In Dero Roofing, LLC v. Triton, Inc., Case No. 2:21-cv-688-SPC-KCD. (M.D. Fla. 2023), a federal trial judge in the Middle District consider the issue of whether an estimate prepared either by a public adjuster or–perhaps–a roofer hired by the public adjuster could serve as a written expert report sufficient to satisfy rule 26’s requirements when combined with the disclosure of the subject of his opinions. The court’s order is an example of how a lawyer must be on his “A game” when litigating in federal court. The subject of expert testimony at issue was damages, and the public adjuster’s estimate and photographs pretty much sums up what any public adjuster’s expert opinion would be in such a case, the court essentially held that a “narrative report” is needed in the way an expert on liability issues might write one.

To be clear, the court did not exactly hold that, but that is my read-between-the-lines analysis. In first-party property insurance cases litigated in Florida’s state courts–although many lawyers and judges don’t particularly understand this point–a written expert report is not required at all. Experts often create one, but they don’t have to. Often the public adjuster’s (or a contractor’s) estimate combined with photos serves as “the expert report.”

Let’s look at what the court in Dero Roofing said. The court was considering the defendant Triton’s Motion to Strike Expert Report and Exclude Opinions and Testimony of Mr. Rodney Flynn.

Triton sold a product called Tritocryl, which Dero purchased and applied as part of two roof renovations. Dero alleged design and manufacturing defects caused the product to fail, resulting in “significant damage” to each building. Dero sued Triton for introducing a defective product “into the stream of commerce.”

In support of its claim for damages, Dero intended to offer the testimony of an expert—Rodney Flynn. Dero’s expert disclosure supplied the broad outlines of his anticipated testimony: Mr. Rodney Flynn c/o R-D Adjusting, Inc. 4921 Palmetto Dr Fort Pierce, FL 34982 (772) 201-2428 Report dated: November 1, 2021.

Rodney Flynn works for a licensed public adjuster in Florida and was hired to perform an inspection of the subject properties on or around November 17, 2021 and create a damage report for those damages caused by the failure of Tritocryl 2k, and is expected to testify as to the line item replacement costs of each specific damage associated with quantities, unit pricing, and areas including but not limited to the pitched roof, the flat roof, the exterior, the pool area, and screen enclosures of the subject properties.

(Doc. 127-1.)

Along with the disclosure, Dero provided Triton with two repair estimates from November 2021. The repair estimates were itemized lists that identified the cost of materials and labor needed to repair the allegedly damaged property. The estimates were reportedly prepared using a computer program called “Xactimate.” Photographs of the damaged property were also included with the estimates.

Triton moved to “strike Mr. Flynn . . . and bar Dero from utilizing his testimony on any motion, at any hearing, or at trial[.]” This relief was appropriate, according to Triton, because Dero had not properly disclosed Flynn as an expert under Federal Rule of Civil Procedure 26(a)(2). Specifically, Dero failed “to submit anything even remotely resembling an expert report.”

Donner Law Firm comment: First of all, that contention is an example of extreme “form over substance” and hyberbole. Of course it, at least, remotely resembled an expert report! It was all that was needed–except, perhaps, being signed by the expert (see below). For any evidentiary issue, the lawyer and judge must always ask the question: for what is the potential evidence offered? In this case, the judge and hyperbolic lawyer were considering the issue of damages. The expert was a public adjuster (or roofer) who gave a detailed Xactimate estimate on damages, along with photographs. Of course that at least “resembled” an expert report, even if it didn’t say “Expert Report” at the top and include paragraphs in narrative form.

Turning to its discussion of the law, the court noted that Rule 26 of the Federal Rules of Civil Procedure governs expert witness discovery. Fed. R. Civ. P. 26(a). It is designed to prevent litigation by surprise and ensure each party can “prepare their cases adequately.” Reese v. Herbert, 527 F.3d 1253, 1265-66 (11th Cir. 2008). To meet this goal, Rule 26 requires litigants to disclose each expert witness they may call at trial. Fed. R. Civ. P. 26(a)(2)(A).

Rule 26 sets different disclosure requirements for retained and non-retained experts. The distinction between retained experts, whose disclosures are subject to Rule 26(a)(2)(B), and non-retained experts, whose disclosures are governed by Rule 26(a)(2)(C), turns on “when and why an expert witness was hired,” rather than the subject of the expert’s testimony. Cedant v. United States, 75 F.4th 1314, 1324 (11th Cir. 2023). A retained expert is a witness “retained or specially employed to provide expert testimony in the case or one whose duties as the party’s employee regularly involve giving expert testimony.” Fed. R. Civ. P. 26(a)(2)(B).

Disclosures for retained experts must include, among other things, “a written report containing a complete statement of all opinions the witness will express and the basis and reasons for them[.]” Dobbs v. Allstate Indem. Co., No. 21-13813, 2022 WL 1686910, at *2 (11th Cir. May 26, 2022). Non-retained experts, on the other hand, need not provide a written report. Instead, the disclosing party must summarize the subject matter of the expert’s testimony, the opinions they will offer, and the facts on which their opinions are based. Fed. R. Civ. P. 26(a)(2)(C)(i)-(ii).

Neither party disputed that Flynn was a retained expert. Dero hired him to inspect the property and create a damage report. And both tasks were performed after the lawsuit was filed. Flynn was thus a retained expert hired to support Dero’s theory of the case, rather than someone engaged to assess the cause and extent of an injury outside the litigation process.

The court noted again that a retained expert must provide a report. The court concluded, “There is no written, signed report from Flynn here. Instead, Dero has provided Triton with two repair estimates.” Judge, who says a “report” has to use letters as opposed to numbers? The judge got drawn into the moving party’s lawyer’s frame.

According to Dero, the estimates were sufficient when combined with Flynn’s expert disclosure because they included “a complete statement regarding the opinions to be made.” I agree.

The court concluded these facts presented a straightforward question: do the documents provided by Dero satisfy Rule 26(a)(2)(B)’s requirements for an expert report? The court held the answer was no, noting:

When interpreting the Federal Rules of Civil Procedure, “a court’s proper starting point lies in a careful examination of the ordinary meaning and structure of the [rule] itself.” Food Mktg. Inst. v. Argus Leader Media, 139 S. Ct. 2356, 2364 (2019); see also Bus. Guides, Inc. v. Chromatic Commc’ns Enterprises, Inc., 498 U.S. 533, 540-41 (1991) (“We give the Federal Rules of Civil Procedure their plain meaning.”). Looking at the plain language of Rule 26(a)(2)(B), an expert report must be “prepared and signed by the witness.” Fed. R. Civ. P. 26(a)(2)(B). And it must include the items in subsections (i) through (vi). Fed. R. Civ. P. 26(a)(2)(B). An expert report that does not contain these elements is deficient.

The court concluded:

The documents provided by Dero—whether considered individually or together—do not meet the requirements of Rule 26. Indeed, they contain none of the elements of a proper expert report. See Cape Christian Fellowship, Inc. v. Landmark Am. Ins. Co., No. 2:20-CV-410-JLB-NPM, 2022 WL 971776, at *9 n.12 (M.D. Fla. Mar. 31, 2022); Kendall Lakes Towers Condo. Ass’n, Inc. v. Pac. Ins. Co., No. 10-24310-CIV, 2011 WL 6372198, at *4 (S.D. Fla. Dec. 20, 2011).

Beginning with the most elementary problem, said the court, nothing was signed by Flynn. See Fed. R. Civ. P. 26(a)(2)(B). “[A] Rule 26(a)(2)(B) written report must be prepared and signed by [the] expert.” Cedant, 75 F.4th at 1320 (emphasis added). This did not appear to be a simple omission either. The estimates suggested someone else may have been the author. Dero’s response only adds to this uncertainty by providing the Court with contradictory representations of Flynn’s role. (I have to say the Court has a point here.)

Statements of Flynn’s qualifications and whether he has testified as an expert were also absent. See Fed. R. Civ. P. 26(a)(2)(B)(iv)-(v). While Dero’s response to the pending motion tried to fill these gaps, the information should have been provided to Triton during the discovery period, within an expert report, concluded the court. See Cedant, 75 F.4th at 1319-20.

Rule 26 further requires “a complete statement of all opinions the witness will express and the basis and reasons for them.” Fed. R. Civ. P. 26(a)(2)(B)(i); Schenone v. Zimmer Holdings, Inc., No. 3:12-CV-1046-J-39MCR, 2014 WL 9879924, at *18 (M.D. Fla. July 30, 2014) (explaining that an expert report must “include the substance of the testimony which [they are] expected to give on direct examination together with the reasons therefor”). This includes the disclosure of “any material considered by the expert, from whatever source, that contains factual ingredients.” Elevate Fed. Credit Union v. Elevations Credit Union, 67 F.4th 1058, 1069 (10th Cir. 2023). “Expert reports can be stricken if they offer conclusory opinions and do not contain some discussion of [the expert’s] reasoning and [the] thought process that lead to the[] ultimate opinions.” Glowner v. Muller-Martini Mailroom Sys., Inc., No. 8:09-CV-01768-EAK, 2012 WL 276193, at *2 (M.D. Fla. Jan. 31, 2012). Simply put, an expert report that does not explain “how” and “why” does not comply with Rule 26. Schenone, 2014 WL 9879924, at *18.

It is here that I think the court went too far:

Dero’s repair estimates project a total cost of $386,895.04 to be apportioned among various items. But neither the estimates nor the expert disclosure tell us how Flynn arrived at that figure. (Yes they did–Xactimate.) For example, despite Dero’s declaration that Flynn’s testimony is essential because he is the only person to have inspected the property (Doc. 129 at 4-5), the estimates do not link the contemplated scope of work to any observations Flynn made. In fact, the repair estimates do not mention any of Flynn’s observations. They also fail to explain how Flynn determined the scope of work to be performed or how he used Xactimate to generate the estimate. (Not needed.) In short, the repair estimates do not include all of Flynn’s opinions or explain how he arrived at the figures reported. Thus, the estimates do not satisfy Rule 26. See, e.g., Cape Christian Fellowship, Inc., 2022 WL 971776, at *9 n.12.

The documents from Dero also lacked any mention of how Flynn was to be compensated. Under Rule 26, an expert report must state how the expert will be paid. Fed. R. Civ. P. 26(a)(2)(B)(vi). Dero claimed it was relieved of this obligation because Flynn’s employer, RD Adjusting, will recover only if the case settles. The Court failed to see how Dero’s arrangement with RD Adjusting nullifies Rule 26’s text. Dero needed to disclose the contingency fee agreement with RD Adjusting. Its omission was yet another deficiency, according to the court. See OFS Fitel, LLC v. Epstein, Becker & Green, P.C., 549 F.3d 1344, 1362 (11th Cir. 2008) (“Rule 26 mandates that an expert’s written report contain specific information—such as the expert’s compensation for study and testimony[.]”).

Rather than defend its conduct under Rule 26, Dero sought to shift the burden to Triton. According to Dero, Triton could have acquired the information it sought by simply deposing Flynn. But “[a]n expert report must be so complete that opposing counsel is not forced to depose an expert in order to avoid ambush at trial.” Calhoune v. Ford Motor Co., No. 17-61702-CIV, 2018 WL 7287871, at *1 (S.D. Fla. Dec. 26, 2018). More to the point, “Rule 26(a)(2) does not allow parties to cure deficient expert reports by supplementing them with later deposition testimony.” Moore v. GNC, Holdings, Inc., No. 12-61703-CIV, 2014 WL 12684287, at *4 (S.D. Fla. Jan. 24, 2014). The court concluded:

It was Dero’s burden to ensure compliance with Rule 26. Having failed to do so, Dero cannot shift the blame to Triton. To hold otherwise would render Rule 26’s requirements superfluous.

The court also noted, “[C]ompliance with the requirements of Rule 26 is not merely aspirational.” Long v. E. Coast Waffles, Inc., 762 F. App’x 869, 870 (11th Cir. 2019). Instead, it “is necessary to allow both sides . . . to prepare their cases adequately and to prevent surprise.” Roster v. GeoVera Specialty Ins. Co., No. 2:21-CV-806-JLB-KCD, 2023 WL 1824563, at *3 (M.D. Fla. Jan. 3, 2023). When a party fails to provide information required by Rule 26, as here, “the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless.” Fed. R. Civ. P. 37(c)(1).

Rule 37(c) thus empowers courts to strike an expert unless the violation of Rule 26 was substantially justified or harmless. Guevara v. NCL (Bahamas) Ltd., 920 F.3d 710, 718 (11th Cir. 2019). While exclusion of an expert can be a drastic remedy, “[t]he law is well-settled that district courts have broad discretion to exclude expert-witness testimony that is untimely or fails to satisfy the procedural requirements of Rule 26(a)(2).” Carmody v. State Farm Mut. Auto. Ins. Co., No. 6:14-CV-830-ORL-37, 2015 WL 2169226, at *2 (M.D. Fla. May 8, 2015); see also Rodriguez v. Walmart Stores E., L.P., No. 21-14300, 2022 WL 16757097, at *2 (11th Cir. Nov. 8, 2022).

The party who violated Rule 26 bears the burden of establishing its noncompliance was substantially justified or harmless. Mitchell v. Ford Motor Co., 318 F. App’x 821, 824 (11th Cir. 2009). Starting with the former, “[f]ailure to comply with Rule 26(a) is substantially justified when a reasonable person would be satisfied that [the] parties could differ as to whether the party was required to comply with the disclosure request.” WM Aviation, LLC v. Cessna Aircraft Co., No. 611CV2005ORL18GJK, 2013 WL 12392477, at *3 (M.D. Fla. Apr. 12, 2013). “The proponent’s position must have a reasonable basis in law and fact.” Id. “The test is satisfied if there is [a] genuine dispute concerning compliance.” Id.

Dero did not argue its conduct was substantially justified. Nor could it, according to the court. As discussed, Rule 26(a)(2)(B) clearly states what an expert report must include. There could be no genuine dispute, concluded the court, that the documents from Dero fell well short of what is required. See, e.g., Armstead v. Allstate Prop. & Cas. Ins. Co., No. 1:14-CV-586-WSD, 2016 WL 878507, at *2 (N.D. Ga. Mar. 8, 2016) (rejecting estimates submitted as an expert report because they did not “meet even the basic requirements of Rule 26”); see also Touch of Class II v. Scottsdale Ins. Co., No. 218CV419FTM99MRM, 2019 WL 5085310, at *2 (M.D. Fla. May 28, 2019).

Thus, the Court turned to the second escape hatch—harmlessness. Courts have “broad discretion” in this area. Superior Consulting Servs., Inc. v. Shaklee Corp., No. 616CV2001ORL31GJK, 2018 WL 3059995, at *6 (M.D. Fla. May 31, 2018). In considering whether a Rule 26(a)(2) violation is harmless, five factors are typically weighed: “(1) the surprise to the party against whom the evidence would be offered; (2) the ability of that party to cure the surprise; (3) the extent to which allowing the evidence would disrupt the trial; (4) the importance of the evidence; and (5) the non-disclosing party’s explanation for its failure to disclose the evidence.” Gulfpoint Constr. Co., Inc. v. Westfield Ins. Co., No. 2:22-CV-86-SPC-NPM, 2023 WL 3304261, at *1 (M.D. Fla. May 7, 2023).

Only the fourth factor, concluded the court, provided Dero shelter. Flynn’s testimony and repair estimates are seemingly critical. Without Flynn, Dero’s case may well end. See Lowery v. Sanofi-Aventis LLC, 535 F. Supp. 3d 1157, 1172 (N.D. Ala. 2021) (“An essential element of all product liability cases is expert testimony.”). Everything else, said the court, weighed against excusing noncompliance.

Starting with the first factor, which considers surprise to the opposing party, “the expert disclosure rule is intended to provide opposing parties reasonable opportunity to prepare for effective cross examination and perhaps arrange for expert testimony from other witnesses.” Reese, 527 F.3d at 1265. Dero’s expert disclosure allowed for none of this. Because of the perfunctory nature of Flynn’s estimates, Triton’s attorneys and experts could not evaluate or rebut the documented figures or the reasoning behind them. This surely undermined Triton’s ability to prepare a defense. “The disclosure requirements of Rule 26(a)(2) are intended to prevent precisely this type of surprise.” Armstead, 2016 WL 878507, at *2.

As for the second factor—ability to cure the surprise—Triton asked Dero to provide the information called for in Rule 26 before the end of discovery. (Doc. 131-1, Doc. 131-2.) But Dero backed itself into the discovery deadline, thus denying Triton the opportunity to cure any surprise that would result from Dero’s failure to comply with Rule 26. Again, Dero asserts that fault lies with Triton for not deposing Flynn. (Doc. 129 at 5.) But “Rule 26(a)(2) does not allow parties to cure deficient expert reports by supplementing them with later deposition testimony.” Moore, 2014 WL 12684287, at *4.

Under the third factor, which considers disruption, allowing Dero to belatedly comply with Rule 26 would interrupt these proceedings, concluded the court. Discovery has closed and Triton is seeking summary judgment. So this case would take a significant step back if discovery reopened. To be sure, reopening discovery is an option. Yet that need not be done where there is undue delay by the disclosing party. Perrigo Co. v. Merial Ltd., No. 1:15-CV-03674-SCJ, 2018 WL 11350563, at *6 (N.D. Ga. Apr. 30, 2018). Triton informed Dero of the deficiencies in its expert disclosure before discovery closed. (Doc. 131-1, Doc. 131-2.) Dero opted to do nothing with that information and instead sat on its hands. Under those circumstances, the Court concluded it did not need to give Dero a second bite at the apple.

Finally, regarding the fifth factor, Dero offered no explanation for its failure to follow Rule 26. It’s not as if Rule 26 is newly enacted or vague, said the court harshly. The requirements are well-known and straightforward. By all accounts, Dero could have complied with Rule 26. See Armstead, 2016 WL 878507, at *2 n.3 (“[T]he straightforward requirements of Rule 26(a)(2) [are] routinely met by parties litigating in federal court.”).

On balance, the Court was not convinced that Dero should be allowed to belatedly amend Flynn’s expert disclosure. Taking that path will derail the case, prejudice Triton, and essentially reward Dero for its dereliction. These, concluded the court, were the exactly the circumstances where Rule 37 envisions preclusion. See, e.g., Mars v. Macy’s Fla. Stores, LLC, No. 0:19-CV-60687, 2019 WL 9078707, at *3 (S.D. Fla. Oct. 2, 2019); Kramer v. Camden USA, Inc., No. 6:21-CV-567-RBD-DCI, 2022 WL 1395609, at *1 (M.D. Fla. Mar. 31, 2022).

It appears the court was upset with this particular litigant or its lawyer based on previous issues in the case:

This case has been pending for more than two years. And throughout that time, “Dero has been granted many do-overs[.]” (Doc. 121 at 7.) That stops now. Despite the obvious importance of Flynn’s expert testimony, Dero all but ignored Rule 26. It then ignored Triton’s request to provide an expert report before the discovery cutoff. And finally, Dero failed to show (or even argue) substantial compliance or harmlessness to excuse its patently deficient conduct. Having made its bed, Dero must now lie in it.

It was thus ORDERED:

1. Defendant Triton Inc.’s (Triton) Motion to Strike Expert Report and Exclude Opinions and Testimony of Mr. Rodney Flynn is GRANTED;

2. Flynn’s report and expert testimony are stricken and excluded from any further consideration.