USCA11 Case: 21-14300 Date Filed: 11/08/2022 Page: 1 of 10
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-14300
Non-Argument Calendar
____________________
MARY SAL RODRIGUEZ,
Plaintiff-Appellant,
versus
WALMART STORES EAST, L.P.,
d.b.a. Walmart Supercenter #2484,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 2:20-cv-00474-SPC-NPM
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2 Opinion of the Court 21-14300
____________________
Before GRANT, LUCK, and LAGOA, Circuit Judges.
PER CURIAM:
Mary Sal Rodriguez appeals the district court’s entry of
summary judgment in favor of Walmart Stores East, L.P., on her
state-law negligence claim arising from her slip and fall in a
Walmart store. She argues that the district court abused its
discretion by excluding the testimony of one of her treating
physicians on the ground that she failed to timely disclose the
physician as an expert. After carefully reviewing the record and the
parties’ briefs, we affirm.
I.
Rodriguez filed a complaint in Hendry County, Florida,
alleging that she slipped and fell on a “dirty, wet, slippery
substance” in the produce section of a Walmart store. Rodriguez
claimed that Walmart was liable for the injuries she sustained in
her fall because it negligently failed to maintain its premises and
negligently failed to warn her of the substance on the floor.
Walmart removed the case to federal court. The district
court ordered the parties to conduct a Rule 26(f) discovery
conference and then file a Case Management Report and a Pretrial
and Discovery Plan. The parties filed a Case Management Report
setting proposed pretrial deadlines, including a deadline for the
“Disclosure of Expert Reports.” The parties also filed a Pretrial and
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21-14300 Opinion of the Court 3
Discovery Plan, in which, under the heading “[e]xpert witness
reports and depositions,” they agreed that they would “fully
comply with Rule 26(a)(2) on or before the deadline for their expert
disclosures.”
The assigned magistrate judge conducted a preliminary
pretrial conference and issued a scheduling order. The scheduling
order set new pretrial deadlines, including a deadline of March 31,
2021, for the plaintiff’s “Disclosure of Expert Reports.”
After the deadlines for the disclosure of expert reports and
the close of discovery, Walmart moved for summary judgment. It
argued, among other things, that Rodriguez had failed to present
expert testimony in support of her claim that the alleged breach of
its duties had caused her injuries. It asserted that Rodriguez had
not disclosed any retained experts or provided a disclosure
indicating that any of her treating physicians would testify to
causation.
In response to Walmart’s motion for summary judgment,
Rodriguez produced an affidavit from one of her treating
physicians, Dr. Robert Getter. Dr. Getter testified that he had
examined Rodriguez in April 2018 and reviewed a February 2017
MRI of her spine. He opined that Rodriguez’s lumbar spine injuries
were “causally related” to her November 2016 slip and fall.
Rodriguez also attached to her response a letter from Dr. Getter
dated May 1, 2018, expressing the opinion that Rodriguez required
surgical treatment for her persistent back pain, which was due to
lumbar spine trauma sustained in the slip-and-fall accident.
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Rodriguez argued that she was not required to disclose Dr. Getter
by the deadline for disclosing expert reports because he was not a
retained expert and was not required to produce a written report.
She also argued that she had adequately disclosed Dr. Getter as a
potential trial expert before the expert-report deadline by
identifying his practice group as a source of relevant information
and producing his treatment records and the May 2018 letter in
discovery.
The district court granted Walmart’s motion for summary
judgment. It determined that Rodriguez was required to disclose
Dr. Getter as a potential trial expert by the expert-report deadline,
or at the latest, by the close of discovery. It also determined that
Rodriguez’s identification of Dr. Getter’s practice and the
production of his medical records and opinion letter were
insufficient to meet the disclosure requirements for nonretained
experts under Rule 26(a)(2)(C). After excluding Dr. Getter’s
proposed testimony, the court concluded that Walmart was
entitled to summary judgment on Rodriguez’s negligence claim
because she lacked evidence to prove the element of causation.
Rodriguez filed a motion for reconsideration of the
summary judgment order. She argued that the exclusion of Dr.
Getter was an extreme sanction for failing to disclose him by the
deadline for expert reports. She explained that she had understood
the March 31, 2021 deadline to apply only to retained experts who,
in contrast to treating physicians like Dr. Getter, were required to
produce expert reports. Because Dr. Getter was not required to
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21-14300 Opinion of the Court 5
produce an expert report, she believed that his disclosure was due
90 days before trial under Rule 26(a)(2)(D), and that the affidavit
she filed in response to Walmart’s summary judgment motion was
therefore timely. The district court denied Rodriguez’s motion for
reconsideration, and this appeal followed.
II.
We review the district court’s summary judgment ruling de
novo. Williams v. Mast Biosurgery USA, Inc.,
644 F.3d 1312, 1318
(11th Cir. 2011). Summary judgment is appropriate “if the movant
shows that there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.” Fed. R. Civ.
P. 56(a).
We review the district court’s decision to exclude expert
testimony for abuse of discretion. Williamson Oil Co. v. Philip
Morris USA,
346 F.3d 1287, 1298 (11th Cir. 2003). Under this
standard, the district court enjoys “considerably more leeway than
if we were reviewing the decision de novo.” Young v. City of Palm
Bay,
358 F.3d 859, 863 (11th Cir. 2004) (citation omitted). The
court “has a range of options” available to it, and we will affirm its
decision unless we determine that it “has made a clear error of
judgment, or has applied the wrong legal standard.” Id.; Cook ex
rel. Est. of Tessier v. Sheriff of Monroe Cnty.,
402 F.3d 1092, 1104
(11th Cir. 2005) (citation omitted).
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III.
To succeed on her negligence claim under Florida law,
Rodriguez was required to prove four elements: (1) a duty
requiring Walmart to conform to a certain standard of conduct;
(2) a breach of that duty by Walmart; (3) a causal connection
between the breach and an injury to Rodriguez; and (4) loss or
damage to Rodriguez. See Clay Elec. Co–op., Inc. v. Johnson,
873
So. 2d 1182, 1185 (Fla. 2003). Expert testimony is required to prove
causation “where the issue is beyond the common knowledge of
laymen.” Benitez v. Joseph Trucking, Inc.,
68 So. 3d 428, 431 (Fla.
Dist. Ct. App. 2011). Under Florida law, “[s]oft tissue injuries, such
as lower back difficulties, are not readily observable, and hence are
not susceptible to evaluation by lay persons.” Vero Beach Care
Center v. Ricks,
476 So. 2d 262, 264 n.1 (Fla. Dist. Ct. App. 1985).
Rodriguez does not contest the district court’s
determination that without Dr. Getter’s testimony, she lacked
evidence to establish the element of causation. Nor does she
challenge the court’s conclusion that if she lacked evidence of
causation, Walmart was entitled to summary judgment. See
Celotex Corp. v. Catrett,
477 U.S. 317, 322–23 (1986) (summary
judgment is appropriate against a party who fails establish an
essential element of her claim). She argues that the district court
abused its discretion in excluding Dr. Getter’s testimony because
she was not required to disclose him by the expert-report deadline
in the court’s scheduling order. She also argues that even if she was
required to disclose Dr. Getter by the March 2021 deadline for
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expert reports, her responses to discovery identifying his practice
group and producing his treatment record and causation letter
constituted an adequate and timely disclosure. We reject both
arguments.
Rule 26 of the Federal Rules of Civil Procedure requires each
party to disclose the identity of any expert witness it may use at
trial. Fed. R. Civ. P. 26(a)(2)(A). Retained experts or employees of
the party whose duties involve regularly giving expert testimony
must produce a detailed written report at the time of disclosure.
Fed. R. Civ. P. 26(a)(2)(B). For an expert who is not required to
produce a written report, the party’s disclosure must state “the
subject matter on which the witness is expected to present
evidence” and “a summary of the facts and opinions to which the
witness is expected to testify.” Fed. R. Civ. P. 26(a)(2)(C). These
expert disclosures are due “at the times and in the sequence that
the court orders.” Fed. R. Civ. P. 26(a)(2)(D). “Absent a stipulation
or a court order” setting a deadline, expert disclosures must be
made at least 90 days before trial or, for rebuttal experts, within 30
days after the opposing party’s disclosure. Fed. R. Civ. P.
26(a)(2)(D)(i)–(ii).
Here, Rodriguez was required to disclose Dr. Getter by the
March 2021 deadline for the disclosure of expert reports or, at the
very latest, before the June 2021 deadline for the completion of
discovery. It’s true that the court’s scheduling order sets a deadline
only for the disclosure of expert reports, and neither party disputes
the district court’s conclusion that Dr. Getter was a nonretained
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expert who was not required to prepare a written report. But the
parties stipulated in their Pretrial and Discovery Plan that “[t]he
parties shall fully comply with Rule 26(a)(2) on or before the
deadline for their expert disclosures.” This means that by the
deadline for the disclosure of expert reports—the only expert
disclosure deadline in the scheduling order—Rodriguez was
required to disclose her nonretained experts in compliance with
Rule 26(a)(2)(C).
Even if the stipulation in the Pretrial and Discovery Plan
were somehow superseded by the court’s scheduling order as
Rodriguez contends, the scheduling order also set a deadline of
June 25, 2021 for the completion of all discovery by both parties.
Discovery includes expert discovery. As a general matter, a party
who intends to call an expert witness at trial must disclose the
expert during discovery so that the opposing party can serve
relevant document requests and take the expert’s deposition. See
St. Louis Condo. Ass’n, Inc. v. Rockhill Ins. Co.,
5 F.4th 1235, 1243–
44 (11th Cir. 2021) (district court did not abuse its discretion by
excluding expert who was not made available for deposition by the
close of discovery); see also M.D. Fla. Civil Discovery Handbook
§ II(E)(1) (“hybrid” experts such as treating physicians are not
required to produce a written report but “must still be disclosed
and are subject to regular document and deposition discovery”).
Rodriguez’s supplemental Rule 26 disclosure—which identified
Dr. Getter as a “hybrid witness” but did not otherwise disclose his
expected testimony—was served on July 19, 2021, almost a month
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after discovery closed. Even if this disclosure could satisfy Rule
26(a)(2)(C), it came too late.
Rodriguez next argues that she disclosed Dr. Getter as a trial
expert in response to Walmart’s discovery, long before the expert-
report deadline and the close of discovery. Specifically, she stated
in response to Walmart’s requests for production that she might
call any of her treating physicians at trial. She produced Dr.
Getter’s treatment record and the letter containing his causation
opinion along with her other medical records, and she identified
Dr. Getter’s practice group as one of her medical providers in her
initial disclosures.
The district court did not abuse its discretion by concluding
that these discovery responses failed to meet the disclosure
requirements of Rule 26. It is not enough to produce a stack of
documents from which the opposing party could, with some effort,
discern the identities and some of the opinions of numerous
treating physicians who might be called at trial. Rodriguez’s
responses did not even list Dr. Getter by name, much less identify
him as a witness she might call at trial and provide the subject
matter and summary of his expected testimony required by the
rule. See Fed. R. Civ. P. 26(a)(2)(C).
IV.
The district court’s decision to exclude Rodriguez’s
causation expert for failure to make a timely disclosure under Rule
26(a)(2)(C) was not a clear error in judgment, and Rodriguez does
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not contend that the court applied the wrong legal standard. We
therefore affirm the court’s evidentiary ruling. See Cook,
402 F.3d
at 1104. And because Rodriguez could not succeed on her
negligence claim without her expert’s testimony, we also affirm the
district court’s entry of summary judgment in favor of Walmart.
See Celotex Corp.,
477 U.S. at 322.
AFFIRMED.
