In this insurance breach of contract case, Plaintiff LJP Building, LLC designated Alfredo Brizuela as its damages expert in March 2024. That same month, Brizuela prepared an estimate to restore the property to its pre-loss condition. The estimate was based on replacement cost value (RCV) and totaled $655,054.64. Westchester deposed Brizuela in February 2025.
Subsequent to Brizuela’s deposition, it was noted that Brizuela omitted applicable depreciation as to the $655,054.64 RCV of the estimate. As a result, on April 1, 2025, Brizuela supplemented his estimate solely to apply depreciation to the $655,054.64 RCV. There was no adjustment to any of the values, simply the application of depreciation to the previously estimated amount of $655,054.64 to derive an actual cash value (ACV) of $636,447.67.
Defendant contended that Brizuela’s application of depreciation to his previously produced estimate is an “untimely disclosure” and “presents entirely new facts, evidence and substantially revised expert opinions that were never disclosed.”
Engineering Expert Witness
Al Brizuela is a Florida licensed professional engineer, general contractor and registered industrial hygienist. He graduated from the University of Miami in 1978 with a Bachelor of Science degree in architectural engineering. Shortly after graduation, he began working for Law Engineering Testing Company Inc., performing subsurface investigations for a multitude of government projects the most significant being the Metro Rail System.
Discussion by the Court
A. Brizuela’s April 2025 Report is a Supplement
Westchester claimed that Brizuela’s “supplemental” affidavit is not a supplement at all. Rather, it presents entirely new facts, evidence, and substantially revised expert opinions that were not previously disclosed.
The Court held that Brizuela’s updated report is properly characterized as a supplement, not a new disclosure. That is because the only change was to correct his prior estimate by applying depreciation. It includes no new model for calculating damages, new methodology, or new claim for damages to certain parts of the building that were not previously made.
Even the portions of the initial and supplemental affidavits Westchester highlights shows that the only difference is Brizuela omitted applicable depreciation in his initial report. Since Brizuela’s supplemental report sought to correct a mistake (omitted depreciation), the Court held that it fell within the narrow purpose of Rule 26(e).
B. Brizuela’s Supplement Was Timely
According to Rule 26, Plaintiff had up to its pretrial disclosures, which are due July 11, 2025, to correct any inaccuracies.
Westchester offered no support for its conclusory argument that any supplement was due earlier. The Court held that Westchester does cite several cases that deal with prejudice caused to the party left without the chance to depose an expert after the discovery deadline. But prejudice (even if it exists) cannot override the deadlines in Rule 26. In any event, as discussed below, any prejudice can be remedied.
C. Supplementation Was Harmless
When a party fails to provide information required by Rule 26, as Westchester claims, they are “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.”
Weighing these factors, the Court found that any Rule 26 violation harmless. Brizuela’s testimony and repair estimates are seemingly critical. Without him, Plaintiff’s case may end. Though discovery has closed, Brizuela will make himself available for deposition. With this, Westchester can cure the deficiency. Westchester offers no argument that it would have to re-brief summary judgment if the supplement is allowed. The deposition is the better option considering the importance of the evidence.
Westchester also sought to exclude the Brizuela’s supplement. The Court held that Plaintiff’s conduct, at least at this point, does not warrant excluding testimony that may prove essential to its case when any prejudice can still be cured.
The Court, therefore, is convinced that Plaintiff should be allowed to supplement Brizuela’s expert disclosure.
Held
The Court denied Westchester’s motion to strike Plaintiff’s untimely supplemental expert witness affidavit and estimate of Alfredo Brizuela.
Key Takeaway:
Rule 26(e) permits supplemental reports only for the narrow purpose of correcting inaccuracies or adding information that was not available at the time of the initial report.
Case Details:
| Case Caption: | LJP Building LLC V. Westchester Surplus Lines Insurance Company |
| Docket Number: | 2:23cv792 |
| Court Name: | United States District Court for the Middle District of Florida, Fort Myers Division |
| Order Date: | April 18, 2025 |
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