United States District Court, S.D. Georgia, Statesboro Division
RANDALL HALL, CHIEF JUDGE UNITED STATES
the Court is Defendant's motion to amend the Scheduling
Order allowing Defendant to submit a renewed motion to
exclude the testimony of Plaintiff's expert witnesses.
(Doc. 73.) For the following reasons, Defendant's motion
is GRANTED IN PART and DENIED IN PART.
case involves Defendant's denial of Plaintiff's
insurance claim. (Doc. 65, at 3.) At the heart of the dispute
is whether the damage to Plaintiff's house was caused by
a hailstorm or groundwater. (Id.) Given the
technical nature of this question, expert testimony is
critical to both parties. However, during discovery,
Plaintiff failed to timely disclose expert witness reports
for several of her witnesses. Defendant responded by moving
to exclude four of Plaintiff's expert witnesses in
accordance with Federal Rule of Civil Procedure 26(a)(2)(B).
Defendant's motion also challenged the reliability of
Plaintiff's causation expert, Stewart Gregory, pursuant
to Daubert v. Merrell Dow Pharms., Inc., 509 U.S.
579, 588-89 (1983). On December 12, 2017, the Court denied
Defendant's motion, finding that the prejudice to
Defendant could be cured by re-opening discovery and
providing attorney's fees, and that Mr. Gregory's
testimony was based on reliable methodology. (Doc. 65, at
parties were then given until December 31, 2017 to hold
depositions for Mr. Gregory and Plaintiff's damages
expert, Frank Parson. (Doc. 65.) Defendant alleges that Mr.
Gregory's deposition revealed previously unknown flaws in
the methodology underlying his testimony. Defendant also
claims that Plaintiff has continued to engage in discovery
violations. Specifically, during his deposition, Mr. Gregory
allegedly relied on three photographs that were not included
in his expert report. Defendant also claims that Plaintiff
did not disclose Mr. Parson's updated expert witness
report regarding depreciation until the day of his
now moves the Court to modify its Scheduling Order to give
Defendant an additional fourteen days to draft a motion to
exclude the testimony of Mr. Gregory and Mr. Parson. A
scheduling order can be "modified only for good cause
and with the judge's consent." Fed.R.Civ.P. 16(b).
The movant must show it could not honor the original
scheduling order despite exercising reasonable diligence.
Sosa v. Airprint Sys., Inc., 133 F.3d 1417, 1418
(11th Cir. 1998).
has shown good cause to modify the Scheduling Order with
respect to challenging the reliability of Mr. Gregory's
testimony. In its Order, the Court voiced its reluctance to
grant Defendant's motion before Mr. Gregory's
deposition. Yet Defendant was forced to file its motion
before taking Mr. Gregory's deposition because Plaintiff
had not timely disclosed Mr. Gregory's expert witness
report. Defendant should have the opportunity to challenge
Mr. Gregory's testimony using all of the information to
which Defendant was entitled. Accordingly, the Court will
modify the Scheduling Order to allow Defendant's
has also shown good cause to challenge Mr. Gregory's
testimony due to Plaintiff's alleged discovery violation.
An expert witness report must include "the facts or data
considered by the witness in forming [his opinion]."
Fed.R.Civ.P. 26(a)(2). By failing to include these
photographs in Mr. Gregory's expert witness report,
Plaintiff violated Federal Rule of Civil Procedure 26(a)(2).
Accordingly, Defendant will be given the opportunity to
explain why those photographs should be excluded from Mr.
fails to show good cause to amend the Scheduling Order with
respect to Mr. Parson's testimony. Defendant claims that
it was unfairly surprised during Mr. Parson's deposition
because Plaintiff failed to disclose Mr. Parson's
depreciation deduction. Grand Reserve of Columbus, LLC v.
Prop.-Owners Ins. Co., 2018 WL 286112 (11th Cir. Jan. 4,
2018), which also dealt with a depreciation deduction, is
almost directly on point. There, the plaintiff's expert
was allowed to testify about actual cash value after the
defendant rested its case. On appeal, the Eleventh Circuit
rejected the defendant's argument that it had been
prejudiced by the late disclosure. The court explained that
depreciation was an uncomplicated process which the defendant
was familiar with and knew was the proper measure of damages.
Id. at *2. As in Grand Reserve,
Defendant's experts are familiar with the software Mr.
Parson used to calculate depreciation. (See Dukes
Dep., Doc. 27-2, at 31.) Furthermore, given that the Court
instructed Plaintiff to make these changes, Defendant knew
Mr. Parson's deposition would involve depreciation.
Because Defendant was not prejudiced by Plaintiff's late
disclosure, a motion to exclude Mr. Parson's testimony on
such grounds would be futile.
the foregoing, IT IS HEREBY ORDERED that
Defendant's motion to amend the Scheduling Order
(doc." 73) is GRANTED IN PART and DENIED IN
PART. Within fourteen days after this Order is
entered, Defendant may file a motion (1) challenging the
reliability of Mr. Gregory's testimony, and (2)
explaining why he should not be allowed to testify about the
photographs that were not in his expert witness
 Mr. Parson amended his report after
the Court found that the proper measure of damages should
include a depreciation deduction.
 Because Defendant will be allowed to
challenge Mr. Gregory's testimony, Plaintiff's motion
for a trial date ...