762 Fed.Appx. 869 (11th Cir. 2019), 18-12920, Long v. East Coast Waffles, Inc.

Docket Nº:18-12920
Citation:762 Fed.Appx. 869
Opinion Judge:PER CURIAM:
Party Name:Steve LONG, Plaintiff-Appellee, v. EAST COAST WAFFLES, INC., Defendant-Appellant.
Attorney:David Bert Mishael, David B. Mishael, PA, Coconut Grove, FL, Steven Hunter Kassner, I, Law Office of Steven H. Kassner, Coral Gables, FL, Todd Michaels, The Haggard Law Firm, PA, Coral Gables, FL, for Plaintiff-Appellee Kathryn L. Ender, Lewis Brisbois Bisgaard & Smith, LLP, Coral Gables, FL, Ste...
Judge Panel:Before JILL PRYOR, NEWSOM, and ANDERSON, Circuit Judges.
Case Date:March 08, 2019
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit

Page 869

762 Fed.Appx. 869 (11th Cir. 2019)

Steve LONG, Plaintiff-Appellee,

v.

EAST COAST WAFFLES, INC., Defendant-Appellant.

No. 18-12920

United States Court of Appeals, Eleventh Circuit

March 8, 2019

Editorial Note:

DO NOT PUBLISH. (See Federal Rule of Appellate Procedure Rule 32.1. See also U.S.Ct. of App. 11th Cir. Rule 36-2.)

David Bert Mishael, David B. Mishael, PA, Coconut Grove, FL, Steven Hunter Kassner, I, Law Office of Steven H. Kassner, Coral Gables, FL, Todd Michaels, The Haggard Law Firm, PA, Coral Gables, FL, for Plaintiff-Appellee

Kathryn L. Ender, Lewis Brisbois Bisgaard & Smith, LLP, Coral Gables, FL, Steven R. Safra, Cole Scott & Kissane, PA, Miami, FL, Daniel J. Kissane, Cole Scott & Kissane, PA, Jacksonville, FL, Genevieve P. Rupelli, Cole Scott & Kissane, PA, Ft Lauderdale, FL, James Thomas Sparkman, Cole Scott & Kissane, PA, West Palm Beach, FL, for Defendant-Appellant

Appeal from the United States District Court for the Middle District of Florida, D.C. Docket No. 2:16-cv-00322-PAM-MRM

Before JILL PRYOR, NEWSOM, and ANDERSON, Circuit Judges.

OPINION

PER CURIAM:

Page 870

East Coast Waffles, Inc. appeals from the district court’s judgment in favor of plaintiff Steve Long after a jury found East Coast responsible for Long’s injuries under a theory of premises liability. On appeal, East Coast asserts that the district court abused its discretion in (1) failing to strike expert witness Dr. Conidi’s testimony for noncompliance with Rule 26 and (2) denying East Coast a new trial or remittitur for excessive damages. After careful review of the record, and finding no abuse of discretion, we affirm.

I

To start, we review a district court’s decision to admit or exclude expert testimony for failure to comply with Federal Rule of Civil Procedure 26 for an abuse of discretion. See Romero v. Drummond Co, Inc., 552 F.3d 1303, 1314 (11th Cir. 2008). This means that a district court has "a range of choice" that we will not disturb absent a mistake of law. Betty K Agencies, Ltd. v. M/V MONADA, 432 F.3d 1333, 1337 (11th Cir. 2005) (quotations omitted).

Federal Rule of Civil Procedure 26 requires a party to disclose any expert witness who will testify at trial. See Fed.R.Civ.P. 26(a)(2). This includes not only identification of the expert, but also the provision of a written report containing "a complete statement of all opinions" and "the basis and reasons for them." Fed.R.Civ.P. 26(a)(2)(B). Disclosure must occur "at the times and in the sequence that the court orders," and, in any event, "at least 90 days before the date set for trial or for the case to be ready for trial." Knight through Kerr v. Miami-Dade Cty., 856 F.3d 795, 811 (11th Cir. 2017) (quoting Fed.R.Civ.P. 26(a)(2)(D) ).

The disclosure requirements aim to provide parties with a reasonable opportunity to prepare effective cross examination and arrange for rebuttal testimony from other experts if needed. Reese v. Herbert, 527 F.3d 1253, 1265 (11th Cir. 2008) (quotations omitted). "Because the expert witness discovery rules are designed to allow both sides in a case to prepare their cases adequately and to prevent surprise, compliance with the requirements of Rule 26 is not merely aspirational." Cooper v. S. Co., 390 F.3d 695, 728 (11th Cir. 2004) (internal citation omitted), overruled on other grounds by Ash v. Tyson Foods, Inc., 546 U.S. 454, 457-58, 126 S.Ct. 1195, 163 L.Ed.2d 1053 (2006). Indeed, Federal Rule of Civil Procedure 37(c)(1) states that a party who fails to provide information or identify a witness as required by Rule 26(a) or (e) may not use that information or witness at trial "unless the failure was substantially justified or is harmless." Fed.R.Civ.P. 37(c)(1); OFS Fitel, LLC v. Epstein, Becker & Green, P.C., 549 F.3d 1344, 1363 (11th Cir. 2008).

Although Rule 37 allows a district court to exclude a witness as a sanction for a Rule 26 violation, it is well settled that "the admission of expert testimony is a matter left to the discretion of the district court." Lakeman v. Otis Elevator Co., 930 F.2d 1547, 1554 (11th Cir. 1991) (citation

Page 871

omitted). Because of this, we will not overturn a district court’s decision to admit or exclude expert testimony unless it is "manifestly erroneous." Id. ;

see also id. (holding that the trial court did not abuse its discretion in allowing expert testimony on matters not disclosed where the opposing party’s counsel was "well versed" in those matters and "capable of cross-examining [the experts] effectively"); Shelak v. White Motor Co., 581 F.2d 1155, 1159 (5th Cir. 1978) (declining to find reversible error when, although the plaintiff failed to disclose his intended use of an expert witness, defense counsel admitted to knowing that the witness "would likely" be called).

The parties here do not dispute that Long’s initial disclosure of Dr. Conidi did not comply with Rule 26. To be specific, the disclosure was filed 65 days late and the written report was not provided until a few months after that,...

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