Philip and Nancy Fairman’s home sustained severe flooding during Hurricane Ian. After the storm, they filed a damage claim with their insurer, Defendant American Strategic Insurance Corp (“ASI”), to seek compensation for the losses. ASI acknowledged coverage but disputed the extent of the damage. When the Fairmans and ASI could not reach a settlement, the Fairmans initiated a lawsuit to pursue their claim further.
To facilitate discovery, the Court conducted a status conference and issued a scheduling order, requiring both parties to submit their Rule 26 expert disclosures by August 30, 2024. However, ASI failed to disclose its structural engineering expert witness, Brian Lindsey and did not provide the Fairmans with his report until nearly a month later, on September 26, 2024. ASI attributed this delay to an “oversight.”
In response, the Fairmans filed a motion to strike ASI’s delayed expert disclosure. They also asked the Court to bar ASI from using Lindsey’s report or testimony in dispositive motions. Additionally, they asked that Lindsey be barred from testifying at trial, asserting that ASI’s failure to meet the deadline could adversely affect their case.
Structural Engineering Expert Witness
Brian Lindsey, P.E., has over 20 years of forensic experience in cases involving damage assessments of design/construction defects, collapse of structures, vehicle impacts, structural fire damage, water intrusion, foundation movement, snow load failures, site drainage, wind damage, hail damage, exterior wall cladding damage and roofing systems damage.
Discussion by the Court
Federal Rule of Civil Procedure 26 governs expert witness disclosures, aiming to prevent surprises in litigation and ensure parties can adequately prepare their cases. The rule mandates that parties disclose the basis of their expert opinions on time. Compliance with Rule 26 is not aspirational; it is mandatory. When a party fails to meet these obligations, Rule 37(c) grants the court discretion to exclude the expert unless the violation was substantially justified or harmless.
ASI, having violated Rule 26, bore the burden of proving that its noncompliance was either justified or harmless. Substantial justification exists when reasonable minds could differ on the need to comply. Harmlessness, however, involves considering factors such as the element of surprise, the opposing party’s ability to address it, potential disruption to the trial, the evidence’s significance, and the reason for the failure to disclose.
ASI did not argue that its conduct was substantially justified, nor did it address the factors necessary to establish harmlessness. Instead, ASI attributed the delay in disclosing its expert to an “oversight” and sought leniency, claiming no intentional violation or prejudice to the Fairmans. However, these explanations do not meet the required standard. Courts have consistently held that excuses such as oversight or clerical errors are insufficient to justify noncompliance with Rule 26.
Consequently, ASI failed to satisfy its burden. The Court held that ASI cannot call Brian Lindsey as a witness or use his report as evidence in motions, hearings, or trial proceedings.
Held
The Court granted the Plaintiffs’ motion to strike Defendant American Strategic Insurance Corp.’s Rule 26 expert disclosure as untimely. Further, structural engineering expert witness Brian Lindsey’s report and expert testimony were stricken and excluded from further consideration in the lawsuit.
Key Takeaways:
The Court excluded ASI’s structural engineering expert witness, Brian Lindsey, and his report due to ASI’s failure to comply with Federal Rule of Civil Procedure 26, which mandates timely disclosure of expert witnesses to prevent trial surprises and ensure adequate case preparation.
ASI did not provide substantial justification for its month-long delay nor argued that the delay was harmless. Instead, ASI claimed the missed deadline resulted from an “oversight.” The Court found this explanation insufficient, emphasizing that clerical errors and oversight do not excuse Rule 26 violations. In conclusion, the Court granted the Fairmans’ motion to strike Lindsey’s testimony, barring ASI from using his evidence at any stage of the litigation.
Case Details:
| Case caption: | Fairman v. Am. Strategic Ins. Corp. |
| Docket Number: | 2:23cv788 |
| Court: | United States District Court for the Middle District of Florida, Fort Myers Division |
| Dated: | November 13, 2024 |
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