Plaintiff, Lori Mendez suffered a head injury while she was shopping at a Hobby Lobby store in Reno on June 5, 2021. It all started when she reached for an item on a shelf that was higher up. The shelves were close together and as Mendez grabbed an item off of the lower shelf, the top shelf came unhooked and crashed down on her head.
Plaintiff filed a motion to to strike the Defendant’s supplemental expert report of Dr. Saman Hazany, MD, DABR.
Neuroradiology Expert Witness
Dr. Saman Hazany is an award‑winning, Harvard‑trained neuroradiologist based in greater Los Angeles, with extensive experience in the care of patients with traumatic brain injury, spinal cord injury, stroke, epilepsy, and brain tumor.
He holds board certification and the Certificate of Added Qualification (CAQ) in radiology and neuroradiology.
According to the Court’s scheduling order, the deadline for initial expert reports was March 25, 2024. On that date, Hobby Lobby served Plaintiff with its initial expert disclosure, which disclosed Hazany and included his November 22, 2023 initial expert report. That report listed 29 images that Hazany reviewed. On October 8, 2024, Hobby Lobby served Plaintiff with a supplemental report from Hazany, in which he reviewed an additional seven images. It is undisputed that these seven images were available to Hazany at the time of his initial expert report.
The Supplemental Report was Untimely
The Defendants did not appear to dispute that the disclosure was untimely. Because the parties agreed that Hazany had access to the seven images at the time of his initial report, the supplemental report was improper under Rule 26(e).
Striking is Warranted Under Rule 37
The Defendant primarily argued that sanctions are not warranted because the improper supplemental report was harmless. However, there is no dispute that the Defendants supplemental report reviews seven images not reviewed at all in the initial report. The supplemental report makes findings and conclusions as to several of these images, such as “No CT evidence for traumatic brain injury,” “Other etiologies including traumatic brain injury are unlikely,” and “No post-traumatic findings.”
In this case, the deadline for rebuttal expert disclosure was May 22, 2024. The Defendants did not serve the supplemental disclosure until October 8, 2024, which was only 15 days before discovery closed. As Plaintiffs pointed out, this meant that Plaintiff’s rebuttal expert had no opportunity to review and rebut the supplement.
The Court granted the parties multiple extensions of time during the discovery period, including an extension of the rebuttal expert deadline. Moreover, the prejudice cannot be cured when the discovery is closed.
Held
The Court granted the Plaintiff’s motion to strike the Defendant’s supplemental expert report of Dr. Saman Hazany.
Key Takeaway:
The late disclosure meant that Plaintiff’s rebuttal expert was not able to review and rebut the new conclusions and opinions present in Hazany’s supplemental report.
Any risk of prejudice or surprise cannot be easily be cured at this stage.
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.
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
This is an insurance coverage dispute. Defendant Church Mutual Insurance Company (“Church Mutual”) insured Plaintiffs’ property. Hail damaged the property’s roof. The parties dispute whether the damage falls within Plaintiffs’ insurance policy, which precludes coverage for cosmetic damage.
Plaintiffs sought to exclude the expert testimony of Christine Conner, Mark Kubena, and Ronald Dutton on the grounds that they applied an extracontractual definition of “functional damage,” which, according to Plaintiffs, made their opinions unreliable and irrelevant. Plaintiffs also filed a motion to exclude Dutton’s supplemental expert report.
Forensic Engineering Expert Witness
Christine E. Conner has 10 years of engineering experience, including design, evaluation, inspection, and repair of residential and commercial buildings and other structures, with over 5 years of engineering training and forensic engineering experience in cause and origin failure analysis for structural damage; structural failures, construction deficiencies, roof damage, wind/hail damage, water intrusion, settlement, flooring failures, construction deficiencies, cladding and window failures, foundation damage, flood, surge and wind damage analysis, and preparation of technical reports with findings.
Mark Kubena is an engineer with expertise in the area of property damage causation and the determination of the appropriate scope of repairs for property damage.
Ronald J. Dutton has over 40 years of metallic-coated steel experience with which he provides technical services for product development, failure analysis, and product training for the metal construction industry. He has served in various trade organizations, including the National Coil Coating Association (NCCA) and the Zinc Aluminum Coaters Association (ZAC), and holds BS and MS degrees from Drexel University and Lehigh University.
The Court found that Conner, Dutton, and Kubena’s expert reports do not rely on extracontractual definitions of functional and cosmetic damage. They instead explained how the roof lacked certain types of functional damage. Thus, the expert reports opined that the roof had not been functionally damaged because its service life had not been reduced.
Basically, Church Mutual’s expert reports would help the jury determine whether the policy limitation applies. And they do not confuse the trier of fact by applying a different definition of functional/cosmetic damages. The Court declared these reports admissible.
B. Dutton’s Supplemental Report Is Inadmissible
Dutton’s supplemental disclosure is a three-page summary of a laboratory report that evaluated the hail damage to the Plaintiffs’ roof. Dutton stated that the lab report supports the conclusions from his original report and demonstrates that there is no evidence that the hail diminished the performance of the roof.
The Court found that Dutton’s report is not supplemental because it goes beyond filling the “interstices of an incomplete report” and instead introduces new laboratory testing results and new opinions.
Church Mutual offered a compelling explanation for the tardiness. Dutton did not receive the lab results until after submitting his initial expert report. Moreover, the testimony was important because it provided lab results that helped explain why the roof damage is cosmetic instead of functional.
Even though there is a compelling reason for the delay and the testimony is important, the Court will not admit it because Plaintiffs did not have time to produce rebuttal reports after Dutton disclosed the samples used in his supplemental report one week before the discovery deadline.
Held
The Court granted in part and denied in part the Plaintiffs’ motion.
Key Takeaways:
None of the experts relied on an extracontractual definition of cosmetic or functional damage to reach their conclusions.
Even though Dutton states that his supplemental findings support his original conclusions, they still offer new opinions, because they analyze new laboratory test results.
Case Details:
Case Caption:
Cleburne Training & Fitness Inc Et Al V. Church Mutual Insurance Company
In a recent case involving a police shooting in Las Cruces, the admissibility of expert testimony became a central point of contention. The Plaintiff, who sustained injuries during the incident, sought to introduce Dr. Alen Ternian as a pain management expert. However, the Defendants challenged Ternian’s testimony, raising significant concerns about the completeness and reliability of his expert report.
Ternian was retained to provide expert opinions on the Plaintiff’s pain management as it related to the incident. However, the Defendants argued that the Plaintiff failed to comply with Federal Rule of Civil Procedure 26(a)(2)(B), which requires a complete statement of all opinions and the basis and reasons for them. Specifically, the Defendants pointed out that Ternian’s initial report lacked crucial supporting data and facts.
Anesthesiology Expert Witness
Alen Ternian is a board-certified anesthesiologist, with a history of practice that necessarily deals with the treatment of patients in pain. His employment history includes a medical practice and associate professor lecturer and examiner at Ceder Sinai Medical School.
The core of the Defendants’ objection centered on the Plaintiff’s alleged failure to comply with Federal Rule of Civil Procedure 26(a)(2)(B). They argued Ternian’s report lacked the underlying facts and data supporting his conclusions.
Defendants objected to the late and disorganized production of discovery materials, including a large volume of unorganized medical records and the delayed provision of Ternian’s curriculum vitae. This hindered their deposition preparation.
Defendants emphasized Ternian’s own statements revealed his opinion was incomplete, as he stated further medical imaging was necessary, but this was never obtained. Along with Rule 26, the Defendants also moved to exclude the opinions and testimony of Ternian, pursuant to Federal Rules of Evidence 403 and 702.
The Defendants requested the Court to exclude late-produced records, prevent further disclosures, exclude Ternian’s testimony, and/or hold a Daubert hearing.
Plaintiff’s Opposition:
The Plaintiff countered that they provided relevant medical records and information, arguing the Defendants had access to necessary records prior to Ternian’s deposition.
Plaintiff disputed discovery violation claims, asserting they were responsive to requests and did not disobey orders, arguing exclusion would be an improper sanction.
Plaintiff argued that during the deposition, the defense questioned Ternian about his initial report and his methodology, and therefore they had a fully informed deposition.
Court’s Observations
The Defendants provided the Plaintiff with multiple opportunities to rectify these deficiencies. However, instead of providing the requested data, the Plaintiff produced a large volume of unorganized medical records and delayed the disclosure of Ternian’s curriculum vitae until after his deposition. This delayed disclosure severely hampered the Defendants’ ability to adequately prepare for the deposition and challenge the expert’s opinions.
Rule 37 Sanctions and the “Harmless or Justified” Test:
The Court found that Ternian’s report was incomplete because it relied on medical imaging (CT scans and ultrasounds) that were never performed. Ternian himself acknowledged the need for further information to provide a complete medical opinion. This failure to obtain necessary data violated Rule 26, which led the Court to consider sanctions under Rule 37(c)(1).
Under Rule 37(c)(1), if a party fails to provide information required by Rule 26(a), they are generally prohibited from using that information or witness at trial, unless the failure was substantially justified or harmless. The Court considered factors such as prejudice to the Defendants, the ability to cure the prejudice, potential disruption of the trial, and the Plaintiff’s bad faith or willfulness.
The Court’s Ruling:
The Court determined that the Plaintiff’s violations of Rule 26 were not justified or harmless. The Defendants were prejudiced by the incomplete report and the late disclosure of records. The Court highlighted the Plaintiff’s failure to obtain necessary medical scans and the disorganized and delayed production of medical records. Although the Court did not find bad faith on the part of the Plaintiff, the other factors weighed heavily in favor of excluding Ternian’s testimony.
Held
The Court found that Plaintiff’s expert, Dr. Alen Ternian, failed to comply with Rule 26’s expert disclosure requirements which was not substantially justified or harmless. Therefore, the Court granted Defendants’ motion to exclude and Ternian was excluded from giving testimony at trial pursuant to Rule 37.
Key Takeaways:
Timely and organized disclosure of expert information is essential for effective cross-examination and trial preparation.
Compliance with Rule 26 is crucial for the admissibility of expert testimony.
Failure to provide a complete and well-supported expert report can lead to exclusion of testimony under Rule 37.
Courts consider various factors, including prejudice and the ability to cure, when determining whether a Rule 26 violation is harmless or justified.
Plaintiffs Gregory Hebbler and Marion Hebbler contracted with Defendant State Farm Fire and Casualty Company to insure their home located at 6009 Angler Drive, Picayune, Mississippi.
On August 29, 2021, Hurricane Ida made landfall, purportedly damaging the residence. When Defendant conducted an on-site inspection and estimated the monetary damage caused by Hurricane Ida, it issued no payment because this figure fell below Plaintiffs’ deductible.
Plaintiffs ultimately designated Rich Lyon as their sole expert witness, referencing a June 7, 2023, Estimate as his report, but they did not attach this Estimate to their designation. On July 1, 2024, almost three months after their expert designation deadline had passed, Plaintiffs submitted a supplemental designation, disclosing Lyon’s Supplemental Report.
On August 19, 2024, Defendant filed the instant motion to strike Plaintiffs’ expert witness Rich Lyon.
Insurance Expert Witness
Rich Lyon is a licensed State of Louisiana Public Insurance Adjuster and Registered Insurance Appraiser. He is the owner and operator of Gulf Coast Adjusting, LLC. Gulf Coast Adjusting, LLC is a Louisiana-licensed and bonded company offering Public Adjusting, Insurance Claims Appraising, Insurance Claims Umpiring and Construction Estimating services throughout the states of Louisiana and Mississippi.
The June 7, 2023, estimate offered by Plaintiffs as Lyon’s initial expert report contains only damage estimates and includes no narrative language, explanations, or opinions as to causation. The Estimate valued the damage to Plaintiffs’ property at $144,661.05, with no amount specified for depreciation. The Estimate is based on a June 5, 2023, inspection that was conducted by an independent contractor hired by Lyon.
2. The Supplemental Report
In his supplemental report, Lyon for the first time offered an opinion as to causation, stating that Hurricane Ida caused the damage to Plaintiffs’ residence. This opinion is based upon “on-site inspections of the subject property, interviews with the property owner, . . . documentation provided to [him], [his] extensive work related to hurricanes [and] windstorms, and [his] accumulative experience in the construction and insurance industries gained over the past 25 years.”
Lyon conducted an inspection of Plaintiffs’ property on June 24, 2024, which resulted in him revising the June 7, 2023, damage estimate downward to $75,707.42, again with no deduction specified for depreciation.
B. Defendant’s Motions
Defendant asked the Court to exclude the June 7, 2023, estimate because it was made by unknown independent contractors, such that the Court cannot test the reliability of its factual underpinnings or methodologies. Next, the Court should strike the supplemental report because it is not supplemental, but is in fact a new report, and was produced by Plaintiffs over two and half months after the expert designation deadline.
1.Defendant’s challenge to the June 7, 2023, Estimate offered as Lyon’s expert report
Defendant argued that Plaintiffs’ timely June 7, 2023, estimate is unreliable because it offered no causation opinions and because unknown independent contractors collected the data underlying the estimate and did the majority of the work creating it.
Lyon affirmed under oath that both the inspector and estimators’ identities are protected by nondisclosure agreements, and he would not reveal them. Since Plaintiffs have not identified who conducted the inspection or created the Estimate, neither Defendant nor the Court can test the reliability of the data and methods employed in repairing it. On this record, Plaintiffs cannot meet their burden of showing that the bases and methodologies underlying the estimate are reliable, and the Court therefore rejected the June 7, 2023, estimate.
Defendant next challenged Lyon’s supplemental report, disclosed after Plaintiffs’ expert designation deadline but prior to the close of discovery.
It should be noted that Lyon’s supplemental report relies upon information gathered by an unknown independent contractor during the June 7, 2023, inspection, Lyon’s own inspection conducted on June 24, 2024, documentation provided to him, and interviews with Plaintiffs. With the exception of Lyon’s inspection, this information was available to Plaintiffs well before the expert designation deadline of April 9, 2024, and Plaintiffs have not offered any explanation why Lyon could not have conducted his inspection before the deadline. For these reasons, the Court concluded that the supplemental report is not supplemental but is in fact a new expert report, such that it could and should have been disclosed by April 09, 2024.
Four factor analysis under Rule 37 to determine the proper sanction
Starting with the fourth factor, the explanation for the failure to comply with the Court’s deadlines, Plaintiffs justify the late disclosure by stating that they paid out-of-pocket to repair their roof in July 2023.
But Plaintiffs do not explain how the completion of these repairs prevented them from timely disclosing the supplemental report or why, if there was an issue, it could not be resolved in the nine months between the completion of repairs and the designation deadline of April 9, 2024.
The third factor is the possibility of a continuance. This, according to the Court, weighs in favor of Defendant because the case is scheduled for Pretrial Conference next month and a continuance would only further delay this case, in essence rewarding Plaintiffs for failing to timely disclose the supplemental report without any justifiable explanation.
The first factor is the importance of the witness’ testimony. Without Lyon, Plaintiffs cannot meet their burden of showing causation and Defendant will be entitled to summary judgment. But even where the expert testimony is significant, “the importance of such proposed testimony cannot singularly override the enforcement of local rules and scheduling orders.”
Turning to prejudice, Lyon had the benefit of possessing Defendant’s expert report when he prepared the supplemental report, and Defendant’s expert’s ability to prepare his own report was impeded by not having access to Lyon’s supplemental report. Defendant would also be required to expend time and financial resources to prepare a response to Lyon’s new causation opinion, causing further prejudice. On balance, the Court held that this factors weigh in favor of excluding the supplemental report.
The circumstances of this case warrant striking the Supplemental Report
Plaintiffs argued that Defendant waived the right to challenge Lyon’s expert designation by failing to file its motion thirty days before the discovery deadline.
The Court found that Plaintiffs attempted to frame Defendant’s argument as a challenge to the initial expert designation, when in fact Defendant is contending that the supplemental report itself introduces new expert testimony and is therefore not supplemental. This would mean that Defendant would have had to file its challenge to Plaintiffs’ disclosure no later than five days later. It would be unfair to permit Plaintiffs to violate their deadline for disclosing expert reports by almost three months, and then penalize Defendant for failing to file its motion to strike by the deadline because Plaintiffs served the supplemental report mere days before it passed.
Held
The Court found that Defendant’s motion to strike should be granted as to Plaintiffs’ expert Rich Lyon, and he will be excluded from testifying at trial. The Court also granted Defendant’s motion for summary judgment because Plaintiffs cannot make the requisite showing as to causation. Plaintiffs Gregory Hebbler and Marion Hebbler’s claims were dismissed with prejudice.
Key Takeaways:
The Court excluded June 07, 2023, estimate offered as Lyon’s expert report because unknown independent contractors did the majority of the work creating it as a result of which the Court cannot test the reliability of its factual underpinnings or methodologies.
The supplemental report offered by Lyon is not supplemental but is in fact a new expert report, such that it could and should have been disclosed by April 09, 2024. It should be noted that Lyon’s supplemental report relies upon information gathered by an unknown independent contractor during the June 7, 2023, inspection, Lyon’s own inspection conducted on June 24, 2024, documentation provided to him, and interviews with Plaintiffs. With the exception of Lyon’s inspection, this information was available to Plaintiffs well before the expert designation deadline of April 9, 2024, and Plaintiffs have not offered any explanation why Lyon could not have conducted his inspection before the deadline.
Case Details:
Case Caption:
Hebbler Et Al V. State Farm Fire And Casualty Company
Docket Number:
1:23cv247
Court:
United States District Court, Mississippi Southern
