Martin v. Lens.com, Inc.

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 0:24-CV-60489-LEIBOWITZ/AUGUSTIN-BIRCH
REPORT AND RECOMMENDATION ON
DEFENDANT’S MOTION TO STRIKE EXPERT WITNESS
This cause comes before the Court on Defendant Lens.com, Inc.’s Motion to Strike Plaintiff’s
Untimely Disclosed Expert Witness for Class Certification. DE 108. The Honorable David S.
Leibowitz, United States District Judge, referred the Motion to the undersigned United States
Magistrate Judge for a report and recommendation. DE 110. Plaintiff Rickey Martin filed a response,
DE 109, but Defendant did not file a reply. Having carefully considered the record and the briefing
and being otherwise fully advised in the premises, the Court RECOMMENDS DENYING
Defendant’s Motion [DE 108].
I. Background
Plaintiff, on behalf of himself and all others similarly situated, filed a class action Complaint
against Defendant, alleging that Defendant deliberately misleads Florida consumers on its website.
DE 1-1. Specifically, Plaintiff asserts that Defendant, an online retailer of contact lenses, imposes a
“Taxes & Fees” charge on Florida customers, despite the fact that the State of Florida exempts
prescription contact lenses from a sales tax. Id. ¶ 2. As such, Plaintiff contends that the “Taxes &
RICKEY MARTIN,
Plaintiff,
v.
LENS.COM, INC.,
Defendant.
____________________________________/
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Fees” charge for Florida customers is solely a “Processing fee,” which he claims is “excessive and
unrelated to the actual costs of processing the purchase order.” Id.
Under Judge Leibowitz’s Trial Order, the parties were required to exchange class certification
expert witness summaries by February 21, 2025. DE 54 at 2. In its Motion, Defendant contends that
Plaintiff failed to disclose a class certification expert––Stephen Heffner, who opined on how
Defendant calculates its “Taxes & Fees” charge—by this deadline. Thus, Defendant moves for the
Court to strike Mr. Heffner’s report and to preclude Plaintiff from relying on Mr. Heffner’s opinions
in support of class certification.
II. Analysis
Federal Rule of Civil Procedure 26(a)(2)(D) provides that a party must disclose expert
testimony at the time and sequence that a court orders. Failure to do so results in the party’s inability
to use that expert witness’s testimony, unless the failure to disclose was “substantially justified or is
harmless.” Fed. R. Civ. P. 37(c)(1). Defendant maintains that Plaintiff’s failure to timely disclose Mr.
Heffner’s opinions was neither substantially justified nor harmless. The Court disagrees.
As an initial matter, Defendant all but concedes that Plaintiff could not have timely disclosed
Mr. Heffner’s opinions. Defendant explains that Plaintiff has had its pricing algorithm since July 11,
2025. DE 108 at 2. But, as mentioned above, the deadline to disclose class certification expert witness
summaries was February 21, 2025, nearly five months before Plaintiff obtained the pricing algorithm
on which Mr. Heffner opines. The Court fails to see how Plaintiff could produce an expert opinion
on something he did not have. Plaintiff’s failure to timely disclose Mr. Heffner’s opinions for class
certification purposes is substantially justified.
Next, Defendant contends that it has been substantially prejudiced because class discovery
has closed, and it has not had an opportunity to conduct additional discovery or depose Mr. Heffner
to rebut his opinions. Id. at 3. The Court fails to see what extra discovery Defendant would need to
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conduct regarding its own pricing algorithm, and Plaintiff represents to the Court that Defendant has
not made an attempt to depose Mr. Heffner. DE 109 at 7. Accordingly, Plaintiff’s failure to timely
disclose Mr. Heffner’s opinions for class certification purposes is harmless.
Lastly, Defendant asserts that Plaintiff’s reliance on Mr. Heffner’s opinions in his reply in
support of his motion for class certification has prejudiced Defendant because it does not have an
opportunity to respond to arguments that are newly raised in the reply and based on Mr. Heffner’s
opinions. DE 108 at 3. Since Plaintiff’s motion for class certification is not before this Court, the
Court leaves the determination of what arguments to consider or not consider when evaluating that
motion to Judge Leibowitz.
III. Recommendation
For the foregoing reasons, the Court RECOMMENDS DENYING Defendant’s Motion [DE
108].
Within fourteen days after being served with a copy of this Report and Recommendation, any
party may serve and file written objections to any of the above findings and recommendations. 28
U.S.C. § 636(b)(1); S.D. Fla. Mag. R. 4(a). The parties are hereby notified that a failure to timely
object waives the right to challenge on appeal the District Court’s order based on unobjected-to factual
and legal conclusions contained in this Report and Recommendation. 11th Cir. R. 3-1 (2014).
DONE AND SUBMITTED in Chambers at Fort Lauderdale, Florida, this 17th day of
February, 2026.
_______________________________ 	_
PANAYOTTA AUGUSTIN-BIRCH
UNITED STATES MAGISTRATE JUDGE
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