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Hightower v. Goldberg

United States District Court, M.D. Georgia, Columbus Division

January 4, 2018

ERMA HIGHTOWER, Plaintiff,
v.
GEORGE GOLDBERG and GOLDBERG & DOHAN, L.L.P., Defendants.

          ORDER

          CLAY D. LAND, CHIEF U.S. DISTRICT COURT JUDGE

         Defendants 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.[1]

         MOTION TO EXCLUDE PLAINTIFF'S EXPERT OPINION EVIDENCE

         Defendants 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.

         I. Compliance with the Federal Rules of Civil Procedure

         The 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.[2] 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) required).

         District 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.

         Although 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.

         II. Compliance with the Federal Rules of Evidence

         Under 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.

         Mr. 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 admissible.

         Defendants' 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.

         MOTION FOR SUMMARY JUDGMENT

         Plaintiff 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 ...


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