[DO NOT PUBLISH]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.

________________________

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. MiamiDade 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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