GULFPOINT CONSTRUCTION COMPANY, INC.

v.

WESTFIELD INSURANCE COMPANY

Defendant. /

OPINION AND ORDER1

Before the Court is Defendant Westfield Insurance Company’s (“Westfield”) Motion to Strike Plaintiff Gulfpoint Construction Company, Inc.’s (“Gulfpoint”) Expert Witnesses (Doc. 49). Gulfpoint has responded (Doc. 52), and Westfield has replied (Doc. 56). For the following reasons, the Court denies the motion.

BACKGROUND2

Gulfpoint alleges it sustained substantial property damage when Hurricane Irma made landfall on Florida’s west coast. Westfield was

which Westfield removed to this Court (Doc. 1). During discovery, Gulfpoint served its Disclosure of Expert Reports: Byron Anderson, who opines on causation; and Dennis James, who opines on damages. (Doc. 49-1; Doc. 49-2; Doc. 49-3). Westfield deposed James, but

Westfield failed to depose Anderson within the discovery deadline, because it cancelled two scheduled depositions. The parties moved for an extension of the discovery deadline,³ which the Court denied (Doc. 47). This motion to strike Gulfpoint’s expert witnesses followed.

LEGAL STANDARD

If an expert witness is retained or specially employed to provide expert testimony in a case, Federal Rule of Civil Procedure 26(a)(2)(B) requires the expert disclosure to come with a written report—prepared and signed by the witness—that contains: (i) a complete statement of all opinions the witness will express and the basis and reasons for them; (ii) the facts or data considered by the witness in forming them;

Fed. R. Civ. P. 26(a)(2)(B). And under Federal Rule of Civil Procedure 37(c)(1), a party that violates Rule 26(a)’s disclosure requirements could be prohibited from using the challenged information or witness, unless the non-disclosure was substantially justified or is harmless. “Excluding expert testimony is a ‘drastic’ sanction requiring careful consideration.” United States v. McCarthy Improvement Co., No. 3:14-CV-919- J-PDB, 2017 WL 443486, at *6 (M.D. Fla. Feb.¹, 2017) (citing Brooks v. United States, 837 F. 2d 958, 961 (11th Cir. 1988)). And to determine whether a failure to disclose was substantially justified or harmless, courts consider five factors: “(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.” Bendik v. USAA Cas. Ins. Co., No. 6:19-CV-118-ORL-41EJK, 2019 WL 9466018, at *2 (M.D. Fla. Oct. 25, 2019) (collecting cases).

DISCUSSION

Westfield describes both of Gulfpoint’s expert disclosures as “woefully inadequate,” and it argues they should be stricken for failure to comply with Rule 26(a)(2)(B). (Doc. 49 at 2). Westfield contends Gulfpoint has offered no justification for not complying with Rule 26’s disclosure requirements, much less the substantial justification prescribed by Rule 37(c)(1).

First, Westfield attacks Gulfpoint’s expert disclosure for Anderson as omitting: (1) a complete statement of his opinions and the basis and reasons for them; (2) exhibits that summarize or support his opinions; (3) a list of other cases for which Anderson testified as an expert; and (4) a statement of his compensation. Westfield argues Anderson’s opinion on causation “amount[s] to speculation rather than an opinion with a supporting basis and reasons tending to show a causal relationship.” (Doc. 49 at 5). Next, Westfield attacks the expert disclosure for James on similar grounds, stating it omits: (1) a complete statement of his opinions and the basis and reasons for them; (2) the facts and data considered in forming his opinion; (3) exhibits that summarize or support his opinions; (4) James’ qualifications; (5) a list of other cases for which James testified as an expert; and (6) a statement of his compensation. Westfield also pointedly argues James’ testimony cannot be considered an expert opinion because it is based on a report prepared by someone else. Gulfpoint acknowledges it does not have substantial justification for its failure to comply with Rule 26, but it contends other factors support admission of its experts’ testimony. Gulfpoint argues there is no surprise here because Westfield received the expert materials around nine months before the trial term; Westfield had every opportunity to cure any potential prejudice but did not do so; there is no risk of trial disruption; and testimony from Anderson and

James is critical to its case. The Court finds Gulfpoint’s arguments persuasive. Rule 26’s expert disclosure rule provides opposing parties reasonable opportunity to prepare for effective cross-examination and perhaps arrange for testimony from other expert witnesses. OFS Fitel, LLC v. Epstein, Becker and Green, P.C., 549 F. 3d 1344, 1361–62 (11th Cir. 2008) (citation and quotation marks omitted). Gulfpoint served its expert disclosure on August¹, 2022 (Doc. 49 at 1–2), and the Court amended its case management and scheduling order to extend the parties’ discovery deadline from October 28, 2022, until December 2, 2022 (Doc. 26; Doc. 38). This gave Westfield ample time to depose Gulfpoint’s experts and to arrange for expert witnesses of its own to offer competing opinion testimony about causation and damages.

Westfield deposed James, but it did not depose Anderson. In fact, it cancelled Anderson’s deposition twice. The Court declines to impose the “drastic” sanction of excluding Anderson’s testimony, especially given Westfield’s inaction. See Ellison v. Windt, No. 6:99-CV-1268-ORL-KRS, 2001 WL 118617, at *3 (Jan. 24, 2001) (“When, as here, a party fails to promptly seek enforcement of his rights, any prejudice suffered arises largely from the party’s own inaction.”). Nor is the Court inclined to exclude James’ testimony for failure to satisfy Rule 26’s disclosure requirements. Though it failed to meet the letter of Rule 26’s disclosure requirements, Gulfpoint did timely provide all necessary information to Westfield, which then had a reasonable opportunity to prepare for effective cross-examination and to arrange for its own expert witnesses. The Court concludes that under these circumstances, Gulfpoint’s Rule 26 omissions were harmless. See OFS Fitel, 549 F. 3d at 1363–65. Secondarily, Westfield argues Gulfpoint’s experts’ opinions fail under a Daubert⁴ analysis and should be stricken as unreliable.5 Gulfpoint disagrees and contends Daubert is satisfied regarding both its experts, who should both be permitted to testify before the jury. Trial courts must ensure that scientific and technical testimony “is not only relevant, but reliable.” Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147 (1999) (quoting Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 589 (1993)).

Courts apply a “rigorous” three-part inquiry to determine whether expert testimony is admissible under Rule 702. Frazier, 387 F. 3d at 1260. “Expert testimony is admissible if (1) the expert is qualified to testify on the topic at issue, (2) the methodology used by the expert is sufficiently reliable, and (3) the testimony will assist the trier of fact.” Club Car, Inc. v. Club Car (Quebec) Import, Inc., 362 F. 3d 775, 780 (11th Cir. 2004), abrogation on other grounds recognized by Diamond Crystal Brands, Inc. v. Food Movers Intern., Inc., 593 F. 3d 1249, 1258 n.7 (11th Cir. 2010). Westfield argues Anderson’s opinion on causation is speculative and fails to consider all the facts, specifically roof repairs Gulfpoint undertook before Hurricane Irma. And Westfield argues that Florida appellate courts and the Eleventh Circuit exclude wind causation experts as being unreliable when they overlook alternative causes of roof damage. But the cases Westfield cites are factually distinguishable⁶ and do not mandate Anderson’s exclusion here. And Westfield contends James’ testimony on damages cannot be considered an opinion because it relies on a repair estimate prepared by someone else. But Gulfpoint has retained James to determine only the market costs of the repairs to Gulfpoint’s roof system, a task James has performed “over a thousand times” and for which he “has testified as an expert witness

The Court is not persuaded by Westfield’s arguments and does not find either expert’s methodology unreliable for purposes of Daubert. Indeed, Westfield does not seem ultimately to argue about the reliability of the methodologies Anderson and James used, only their specific application to this case. But this criticism challenges the weight and credibility of the expert opinions, not their admissibility. And Westfield may cross-examine both Anderson and James on whatever flaws or imperfect data it believes exist in their analyses, but this is not grounds for excluding their testimony altogether. See Quiet Tech. DC-8, Inc. v. Hurel-Dubois UK Ltd., 326 F. 3d 1333, 1345–46 (11th Cir. 2003); see also Daubert, 509 U.S. at 596 (“Vigorous cross-

A. Yes.

Q. Yeah? How many times?

A. Over 700.

Q. 700? That’s got to be one of the highest, I’ve—I’ve come across. . . . How many of those depositions have involved you as a—as an expert witness in—

A. All.

(Doc. 49-4 at 7:15–25). 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.”); Jones v. Otis Elevator Co., 861 F. 2d 655, 663 (11th Cir. 1988) (“On cross-examination, the opposing counsel is given the opportunity to ferret out the opinion’s weaknesses to ensure the jury properly evaluates the testimony’s weight and credibility.”).

CONCLUSION

Although Gulfpoint’s expert disclosures were incomplete, the omitted information was provided to Westfield before the experts’ scheduled depositions. Under the circumstances presented here, their omission was harmless. And because the Court finds neither expert’s opinion to be unreliable, it rejects Westfield’s Daubert arguments. Accordingly, it is now ORDERED: Defendant Westfield Insurance Co.’s Motion to Strike Plaintiff Gulfpoint Construction Company, Inc.’s Expert Witnesses (Doc. 49) is DENIED. DONE and ORDERED in Fort Myers, Florida on May⁷, 2023.

UNITED STATES DISTRICT JUDGE

Copies: All Parties of Record