United States District Court, S.D. Georgia, Statesboro Division
RANDAL HALL, CHIEF JUDGE UNITED STATES DISTRICT COURT.
the Court are Plaintiff (doc. 57) and Defendant's (doc.
28) motions to exclude expert witness testimony and
Defendant's motion for summary judgment. (Doc. 27.) The
Clerk has given Plaintiff notice of the summary judgment
motion and the summary judgment rules, of the right to file
affidavits or other materials in opposition, and the
consequences of default. Therefore, the notice requirements
of Griffith v. Wainwright, 772 F.2d 822, 825 (11th
Cir. 1985) (per curiam), have been satisfied. For the
following reasons, Plaintiff and Defendant's motions to
exclude expert testimony (docs. 28, 57) are
DENIED and Defendant's motion for
summary judgment (doc. 27) is GRANTED IN
PART and DENIED IN
January 2016, Plaintiff Carrie Finch's daughter, Donna
Finch, discovered damage to the roof of Plaintiff's
house.(Donna Finch Dep., Doc. 27-1, 33:17-21.)
The damage was caused by a hailstorm that passed over the
house in June 2015. (Dukes Dep., Doc. 27-2, 31:2-4.) After
noticing the damage, Plaintiff filed a claim with Defendant
Owners Insurance Company under the Plaintiff's homeowners
insurance policy ("the Policy"). (Donna Finch Dep.,
claim adjuster John Dukes inspected the house on January 19,
2016. (Dukes Dep., 32:2-14.) After deciding the roof was
damaged by hail, Defendant mailed a check for the estimated
cost of repairing the roof. (Id.) Plaintiff replaced
the roof sometime between April and May 2016. (Minick Dep.,
Doc. 27-4, 25:19-21.)
mid-February 2016, before Plaintiff had replaced her roof,
she learned that the house had mold damage. (Darrell Finch
Dep., Doc. 27-3, 57-60.) Plaintiff filed a new claim and Mr.
Dukes brought engineer Ron Powers to inspect the home on
February 23, 2016. (Dukes Dep., 54:7-15.) Mr. Powers told Mr.
Dukes that the cause of the mold damage was surface water,
improper construction, and inadequate maintenance.
(Id. at 84:3-6.) Defendant, however, claims the
Policy does not cover such damages. On March 10, 2016,
Plaintiff received Defendant's coverage position letter
refusing to pay for the mold damage. (Dukes Dep., 78:13-16.)
25, 2016, Plaintiff sent a demand to have Defendant pay for
the mold damage. (Compl., ¶ 38.) The parties could not
come to an agreement, and Plaintiff filed suit for breach of
contract and bad faith refusal to pay a claim in the Superior
Court of Screven County, Georgia. (Id. at 1.)
Defendant removed the action on the basis of diversity
jurisdiction on December 13, 2016. (Doc. 1-2.)
to the original scheduling order, Plaintiff had until March
19, 2017, to furnish any expert witness report. (Doc. 9.) On
March 16, 2017, Plaintiff disclosed the expert witness
reports of Stuart Gregory, Frank Parson, Susan Cox, and Tim
Durden. (Doc. 28, Exs. A.-C.) On May 9, 2017,
Defendant complained that the reports of Mr. Gregory, Ms.
Cox, and Mr. Durden did not satisfy Federal Rule of Civil
Procedure 26(a)(2)(B). (Doc. 34-1, 27.) Plaintiff disclosed
supplemental reports for those experts on May 23, 2017.
(Id. at 37, 42) However, Defendant claims
Plaintiff's supplemental reports were still insufficient.
5, 2017, Defendant's counsel met with Mr. Gregory during
Mr. Gregory's investigation into the cause of the mold
damage. (Rountree Aff., Doc. 51-1, ¶ 4.) However, on
June 26, 2017, Defendant informed Plaintiff that it would not
depose Mr. Gregory and intended to challenge Mr. Gregory, Mr.
Durden, and Ms. Cox's testimony because of
Plaintiff's untimely disclosure. (Doc. 34-1, 99.)
Plaintiff subsequently had Mr. Gregory submit a more
comprehensive report. (Id. at 141.) However, at the
close of discovery on July 3, 2017, Mr. Gregory, Mr. Durden,
and Ms. Cox had still not been deposed.
Defendant's Motion to Exclude Expert
Defendant argues that all Plaintiff's experts should be
excluded because Plaintiff's expert witness reports were
untimely and inadequate. Under Federal Rule of Civil
Procedure 26(a)(2)(B), a party must identify any expert
witness it intends to use at trial. Additionally, ninety days
before trial or at a date set by the Court, the party must
produce an expert witness report. Fed.R.Civ.P. 26(a)(2)(B).
An expert witness report should facilitate the discovery
process by helping parties prepare cross-examination and find
rebuttal experts. See Abdulla v. Klosinski, 898
F.Supp.2d 1348, 1357 (S.D. Ga. 2012). District courts have
"wide latitude" to exclude inadequate or untimely
expert witness reports. See Bearint ex rel. Bearint v.
Dorell Juvenile Group, Inc., 389 F.3d 1339, 1349 (11th
Stuart Gregory's Testimony Will not be Excluded
complains that Mr. Gregory's initial report, which was
disclosed by March 19, 2017, was inadequate. Pursuant to Rule
26(a)(2)(B), an expert witness report must contain:
(i) a complete statement of all opinions the witness will
express and the basis and reasons for them;
(ii) the facts or data considered by the witness in forming
(iii) any exhibits that will be used to summarize or ...