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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 18-12920
Non-Argument Calendar
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D.C. Docket No. 2:16-cv-00322-PAM-MRM
STEVE LONG,
Plaintiff - Appellee,
versus
EAST COAST WAFFLES, INC.,
Defendant - Appellant.
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Appeal from the United States District Court
for the Middle District of Florida
________________________
(March 8, 2019)
Before JILL PRYOR, NEWSOM, and ANDERSON, Circuit Judges.
PER CURIAM:
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East Coast Waffles, Inc. appeals from the district court’s judgment in favor
of plaintiff Steve Long after a jury found East Coast responsible for Long’s injuries
under a theory of premises liability. On appeal, East Coast asserts that the district
court abused its discretion in (1) failing to strike expert witness Dr. Conidi’s
testimony for noncompliance with Rule 26 and (2) denying East Coast a new trial
or remittitur for excessive damages. After careful review of the record, and finding
no abuse of discretion, we affirm.
I
To start, we review a district court’s decision to admit or exclude expert
testimony for failure to comply with Federal Rule of Civil Procedure 26 for an
abuse of discretion. See Romero v. Drummond Co, Inc.,
552 F.3d 1303, 1314
(11th Cir. 2008). This means that a district court has “a range of choice” that we
will not disturb absent a mistake of law. Betty K Agencies, Ltd. v. M/V Monada,
432 F.3d 1333, 1337 (11th Cir. 2005) (quotations omitted).
Federal Rule of Civil Procedure 26 requires a party to disclose any expert
witness who will testify at trial. See Fed. R. Civ. P. 26(a)(2). This includes not
only identification of the expert, but also the provision of a written report
containing “a complete statement of all opinions” and “the basis and reasons for
them.” Fed. R. Civ. P. 26(a)(2)(B). Disclosure must occur “at the times and in the
sequence that the court orders,” and, in any event, “at least 90 days before the date
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set for trial or for the case to be ready for trial.” Knight through Kerr v. Miami-
Dade Cty.,
856 F.3d 795, 811 (11th Cir. 2017) (quoting Fed. R. Civ. P.
26(a)(2)(D)).
The disclosure requirements aim to provide parties with a reasonable
opportunity to prepare effective cross examination and arrange for rebuttal
testimony from other experts if needed. Reese v. Herbert,
527 F.3d 1253, 1265
(11th Cir. 2008) (quotations omitted). “Because the expert witness discovery rules
are designed to allow both sides in a case to prepare their cases adequately and to
prevent surprise, compliance with the requirements of Rule 26 is not merely
aspirational.” Cooper v. S. Co.,
390 F.3d 695, 728 (11th Cir. 2004) (internal
citation omitted), overruled on other grounds by Ash v. Tyson Foods, Inc.,
546
U.S. 454, 457–58 (2006). Indeed, Federal Rule of Civil Procedure 37(c)(1) states
that a party who fails to provide information or identify a witness as required by
Rule 26(a) or (e) may not use that information or witness at trial “unless the failure
was substantially justified or is harmless.” Fed. R. Civ. P. 37(c)(1); OFS Fitel,
LLC v. Epstein, Becker & Green, P.C.,
549 F.3d 1344, 1363 (11th Cir. 2008).
Although Rule 37 allows a district court to exclude a witness as a sanction
for a Rule 26 violation, it is well settled that “the admission of expert testimony is
a matter left to the discretion of the district court.” Lakeman v. Otis Elevator Co.,
930 F.2d 1547, 1554 (11th Cir. 1991) (citation omitted). Because of this, we will
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not overturn a district court’s decision to admit or exclude expert testimony unless
it is “manifestly erroneous.” Id.; see also
id. (holding that the trial court did not
abuse its discretion in allowing expert testimony on matters not disclosed where
the opposing party’s counsel was “well versed” in those matters and “capable of
cross-examining [the experts] effectively”); Shelak v. White Motor Co.,
581 F.2d
1155, 1159 (5th Cir. 1978) (declining to find reversible error when, although the
plaintiff failed to disclose his intended use of an expert witness, defense counsel
admitted to knowing that the witness “would likely” be called).
The parties here do not dispute that Long’s initial disclosure of Dr. Conidi
did not comply with Rule 26. To be specific, the disclosure was filed 65 days late
and the written report was not provided until a few months after that, by order of
the district court. East Coast further contends that, not only was the filing
deficient, the district court compounded error by repeatedly denying its various
motions to rectify the situation, including a motion to enlarge discovery, a motion
to postpone trial, and a motion in limine.
The record shows, however, that after Long disclosed Dr. Conidi in June
2017 and provided the accompanying report in November 2017, East Coast failed
to depose Dr. Conidi, retain a rebuttal expert, or object in any way until it filed a
motion in limine in February 2018—on the eve of trial. Although East Coast filed
various motions in the meantime, none challenged Dr. Conidi’s testimony—
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instead, East Coast requested to delay trial based on its lead counsel’s maternity
leave and its second-chair counsel’s departure from her firm. The district court
found these late-in-the-game attempts to delay trial “shocking” given that East
Coast “appear[ed] to have done nothing” to complete discovery between October
2016 and July 2017 or to timely seek any extension of the case management
deadlines. By the time East Coast objected to Dr. Conidi in its motion in limine,
the district court found its alleged “surprise” less than credible, stating that, while it
did not condone Long’s failures to comply with scheduling orders, the “only
prejudice to [East Coast] now is of its own making.”
While untimely disclosures are certainly disfavored, we cannot say, on these
facts, that the district court manifestly erred in allowing Dr. Conidi to testify.
Although Rule 37 certainly permits a district court to exclude a witness based on a
party’s noncompliance with Rule 26, district courts are entitled to broad discretion
in managing pretrial discovery matters. Perez v. Miami-Dade Cty.,
297 F.3d 1255,
1263 (11th Cir. 2002). Although the district court here did not use the term
“harmless,” it appears to have implicitly (and reasonably) concluded that East
Coast had sufficient time to cure any surprise or harm from the tardy disclosure:
Long disclosed Dr. Conidi more than two months before the close of discovery—in
time for East Coast to depose him or obtain a rebuttal witness—and nearly eight
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months before trial—in time for East Coast to prepare cross-examination. See,
e.g.,
Lakeman, 930 F.2d at 1554;
Shelak, 581 F.2d at 1159.
We decline to second-guess the district court’s pre-trial discovery
management in this case. Even if we might have decided differently in the first
instance, we cannot say that the court abused its discretion in determining that East
Coast had sufficient notice of Long’s expert and that any prejudice was of its own
making.
II
East Coast also argues that, if nothing else, it is entitled to a new trial or
remittitur because the jury awarded Long excessive damages. We review a district
court’s denial of a motion for a new trial for abuse of discretion. Lamonica v. Safe
Hurricane Shutters, Inc.,
711 F.3d 1299, 1312 (11th Cir. 2013) (citation omitted).
The same goes for a district court’s denial of a motion for remittitur. Moore v.
Appliance Direct, Inc.,
708 F.3d 1233, 1237 (11th Cir. 2013).
A new trial for excessive damages should be ordered only when “the verdict
is so excessive as to shock the conscience of the court.” Goldstein v. Manhattan
Indus., Inc.,
758 F.2d 1435, 1447 (11th Cir. 1985). In a diversity action, we look
to state law—Florida law here—to assess whether a verdict is excessive, although
we apply federal law to our review of the district court’s decision to order or deny
a new trial on the issue of excessiveness. Mason v. Ford Motor Co.,
307 F.3d
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1271, 1276 (11th Cir. 2002). Under Fla. Stat. § 768.74(5), a court reviewing an
allegedly excessive damages award must consider whether the amount awarded is
“indicative of prejudice, passion, or corruption on the part of the trier of fact” or
instead “bears a reasonable relation to the damages proved” and “is supported by
evidence.”
Id.
Rather than a new trial, a remittitur order reducing a jury’s award to the
outer limit of the proof may be the appropriate remedy where the damage award is
not necessarily the product of undue passion or prejudice, but exceeds the amount
established by the evidence nonetheless. See
Goldstein, 758 F.2d at 1448;
Frederick v. Kirby Tankships, Inc.,
205 F.3d 1277, 1284 (11th Cir. 2000). In
evaluating an appeal from a district court’s denial of a motion for remittitur, our
job is to “independently determine the maximum possible award that is reasonably
supported by the evidence in the record.”
Frederick, 205 F.3d at 1283. To affirm,
we need only conclude that the jury could have drawn reasonable inferences from
the evidence presented to reach the award. Am. Emp’rs Ins. Co. v. S. Seeding
Servs., Inc.,
931 F.2d 1453, 1455 (11th Cir. 1991). Our review of compensatory
damages for intangible, noneconomic harms is particularly deferential “because the
harm is subjective and evaluating it depends considerably on the demeanor of the
witnesses.” Ferrill v. Parker Grp., Inc.,
168 F.3d 468, 476 (11th Cir. 1999)
(quotations omitted).
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East Coast challenges both the future medical expenses and the
noneconomic damages awarded. As to the first, it argues that the evidence does
not support the damages awarded because although Long claimed future medical
expenses of only $65,100, the jury awarded him $100,000. But this discrepancy
does not, standing alone, demonstrate that the award was excessive—we must
determine instead whether the jury could have reasonably inferred $100,000 in
damages from the record evidence. Am. Emp’rs Ins.
Co., 931 F.2d at 1455.
According to Long’s dental expert, Dr. Souviron, the removal of Long’s
fractured teeth, crown replacements for the duration of his life, and orthodontic
appliances brought the estimated dental expenses alone to over $70,000. And
while Dr. Conidi did not testify as to the cost of initial MRI testing, he stated that
additional neurological testing to determine the best course of future treatment
would approximate $6,000—not including the future treatment itself. Based on
this testimony—at least $76,000 in dental and neurological treatment with a
likelihood of additional treatment required—the district court did not abuse its
discretion in determining that the evidence reasonably supported an award of
$100,000 in future medical expenses. See Am. Emp’rs Ins.
Co., 931 F.2d at 1455.
Next, East Coast argues that the $325,000 in past noneconomic damages and
$450,000 in future noneconomic damages awarded are inconsistent with the record
because Long has resumed his work as a trucker and continues to enjoy shooting
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guns and riding his motorcycle. The record also shows, however, that Long’s
injury resulted in cognitive deficits, chronic headaches, and cervical pain, all of
which he will probably experience for life, along with an increased risk of
developing dementia in the future. Moreover, Long reports having lost a large
portion of his trucking business due to injury-related short-term memory problems.
On these facts, we see no reason to question the fact finder’s determination of the
amount appropriate to compensate for Long’s noneconomic losses. See
Ferrill, 168 F.3d at 476.
AFFIRMED.
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