Eric Krajewski alleged that he submitted a claim for hurricane damage that Scottsdale Insurance Company will not pay despite coverage under the parties’ insurance policy. To recover the funds reportedly owed, Krajewski sued for breach of contract.
Krajewski timely disclosed an expert—Phaion Hicks. But according to the record before the Court, Krajewski never provided a corresponding report.
According to Scottsdale, Krajewski has not properly disclosed Hicks as an expert under Federal Rule of Civil Procedure 26(a)(2). Specifically, Krajewski failed “to provide the required expert report.” Scottsdale now moves to “strike Hicks as an expert in this matter and preclude the use of his testimony and opinions at trial.”
Scottsdale labeled Hicks as a retained expert. The Court reasoned that if Hicks was hired to assess and repair Krajewski’s house rather than offer expert testimony in a lawsuit, then this would put him in the non-retained category.
Even treating Hicks as a non-retained expert, the Court found that Krajewski’s disclosure fell short.
Roofing Expert Witness
Phaion Hicks is a professional engineer, certified general contractor and certified roofing contractor. He has years of experience in the field of engineering and regularly performs evaluations to determine the cause, origin, and duration of water damage and roof damage in Florida. Hicks is expected to offer expert opinion based on inspection of the property at issue.
Discussion by the Court
While a non-retained expert need not provide a full report, a party must do more than “identify generic subject areas of anticipated testimony, without identifying the actual substance or content of the opinions.”
While Krajewski’s expert disclosure outlines some of the subjects Hicks will discuss, the Court held that there is no legitimate summary of the facts and opinions. For example, the disclosure states Hicks will “offer expert opinion based on inspection of the property at issue.” Nowhere, however, does Krajewski provide the opinions formed from Hicks’ inspection.
Krajewski did not provide a conforming report by the expert disclosure deadline. And his decision not to respond to Scottsdale’s motion leaves the record silent about whether his conduct was substantially justified or harmless.
The Court held that exclusion was not required because Hicks’ testimony is seemingly critical. Without him, Krajewski’s case may end. Since the discovery is still ongoing, Krajewski’s conduct, at least at this point, does not warrant excluding testimony that may prove essential to his case when any prejudice can still be cured.
Held
- The Court granted in part and denied in part Scottsdale’s motion to strike Phaion Hicks as an expert in this matter and preclude the use of his testimony and opinions at trial;
- Krajewski must update his disclosure for Hicks by January 31, 2025. It is Krajewski’s burden to assess whether Hicks is retained or non-retained and modify the disclosure accordingly.
- If Scottsdale needs additional time beyond the current discovery deadline to depose Hicks or amend its own expert disclosures, the Court will entertain such an extension.
Key Takeaway:
Rule 37(c)(1) continues to give the Court discretion to award alternative sanctions. Exclusion is considered a drastic remedy since it can dictate the outcome and preclude a decision on the merits.
Case Details:
| Case Caption: | Krajewski V. Scottsdale Insurance Company |
| Docket Number: | 2:24cv189 |
| Court: | United States District Court, Florida Middle |
| Order Date: | January 22, 2025 |
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