“Say It or Lose It” – The Eleventh Circuit’s Clarification on Rule 26 Expert Disclosures in Hickey v. State Farm Fire & Casualty Co.

1. Introduction

The decision of the United States Court of Appeals for the Eleventh Circuit in Michael Hickey v. State Farm Fire & Casualty Co. (No. 24-10653, July 9, 2025) addresses the perennial litigation battleground of expert disclosures. Michael Hickey, an Alabama homeowner whose property was damaged by Hurricane Sally, brought breach-of-contract and bad-faith claims after his insurer, State Farm, declined to pay the full amount he believed was due under his policy. Central to Hickey’s case was an expert appraiser, Chuck Howarth, whose late-revealed opinions on causation and bad faith were excluded by the district court under Federal Rule of Civil Procedure 37(c)(1). On appeal, Hickey argued that his Rule 26 disclosures were adequate—or, at worst, any shortcomings were harmless. The Eleventh Circuit disagreed, affirming summary judgment for State Farm and, in the process, sharpening the contours of what constitutes a “complete statement of all opinions” under Rule 26(a)(2)(B).

2. Summary of the Judgment

The Court of Appeals affirmed the district court’s:

Exclusion of Howarth’s opinions on causation (storm vs. pre-existing damage/mold) and on State Farm’s alleged bad faith.
Grant of summary judgment in favor of State Farm on Hickey’s breach-of-contract (as to non-covered items) and bad-faith claims.
Ultimate judgment for State Farm on the remaining dispute regarding valuation of covered damages.

The appellate panel held that:

Hickey’s Rule 26(a)(2) disclosure failed to set out Howarth’s causation and bad-faith opinions or their bases.
The failure was not harmless; deposing an expert without a compliant report deprives the opponent of the fair opportunity Rule 26 intends to provide.
Without the excluded expert testimony, Hickey lacked evidence creating a triable issue, warranting summary judgment for State Farm.

3. Analysis

3.1 Precedents Cited

Crawford v. ITW Food Equipment Group, 977 F.3d 1331 (11th Cir. 2020) – Standard of review for Rule 37(c)(1) sanctions (“abuse of discretion”).
Sorrels v. NCL (Bahamas) Ltd., 796 F.3d 1275 (11th Cir. 2015) – Defines abuse of discretion and clarifies district-court latitude.
Walter Int’l Prods., Inc. v. Salinas, 650 F.3d 1402 (11th Cir. 2011) – Critical holding that it is not harmless to depose an expert without a Rule 26-compliant report.
Allstate Ins. Co. v. Swann, 27 F.3d 1539 (11th Cir. 1994) – Principle that issues not raised in the initial brief are deemed abandoned (invoked to dismiss Hickey’s newly minted arguments on appeal).
Rogers v. State Farm Fire & Casualty Co., 984 So. 2d 382 (Ala. 2007) – Discussed in the district court, but the Eleventh Circuit clarified it played no role in the exclusion ruling.

3.2 Legal Reasoning of the Court

The Court’s reasoning flowed through four logical checkpoints:

Textual Requirements of Rule 26(a)(2)(B). The rule demands a “complete statement of all opinions … and the basis and reasons for them.” A mere repair estimate, even if it implicitly suggests a causation view, is not a “complete statement.”
Failure Equals Exclusion Unless Justified or Harmless. Rule 37(c)(1) is self-executing. Hickey offered no substantial justification, and the Court found tangible prejudice—State Farm had to depose Howarth blindly.
“Deposition‐Cures-All” Rejected. Citing Salinas, the Court reiterated that post-hoc discovery does not moot the disclosure failure; the adversary must have the report before deposition.
Causation Evidence Gap. With Howarth’s opinions excluded and Hickey not proffering alternative admissible causation evidence, no genuine dispute of material fact remained.

3.3 Impact on Future Litigation

The ruling will likely reverberate in three principal arenas:

Expert Practice in the Eleventh Circuit. Practitioners must ensure that every opinion—especially on causation and bad faith—is spelled out in the written report with supporting reasoning. “Inherent” or “implicit” opinions are non-starters.
Insurance Coverage & Appraisal Disputes. Plaintiffs often conflate valuation and coverage. Hickey underscores that expert appraisal opinions must segregate covered vs. uncovered items if they hope to be admissible.
Discovery Sanctions. The decision strengthens the message that courts will enforce Rule 37(c)(1) without hesitation, making exclusion the default consequence for deficient disclosures.

4. Complex Concepts Simplified

Rule 26(a)(2) Expert Report: A formal document in which the expert lays out every opinion he will testify to, along with data and reasoning. Think of it as the expert’s “opening statement on paper.” If it’s not there, it can’t come in later.
Rule 37(c)(1) Sanction: A blunt tool instructing courts to bar undisclosed information or witnesses unless the lapse is excused. It is designed to prevent “trial by ambush.”
Harmlessness Inquiry: Courts ask whether the late disclosure prejudiced the opposing party. The Eleventh Circuit views lack of a compliant report before deposition as inherently prejudicial.
Breach of Contract vs. Bad Faith: Breach addresses failure to pay under policy terms; bad faith alleges the insurer’s denial (or delay) lacked a reasonable basis and was dishonest or malicious.
Insurance Appraisal Clause: A policy mechanism to resolve disputes about amount of loss—not coverage. Parties each pick an appraiser; if they disagree, an umpire decides.

5. Conclusion

Hickey v. State Farm reaffirms a straightforward but often misunderstood rule: an expert’s testimony is only as good as the disclosure that precedes it. By holding that a line-item estimate does not inherently reveal opinions on causation or bad faith, the Eleventh Circuit places litigants on clear notice—articulate every opinion and its basis in the Rule 26 report, or risk total exclusion. Beyond the procedural lesson, the case also illustrates the substantive divide between valuation and coverage in property-insurance disputes and reminds plaintiffs that expert evidence on causation is indispensable. The decision therefore stands as a cautionary tale and a guidepost for federal practitioners navigating expert discovery in the Eleventh Circuit.