Delgado v. Magical Cruise Company, Limited
Filing
29
ORDER granting in part and denying in part 27 Motion to Strike Plaintiff's expert disclosure. Signed by Magistrate Judge Thomas B. Smith on 3/21/2017. (Smith, Thomas)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
JORGE DELGADO,
Plaintiff,
v.
Case No: 6:15-cv-2139-Orl-41TBS
MAGICAL CRUISE COMPANY,
LIMITED,
Defendant.
ORDER
This case comes before the Court without oral argument on Defendant’s Motion to
Strike Plaintiff’s Expert, or in the Alternative, Motion to Compel Better Expert Disclosures
and Motion [for] Stay of Defendant’s Expert Disclosure Deadline (Doc. 27). Plaintiff has
filed a response in opposition to the motion and the dispute is ripe for decision (Doc. 28).
Plaintiff Jorge Delgado complains that while employed as a crew mess attendant
aboard Defendant Magical Cruise Company Limited’s vessel the Wonder, he was injured
as a consequence of Defendant’s negligence (Doc. 1). Defendant denies liability and has
asserted ten affirmative defenses (Doc. 9).
The Case Management and Scheduling Order (“CMSO”) which governs the case
required Plaintiff to disclose his expert witness reports by February 15, 2017 (Doc. 20 at
1). Defendant’s expert witness disclosure was due by March 15, 2017 (Id.). The CMSO
requires the parties to “fully comply” with FED. R. CIV. P. 26(a)(2) and 26(e) on or before
these expert disclosure deadlines (Id., at 3).
On February 15, 2017, Plaintiff disclosed that he intends to call ergonomist and
safety inspector Dr. Marc B. Wilson as an expert witness (Doc. 27-1). According to
Plaintiff, “Dr. Wilson is a Board Certified Professional Ergonomist, and Expert regarding
ship design, human factors, engineering, ergonomics, and safety Marine Safety
Inspector. Dr. Wilson will evaluate, test, measure, and examine the area of the alleged
incident once provided access to the Defendant’s vessel as currently scheduled.” (Id., at
1). Because Dr. Wilson has not inspected the Wonder, he has not prepared a report, and
Plaintiff can only anticipate what testimony the doctor will give (Id., at 2).
Plaintiff’s disclosure of Dr. Wilson does not satisfy the requirements of FED. R. CIV.
P. 26(a)(2) or the CMSO because it does not include: (1) “a written report—prepared and
signed by the witness;” (2) “a complete statement of all opinions the witness 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.” FED.
R. CIV. P. 26(a)(2)(B).
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.” FED. R.
CIV. P. 37(c)(1). In addition to or in lieu of this sanction, the Court, on motion, and after
giving an opportunity to be heard:
(A) may order payment of the reasonable expenses, including
attorney’s fees, caused by the failure;
(B) may inform the jury of the party’s failure;
(C) and may impose other appropriate sanctions, including
any of the orders listed in Rule 37(b)(2)(A)(i)-(vi).
Id.
The burden of establishing that a failure to disclose was substantially justified or
harmless rests on the party who failed to disclose the information. Mitchell v. Ford Motor
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Co., 318 F. App'x 821, 825 (11th Cir. 2009). The Court considers the following factors
when determining whether a failure to disclose an expert is substantially justified or
harmless: “(1) the surprise to the party against whom the evidence would be offered; (2)
the ability of that party to cure the surprise; (3) the extent to which allowing the evidence
would disrupt the trial; (4) the importance of the evidence; and (5) the nondisclosing
party’s explanation for its failure to disclose the evidence.” Mobile Shelter Sys. USA, Inc.
v. Grate Pallet Sols., LLC, 845 F. Supp. 2d 1241, 1250-51 (M.D. Fla. 2012).
The parties’ attorneys are based in Miami, Florida. When this case was filed, it was
one of three involving the same attorneys and Defendant. 1 The vessels in all three cases
sail out of Port Canaveral, Florida (Doc. 28, ¶ 3). Plaintiff explains that “[i]n an effort to
avoid multiple trips from Miami to Port Canaveral for both sides counsels and Plaintiff’s
counsels expert, in order to be able to conduct vessel inspections, Plaintiff’s counsel and
Defendant’s counsel worked together to arrange for the depositions of the three Plaintiff’s,
their defense medical exams, their vessel inspections and their mediations to all occur
contemporaneously the week of April 20, 2017. This was worked out on January 11,
2017 via email.” (Doc. 28, ¶ 4). The email to which Plaintiff refers has not been produced
to the Court.
Defendant states that the Wonder has been generally available for inspection since
the start of the case and Plaintiff made no effort to inspect it prior to his expert disclosure
deadline (Doc. 27 at 7). Defendant also notes that Plaintiff has not sought an extension of
the deadline to make his expert witness disclosures (Id., at 8). Defendant alleges that
Plaintiff first requested an inspection of the Wonder in December, 2016, and that it was
1 The two other cases are Jelena Beluhan v. Magical Cruise Company, Ltd., d/b/a Disney Cruise
Line, Case No. 6:15-cv-2137-18GJK, and Edson Rodriguez v. Magical Cruise Company, Ltd., d/b/a Disney
Cruise Line, Case No. 6:15-cv-2136-31TBS (Doc. 13 at 1).
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Plaintiff who suggested the inspection coincide with the mediation during the week of April
20 (Doc. 27 at 7). Defendant admits that the parties agreed to inspect the vessels to
coincide with mediation during the week of April 20, but does not mention the depositions
and defense medical examinations (Id.).
Plaintiff says that based on the agreement of counsel, and to avoid burdening the
Court with a motion to extend the deadline for him to make his expert witness disclosures,
Plaintiff provided the information he had by the deadline in the CMSO (Doc. 28, ¶ 5).
Plaintiff argues that although his disclosure is incomplete, it contains all the information
Defendant requires to be able to decide whether to engage its own expert witness (Id., ¶
6). Because the inspection of the Wonder is scheduled for the week of April 20, Plaintiff
states that he has no problem with Defendant reserving the right to amend and
supplement its expert witness disclosure sometime after the inspection occurs (Id., ¶ 6).
Plaintiff also states that at the good faith conference of counsel which preceded the filing
of this motion to strike, Plaintiff told Defendant he had no objection to the filing by
Defendant of an unopposed motion to allow Defendant to provide its expert disclosures 30
days after Dr. Wilson renders his opinions (Id., ¶ 8).
Based upon the foregoing representations, Plaintiff argues that his failure to comply
with Rule 26(a)(2) and the CMSO is substantially justified and harmless (Id., ¶ 11). Plaintiff
also argues that the striking of his expert is not warranted and would be irreparably
prejudicial to the presentation of his case (Id., ¶ 9).
Defendant claims that it has been significantly prejudiced by Plaintiff’s failure to
comply with Rule 26(a)(2) and the CMSO (Doc. 27 at 5-6). It says it can only guess at
what Dr. Wilson will conclude and how he reaches his conclusions (Id.). According to
Defendant, this leaves it “vulnerable to surprise and ambush without reasonable recourse
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to cure the surprise.” (Id., at 6). And, Defendant argues that it will be unfairly prejudiced if
it is required to make its complete expert disclosures before Plaintiff makes his
disclosures (Id., at 5-6).
This dispute could have been avoided if counsel for Plaintiff had been more careful
when it came to compliance with Rule 26(a)(2) and the CMSO, and more careful when it
came to documenting whatever understandings he believed he had reached with counsel
for Defendant. 2 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 has not shown, by the standard required in
Rule 4.15, that Defendant made any agreement that would excuse Plaintiff’s compliance
with the expert disclosure requirements of Rule 26(a)(2) and the CMSO. Therefore, the
Court finds that Plaintiff’s failure to timely make his expert witness disclosure is not
substantially justified.
That said, the deadline to complete all discovery is June 5, 2017; dispositive
motions are due by July 10, 2017; and the parties Joint Final Pretrial Statement is due by
November 6, 2017 (Doc. 20 at 1). Thus, there still is time to complete the expert witness
disclosures, which the Court will assume are critical to the parties’ cases, without
prejudicing Defendant or disrupting the case management schedule. This leads the Court
to conclude that Plaintiff’s error can be rendered harmless through modification of the
2 Although Defense counsel was under no duty to do so, this dispute could also have been avoided
if he had pointed out in December, 2016 that Plaintiff’s proposal to inspect the Wonder in April, 2017 was
inconsistent with the deadline for Plaintiff’s expert witness disclosures.
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CMSO. Accordingly, the Court GRANTS Defendant’s motion in part. The expert witness
disclosure Plaintiff has already made is STRICKEN. Plaintiff shall make his full and
complete expert witness disclosures no later than May 15, 2017. Defendant shall have 30
days from the date Plaintiff makes his expert disclosures within to make its expert
disclosures. In all other respects, Defendant’s motion is DENIED.
DONE and ORDERED in Orlando, Florida on March 21, 2017.
Copies furnished to Counsel of Record
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