Hotels of Deerfield, LLC v. Studio 78, LLC
| Docket Number | CASE NO. 21-60980-CIV-SINGHAL/VALLE |
| Decision Date | 10 August 2022 |
| Citation | 621 F.Supp.3d 1285 |
| Parties | HOTELS OF DEERFIELD, LLC, an Indiana limited liability company, and MHG Hotels, LLC, an Indiana limited liability company, Plaintiffs, v. STUDIO 78, LLC, a Georgia limited liability company, Shailesh Kalyan, an individual, Palmer Engineering Company, a Georgia company, Bakulesh M. Patel, P.E., an individual, Promus, Inc., a Georgia corporation, Darin Frick, P.E., an individual, Defendants. |
| Court | U.S. District Court — Southern District of Florida |
Adam P. Handfinger, Anne-Solenne Diane Rolland, Freddy Xavier Munoz Campodonico, Peckar & Abramson, P.C., Miami, FL, for Plaintiffs.
Jonathan Robert Lanni, Klein Glasser Park, Lowe, Miami, FL, Jorge Luis Cruz, Daniels Kashtan, Coral Gables, FL, for Defendants Studio 78, LLC, Shailesh Kalyan.
George Richard Truitt, Jr., Ryan Michael Charlson, Cole, Scott & Kissane, P.A., Miami, FL, Selina Pravin Patel, Cole, Scott, Kissane, Fort Lauderdale, FL, for Defendants Palmer Engineering Company, Promus, Inc., Bakulesh M. Patel, Darin Frick.
THIS CAUSE is before the Court upon Defendant Studio 78, LLC and Shailesh Kalyan's ("Defendants") (I) Motion to Strike Plaintiff, Hotels of Deerfield, LLC's Expert Witness Disclosure, and (II) Daubert Motion to Exclude Expert Opinion, filed on May 18, 2022 (the "Motion") (DE [100]). Plaintiff Hotels of Deerfield, LLC ("Plaintiff") filed a Response on June 1, 2022 (DE [112]). Defendants filed a Reply on June 7, 2022 (DE [124]). The Motion is now ripe for this Court's consideration.
Plaintiff Hotels of Deerfield, LLC alleges two counts of professional negligence against Studio 78, LLC and Shailesh Kalyan. See Second Am. Compl (DE [52]). The parties were required to disclose experts and exchange expert witness summaries or reports by January 27, 2022 (DE [25]). Defendants state they retained an architectural expert for this litigation, Martin Diaz-Yabor, who prepared an expert report that was served contemporaneously with his expert witness disclosure on January 27, 2022. See Motion, at 2. Plaintiff served its expert disclosure on January 27, 2022 (DE [100-1]). This disclosure designates Eric Anderson, the replacement architect for the Project ("Anderson"), as a "hybrid fact-expert witness." Id. The disclosure indicates Anderson was not retained to provide expert testimony in this case and is subject to Fed. R. Civ. P. 26(a)(2)(C). Id. at 1. The disclosure states Anderson is a licensed architect in Florida with over 35 years of experience and substantial experience in preparation of plans and specifications for projects. Id. at 2. The disclosure asserts that Anderson will testify how the plans prepared by Defendants were incomplete, unbuildable as drawn, improper for their intended use, noncompliant with the Florida Building Code, and ultimately unsalvageable. Id. The disclosure adds that Anderson will testify as to the standard degree of care and skill ordinarily exercised by architects in south Florida and whether Defendants' work and plans met that standard. Id. The disclosure includes Anderson's resumé and retention contract. Id. In Anderson's signed affidavit attached to the disclosure, he describes specific reasons why Defendants' plans violate the Florida Building Code. Id. at 6. The disclosure also includes a memorandum prepared by Anderson that further elaborates his review and findings. Id. at 10-13. This memorandum provides a detailed summary of the items analyzed and opinions reached during Anderson's initial review of Defendants' plans. Id.
Defendants contend that Plaintiffs' expert disclosure is inadequate under Fed. R. Civ. P. 26(a)(2)(A)-(B) because the disclosure fails to provide a formal expert summary or report and provides no basis for the expert opinion. See Motion, at 5-9. According to Defendants, it is evident from Anderson's deposition that he is not an expert witness because he testified that he was neither retained as an expert witness nor hired to render expert opinion on whether Defendants' design fell below the architectural standard of care. Id. Moreover, Defendants submit, Anderson testified that he had not drafted an expert report for this litigation. Id. Defendants add that the memorandum was prepared in October 2018 by Anderson just before he was retained as a replacement architect. Id. Thus, according to Defendants, this memorandum cannot function as an expert report. Defendants conclude that, because Anderson has not provided a formal expert report and has testified that he is not rendering expert opinion, his disclosure should be stricken and he should not be allowed to provide expert testimony. Id. at 9-12.
Second, in the alternative, Defendants contend that Anderson should be stricken under Daubert and FRE 702. Id. at 13-16. Defendants assert that any opinions held by Anderson were held at a snapshot in time in October 2018 upon being hired to perform a peer review of Defendants' design and replace Defendants. Id. at 16. Thus, according to Defendants, the Court has no way of knowing the method or analysis conducted by Anderson because his disclosure contains mere conclusory statements. Id. Moreover, Defendants add, Anderson even testified in his deposition that he was not aware of the precise design phase at the time of his review. Id.
Plaintiff responds that Anderson was properly disclosed as an expert under Fed. R. Civ. P. 26(a)(2)(C). See Response, at 4. Thus, according to Plaintiff, Anderson's testimony that he was not retained as an expert in this matter is consistent with his classification as a hybrid fact and expert witness under Rule 26(a)(2)(C) because he was retained to review work of design professionals and serve as a replacement professional, not to provide expert testimony at trial. Id. Plaintiff asserts that Defendants cite no authority for the proposition that a witness's deposition testimony regarding their understanding of their role in the litigation impairs the validity of their designation as an expert witness. Id.
Second, Plaintiff argues the sufficiency of the report served along with Plaintiff's expert disclosure is irrelevant to whether Anderson was properly disclosed. Id. at 5-7. According to Plaintiff, hybrid witnesses are only required to disclose a summary of facts and opinions to which the witness is expected to testify under Rule 26(a)(2)(C). Id. Plaintiff asserts that its expert disclosure set forth detailed summaries of the facts and opinions to which Anderson is expected to testify. Id.
Third, Plaintiff argues Anderson cannot be excluded under Daubert because it is likely inapplicable to Anderson. Id. at 8-14. Plaintiff submits that the testimony of a hybrid witness is not subject to Daubert unless the testimony goes beyond the witness's own observations and technical experience. And nevertheless, Plaintiff argues, Anderson would survive Daubert because he is qualified to testify regarding (i) deficiencies in Defendants' design plans, (ii) the degree of care and skill ordinarily exercised by architects in South Florida, (iii) whether Defendants fell below that standard, and (iv) all other topics for which he is designated. Id. at 9. Moreover, Plaintiff adds, Anderson's conclusions are based upon his review of all Defendants' files and application of his professional judgment formed by four decades of experience as an architect. Id. Thus, Plaintiff concludes, Anderson's opinions will assist the trier of fact because the professional standard of care in the field of architecture falls outside the common knowledge of lay persons. Id. at 13-14.
"Compliance with Rule 26's expert witness disclosure requirements is mandatory and self-executing." Warren v. Delvista Towers Condo. Ass'n, Inc., 2014 WL 3764126, at *1-2 (S.D. Fla. July 30, 2014) (citing Lohnes v. Level 3 Commc'ns, Inc., 272 F.3d 49, 51 (1st Cir. 2001)). "The purpose of the rule is to safeguard against surprise." Id. (citing Thibeault v. Square D Co., 960 F.2d 239, 244 (1st Cir. 1992)). Furthermore, the trial court's scheduling orders "control the course of the action unless the court modifies it." United States v. Marder, 318 F.R.D. 186, 189-90 (S.D. Fla. 2016) (citing Fed. R. Civ. P. 16(d)). "As scheduling orders set the expectations of the parties and the Court during the pretrial process, such orders 'should not be ignored blithely nor trifled with, without some peril or consequence.' " Id. (quoting Hudson v. I.R.S., 2007 WL 2295048, at *10 (N.D.N.Y. Mar. 27, 2007)). "Veritably, 'a scheduling order is the critical path chosen by the trial judge and the parties to fulfill the mandate of Rule 1.' " Id. at 190 (quoting Executive Risk Indem., Inc. v. Charleston Area Med. Ctr., Inc., 2010 WL 4117050, at *1 (S.D. W. Va. Oct. 19, 2010)) (internal citation and quotation omitted).
"A failure to comply with the expert witness disclosure requirements may result in the striking of expert reports or the preclusion of expert testimony." Warren, 2014 WL 3764126, at *1-2 (citations omitted). "Under Rule 37(c)(1), a district court clearly has authority to exclude an expert's testimony where a party has failed to comply with [expert witness disclosure] unless the failure is substantially justified or is harmless." OFS Fitel, LLC v. Epstein, Becker & Green, P.C., 549 F.3d 1344, 1363 (11th Cir. 2008); Fed. R. Civ. P. 37(c)(1).
"Federal Rule of Evidence 702 imposes a special obligation upon a trial judge to 'ensure that any and all scientific testimony . . . is not only relevant, but reliable.' " Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999). This gatekeeping function directs the court to "admit expert testimony only if it is both reliable and relevant." Rink v. Cheminova, Inc., 400 F.3d 1286, 1291 (11th Cir. 2005). The Court must "determine at the outset, pursuant to Rule 104(a), whether...
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