U.S. Magistrate Judge Thomas B. Smith recently decided a Cruise Company’s Motion to Strike a plaintiff’s expert, or in the alternative, to compel better expert disclosures and motion for stay of its expert disclosure deadline.
Plaintiff complained that while employed as a crew mess attendant aboard Defendant’s cruise ship, he was injured due to Defendant’s negligence. Plaintiff disclosed that he intended to call an ergonomist as an expert witness. The expert was a board certified professional ergonomist, and expert on ship design, human factors, engineering, ergonomics, and was a marine safety inspector. The ergonomist was to evaluate, test, measure, and examine the area of the alleged incident once he was given access to the Defendant’s vessel. Because the ergonomist hadn’t inspected the cruise ship, he didn’t prepare a report, and Plaintiff could only anticipate what testimony the ergonomist would give.
Judge Smith found that Plaintiff’s disclosure of his expert didn’t satisfy the requirements of Rule 26(a)(2) or his scheduling order because it didn’t include: (1) “a written report—prepared and signed by the witness;” (2) “a complete statement of all opinions the rr will express and the basis and reasons for them;” (3) “the facts or data considered by the witness in forming them;” or (4) “any exhibits that will be used to summarize or support them.” The judge wrote Rule 37(c)(1) states that when a party fails to comply with Rule 26’s expert disclosure requirements “the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless.”
The judge noted that the burden of establishing that a failure to disclose was substantially justified or harmless rests on the party who failed to disclose the information, and that the Court will considers these factors when making that determination:
- the surprise to the party against whom the evidence would be offered;
- the ability of that party to cure the surprise;
- the extent to which allowing the evidence would disrupt the trial;
- the importance of the evidence; and
- the non-disclosing party’s explanation for its failure to disclose the evidence.
The judge explained that the parties’ attorneys were based in Miami, and when the case was filed, it was one of three involving the same attorneys and the cruise line. The vessels in all three cases sailed out of Port Canaveral, Florida. Plaintiff explained that for the sake of efficiency, to be able to conduct vessel inspections, parties’ counsel arranged for the depositions of the three plaintiffs and their vessel inspections all in one week in April. This was worked out in a January email, but Plaintiff didn’t produce this to the Court.
Defendant stated that the cruise ship had been available for inspection since the start of the case, and Plaintiff made no effort to inspect it before the expert disclosure deadline. Defendant also noted that Plaintiff didn’t seek an extension of the deadline to make his expert witness disclosures. Defendant alleged that Plaintiff first requested an inspection of the ship in December 2016, and that it was Plaintiff who suggested the inspection coincide with the mediation during April, which Defendant acknowledged.
Plaintiff argued that, although his disclosure was incomplete, it contained the information Defendant required to ready its own expert witness. Plaintiff argued that his failure to comply with Rule 26(a)(2) and the scheduling order was substantially justified and harmless. Plaintiff also argued that the striking of his expert wasn’t warranted and would be irreparably prejudicial to the presentation of his case. In response, Defendant claimed it was significantly prejudiced by Plaintiff’s failure to comply with Rule 26(a)(2) and the scheduling order… arguing that it could only guess what the ergonomist would conclude and how he reached his conclusions.
Judge Smith chastised that the dispute could’ve been avoided if Plaintiff’s counsel had complied with Rule 26(a)(2) and the scheduling order, and took more care in documenting whatever understandings he said he’d reached with opposing counsel. The judge also said that, although Defendant’s counsel had no duty to do so, they could’ve avoid this dispute if he’d pointed out that Plaintiff’s proposed schedule to inspect the cruise ship in April, 2017 was beyond the deadline for Plaintiff’s expert witness disclosures.
Judge Smith explained that Local Rule 4.15 provides that “[n]o stipulation or agreement between any parties or their attorneys, the existence of which is not conceded, in relation to any aspect of any pending case, will be considered by the Court unless the same is made before the Court and noted in the record or is reduced to writing and subscribed by the party or attorney against whom it is asserted.” Plaintiff failed to show per Rule 4.15 that Defendant made an agreement that would excuse his compliance with the expert disclosure requirements of Rule 26(a)(2) and the scheduling order. Thus, the judge found that Plaintiff’s failure to timely make his expert witness disclosure wasn’t substantially justified. Nonetheless, the judge advised that the deadline to complete all discovery was in June, so there was still time to complete the expert witness disclosures without prejudicing Defendant or disrupting the case management schedule.
Given this fact, Judge Smith concluded that Plaintiff’s error was harmless through modification of the scheduling order. The Court granted Defendant’s motion in part, and the expert witness disclosure Plaintiff already made was stricken. The judge ordered that Plaintiff was to make his full and complete expert witness disclosures no later than May 15th, and Defendant would have 30 days from the date Plaintiff makes his expert disclosures to make its expert disclosures. In all other respects, Defendant’s motion was denied.
Delgado v. Magical Cruise Co., 2017 U.S. Dist. LEXIS 40050 (M.D.Fla. March 21, 2017)