Cook v. Royal Caribbean Cruises, Ltd
Filing
139
ORDER granting in part and denying in part 135 Defendant's Motion to Strike Plaintiff's Fifth Supplemental Rule 26 Disclosure. Signed by Magistrate Judge Jonathan Goodman on 6/15/2012. (dkc)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION
Case No. 11-20723-CIV-GOODMAN
[CONSENT CASE]
BONNIE COOK,
Plaintiff,
v.
ROYAL CARIBBEAN CRUISES, LTD, a Liberian
Corporation,
Defendant.
__________________________________~I
ORDER GRANTING IN PART AND DENYING
IN PART DEFENDANT'S MOTION TO STRIKE
PLAINTIFF'S FIFTH SUPPLEMENTAL RULE 26 DISCLOSURE
This cause is before the Court on Defendant's Motion to Strike Plaintiff's Fifth
Supplemental Rule 26 Disclosure [ECF No. 135].
In this seven-page motion,l the
Defendant cruise ship company seeks to exclude an updated expert report, a
The Court's Discovery Procedures Order for this consent case [ECF No. 11] limits
discovery motions to "no longer than five pages." Defendant did not seek leave of
Court to file a motion in excess of five pages, but Plaintiff did not contest the length of
Defendant's motion in her response. Because it is arguable that the motion is more akin
to a motion in limine, as opposed to a discovery motion filed after expiration of the
discovery period, the Court will not strike or deny the motion on the grounds that it
exceeds the maximum page limit. Of course, the better practice would have been to
seek leave of Court, in an abundance of caution, after first consulting with opposing
counsel about his position on the length of the motion.
Case No. ll-20723-CIV-GOODMAN
[CONSENT CASE]
supplemental office visit note from a medical expert and a DVD of Plaintiff being
airlifted from the ship on the day following her fall. Defendant contends that these
disclosures were untimely and that the evidence should not be permitted at trial
because admitting the tardily-disclosed evidence would generate undue prejudice.
Plaintiff does not challenge the fact that she produced these materials after the
applicable deadlines.
Nevertheless, she argues that the Court should not strike or
exclude her supplemental disclosure because she obtained the evidence late and
because she had a duty to supplement. 2 She suggests that striking the late-disclosed
evidence would be punishing her for following the duty-to-supplement rule.
For the reasons outlined below, the Court grants the motion in part, denies the
motion in part, and strikes the following disclosures from Plaintiff's Fifth Supplemental
Rule 26 Disclosure (and excludes evidence of these matters from trial): Dr. Lichtblau's
supplemental report and Dr. Pettingill's supplemental expert witness report. The DVD
Federal Rules of Civil Procedure 26(a)(2) and (e) impose a duty to supplement
"in a timely manner" if the earlier disclosure is "incomplete or incorrect" in "some
material respect" and "the additional or corrective information has not otherwise been
made known to the other parties during the discovery process or in writing."
Concerning experts, the duty to supplement rule (Rule 26(e)(2)) provides that "[a]ny
additions or changes to this information must be disclosed by the time the party's
pretrial disclosures under Rule 26(a)(3) are due."
Rule 26(a)(3)(B), in tum, requires the disclosures to be made "at least 30 days
before tria!," unless the court orders otherwise.
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Case No . 1 J -20723-CIV -GOODMAN
[CONSENT CASE]
will not be stricken, but if Plaintiff intends to use the DVD at trial, then she shall make
herself available for a supplemental deposition concerning the DVD by June 21, 2012.
The mere fact that Plaintiff believes she is or was under a duty to supplement her
discovery disclosures does not mean that complying with the duty trumps deadlines in
the case and permits trial use of post-deadline disclosures, prejudicial consequences
notwithstanding. If that were the rule, deadlines (for example, to furnish documentary
evidence, disclose expert witness opinions and provide tangible evidence of any type)
would be meaningless and parties could wait until the eleventh hour to make
substantively significant disclosures and then avoid exclusion by merely submitting a
last-minute disclosure, justified by the duty-to-disclose rule.
Under Plaintiff's apparent theory of the interplay between deadlines and the
duty-to-supplement rule, a party could submit an expert witness report from an
economist whose damages opinion is $1 million, permit the opposing party to take the
expert's deposition, make a last-minute disclosure (under the duty-to-supplement rule)
two days before trial that the expert now has three additional damages theories totaling
$5.5 million and then be permitted to introduce the new expert opinion at trial because,
as Plaintiff says here [ECF No. 138, p. 3], "we were under a duty to timely disclose all
these things; and we did."
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Case No. JJ-20723-CIV-GOODMAN
[CONSENT CASE]
I.
Factual Background
On December IS, 2011, the parties jointly moved [ECF No. 28} to enlarge the time
to complete discovery, requesting that the Court extend the discovery period an
additional 30 days to April 9, 2012. The Court granted the motion [ECF No. 31}.
The case is specially set for a bench trial for June 26, 2012. [ECF No. 94]. On May
24, 2012, a month and a half after expiration of the already-extended discovery cutoff
deadline and approximately only a month before the trial, Plaintiff served her Fifth
Supplemental Rule 26 Disclosure on defense counsel. This supplement included a June
18, 2012 3 updated expert report from Bernard Pettingill, Plaintiff's consulting
economist, a May 17, 2012 "Extended Follow Up Office Visit" note from Dr. Craig
Lichtblau and the DVD. [See ECF No. 135}.
Dr. Pettingill's new report increased his opinion of Plaintiff's total damages from
approximately $1.67 million to approximately $2.08 million. The increase is due to the
inclusion of updated amounts of past medical bills (which were available to him before
the discovery cutoff), a recalculation of the life-expectancy based on what Plaintiff
vaguely describes as the "latest government mortality tables (which just became widely
accessible on-line)" and a newer discount rate based on what Plaintiff says is "today's
Dr. Pettingill apparently thought the trial would be starting on June 18, 2012 and
used this date for the update. Obviously, Dr. Pettingill did not prepare the supplement
on June 18, 2012, as the supplement was served on May 24, 2012. The supplement does
not otherwise indicate when it was prepared, but it surely was on or before May 24,
2012.
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Case No. \\-20723-CrV-GOODMAN
[CONSENT CASE]
actual, real-world yield on government bonds." In response to the motion to strike,
Plaintiff does not contend that the updated past medical bill information was somehow
unavailable to Dr. Pettingill before the discovery cutoff.
In addition, she does not
specify when the latest government mortality tables "just" became available online
(which suggests it was before the discovery cutoff), nor does she contend that her
expert could not have obtained the latest tables from other sources.
Concerning Dr. Lichtblau's follow-up office visit note from May 17, 2012,
Plaintiff does not explain why he could not have examined her a second time and
issued a supplemental report before the discovery cutoff.
Plaintiff says that she and her cOW1sel first learned of the DVD's existence after
the discovery cutoff, when its originator "gratuitously" mentioned its existence to
Plaintiff's counsel's office.
Plaintiff further explains that it took approximately hvo
weeks to obtain the video but that she promptly copied it and provided it to the defense
upon receipt.
II.
Legal Analysis
Defendant relies upon Federal Rule of Civil Procedure 26(a)(2)(D)(ii), which
governs the timing of expert witness disclosures. To be sure, that rule provides that
disclosures must be made at least 90 days before trial, absent a stipulation or a court
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Case No. 11-20723-CIV-GOODMAN
[CONSENT CASE]
order. However, Defendant does not discuss Federal Rule of Civil Procedure 26(e),
which concerns the issue present here - supplementing responses.
If Plaintiff's two experts had issued supplemental reports based on information
that was unavailable to them by the time of the discovery cutoff, then Plaintiff would be
in a different situation. But the updates provided by Dr. Pettingill and Dr. Lichtblau are
based on purported new information which appears to have been available before the
discovery cutoff.
Although Plaintiff says that the updated medical bills were
unavailable when Dr. Pettingill first prepared his report, she does not claim that the
information was also unavailable by the time the discovery cutoff expired. And she
does not claim that Dr. Lichtblau could not have seen her for a follow-up visit before
discovery expired.
Because Defendant has already taken the depositions of these two experts and
does not now have the ability to obtain additional experts to rebut the supplemental
opinions or to arrange for supplemental opinions from its own witnesses, permitting
Plaintiff to use these supplemental expert witness opinions would unduly prejudice
Defendant.
The Court is not inclined to cause this inequitable result.
See Reese v.
Herbert, 527 F.3d 1253, 1265 (11th Cir. 2008) (affirming order striking expert's affidavit
and noting that "the expert disclosure rule is intended to provide opposing parties
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Case No. 11-20723-CIV-GOODMAN
[CONSENT CASE]
reasonable opportunity to prepare for effective cross examination and perhaps arrange
for expert testimony from other witnesses") (internal quotation marks omitted).
Although Plaintiff did not give Defendant a copy of the DVD until after the
discovery deadline expired, she did not know of or have the DVD before the discovery
cutoff. Moreover, Defendant is aware (and has been for some time) that Plaintiff was
airlifted from the ship. The DVD is merely digital photographic/video evidence of what
Defendant has known for some time. Because Plaintiff produced the DVD at the last
minute, the Court concludes that it needs to give Defendant the opportunity to question
Plaintiff about these developments in a deposition.
Defendant, of course, is free to
pursue the opportunity or to ignore it. If Defendant wishes to take another deposition
of Plaintiff (limited to questions about her being airlifted from the ship and the
circumstances surrounding the DVD), then Plaintiff shall make herself available by June
21, 2012.
DONE and ORDERED, in Chambers, in Miami, Florida, this 15th day of June,
2012.
Jonathan Goodman
United States Magistrate Judge
Copies furnished to:
All counsel of record
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