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Filing # 112844671 E-Filed 09/03/2020 12:04:45 PM
IN THE CIRCUIT COURT OF THE
17TH JUDICIAL CIRCUIT IN AND
FOR BROWARD COUNTY, FLORIDA
FOOD MARKETING CONSULTANTS, INC.
d/b/a SAN BERNARDO, CASE NO. CACE 18-000924(09)
Plaintiff,
vs.
ALBERTSON’S, LLC, and
SAFEWAY, INC.
Defendants.
/
PLAIINTIFF’S RESPONSE IN OPPOSITION TO DEFENDANT’S MOTION TO
PRECLUDE AMENDMENT OF EXPERT WITNESS REPORT AND TO PRECLUDE
ADDITIONAL EXPERTS
Plaintiff, FOOD MARKETING CONSULTANTS, INC. d/b/a SAN BERNARDO
(‘Plaintiff’) hereby files this Response in Opposition to Defendant’s Motion to Preclude
Amendment of Expert Witness Report and to Preclude Additional Experts and states as follows:
I. INTRODCUTION AND FACTUAL BACKGROUND
This matter is scheduled for jury trial in February 2021, but there is no current date for civil
jury trials to re-start. Defendant, NEW ALBERTSON’S LP f/n/a NEW ALBERTSON’S, INC
(“Defendant”) Motion to Preclude Amendment of Expert Witness Report and to Preclude
Additional Experts (the “Motion”) is predicated upon a February 20, 2020 order that established
the deadline for expert disclosures for March 23, 2020. Plaintiff complied with the deadline;
however, the deadline established in the order is currently at variance with the deadlines contained
in the current trial order. The February 20, 2020 order (the “Order”) is attached hereto as Exhibit
“A”,
*** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 09/03/2020 12:04:44 PM.****The Motion seeks to preclude the amendment of a preliminary expert report on damages
by relying upon a position that any amendment would be prejudicial to Defendant and contravene
the Order. The Motion primarily relies upon the case Binger v. King Pest Control, 401 So. 2d 1310
(Fla. 1981) and the factors for exclusion enumerated therein. However, as will be more fully
explicated below, Defendant’s position is based on an improper premise. Binger holds that “a trial
court can properly exclude the testimony of a witness whose name has not been disclosed in
accordance with a pretrial order.” /d. at 1313. An amendment of a clearly labeled preliminary
expert report four (4) months before trial and well before the deadline in the trial order would not
trigger the Binger factors to necessitate exclusion of an updated report.
II. LEGAL ARGUMENT
An updated expert report based entirely upon damages submitted months before trial is not
a surprise to Defendant nor does it result in unfair prejudice. At the time of the deadline, there was
significant discovery outstanding, including the now compelled deposition and production as to
non-party C&S. It is expected that this testimony and production will have a material impact.
Additionally, Defendant has produced additional discovery related to the placement of the
products, which will impact the damages.
Defendant was aware of the possibility of an amendment to the report and the damages
calculation upon receipt of the report and during the expert’s deposition. The possibility that the
expert would amend her report, and therefore her opinion based upon newfound information was
properly disclosed to the Defendant. Further, Plaintiff prior to the deposition of the expert, which
was not completed yet, notified and asked Defendant if they wished to delay the deposition until
the amendment.The Binger analysis should be applied where a medical expert changes his or her opinion,
resulting in surprise and prejudice to the opposing party and necessitating a new trial. A//state
Prop. & Cas. Ins. Co. v. Lewis, 14 So. 3d 1230, 1234 (Fla. 1st DCA 2009) citing See Perryman,
M.D., v. Crawford, 968 So.2d 83 (Fla. 4th DCA 2007); Belmont v. N. Broward Hosp. Dist., 727
So.2d 992 (Fla. 4th DCA 1999); Suarez—Burgos, 745 So.2d at 371; Office Depot, 584 So.2d 587.
There can be no surprise to the Defendant that would warrant the preclusion on the amendment of
the report pursuant to Binger. As acknowledged in the Motion the expert at her deposition
“reiterated the report was only intended as a preliminary report that would be revised.” Mot. At 5.
Similarly not on point is the Fourth District’s opinion in Office Depot, Inc. v. Miller, in
finding error in a litigant's failure to disclose a change in an expert's opinion, “[a] party can hardly
prepare for an opinion that it doesn't know about, much less one that is a complete reversal of the
opinion it has been provided.” Office Depot, Inc. v. Miller, 584 So. 2d 587, 590 (Fla. 4th DCA
1991). That is clearly not the issue in the present case. The report states as follows:
Due to the extenuating circumstances surrounding the Pandemic (including, but
not limited to social distancing mandates and non-essential business closures)
access to information, along with the ability to meet with clients, was severely
restricted. Due to the limited information, we have only prepared an analysis of
lost profits for a period including the first nine months of product delivery. At this
time, we are unable to opine on any subsequent lost profits beyond the first nine
months. In addition, although other methods of damage analysis may apply, we
were unable to calculate damages utilizing other methodologies as of the date of
this report.
We reserve the right to amend, update, or supplement this report with further
analysis when Pandemic conditions subside. (emphasis added)
By seeking to preclude an amendment of the report it is the Plaintiff who is unduly
prejudiced. As stated, the expert was limited to a damage calculation of nine months. Reviewingfurther information to extend the period related to the lost profits would not be a substantial change
to the initial report.!
Further, pursuant to the current trial order the discovery cut-off deadline in this case is
December 28, 2020. Defendant’s continued reliance upon the Order belies the fact that trial
deadlines are constantly in flux and is an attempt to prejudice Plaintiff by not permitting it the right
to amend its expert discovery. Even assuming, arguendo, that Defendant will be prejudiced by the
amendment of the report it can still cure any prejudice by conducting an updated deposition as to
the expert’s calculation of damages. Plaintiff is not engaged in an “ambush strategy” or seeking to
gain an advantage by any wrongdoing. Grau v. Branham, 626 So. 2d 1059, 1062 (Fla. 4th DCA
1993) (“Certainly, if prejudice can be cured efficiently, then it should.”)
The reasons stated in the Motion for the preclusion of an amendment to the expert report
do not satisfy the heightened requirement for exclusion: (1) Defendant cannot claim prejudice
based upon surprise of an undisclosed expert; (2) Plaintiff has complied with the Order and no
determination has yet been made that the Order supersedes the current trial order; and (3) there is
sufficient time remaining that an amendment would not disrupt the orderly or efficient trial of the
case. Based on the foregoing, the Motion should be denied.
WHEREFORE, Plaintiff, FOOD MARKETING CONSULTANTS, INC. d/b/a SAN
BERNARDO, respectfully requests that this Court deny Defendant’s Motion to Preclude
Amendment of Expert Witness Report and to Preclude Additional Experts and grant any further
relied it deems just and proper.
1 Defendant decided to move forward with the deposition on June 23, 2020—already knowing the current trial order
was issued extending all of the pretrial deadlines, and that an amended to the report was expected based on open
discovery and other issues.Respectfully Submitted,
SILVERBERG & WEISS, P.A.
Attorneys for Plaintiff
1290 Weston Rd, Suite 218
Weston, Florida 33326
Notices@pkslegal.com
(954) 384-0998 tel.
(954) 384-5390 fax.
By: ____ Paul K. Silverberg
Paul K. Silverberg, Esq.
Fla. Bar No. 147877
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing was filed via the
Florida Courts E-Filing portal and furnished to Eric Lee, Esq. at lee@leeamlaw.com, Erik
Stidham, Esq., efstidham@hollandhart.com and Andrew W. Bray, Esq. at awbfiling@florida-
law.com and abray@florida-law.com on this 3rd day of September, 2020.
By: ___ Paul K. Silverber:
Paul K. Silverberg, Esq.44+ FILED: BROWARD COUNTY, FL Brenda D. Forman, CLERK 2/20/2020 4:30:00 PM.*#**
IN THE CIRCUIT COURT OF THE 17TH
JUDICIAL CIRCUIT IN AND FOR
BROWARD COUNTY, FLORIDA
CASE NO.: CACE-18-000924 (09)
FOOD MARKETING CONSULTANTS, INC.
d/b/a SAN BERNARDO,
Tae Filed In Open Coun,
Piaintiff, CLERK OF THE CIRCUIT COURT
v. ON.
BY. 7
NEW ALBERTSON’S LP f/n/a
NEW ALBERTSON’S, INC.,
Defendant.
/
IN ‘F'S MOTION FOR EXTENSION OF TIME
THIS CAUSE having come before the Court on February 20, 2020 upon Plaintiff's Motion
for Extension of Time, and the Court having reviewed the Motion, heard argument of counsel, and
being otherwise fully advised in the premises, it is thereupon
ORDERED and ADJUDGED that the Motion is hereby:
Lripeie) in, pags aud dened \y parr. Dain chet pavile
4 tt n Cre Anh 23 202
DONE and ORDERED in Ft. Lauderdale, Broward County, Florida this 2) day of
February 2020.
ci jurt Judge
Copies to:
Paul Silverberg, Esq. (notices@pkslegal.com)
Eric Lee, Esq. (lee@leeamlaw.com)
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Filing # 112844671 E-Filed 09/03/2020 12:04:45 PM IN THE CIRCUIT COURT OF THE 17TH JUDICIAL CIRCUIT IN AND FOR BROWARD COUNTY, FLORIDA FOOD MARKETING CONSULTANTS, INC. d/b/a SAN BERNARDO, CASE NO. CACE 18-000924(09) Plaintiff, vs. ALBERTSON’S, LLC, and SAFEWAY, INC. Defendants. / PLAIINTIFF’S RESPONSE IN OPPOSITION TO DEFENDANT’S MOTION TO PRECLUDE AMENDMENT OF EXPERT WITNESS REPORT AND TO PRECLUDE ADDITIONAL EXPERTS Plaintiff, FOOD MARKETING CONSULTANTS, INC. d/b/a SAN BERNARDO (‘Plaintiff’) hereby files this Response in Opposition to Defendant’s Motion to Preclude Amendment of Expert Witness Report and to Preclude Additional Experts and states as follows: I. INTRODCUTION AND FACTUAL BACKGROUND This matter is scheduled for jury trial in February 2021, but there is no current date for civil jury trials to re-start. Defendant, NEW ALBERTSON’S LP f/n/a NEW ALBERTSON’S, INC (“Defendant”) Motion to Preclude Amendment of Expert Witness Report and to Preclude Additional Experts (the “Motion”) is predicated upon a February 20, 2020 order that established the deadline for expert disclosures for March 23, 2020. Plaintiff complied with the deadline; however, the deadline established in the order is currently at variance with the deadlines contained in the current trial order. The February 20, 2020 order (the “Order”) is attached hereto as Exhibit “A”, *** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 09/03/2020 12:04:44 PM.****The Motion seeks to preclude the amendment of a preliminary expert report on damages by relying upon a position that any amendment would be prejudicial to Defendant and contravene the Order. The Motion primarily relies upon the case Binger v. King Pest Control, 401 So. 2d 1310 (Fla. 1981) and the factors for exclusion enumerated therein. However, as will be more fully explicated below, Defendant’s position is based on an improper premise. Binger holds that “a trial court can properly exclude the testimony of a witness whose name has not been disclosed in accordance with a pretrial order.” /d. at 1313. An amendment of a clearly labeled preliminary expert report four (4) months before trial and well before the deadline in the trial order would not trigger the Binger factors to necessitate exclusion of an updated report. II. LEGAL ARGUMENT An updated expert report based entirely upon damages submitted months before trial is not a surprise to Defendant nor does it result in unfair prejudice. At the time of the deadline, there was significant discovery outstanding, including the now compelled deposition and production as to non-party C&S. It is expected that this testimony and production will have a material impact. Additionally, Defendant has produced additional discovery related to the placement of the products, which will impact the damages. Defendant was aware of the possibility of an amendment to the report and the damages calculation upon receipt of the report and during the expert’s deposition. The possibility that the expert would amend her report, and therefore her opinion based upon newfound information was properly disclosed to the Defendant. Further, Plaintiff prior to the deposition of the expert, which was not completed yet, notified and asked Defendant if they wished to delay the deposition until the amendment.The Binger analysis should be applied where a medical expert changes his or her opinion, resulting in surprise and prejudice to the opposing party and necessitating a new trial. A//state Prop. & Cas. Ins. Co. v. Lewis, 14 So. 3d 1230, 1234 (Fla. 1st DCA 2009) citing See Perryman, M.D., v. Crawford, 968 So.2d 83 (Fla. 4th DCA 2007); Belmont v. N. Broward Hosp. Dist., 727 So.2d 992 (Fla. 4th DCA 1999); Suarez—Burgos, 745 So.2d at 371; Office Depot, 584 So.2d 587. There can be no surprise to the Defendant that would warrant the preclusion on the amendment of the report pursuant to Binger. As acknowledged in the Motion the expert at her deposition “reiterated the report was only intended as a preliminary report that would be revised.” Mot. At 5. Similarly not on point is the Fourth District’s opinion in Office Depot, Inc. v. Miller, in finding error in a litigant's failure to disclose a change in an expert's opinion, “[a] party can hardly prepare for an opinion that it doesn't know about, much less one that is a complete reversal of the opinion it has been provided.” Office Depot, Inc. v. Miller, 584 So. 2d 587, 590 (Fla. 4th DCA 1991). That is clearly not the issue in the present case. The report states as follows: Due to the extenuating circumstances surrounding the Pandemic (including, but not limited to social distancing mandates and non-essential business closures) access to information, along with the ability to meet with clients, was severely restricted. Due to the limited information, we have only prepared an analysis of lost profits for a period including the first nine months of product delivery. At this time, we are unable to opine on any subsequent lost profits beyond the first nine months. In addition, although other methods of damage analysis may apply, we were unable to calculate damages utilizing other methodologies as of the date of this report. We reserve the right to amend, update, or supplement this report with further analysis when Pandemic conditions subside. (emphasis added) By seeking to preclude an amendment of the report it is the Plaintiff who is unduly prejudiced. As stated, the expert was limited to a damage calculation of nine months. Reviewingfurther information to extend the period related to the lost profits would not be a substantial change to the initial report.! Further, pursuant to the current trial order the discovery cut-off deadline in this case is December 28, 2020. Defendant’s continued reliance upon the Order belies the fact that trial deadlines are constantly in flux and is an attempt to prejudice Plaintiff by not permitting it the right to amend its expert discovery. Even assuming, arguendo, that Defendant will be prejudiced by the amendment of the report it can still cure any prejudice by conducting an updated deposition as to the expert’s calculation of damages. Plaintiff is not engaged in an “ambush strategy” or seeking to gain an advantage by any wrongdoing. Grau v. Branham, 626 So. 2d 1059, 1062 (Fla. 4th DCA 1993) (“Certainly, if prejudice can be cured efficiently, then it should.”) The reasons stated in the Motion for the preclusion of an amendment to the expert report do not satisfy the heightened requirement for exclusion: (1) Defendant cannot claim prejudice based upon surprise of an undisclosed expert; (2) Plaintiff has complied with the Order and no determination has yet been made that the Order supersedes the current trial order; and (3) there is sufficient time remaining that an amendment would not disrupt the orderly or efficient trial of the case. Based on the foregoing, the Motion should be denied. WHEREFORE, Plaintiff, FOOD MARKETING CONSULTANTS, INC. d/b/a SAN BERNARDO, respectfully requests that this Court deny Defendant’s Motion to Preclude Amendment of Expert Witness Report and to Preclude Additional Experts and grant any further relied it deems just and proper. 1 Defendant decided to move forward with the deposition on June 23, 2020—already knowing the current trial order was issued extending all of the pretrial deadlines, and that an amended to the report was expected based on open discovery and other issues.Respectfully Submitted, SILVERBERG & WEISS, P.A. Attorneys for Plaintiff 1290 Weston Rd, Suite 218 Weston, Florida 33326 Notices@pkslegal.com (954) 384-0998 tel. (954) 384-5390 fax. By: ____ Paul K. Silverberg Paul K. Silverberg, Esq. Fla. Bar No. 147877 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was filed via the Florida Courts E-Filing portal and furnished to Eric Lee, Esq. at lee@leeamlaw.com, Erik Stidham, Esq., efstidham@hollandhart.com and Andrew W. Bray, Esq. at awbfiling@florida- law.com and abray@florida-law.com on this 3rd day of September, 2020. By: ___ Paul K. Silverber: Paul K. Silverberg, Esq.44+ FILED: BROWARD COUNTY, FL Brenda D. Forman, CLERK 2/20/2020 4:30:00 PM.*#** IN THE CIRCUIT COURT OF THE 17TH JUDICIAL CIRCUIT IN AND FOR BROWARD COUNTY, FLORIDA CASE NO.: CACE-18-000924 (09) FOOD MARKETING CONSULTANTS, INC. d/b/a SAN BERNARDO, Tae Filed In Open Coun, Piaintiff, CLERK OF THE CIRCUIT COURT v. ON. BY. 7 NEW ALBERTSON’S LP f/n/a NEW ALBERTSON’S, INC., Defendant. / IN ‘F'S MOTION FOR EXTENSION OF TIME THIS CAUSE having come before the Court on February 20, 2020 upon Plaintiff's Motion for Extension of Time, and the Court having reviewed the Motion, heard argument of counsel, and being otherwise fully advised in the premises, it is thereupon ORDERED and ADJUDGED that the Motion is hereby: Lripeie) in, pags aud dened \y parr. Dain chet pavile 4 tt n Cre Anh 23 202 DONE and ORDERED in Ft. Lauderdale, Broward County, Florida this 2) day of February 2020. ci jurt Judge Copies to: Paul Silverberg, Esq. (notices@pkslegal.com) Eric Lee, Esq. (lee@leeamlaw.com)