Herezi v. 31-W Insulation Co., Inc.
5:23-cv-00646
M.D. Fla.Jun 16, 2025Background
- Plaintiff Herezi contracted with 31-W Insulation Co., Inc. in December 2019 for installation of spray foam insulation, alleging 31-W improperly installed a mix of closed-cell and open-cell foam designed/supplied by Huntsman Building Solutions, resulting in personal injury and property damage.
- Claims against 31-W include breach of contract, breach of implied warranties, negligent misrepresentation, and negligence; Huntsman is alleged to have failed to warn of the foam's hazards.
- Plaintiff served timely Expert Witness Disclosure in November 2024 (listing 14 experts), but only identified Robert Ketchum, P.E., as an expert in February 2025 (after the disclosure deadline), submitting his report then.
- Defendants sought to strike Ketchum as untimely and/or cumulative and to compel depositions of Plaintiff’s experts before mediation.
- The parties failed to coordinate deposition dates for several experts, leading Defendants to file a motion to compel and request sanctions; the dispute centers on both expert disclosure timing and deposition logistics.
- The Court addresses whether to strike Ketchum as an expert, exclude his testimony as cumulative, compel depositions, extend deadlines, and impose sanctions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Untimely Disclosure of Expert Ketchum | Disclosure was harmless; report shared via email early | Missed deadline; disclosure not timely | Untimely, but harmless due to adequate time to cure |
| Exclusion of Ketchum’s Testimony as Cumulative | Did not address directly | Ketchum’s testimony duplicates Younger’s | Ruling premature; not excluded at this stage |
| Compelling Expert Depositions | Defendants to blame for lack of coordination | Plaintiff’s counsel uncooperative; need depositsions | No court order to compel; formal subpoena not attempted |
| Deadline Extensions | — | Needed for expert depositions | Case management & discovery deadlines extended |
| Sanctions (Attorney’s Fees) | Opposed | Plaintiff caused unnecessary motion practice | Denied as partially granting the motion is not just |
Key Cases Cited
- OFC Fitel, LLC v. Epstein, Becker and Green P.C., 549 F.3d 1344 (11th Cir. 2008) (purpose of expert disclosure requirements is to allow adequate preparation and to prevent surprise)
- Corwin v. Walt Disney Co., 475 F.3d 1239 (11th Cir. 2007) (untimely expert disclosures may be excluded under Rule 37)
- Reese v. Herbert, 527 F.3d 1253 (11th Cir. 2008) (Rule 26 compliance not aspirational; exclusion possible for violations)
- Ferguson v. Bombardier Servs. Corp., 244 F. App’x 944 (11th Cir. 2007) (court may permit late expert disclosures if enough time before trial)
- Tran v. Toyota Motor Corp., 420 F.3d 1310 (11th Cir. 2005) (court discretion to exclude cumulative evidence at trial)