Fcoa, LLC v. Foremost Title & Escrow Servs., LLC
| Decision Date | 30 January 2019 |
| Docket Number | Case No. 17-23971-Civ-WILLIAMS/TORRES |
| Court | U.S. District Court — Southern District of Florida |
| Parties | FCOA, LLC, Plaintiff, v. FOREMOST TITLE & ESCROW SERVICES, LLC, Defendant. |
This matter is before the Court on Foremost Title & Escrow Services, LLC's ("Defendant") motion to exclude the testimony and expert report of Dr. Thomas Maronick ("Dr. Maronick"). [D.E. 79]. FCOA, LLC ("Plaintiff") responded to Defendant's motion on November 14, 2018 [D.E. 90] to which Defendant replied on November 21, 2018. [D.E. 100]. Therefore, Defendant's motion is now ripe for disposition. After careful consideration of the motion, response, reply, and relevant authority, and for the reasons discussed below, Defendant's motion is GRANTED in part and DENIED in part.1
The decision to admit or exclude expert testimony is within the trial court's discretion and the court enjoys "considerable leeway" when determining the admissibility of this testimony. See Cook v. Sheriff of Monroe County, Fla., 402 F.3d 1092, 1103 (11th Cir. 2005). As explained in Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993), the admissibility of expert testimony is governed by Fed. R. Evid. 702.2 The party offering the expert testimony carries the burden of laying the proper foundation for its admission, and admissibility must be shown by a preponderance of the evidence. See Allison v. McGhan Med. Corp., 184 F.3d 1300, 1306 (11th Cir. 1999); see also United States v. Frazier, 387 F.3d 1244, 1260 (11th Cir. 2004) ().
"Under Rule 702 and Daubert, district courts must act as 'gate keepers' which admit expert testimony only if it is both reliable and relevant." Rink v. Cheminova,Inc., 400 F.3d 1286, 1291 (11th Cir. 2005) (citing Daubert, 509 U.S. at 589). The purpose of this role is "to ensure that speculative, unreliable expert testimony does not reach the jury." McCorvey v. Baxter Healthcare Corp., 298 F.3d 1253, 1256 (11th Cir. 2002). Also, in its role as "gatekeeper," its duty is not "to make ultimate conclusions as to the persuasiveness of the proffered evidence." Quiet Tech. DC-8, Inc. v. Hurel-Dubois UK Ltd., 326 F.3d 1333, 1341 (11th Cir. 2003)
To facilitate this process, district courts engage in a three part inquiry to determine the admissibility of expert testimony:
(1) the expert is qualified to testify competently regarding the matters he intends to address; (2) the methodology by which the expert reaches his conclusions is sufficiently reliable as determined by the sort of inquiry mandated in Daubert; and (3) the testimony assists the trier of fact, through the application of scientific, technical, or specialized expertise, to understand the evidence or to determine a fact in issue.
City of Tuscaloosa, 158 F.3d 548, 562 (11th Cir. 1998) (citations omitted). The Eleventh Circuit refers to the aforementioned requirements as the "qualification," "reliability," and "helpfulness" prongs and while they "remain distinct concepts"; "the courts must take care not to conflate them." Frazier, 387 F.3d at 1260 (citing Quiet Tech, 326 F.3d at 1341).
Furthermore, in determining the reliability of a scientific expert opinion, the Eleventh Circuit considers the following factors to the extent possible:
(1) whether the expert's theory can be and has been tested; (2) whether the theory has been subjected to peer review and publication; (3) the known or potential rate of error of the particular scientific technique; and (4) whether the technique is generally accepted in the scientific community. Notably, however, these factors do not exhaust the universe of considerations that may bear on the reliability of a given expert opinion, and a federal court should consider any additionalfactors that may advance its Rule 702 analysis.
Quiet Tech, 326 F.3d at 1341 (citations omitted). The aforementioned factors are not "a definitive checklist or test," Daubert, 509 U.S. at 593, but are "applied in case-specific evidentiary circumstances," United States v. Brown, 415 F.3d 1257, 1266 (11th Cir. 2005). While this inquiry is flexible, the Court must focus "solely on principles and methodology, not on conclusions that they generate." Daubert, 509 U.S. at 594-95. It is also important to note that a "district court's gatekeeper role under Daubert 'is not intended to supplant the adversary system or the role of the jury.'" Quiet Tech, 326 F.3d at 1341 (quoting Maiz v. Virani, 253 F.3d 641, 666 (11th Cir. 2001)). Rather, "[v]igorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking but admissible evidence." Daubert, 509 U.S. at 580; see also Chapman v. Procter & Gamble Distrib., LLC, 766 F.3d 1296, 1306 (11th Cir. 2014) () (quoting Kilpatrick v. Breg, Inc., 613 F.3d 1329, 1335 (11th Cir. 2010)).
Defendant's motion seeks to strike Dr. Maronick3 and his expert report because he failed to comply with the Federal Rules. Plaintiff retained Dr. Maronick to assess consumers' perceptions to determine whether, if at all, consumers perceive Plaintiff and Defendant as competitors in the Florida real estate market. Dr. Maronick's survey concluded that 74.2% of respondents who had heard of Foremost Insurance Company believed that Defendant was affiliated with it. Defendant argues that Dr. Maronick's report should be excluded because (1) it violates the Federal Rules, (2) it contains methodological flaws, (3) it draws from the wrong universe of consumers, (4) it relies on an improper sample size, and (5) its conclusions are based on a defective survey. Defendant also alleges that the questions presented are improper and that they undermine Dr. Maronick's credibility. Because the findings in Dr. Maronick's report are unreliable and irrelevant, Defendant concludes that Dr. Maronick's expert opinions must be entirely excluded.
Defendant's primary argument is that Dr. Maronick failed to comply with Federal Rule 26(a)(2)(B) because he did not provide a complete statement of the reasons for his opinions. Defendant also contends that Dr. Maronick failed to disclose the facts and data he considered in forming his opinions and that this is notthe first time that he has committed this mistake.4 Plaintiff's response is that Defendant did not provide an example of any specific piece of information omitted from Dr. Maronick's expert report and that Defendant's argument should be disregarded.
Federal Rule 26(a) requires that any expert report contain the following information:
Fed. R. Civ. P. 26(a)(2)(B). These requirements are to be taken very seriously as Rule 26(a) was intended not only to prevent surprise to opposing counsel, but to decrease the need for expert depositions and thereby conserve the resources of both parties. See Fed. R. Civ. P. 26 Advisory Committee Notes (1993); Salgado v. Gen. Motors Corp., 150 F.3d 735, 741 n.6 (7th Cir. 1998).
Federal Rule 37(c)(1) states that "[i]f a party fails to provide information . . . as required by Rule 26(a) or (e), the party is not allowed to use that information orwitness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless." Fed. R. Civ. P. 37(c)(1). This Rule "requires absolute compliance with Rule 26(a)." Roberts ex rel. Johnson v. Galen of Virginia, Inc., 325 F.3d 776, 782 (6th Cir. 2003) (quoting Vance v. United States, 1999 WL 455435, at *3 (6th Cir. June 25, 1999)). When an expert report does not provide the required disclosures under Rule 26(a)(2)(B), "the sanction of exclusion is automatic and mandatory unless the sanctioned party can show that its violation of Rule 26(a) was either justified or harmless." Johnson, 325 F.3d at 782 (quoting Salgado v. Gen. Motors Corp., 150 F.3d 735, 742 (7th Cir. 1998)) (emphasis added); see also Walbridge Aldinger Co. v. Aon Risk Servs., Inc. of Pennsylvania, 2007 WL 1219036, at *1 (E.D. Mich. Apr. 25, 2007) (). This means that "the expert witness discovery rules are designed to allow both sides in a case to prepare their cases adequately and to prevent surprise . . . [and therefore] compliance with the requirements of Rule 26 is not merely aspirational." Cooper v. Southern Co., 390 F.3d 695, 728 (11th Cir. 2004) (internal citation omitted), overruled on other grounds, Ash v. Tyson Foods, Inc., 546 U.S. 454 (2006).
Substantial justification is "justification to a degree that could...
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