*1 Before the Court is Plaintiffs’ Motion to Strike Defendants’ Never-Disclosed or Belatedly Disclosed Witnesses from Trial (Doc. 300), Defendants’ Response in Opposition thereto (Doc. 324), and Plaintiffs’ Reply in Support of their Motion (Doc. 344). Plaintiffs seek to have ten witnesses listed by Defendants on their July 20, 2023 witness list, whom had not been previously disclosed in their Rule 26(a)(1) disclosures, prohibited from testifying at trial (“Never-Disclosed Witnesses”) and to have ten witnesses disclosed by Defendants in their amended Rule 26(a)(1) disclosures, which was amended on November 18, 2022 (two weeks prior to the close of fact discovery), prohibited from testifying at trial (“Belatedly Disclosed Witnesses”).

Pursuant to Federal Rule of Civil Procedure 26(a)(1)(A), “a party must, without awaiting a discovery request, provide to the other parties ... the name ... of each individual likely to have discoverable information—along with the subjects of that information—that the disclosing party may use to support its claims or defenses.” Fed. R. Civ. P. 26(a)(1)(A). Moreover, the disclosing party is under a continuing obligation to “supplement or correct its disclosure or response ... in a timely manner” if additional persons become known and that “information has not otherwise been made known to the other parties during the discovery process or in writing.” Fed. R. Civ. P. 26(e)(1)(A).

Rule 26 disclosure requirements are enforced by Rule 37(c), which provides that “[i]f a party fails to ... identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that ... witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless.” Fed. R. Civ. P. 37(c). Rule 37 permits “the district court to exclude a witness as a sanction for a Rule 26 violation.” Mitchell v. Ford Motor Co., 318 F. App'x 821, 824 (11th Cir. 2009); Bostick v. State Farm Mut. Auto. Ins. Co., No. 8:16-cv-1400-T-33AAS, 2017 WL 4518665, at *2-3 (M.D. Fla. Oct. 10, 2017) (excluding late-disclosed witnesses from testifying at trial); see also Fed. R. Civ. P. 37(c)(1) advisory committee's note to 1993 amendment (describing the sanction of disallowing a witness at trial as “a self-executing sanction for failure to make a disclosure required by Rule 26(a)”).

“The burden of establishing that a failure to disclose was substantially justified or harmless rests on the nondisclosing party.” Mitchell, 318 F. App'x at 824 (quotation omitted). “In determining whether the failure to disclose was justified or harmless, [the Court] consider[s] the non-disclosing party's explanation for its failure to disclose, the importance of the information, and any prejudice to the opposing party if the information had been admitted.” Lips v. City of Hollywood, 350 F. App'x 328, 340 (11th Cir. 2009) (citation omitted).

Plaintiffs argue that Defendants failed to disclose ten witnesses in accordance with Rule 26, and, therefore, Defendants should be precluded from offering them as witnesses at trial pursuant to Rule 37. The ten witnesses never disclosed but included on Defendants’ July 20, 2023 witness list consist of a personal injury attorney and an office manager of a personal injury law firm who refer patients to Defendants, a third-party medical doctor to whom Defendants refer patients, and seven patients who treated at Defendants’ clinics. Defendants refer in a footnote to the personal injury attorney, the office manager, and the medical doctor, but Defendants otherwise make no substantive argument regarding their failure to disclose these witnesses. See Doc. 324, p. 18 n.8. Accordingly, the Motion is due to be granted as to Attorney James Flynn, Nelson Santiago (office manager), and Dr. David Wall.

*2 As to the seven patients who treated at Defendants’ clinics, Defendants assert that they were properly disclosed in Defendants’ amended Rule 26(a) disclosures. Defendants assert that rather than listing each of the 788 patients at issue in this case, they used a catch-all category to disclose “All other Patients at Issue in the Case,” and they described the area in which these patients would testify—the treatment they received from Defendants. As this Court has previously ruled, however, naming a general category such as “corporate representative” does not constitute sufficient disclosure under Rule 26. Geico Cas. Co. v. Beauford, No. 8:05-cv-697-T-24EAJ, 2007 WL 2412953, at *5 (M.D. Fla. Aug. 21, 2007); see also Dykes v. Cleveland Nursing & Rehab. Ctr., No. 4:15-cv-76-DMB-JMV, 2018 WL 3058870, at *3 (N.D. Miss. June 20, 2018) (“courts have routinely found broad categorizations of witnesses ... to be insufficient to identify witnesses) (collecting cases); Chinn v. Elmwood Franklin Sch., 15-cv-938-FPG-JJM, 2018 WL 6738326, at * 2 (W.D.N.Y. Nov. 1, 2018) (not sufficient to identify witnesses through the use of a collective description, such as “employees or representatives of the defendant”). As such, the Court finds the disclosure deficient under Rule 26 and must decide if relief is warranted under Rule 37.

Defendants argue, in the alternative, that any failure to disclose the remaining patients was substantially justified or harmless. Substantial justification is “justification to a degree that could satisfy a reasonable person that parties could differ as to whether the party was required to comply with the disclosure request.” Demeter v. Little Gasparilla Island Fire & Rescue, Inc., No. 2:16-cv-264-FtM-PAM-CM, 2017 WL 8314650, at *2 (M.D. Fla. Dec. 1, 2017) (quotation omitted). Alternatively, a failure to disclose may be harmless when no prejudice results to the opposing party. Id. A court has broad discretion in determining whether a party was substantially justified in its delay or whether the delayed disclosure was harmless. Id. In determining whether the failure to disclose was justified or harmless, the Court must consider Defendants’ explanation for their delay, the importance of the information or witnesses that were belatedly disclosed, and any prejudice to Plaintiffs if the witnesses are permitted to testify. Id.

As justification for Defendants’ failure to include the patients on their Rule 26 disclosures, Defendants point to the “unique circumstances” in this case, i.e., because patients continue to be added to Plaintiffs’ declaratory judgment claim[1] as they are treated by Defendants, both parties have had to rely on information, documents, and evidence disclosed after the discovery cutoff. Without sufficient specifics, Defendants argue Plaintiffs have produced documents relating to declaratory judgment patients after discovery closed, served supplemental expert disclosures relating to these patients, and produced summary charts months after discovery ended that purport to summarize the treatment the patients received.[2] Albeit more of a fairness argument than a justification for their failure to disclose, Defendants assert that Plaintiffs cannot produce records, supplemental expert reports, and serve summary charts outside the discovery cutoff but then complain that Defendants did not identify these patients in a timely fashion. Defendants, however, fail to cite to a single case in support of this justification, and the Court finds that this argument based on what Defendants conceive as fair does not constitute a substantial justification as contemplated by Rule 37(c)(1).

*3 In a somewhat circular argument, Defendants assert that their failure to disclose these witnesses was harmless because Plaintiffs were aware that any patient in this case could be called to testify. Because “All other Patients at Issue in the Case” is an insufficient Rule 26 disclosure, it defies logic to allow it to serve as a basis for finding the failure to disclose harmless. Defendants next contend that they served supplemental Rule 26 disclosures providing additional information about the subject matter the declaratory judgment patients would testify to at trial, and Plaintiffs will not need any significant preparation to cross examine them. This assertion is conclusory, and, again, Defendants fail to cite to any apposite authority to support this argument. Finally, Defendants state that they have taken steps to mitigate the potential harm, including agreeing to allow Plaintiffs to depose the patients at issue. This alone, given the stage of the proceedings, is insufficient to render the failure to disclose harmless, and Defendants fail to cite to any authority in support of their argument.

As to the importance of the witnesses that were not disclosed, Defendants assert, without elaborating, that the testimony of these patients—about the treatment they received from Defendants, how that treatment changed over the course of their care, and how the treatment helped the witnesses overcome their injuries—is critical to Defendants’ case. Without an explanation of the importance of the testimony, the Court cannot find that Defendants have met their burden of establishing that this testimony is sufficiently important so as to outweigh the harm caused by the untimely disclosure. As such, the Court finds that the claimed importance of this testimony is outweighed by Defendants’ failure to offer any satisfactory justification for their lack of disclosure and the resulting prejudice. See, e.g., Romero v. Drummond Co., Inc., 552 F.3d 1303, 1321 (11th Cir. 2008) (stating that the untimeliness of the disclosure and the prejudice can together outweigh the importance of the testimony); see also Bearint ex rel Bearint v. Dorell Juv. Grp., Inc., 389 F.3d 1339, 1353-54 (11th Cir. 2004) (“Regardless of the importance of [the] testimony, the reasons for the delay in the ... disclosure and the consequent prejudice that [the] testimony would have caused [the opposing party] require us to affirm the district court's ruling [excluding an untimely disclosed witness from testifying].”). In addition, testimony regarding the treatment received, how that treatment changed over the course of care, and how the treatment helped overcome injuries can presumably be presented via other patients who were timely disclosed. At the very least, Defendants have not stated why this type of testimony cannot be elicited from a properly disclosed witness. In addition, this case has been pending for almost two years and reopening discovery at this stage would only further delay the proceedings.

As such, the Court finds that Defendants have not met their burden of establishing that their failure to disclose was substantially justified or harmless. Exclusion of the Never-Disclosed Witnesses’ testimony at trial is proper. See Phillips v. Delta Air Lines, No. 21-80413-CV, 2021 WL 6750538, at *2 (S.D. Fla. Nov. 18, 2021); Hill v. Allianz Life Ins. Co. of N. Am., No. 6:14-cv-950-Orl-41KRS, 2016 WL 7228748, at *5-6 (M.D. Fla. Jan. 20, 2016).

As for the witnesses disclosed by Defendants in their amended Rule 26(a)(1) disclosures prior to the close of fact discovery, Plaintiffs’ failure to bring the matter to the attention of the Court and seek a discovery extension as to these witnesses belies any claimed prejudice. See Demeter, 2017 WL 8314650, at *3 (finding disclosure of seven witnesses on the final evening of discovery harmless because the party, rather than seeking an extension of the discovery deadline, made the tactical decision to wait for discovery to close and seek exclusion); Swofford v. Eslinger, No. 6:08-cv-66-Orl-35DAB, 2009 WL 1025223 (M.D. Fla. Apr. 14, 2009) (finding sanctions unwarranted when discovery was produced late but before the discovery deadline). Moreover, Plaintiffs conducted examinations under oath (“EUOs”) of these witnesses, including questioning as to whether the treatment helped the patients recover from their injuries, what kind of treatment the patients received, and whether Defendants modified the treatment over time. As such, if there was a violation of Rule 26, it was not sufficiently egregious to trigger Rule 37 sanctions. See Rodriguez v. Estero Fire Rescue, No. 2:13-cv-452-FtM-29CM, 2014 WL 3908165, at *3 (M.D. Fla. Aug. 11, 2014) (denying motion to strike declarations produced on final day of discovery where plaintiff was aware of witnesses and scheduled some for deposition during the discovery period). For these reasons, the Motion and Plaintiffs’ request for written discovery and depositions of the Belatedly Disclosed Witnesses are denied.

*4 Accordingly, Plaintiffs’ Motion to Strike Defendants’ Never-Disclosed or Belatedly Disclosed Witnesses from Trial (Doc. 300) is GRANTED as to the Never-Disclosed Witnesses and DENIED as to the Belatedly Disclosed Witnesses.

DONE AND ORDERED at Tampa, Florida, this 11th day of September 2023.