Fcoa, LLC v. Foremost Title & Escrow Servs., LLC
| Decision Date | 01 February 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 Rhoda Harper ("Ms. Harper"). [D.E. 77]. FCOA, LLC ("Plaintiff") responded to Defendant's motion on November 13, 2018 [D.E. 88] to which Defendant replied on November 20, 2018. [D.E. 94]. 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 DENIED.1
The decision to admit or exclude expert testimony is within the trial court's discretion and the court enjoys "considerable leeway" when determining theadmissibility 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 additional factors 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 incase-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 the insurance consumer survey report (the "Survey Report"), the insurance consumer behavior report (the "Insurance Report") (collectively, the "Harper Reports"), and Ms. Harper's expert testimony. Plaintiff designated Ms. Harper to serve as its expert witness to opine on the issue of confusion in the public with respect to the parties' respective marks. Defendant argues that Ms. Harper must be excluded as an expert because she is unqualifiedand her methodology in the Harper Reports is unsound. Defendant also claims that the Harper Reports are questionable because they include speculative comments. Because the findings in the Harper Reports are unreliable, irrelevant, and unsupported, Defendant concludes that Ms. Harper's expert opinions must be excluded.
Defendant's primary argument is that Ms. Harper failed to comply with Federal Rule 26(a)(2)(B) because she did not (1) provide a complete statement of the reasons for her opinions nor did she (2) disclose the data she considered in forming her opinions. Plaintiff's response is that Defendant did not provide an example of any specific piece of information omitted from Ms. Harper's expert reports 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 or witness 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 caseto 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 satisfy a reasonable person that parties could differ as to whether the party was required to comply with the disclosure request." Ellison v. Windt, 2001 WL 118617 (M.D. Fla. Jan. 24, 2001) (quotation and citation omitted). The advisory committee notes to Rule 37 "strongly suggests that 'harmless' involves an honest mistake on the part of the party coupled with sufficient knowledge on the part...
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