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 THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

GAINESVILLE DIVISION

THE BARTRAM, LLC,

a Delaware limited liability company,

Plaintiff,

v. CASE NO. 1:10-cv-28-SPM-GRJ

LANDMARK AMERICAN INSURANCE

COMPANY, an Oklahoma corporation, 

ROCKHILL INSURANCE COMPANY, 

an Arizona corporation, and WESTCHESTER 

SURPLUS LINES INSURANCE COMPANY,

 a Georgia corporation,

Defendants.

_____________________________ _________/

O R D E R

On October 4, 2011 the Court held a status conference to address outstanding

matters. During the hearing the Court considered Plaintiff’s Motion To Supplement

Expert Disclosure To Allow Testimony On Anticipated Repairs Costs From Facchina

Construction of Florida, LLC. (Doc. 126.) 

In the Motion to Supplement Plaintiff requests leave to supplement its expert

disclosures by adding Facchina Construction of Florida, LLC and its director of

preconstruction, Michael Harstad, as an expert witness in this case. Defendants filed a

response in opposition to the motion. (Doc. 139.) 

 Pursuant to the scheduling order in this case, Rule 26(a)(2) expert witness

disclosures were due by June 13, 2011. (Doc. 70.) On September 15, 2011 Plaintiff’s

counsel notified all counsel in the Contractor Action, as well as counsel in this action,

that it utilized the services of the general contractor, Facchina Construction and its

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director of preconstruction, to assist in developing a detailed cost control estimate with

assumptions on costs to perform the repairs to the apartment complex that is the

subject of this case. Although Plaintiff believes Facchina is a fact witness as it relates to

the generation of the cost control estimate and assumptions, testimony regarding the

anticipated repair costs and scope of work assumptions may involve some measure of

expert testimony. Consequently, Plaintiff filed the instant motion. Defendants object on

the grounds that the disclosure is being made months after the expert witness

disclosure deadline.

For the reasons stated on the record at the hearing and as summarized below

the Court concludes that Plaintiff’s Motion to Supplement is due to be granted. Because

Plaintiff is not requesting permission to supplement a previously disclosed expert

opinion, but rather to modify the deadline in the scheduling order for disclosure of

expert witness, Plaintiff must demonstrate good cause and that Plaintiff acted

diligently. The Court concludes that Plaintiff has demonstrated good cause and there is

no question that the request is being made at the earliest opportunity. The request to

supplement could not have been filed earlier for the simple reason that the Plaintiff had

not yet commenced the process of estimating and preparing for the repairs. The cost

control estimate and assumptions were only generated as part of the preconstruction

process for the repairs to the apartment complex. In addition, the information provided

by Facchina is not relevant to any of the issues pending before the Court on the parties’

respective motions for summary judgment and as such there will be no prejudice to the

Defendants if the motion is granted. Lastly, to the extent there would be any prejudice 

to the Defendants because the late filing would impact the discovery deadline the Court

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can ameliorate any prejudice by granting Defendants an extension of time to depose

Mr. Harstad and an extension of time to designate supplemental rebuttal expert

testimony. 

Accordingly, for all of these reasons the Motion to Supplement is due to be

granted. In order to provide the Defendants with sufficient time to depose Mr. Harstad

the discovery deadline shall be extended to December 30, 2011 for the sole purpose of

allowing Defendants to take the deposition of Mr. Harstad. Defendants also shall be

permitted to designate supplemental expert rebuttal testimony within thirty days of

taking Mr. Harstad’s deposition, if Defendants wish to do so.

Additionally, at the hearing, Defendants also made an ore tenus motion for an

extension of time within which to respond to Plaintiff’s Cross-Motion For Partial

Summary Judgment On Liability. (Doc. 132.) For the reasons recited on the record,

Defendant’s ore tenus motion for an extension of time is due to be granted. Defendants

shall file their response to Plaintiff’s Cross-Motion For Partial Summary Judgment On

Liability by October 28, 2011. Further, so that Plaintiff will have an opportunity, if

necessary, to respond to any new evidence filed by Defendants with their response,

Plaintiff may file a reply limited solely to any new evidence filed by Defendants with their

response. Plaintiff shall file any reply by November 11, 2011. The Court will thereafter

take the motions for summary judgment under advisement and no further briefing will

be permitted. 

Accordingly, upon due consideration, it is ORDERED:

1. Plaintiff’s Motion To Supplement Expert Disclosure To Allow Testimony

On Anticipated Repairs Costs From Facchina Construction of Florida, LLC

(Doc. 126) is GRANTED.

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2. The discovery deadline in this case is extended until December 30, 2011

for the sole purpose of allowing Defendants to depose Michael Harstad of

Facchina Construction of Florida, LLC. To the extent Defendants wish to

identify a rebuttal expert or supplement their existing expert’s report as a

result of this deposition, then Defendants shall do so by January 27,

2011. 

3. Defendants shall respond to Plaintiff’s Cross-Motion For Partial Summary

Judgment On Liability (Doc. 132) on or before October 28, 2011. To the

extent Defendants file new evidence in support of their response, Plaintiff

may file a reply directed solely to such new evidence on or before

November 11, 2011.

DONE AND ORDERED this 4 day of October, 2011. th

s/Gary R. Jones 

GARY R. JONES

United States Magistrate Judge

Case No: 1:10-cv-28-SPM-GRJ

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