Whisenant v. Nelson

• Decision Date: 13 August 2021
• Docket Number: 2:20-cv-370-JES-NPM
• Parties: TAYLOR RENEE WHISENANT, a Putative Personal Representative of The Estate of Justin Emil Mason, Deceased, Plaintiff, v. WAYNE MICHAEL NELSON, Defendant.
• Court: U.S. District Court — Middle District of Florida

TAYLOR RENEE WHISENANT, a Putative Personal Representative of The Estate of Justin Emil Mason, Deceased, Plaintiff, v. WAYNE MICHAEL NELSON, Defendant.

No. 2:20-cv-370-JES-NPM

United States District Court, M.D. Florida, Fort Myers Division

August 13, 2021

OPINION AND ORDER

JOHN E. STEELE, SENIOR UNITED STATES DISTRICT JUDGE

This matter comes before the Court on the defendant's Motion for Summary Judgment (Doc. #22) filed on June 11, 2021. Plaintiff filed a Response in Opposition to Motion (Doc. #26) on July 12, 2021. Defendant also filed a Reply (Doc. #27) and plaintiff filed a Sur-Reply in Opposition (Doc. #32) by leave of Court and with exhibits under a Notice of Filing (Doc. #34).

I.

Summary judgment is appropriate only when the Court is satisfied that “there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “An issue of fact is ‘genuine' if the record taken as a whole could lead a rational trier of fact to find for the nonmoving party.” Baby Buddies, Inc. v. Toys “R” Us, Inc., 611 F.3d 1308, 1314 (11th Cir. 2010). A fact is “material” if it may affect the outcome of the suit under governing law. Anderson v. Liberty Lobby Inc., 477 U.S. 242, 248 (1986). “A court must decide ‘whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.'” Hickson Corp. v. N. Crossarm Co Inc., 357 F.3d 1256, 1260 (11th Cir. 2004) (quoting Anderson, 477 U.S. at 251).

In ruling on a motion for summary judgment, the Court views all evidence and draws all reasonable inferences in favor of the non-moving party. Scott v. Harris, 550 U.S. 372, 380 (2007); Tana v. Dantanna's, 611 F.3d 767, 772 (11th Cir. 2010). However, “if reasonable minds might differ on the inferences arising from undisputed facts, then the court should deny summary judgment.” St. Charles Foods, Inc. v. America's Favorite Chicken Co., 198 F.3d 815, 819 (11th Cir. 1999) (quoting Warrior Tombigbee Transp. Co. v. M/V Nan Fung, 695 F.2d 1294, 1296-97 (11th Cir. 1983) (finding summary judgment “may be inappropriate even where the parties agree on the basic facts, but disagree about the factual inferences that should be drawn from these facts”)). “If a reasonable fact finder evaluating the evidence could draw more than one inference from the facts, and if that inference introduces a genuine issue of material fact, then the court should not grant summary judgment.” Allen v. Bd. of Pub. Educ., 495 F.3d 1306, 1315 (11th Cir. 2007).

II.

The following are admitted and undisputed facts: Plaintiff filed this Florida wrongful death lawsuit against Nelson alleging that on April 11, 2019, Nelson's vehicle collided with a motorcycle operated by Justin Emil Mason in Charlotte County, Florida, causing Mason's death. Plaintiff alleges that Nelson carelessly and negligently operated or maintained the vehicle that cause the collision. Plaintiff alleges that Mason's estate is entitled to medical and funeral bills, loss of net accumulations, loss of consortium for Mason's mother and minor child. Nelson filed an Answer and Affirmative Defenses (Doc. #5). (Doc. #22, ¶¶ 1-6; Doc. #26, ¶¶ 1-6.) The remaining facts are disputed.

Defendant alleges that it is “undisputed” that Mason was performing a “wheelie” through the intersection of U.S. 41 North and Hancock. Plaintiff disputes that Mason was doing a wheelie with a contradictory Affidavit. (Id., ¶ 7, respectively.) Defendant alleges that it is “undisputed” that Nelson made a proper turn when the road was clear, plaintiff disputes this fact with the deposition testimony of Corporal Reed, the lead Traffic Homicide Detective. (Id., ¶ 8, respectively.) Defendant alleges that it is “undisputed” that Mason should have avoided the collision and that there is no evidence of negligence on Nelson's part. Plaintiff disputes these facts through the deposition of Corporal Reed. (Id., ¶¶ 9-10, respectively.)

Clearly, the material facts as to the wrongdoer in the fatal crash are genuinely disputed by plaintiff, however defendant objects to the admissibility of Reed's testimony. “A party may object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence.” Fed.R.Civ.P. 56(c)(1)(B). The Court will consider whether Corporal Reed's testimony may be considered in opposition to summary judgment.

III.

In his reply, defendant argues that plaintiff's exhibits are not proper summary judgment evidence because Corporal Reed's opinions and the police report are inadmissible evidence. Defendant argues that Reed was not disclosed as an expert witness and Reed cannot give lay opinion testimony as it would violate Florida's accident report privilege. Further, defendant argues that Reed's opinions lack foundation.^[1]

1. Timeliness

The Case Management and Scheduling Order (Doc. #14) set a deadline of July 20, 2020, for Rule 26(a)(1) initial disclosures, and a deadline for plaintiff of March 16, 2021, for disclosure of expert reports. Plaintiff sought an extension of the discovery and disclosure of expert reports deadlines. (Doc. #16.) In denying the motion, the Magistrate Judge made several relevant observations:

Meanwhile, Whisenant's expert report deadline expired on March 16, 2021, without any disclosure being served. (Doc. 18, pp. 4, 9). Although Nelson was not served with any plaintiff expert report, he timely served his expert disclosures of both an accident reconstructionist and human factors expert on April 5, 2021. (Doc. 18, pp. 3-4). Whisenant's deadline for any rebuttal expired on April 19, 2021, again, without any disclosure being served. (Doc. 18, p. 4).

. . . .

Furthermore, not only does Whisenant claim that she was somehow unable to timely disclose an expert (Doc. 18, p. 6), she apparently has not yet even retained an expert (Doc. 16, pp. 1, 3-4). But neither Covid-19 nor the absence of any deposition testimony prevented Nelson from retaining his experts one year before their reports were due (Doc. 18, p. 4), and timely serving their reports on April 5, 2021. (Doc. 18, pp. 3-4). And even if Whisenant had cogently explained why she could not retain and disclose an expert without first taking the deposition of Nelson, which she has not, with no good cause to extend the time to depose Nelson, there is no good cause to extend Whisenant's expert-disclosure deadline.

(Doc. #21, pp. 3, 6.) The Magistrate Judge also noted that plaintiff must show “excusable neglect” for not seeking an extension of the expert report deadline before its expiration, but “[s]ince she neither acknowledges nor makes any attempt to make this showing, she has failed to do so.” (Id., p. 5 n.1.)

“A schedule may be modified only for good cause and with the judge's consent.” Fed.R.Civ.P. 16(b)(4). The Court may extend a deadline “on motion made after the time has expired if the party failed to act because of excusable neglect.” Fed.R.Civ.P. 6(b)(1)(B).

Excusable neglect is a somewhat elastic concept and is not limited strictly to omissions caused by circumstances beyond the control of the movant. Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P'ship, 507 U.S. 380, 392, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993) (internal quotation marks and footnotes omitted). The decision whether neglect is excusable “is at bottom an equitable one, taking account of all relevant circumstances surrounding the party's omission.” Id. at 395 (determining meaning of term “excusable neglect” in context of bankruptcy rule). The Court should consider “the danger of prejudice to the [nonmovant], the length of the delay and its potential impact on judicial proceedings, the reason for the delay, including whether it was within the reasonable control of the movant, and whether the movant acted in good faith.” Advanced Estimating Sys., Inc. v. Riney, 77 F.3d 1322, 1325 (11th Cir.1996) (alteration in original) (quoting Pioneer Inv. Servs. Co.) (applying Pioneer analysis in context of Rule 4(a)(5), Federal Rules of Appellate Procedure). “Primary importance should be accorded to the absence of prejudice to the nonmoving party and to the interest of efficient judicial administration.”

Roberson v. Church, No. 3:09-CV-372-J-34MCR, 2009 WL 5067800, at *1 (M.D. Fla. Dec. 16, 2009).

Reed was deposed on September 21, 2020. (Doc. #26-1.) Plaintiff identified Reed in initial disclosures on or about October 2, 2020^[2], as a potential witness as an assigned traffic homicide investigator with the Florida Highway Patrol. (Doc. #34-1.) Plaintiff also identified Reed as a hybrid expert as to the facts and findings of the accident and causation on or about June 4, 2021, as a supplemental disclosure. (Doc. #34-2.) Both disclosures were made outside the deadlines but were made without any objection to the late disclosure. Defendant also had the opportunity to depose Reed, examine the crash report and its exhibits, and to consider what testimony would be given. Considering that the parties were aware of the expert nature of the testimony, the Court cannot find prejudice. The Court finds excusable neglect in the failure to label Reed as an expert in a timely fashion.

2. Expert or Lay Opinion

Inadmissible hearsay may be considered by a court when ruling on a summary judgment motion, but it cannot be used “to defeat summary judgment when that hearsay will not be reducible to admissible form at trial.” Pritchard v. S. Co Servs., 92 F.3d 1130, 1135 (11th Cir.), amended on reh'g in part, 102 F.3d 1118 (11th Cir. 1996). See also Macuba v. Deboer, 193 F.3d 1316, 1323 (11th Cir. 1999) (“Some courts, including our own, appear to have restated the general rule to hold that a district court may consider...