Mora v. Burlington Stores, Inc., 1:19-cv-23838

Plaintiff Yamisleidis Figueroa Mora alleges a slip-and-fall at Burlington Stores, Inc.’s Hialeah location on February 22, 2017, seeking damages for medical expenses, lost wages, future medical care, and future loss of earning capacity.
Plaintiff disclosed three treating physicians as Rule 26(a)(2)(C) experts: Dr. Robert Getter (neurosurgeon), Dr. Alan MacGill (podiatrist/foot & ankle surgeon), and Dr. Geoffrey Tashjian (radiologist).
The Scheduling Order required expert disclosures by August 28, 2020; Plaintiff served the formal expert list on September 9, 2020 (10-day delay).
Defendant moved to exclude/limit the experts for late disclosure and deficient Rule 26 disclosures, and to prohibit evidence of past lost wages and future earning-capacity loss for failure to provide the required Rule 26(a)(1) damage computation and supporting documents.
The Magistrate Judge recommended: (1) deny exclusion of the experts based on timing; (2) hold that treating physicians need not produce full Rule 26(a)(2)(B) reports merely because they will opine on causation/future care; (3) require supplemental, detailed Rule 26(a)(2)(C) disclosures within two weeks; and (4) grant Defendant’s request to bar any evidence or argument regarding past lost wages and future loss of earning capacity.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Timeliness of expert disclosure	Experts were disclosed 10 days late but are critical to proving causation; exclusion would be fatal to the case	Disclosures were after the Scheduling Order deadline; experts should be excluded	Denied exclusion for lateness; delay was harmless, defendant not shown prejudice, alternative remedies available
Need for full expert reports (26(a)(2)(B)) for treating physicians	Treating physicians were not retained for litigation and therefore need only provide Rule 26(a)(2)(C) summaries	Treating physicians offering opinions beyond treatment should provide full expert reports	Held that treating physicians need not produce full (a)(2)(B) reports absent a court order requiring one
Sufficiency of Rule 26(a)(2)(C) summaries	Disclosures and medical records suffice; defendant had access to records	Summaries are generic and identical across physicians; do not summarize facts and opinions as required	Disclosures found deficient but exclusion too harsh; ordered specific supplemental disclosures, production of relied-on records, and two-week window for depositions
Damages: lost wages and future earning capacity	Plaintiff offered no response or computation	Plaintiff failed to provide Rule 26(a)(1) computation, tax returns, or expert support; thus damages evidence should be excluded	Granted: plaintiff is prohibited from presenting evidence or argument on past lost wages and future loss of earning capacity due to nondisclosure

City of Rome v. Hotels.com, L.P., [citation="549 F. App'x 896"] (11th Cir. 2013) (upholding exclusion of damages evidence for failure to comply with Rule 26 disclosures)
Romero v. Drummond Co., 552 F.3d 1303 (11th Cir. 2008) (factors for evaluating whether nondisclosure is substantially justified or harmless)
United States v. Lopez, 590 F.3d 1238 (11th Cir. 2009) (discussion of ordinary meaning of being "retained" or "employed" as an expert)
Long v. E. Coast Waffles, Inc., [citation="762 F. App'x 869"] (11th Cir. 2019) (district courts have broad discretion handling discovery sanctions and expert exclusions)
Phillips v. Hillcrest Med. Ctr., 244 F.3d 790 (10th Cir. 2001) (litigant who fails to press a point or support it with authority forfeits the point)