                                                                  [DO NOT PUBLISH]

                        IN THE UNITED STATES COURT OF APPEALS

                               FOR THE ELEVENTH CIRCUIT
                                ________________________
                                                                         FILED
                                       No. 10-10623      U.S. COURT OF APPEALS
                                 ________________________ ELEVENTH CIRCUIT
                                                                     APRIL 6, 2011
                             D.C. Docket No. 1:09-cv-20160-JLK        JOHN LEY
                                                                       CLERK

ALAN KAUFMAN,
Individually,
d.b.a. Center For Asthma & Allergy Of Bronx And Westchester,

lllllllllllllllllllll                                               Plaintiff - Appellant,

versus

SWIRE PACIFIC HOLDINGS, INC.,
a Delaware Corporation,

lllllllllllllllllllll                                             Defendant - Appellee.

                                ________________________

                          Appeal from the United States District Court
                              for the Southern District of Florida
                                ________________________

                                        (April 6, 2011)

Before BARKETT, HULL and KRAVITCH, Circuit Judges.

PER CURIAM:
      Appellant-Plaintiff Alan Kaufman (“Kaufman”) appeals: (1) the district

court’s summary judgment order, dated December 18, 2009, granting summary

judgment in favor of Appellee-Defendant Swire Pacific Holdings, Inc. (“Swire”)

on Counts I, II, and IV; (2) the district court’s order, dated October 9, 2009,

granting Swire’s motion to strike the testimony of Kaufman’s experts, Jose Perea

and Ralph Puig; and (3) the district court’s dismissal order, dated June 23, 2009,

dismissing with prejudice Kaufman’s claims in Counts III and V. With respect to

the dismissal order, Kaufman only appeals the Rule 12(b)(6) dismissal with

prejudice of Count V in its entirety.

      Even without considering Kaufman’s experts, we conclude the district court

erred in granting summary judgment as to Counts I, II, and IV and dismissing

Count V in its entirety at the Rule 12(b)(6) stage. As to Count V, we conclude the

complaint stated a cause of action for actual damages. As to Counts I, II, and IV,

the record presents genuine issues of material fact unsuitable for resolution at the

summary judgment stage. Because factual issues for trial are presented even

without Kaufman’s experts, we need not decide whether the district court abused

its discretion in granting Swire’s motion to strike in order to decide the summary

judgment issues as to Counts I, II, and IV. Further, we note that the district court

ruled “that Mr. Jose Perea and Mr. Ralph Puig’s testimony be excluded unless

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timely offered for rebuttal.” Given the reversal of the summary judgment order

and the district court’s allowing Kaufman’s experts to testify anyway (albeit

limited to rebuttal), we conclude both parties on remand should now be given

adequate opportunity to depose each other’s experts before trial and each party’s

experts should be allowed to testify at trial. We vacate the above district court

orders to the extent stated above and remand this case.

      VACATED AND REMANDED FOR TRIAL.




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