United States District Court, M.D. Georgia, Columbus Division
D. LAND, CHIEF U.S. DISTRICT COURT JUDGE
represented Plaintiff in a case arising from a car wreck.
After they filed a lawsuit against the at-fault driver on
Plaintiff's behalf, Defendants failed to respond to a
discovery related motion. The trial judge dismissed the
action with prejudice and assessed attorney's fees and
costs against Plaintiff. Plaintiff then brought a legal
malpractice action against Defendants in state court, which
Defendants subsequently removed to this Court based on
diversity of citizenship. Defendants now move for summary
judgment. In support of that motion, they seek to exclude the
testimony of Plaintiff's expert. As explained in the
remainder of this Order, Defendants' motion to exclude
(ECF No. 49) is denied. And because genuine factual disputes
exist to be tried, Defendants' motion for summary
judgment (ECF No. 50) is also denied except as to
Plaintiff's breach of fiduciary duty claim.
TO EXCLUDE PLAINTIFF'S EXPERT OPINION EVIDENCE
seek to exclude the testimony of Plaintiff's expert
because Plaintiff failed to comply with this Court's
scheduling order and with Federal Rule of Civil Procedure
26(a)(2), and in the alternative, because the testimony is
inadmissible under Federal Rule of Evidence 702 as
interpreted by Daubert v. Merrell Dow Pharmaceuticals,
Inc., 509 U.S. 579 (1993) and its progeny. The Court
rejects both arguments.
Compliance with the Federal Rules of Civil Procedure
scheduling order entered in this case required Plaintiff to
designate any expert witnesses and provide Defendants with
their reports no later than May 23, 2017.
Scheduling/Discovery Order 3-4, ECF No. 12. Defendants did
not receive any materials styled as Plaintiff's expert
disclosure until Plaintiff belatedly responded to their
motion to exclude expert testimony. See Pl.'s
Resp. to Defs.' Mot. to Exclude Ex. A, R. Beauchamp
Expert Report, ECF No. 51-1. But when Plaintiff initially
filed this action in state court, Plaintiff attached to her
Complaint an affidavit from her expert. See Notice
of Removal Ex. 1, Compl. Ex. A, R. Beauchamp Aff., ECF No.
1-1 at 10-17. Because that affidavit did not include all of
the information Rule 26(a)(2)(B) requires, and because
Plaintiff did not disclose a complete expert report before
the Court's deadline expired, Plaintiff failed to comply
with her disclosure obligations under Rule 26. See OFS
Fitel, LLC v. Epstein, Becker and Green, P.C.,
549 F.3d 1344, 1362 (11th Cir. 2008) (finding plaintiff
violated Rule 26 where plaintiff disclosed its expert report
after the close of discovery and plaintiff's filing
affidavit did not include the information Rule 26(a)(2)(B)
courts are authorized “to exclude an expert's
testimony where a party has failed to comply with Rule 26(a)
unless the failure is substantially justified or is
harmless.” Id. at 1363 (citing
Fed.R.Civ.P. 37(c)). The expert affidavit Plaintiff filed
with her Complaint included everything a Rule 26 expert
report requires except a statement of Mr. Beauchamp's
compensation, a list of publications he has authored within
the last ten years, and a list of court proceedings in which
he has testified as an expert in the last four years. denied.
The Court admonishes Plaintiff's counsel to follow the
rules of this Court going forward. The slackness of
Plaintiff's counsel is But, as it turns out, Mr.
Beauchamp has not authored any publications within the last
ten years or testified as an expert in any proceedings in the
last four years. Except for Mr. Beauchamp's compensation,
the Plaintiff's filing affidavit, therefore, contained
the essential information that would have been included in
her expert report pursuant to Rule 26.
Plaintiff failed to comply with Rule 26, Defendants had
available to them information that substantially complied
with the expert disclosure requirements of Rule 26. And
Defendants demonstrated no prejudice caused by
Plaintiff's non-compliance. The Court notes that
Defendants designated their own expert to rebut Mr.
Beauchamp's opinions despite Plaintiff's belated
disclosure, and there is no evidence in the record that
Defendants were unable to depose Mr. Beauchamp before the
close of discovery. Consequently, the Court finds that
Plaintiff's failure to timely disclose her expert report
is harmless, and the Court will not exclude Mr.
Beauchamp's opinions on this ground.
Compliance with the Federal Rules of Evidence
Federal Rule of Evidence 702, the Court must serve as the
“gatekeeper to keep out irrelevant or unreliable expert
testimony.” United States v. Ala. Power Co.,
730 F.3d 1278, 1282 (11th Cir. 2013) (citing Kumho Tire
Co. v. Carmichael, 526 U.S. 137, 145 (1999) and
Daubert, 509 U.S. at 596). In evaluating the
admissibility of expert testimony under Rule 702, the Court
must consider whether “(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 . . .; and (3) the
testimony assists the trier of fact . . . to understand the
evidence or to determine a fact in issue.” United
States v. Frazier, 387 F.3d 1244, 1260 (11th Cir. 2004)
(en banc) (quoting City of Tuscaloosa v. Harcros Chems.,
Inc., 158 F.3d 548, 562 (11th Cir. 1998)). At this stage
of the proceedings, Defendants do not contest Mr.
Beauchamp's qualifications, methodology, or the relevance
of his opinions. They argue that his opinions are unreliable
because Mr. Beauchamp failed to consider certain facts that
were revealed later in discovery.
Beauchamp stated the facts and documents he relied on and
explained that he used his background, training, and
experience as an attorney licensed in Georgia with experience
representing personal injury claimants to formulate his
opinions. Applying that methodology, Mr. Beauchamp opined
that Defendants breached the applicable standard of care,
that their breach caused Plaintiff's state court case to
be dismissed, and that, absent Defendants' breach,
Plaintiff likely would have prevailed in state court. R.
Beauchamp Expert Report, ECF No. 51-1 at 4-11. The Court
finds that Mr. Beauchamp is qualified to give the opinions
contained in his expert report, that his methodology is
sufficiently reliable, and that those opinions would assist
the trier of fact in this case. His opinions are thus
objections go to the weight and credibility of Mr.
Beauchamp's opinions, not their reliability. If Mr.
Beauchamp failed to consider certain facts in forming his
opinions, Defendants will be able to vigorously cross examine
him, present their own expert testimony, and tell the jury
why they believe his opinion should not be believed.
Accordingly, Defendants' motion to exclude Mr.
Beauchamp's opinions is denied.
FOR SUMMARY JUDGMENT
asserts claims for legal malpractice and breach of fiduciary
duty. She seeks compensatory and punitive damages as well as
litigation expenses, including attorney's fees.
Defendants move for summary judgment as to all of
Plaintiff's claims. They maintain that no reasonable
juror could conclude that they breached the applicable duty
of care that they owed to Plaintiff; they also argue that a
litigant cannot pursue both a claim for legal malpractice and
breach of fiduciary duty under Georgia law. And to the extent
that a genuine factual dispute exists ...