more fulsome disclosures—beyond those prescribed in Section

(C)—for non-retained experts. See FED. R. CIV. P. 26(a)(2)(C) (“Unless

otherwise stipulated or ordered by the court, if the witness is not required to

provide a written report, this disclosure must state ....” (emphasis added)).

This discretion, of course, vitiates the need to read any such limitation on a

treating physician's testimony into the rules. But here's the rub: whether we

agree with the Rule or not—whether we think its policy rationales makes

sense or not—we judges “aren't free to rewrite clear statutes under the

banner of our own policy concerns.” Azar v. Allina Health Servs., 139 S. Ct.

1804, 1815 (2019); see also Mamani v. Berzain, 825 F.3d 1304, 1310 (11th

Cir. 2016) (“[U]nless and until the first and third branches of government

swap duties and responsibilities, we cannot rewrite statutes.”).

(Altman, J.). This careful analysis needs no revision and is true to the text as written.

Even if Defendants are correct that Plaintiff’s expert disclosure is inadequate under

FRCP 26(a)(2)(B), this point is entirely moot. As Plaintiff indicates, Anderson was not

“retained or specially employed to provide expert testimony in the case” and is not “one

whose duties as the party’s employee regularly involve giving expert testimony.” Rather,

Anderson was hired to perform a peer review assessment of Defendants’ design plans,

and if necessary, serve as a substitute architect on the Project. Thus, 26(a)(2)(C) controls

and Plaintiff need only disclose “(i) the subject matter on which the witness is expected

to present evidence under Federal Rule of Evidence 702, 703, or 705; and (ii) a summary

of the facts and opinions to which the witness is expected to testify.”

As discussed in detail supra section I, the Court finds Plaintiff easily satisfies these

requirements. The disclosure indicates Anderson will testify how the plans prepared by

Defendants were incomplete, unbuildable as drawn, improper for their intended use,

noncompliant with the Florida Building Code, and ultimately unsalvageable. (DE [100-1]).

The disclosure further states that Anderson will testify regarding the standard degree of

care and skill ordinarily exercised by architects in south Florida and whether Defendants’

work and plans met that standard. Id. In the attached affidavit signed by Anderson,

Anderson describes specific facts and reasons why Defendants’ plans violated the Florida

Building Code. Id. at 6. The disclosure additionally includes a memorandum prepared by

Anderson that further elaborates on Anderson’s review and opinions. Id. at 10–13. This

memorandum provides a detailed summary of the items analyzed during Anderson’s

initial review of Defendants’ plans, including Anderson’s factual findings and opinions. Id.

The Court concludes this disclosure easily satisfies FRCP 26(a)(2)(C) because it

provides a summary of the facts and opinions to which Anderson is expected to testify.

B. Daubert

Hybrid witnesses “may testify regarding their observations based on personal

knowledge as well as their lay opinions, consistent with Rule 701, when such opinion

testimony is based upon the witness' experience as a professional and is helpful in

understanding the witness' decision making process.” Kaplan v. Kaplan, 2012 WL

1660605, at *2 (M.D. Fla. May 11, 2012) (citing Williams v. Mast Biosurgery USA, Inc.,

644 F.3d 1312, 1317 (11th Cir. 2011)). However, “[s]uch witnesses may not cross the line

and offer expert testimony, which must comply with the requirements of the Federal Rules

of Evidence and the strictures of Daubert.” Id. “The distinction between lay and expert

testimony is a critical one, requiring that trial courts be vigilant in ensuring that the

reliability requirements set forth in Rule 702 not be evaded through the simple expedient

of proffering an expert in lay witness clothing.” In re 3M Combat Arms Earplug Products

Liability Litigation, 2021 WL 765019, at *3 (N.D. Fla. Feb. 28, 2021) (citing Williams, 644

F.3d at 1317)). “Thus, to the extent that a hybrid witness' testimony goes beyond an

account of their own observations and technical experience the trial court must determine

whether the testimony meets the evidentiary standards of Rule 702 and Daubert.” Id.

Plaintiff’s disclosure indicates Anderson will testify based on his own observations

and technical experience as well as in his capacity as an expert witness. Plaintiff’s

testimony based on observations and technical experience will include his testimony on

how the plans were incomplete, unbuildable as drawn, improper for their intended use,

noncompliant with the Florida Building Code, and ultimately unsalvageable. Plaintiff’s

expert testimony will include his testimony on the standard degree of care and skill

plans satisfied that standard. Thus, to provide expert testimony on these latter items

Plaintiff must survive the requirements of Daubert and FRE 702.

First, the Court finds Anderson is qualified to testify competently regarding the

standard degree of care and skill ordinarily exercised by south Florida architects and

whether Defendants’ work met that standard. Anderson has over four decades of

experience as an architect in south Florida. (DE [100-1], at 9). And for the past several

decades, Anderson served as the president of his own architecture firm. Id. Anderson’s

specific architecture experience includes the design and project management of

hospitality, corporate, industrial, and commercial projects. Id. Anderson received a

Bachelor of Architecture degree from the University of Miami and is a duly licensed

architect in this state. Id. Based upon all these facts, the Court finds Anderson possesses

specialized knowledge, skill, experience, training, and education in the field of

architecture. Anderson’s training, skill, and extensive experience in the field of

architecture in south Florida qualify him to testify as to the standard degree of care and

skill ordinarily exercised by architects in south Florida and whether Defendants’ work and

plans satisfied that standard. The Court finds Anderson meets the first prong.

Second, the Court finds the methodology by which Anderson will form and render

his expert opinions is sufficiently reliable. “Standards of scientific reliability, such as

testability and peer review, do not apply to all forms of expert testimony.” Am. Gen. Life

Ins. Co. v. Schoenthal Fam., LLC, 555 F.3d 1331, 1338 (11th Cir. 2009) (citing Kumbo

Tire Co. v. Carmichael, 526 U.S. 137, 151 (1999)). Thus, “[f]or nonscientific expert

testimony, the trial judge must have considerable leeway in deciding in a particular case

how to go about determining whether particular expert testimony is reliable.” Id. (cleaned

upon personal knowledge or experience.” Id. (cleaned up). In Schoenthal, the Eleventh

Circuit held that a witness’ education and substantial experience in a specific field

qualified him to testify as an expert about industry standards in that field. 555 F.3d at

1338–39. Here, as discussed in the preceding paragraph, Anderson has over four

decades of experience as an architect, received a degree in architecture, and is licensed

in Florida. Anderson will offer testimony about the architecture industry’s standard of care

in south Florida and whether Defendants’ work and plans met that standard based upon

his peer review of Defendants’ work product. The Court finds the second prong is

satisfied.

Third, the Court finds that Anderson’s expert testimony will assist the trier of fact

in understanding the south Florida architecture industry standard of care and whether

Defendants’ work and plans met that standard. The standard of care in the field of

architecture is one that falls outside the knowledge of laypersons and thus requires expert

testimony. This question is one of the key issues in this case, and is thus not only relevant,

but also critical for Plaintiff to meet its burden of proof. Accordingly, the Court finds the

third prong is satisfied.

Defendants attack Anderson’s credibility as an expert in several ways. First,

Defendants contend Anderson’s methodology is deficient. However, as discussed above,

Anderson is able to proffer expert opinion on the architecture industry’s standard of care

because he has substantial training and experience in that industry. And Anderson can

properly apply this standard of care to the facts of the case and determine whether

Defendants met that standard because he has conducted an in-depth peer review of

Defendants’ work. Second, Defendants assert any opinion held by Anderson was only

held at a snapshot in time. Defendants cite no authority for the proposition that holding

an expert opinion at a specific point in time undermines its validity and the Court is aware

of none. Third, Defendants argue Anderson did not know what phase the design/Marriott

review process was at when he conducted his peer review. Plaintiff responds that this

multi-phase design process is specific to Marriott and thus has no bearing on Anderson’s

viability as an expert. The Court agrees. Defendants’ arguments go to the weight rather

than admissibility of the testimony. Defendants remain free to inquire into this and other

lines of questioning at trial to attack Anderson’s credibility as an expert witness. But at

this stage, it is insufficient to invalidate Anderson’s reliability under Daubert because he

only need be minimally qualified to render expert opinion. See Fitzgibbon, 2020 WL

1172495, at *2. Thus, any “objections to the level of the expert’s expertise [go] to

credibility and weight, not admissibility.” /d. Accordingly, it is hereby

ORDERED AND ADJUDGED that Defendants’ Motion (DE [100]) is DENIED.

DONE AND ORDERED in Chambers, Fort Lauderdale, Florida, this 10th day of

August 2022. \

Ss

UNITED STATES DISTRICT JUDGE

Copies furnished counsel via CM/ECF

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