Frasca et al v. NCL (Bahamas) Ltd. et al
Filing
165
ORDER denying 145 Defendant's Motion for Leave to File Supplemental Expert Liability Report; denying 146 Plaintiff's Motion to Compel Defendant to produce information regarding prior slip and falls; denying as moot 146 Plaintiff's Motion for Extension of Time to File Response to Defendant's summary judgment motion. Signed by Magistrate Judge Jonathan Goodman on 2/24/2014. (oim)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION
CASE NO. 12‐20662‐CIV‐GOODMAN
[CONSENT CASE]
THOMAS FRASCA,
Plaintiff,
v.
NCL (BAHAMAS) LTD., et al.,
Defendants.
___________________________________/
ORDER ON LAST‐MINUTE DISCOVERY MOTIONS
Iconic musician Carole King explained a simple and straightforward sentiment
in her hit song, “It’s Too Late”: “And it’s too late, baby, now it’s too late/ Though we
really did try to make it.”1 Otis Redding expressed a similar view in his “It’s Too Late”
song: “But it’s too late/ It seems like it’s too late.”2 Eighteen years later, British hard rock
band Def Leppard sang a similar refrain in “Too Late for Love”: “Is it all too late?/
Much too late/ Can’t you see it’s all too late.”3
Framed by these lyrics warning of untimely action, the Court is confronted with
two motions arising from the parties’ failure to timely address discovery disputes and
1
It’s Too Late, on TAPESTRY (A & M Records 1971).
It’s Too Late, on THE GREAT OTIS REDDING SINGS SOUL BALLADS (Volt/Atco 1971).
Too Late for Love, on PYROMANIA (Mercury 1983).
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their last‐minute motions to obtain relief which could have (and should have) been
sought far earlier. In particular, Defendant Norwegian Cruise Lines (“NCL”) filed a
motion for leave to submit a supplemental liability expert report and Plaintiff Thomas
Frasca (“Frasca”) filed a motion to compel. [ECF Nos. 145; 146].
In its near‐the‐buzzer motion, NCL wants permission for its retained expert to
supplement his expert report so that he can amend his opinion to include the new
conclusion that (1) the tread pattern on the shoes worn by Frasca when he fell
“exhibited significant wear that included areas devoid of tread pattern or reduced tread
depth[,]” and (2) the wear on Frasca’s shoes ‐‐ closed‐heel, canvas‐top “Crocs” ‐‐ “was a
key contributing factor in the subject incident.” [ECF No. 145‐1].
Frasca’s eleventh‐hour motion seeks several types of relief. First, Frasca wants
NCL to produce information about prior slip and falls on all NCL vessels having the
same or similar deck surfaces for the five years before his fall. Second, Frasca wants to
delay his response to NCL’s summary judgment motion until the information is
provided. Finally, as an alternative type of relief, Frasca asks the Court to find that
NCL’s security officer’s deposition testimony about prior slip and falls is sufficient to
establish notice.
But both motions were filed too late, and the Court therefore denies them both.
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I.
GENERAL BACKGROUND
Frasca claims he was injured in a slip and fall accident on NCL’s vessel Pride of
America. According to Frasca, the fall caused a complete severing of his hamstring,
requiring surgery and the reattachment of the hamstring with surgical screws.
Frasca filed his lawsuit in February 2012. Since then, counsel have traveled to
Hawaii twice for depositions and have had numerous discovery disputes, triggering
several discovery motions and hearings. In other words, they have not been shy about
seeking judicial intervention in the discovery process.
On January 31, 2014, the parties filed cross summary judgment motions. [ECF
Nos. 137; 138; 144]. About a week later, the parties filed the instant cross‐discovery
motions. [ECF Nos. 145; 146].
II.
DISCUSSION
A. Background of the Two Motions
1. NCL’s Motion ‐‐ Shoe Business
NCL seeks permission for its expert witness to provide another opinion
concerning Frasca’s shoes. [ECF No. 145]. NCL says its liability expert could not address
any issues concerning Frasca’s shoes because Frasca failed to make both shoes available
for inspection in Miami, “despite repeated requests” dating back to May 2013. [ECF No.
145‐2, p. 4]. According to NCL, Frasca’s counsel advised in August 2013 that the shoes
would be available for inspection only at the Spokane, Washington offices of Frasca’s
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expert witness. [Id.]. NCL did not take up that offer but did not file a motion to compel
the production of the shoes in Miami. Instead, it asked Frasca’s counsel to bring the
shoes to Frasca’s deposition. [ECF No. 145‐3, p. 1]. On November 15, 2013, Frasca’s
counsel advised that the left shoe was in his Miami office and could be inspected there
but that the right shoe still had to be inspected in Spokane. [ECF No. 145‐4].
Again, NCL did not file a motion to compel the production of both shoes in
Miami. Rather, approximately two months later, on January 14, 2014, NCL’s counsel
renewed his request that both shoes be produced so that NCL’s expert could examine
them. [ECF No. 145‐5]. Frasca’s counsel would not budge, advising that the left shoe
could be inspected in Florida but that the right shoe must be inspected in Washington.
Yet again, NCL did not file a motion about the shoes. Rather, it arranged for its
counsel to inspect the left shoe at Frasca’s counsel’s office in Miami on January 18, 2014.
For reasons left unclear in its motion, NCL’s counsel was able to inspect the right shoe
in Hawaii on January 21, 2014.
On February 7, 2014, NCL’s expert prepared a supplemental report based on his
review of three digital photographs of Frasca’s right shoe. NCL’s expert had already
reviewed 16 digital photographs of Frasca’s left shoe, and this was mentioned in the
initial January 20, 2014 report. [ECF No. 150]. The initial report did not contain any
opinions about the wear of the tread on Frasca’s left shoe or if the wear was a
contributing factor in the slip and fall. The expert’s supplemental report, however,
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expanded the opinions to include a conclusion that “the wear of the tread on the soles
of Mr. Frasca’s shoes was a key contributing factor in the subject incident.” [ECF No.
145‐1].
Frasca’s response in opposition to the motion raises several points. The most
salient objection is that NCL inspected Frasca’s shoes on the day he fell and also took at
least one photograph of Frasca’s shoes on March 19, 2011. [ECF No. 150, p. 11].
According to Frasca, NCL’s expert had the March 19, 2011 photograph, a later
photograph of the left shoe taken by defense counsel, and Frasca’s expert’s report when
he issued his initial expert report. [ECF No. 150, p. 2]. But significantly, Frasca says,
NCL’s expert is silent on the shoes in his first report and does not offer or reserve an
opinion on whether the wear of the shoes contributed to the fall. Thus, Frasca argues
that NCL’s motion is too late because it has known about Frasca’s shoes for over two
and a half years. Alternatively, Frasca urges the Court to reopen discovery if it were to
grant NCL’s motion.
2. Frasca’s Motion
Frasca asks for an order compelling NCL to provide information about prior slip
and falls on all NCL vessels with “Bolidt” decks for five years before Frasca’s fall. In the
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alternative, Frasca asks the Court to find that the deposition testimony of a fact witness
(i.e., a security officer) about prior slip and falls is “sufficient to establish notice.”4
According to Frasca, NCL should have to produce this information because it
was included as an area of inquiry (number 18) in his December 12, 2012 Rule 30(b)(6)
deposition notice and NCL did not timely object. [ECF No. 146, p. 13]. In particular,
Frasca argues that the date for the 30(b)(6) deposition was rescheduled numerous times
between January 2013 and January 2014 and was finally taken on January 29, 2014. But
it was not until January 16, 2014 that NCL served five pages of objections. In its
objections, NCL objected to providing information about earlier slip and falls other than
those occurring within a three‐year period aboard the Pride of America.
Frasca never flagged the issue during the year gap between the first 30(b)(6)
notice (for a January 2013 deposition) and the final one (for a January 2014 deposition)
and he did not move to compel. Although Frasca filed other discovery motions [ECF
Nos. 122, 124] after NCL served its objections to the 30(b)(6) issues, they did not address
any of NCL’s 30(b)(6) objections. Instead, Frasca took the 30(b)(6) deposition and then
filed a post‐deposition motion to compel.
Frasca notes that he took the security officer’s deposition in March 2013, when
the officer testified that there had been other slip and falls on decks with the same
material and on wet decks.
Frasca’s request for more time to respond to NCL’s summary judgment motion is
moot as Frasca has already filed his response. [ECF No. 156].
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NCL raises several arguments in its opposition, the most relevant of which are as
follows. [ECF No. 152].5 First, NCL contends that Frasca’s instant motion is an improper
attempt to circumvent a prior order denying Frasca’s motion to compel interrogatory
answers on the same issue. Second, NCL points out that its 30(b)(6) witness was in fact
asked questions about prior slip and falls and answered those questions. Third, NCL
contends that Frasca failed to follow up with questions regarding prior slip and falls
when he took the security officer’s deposition. Finally, NCL argues that a fleet‐wide
search going back for five years is overbroad and unduly burdensome.
B. Applicable Legal Principles to Both Motions
Local Rule 26.1(h)(1) requires that all motions to compel discovery be filed
within 30 days “of the occurrence of the grounds for the motion.” Local Rule 26.1(h)
“reflects a policy of promoting the prompt resolution of discovery disputes by requiring
the parties to timely bring to the court’s attention matters that the parties cannot resolve
amongst themselves.” Kendall Lakes Towers Condo. Assʹn, Inc. v. Pac. Ins. Co., No. 10‐
24310‐CIV, 2011 WL 6190160, at *2 (S.D. Fla. Dec. 2, 2011). Local Rule 26.1(h), however,
“is permissive and affords the Court discretion in whether to consider a late‐filed
motion.” Sandalwood Estates Homeownerʹs Assʹn, Inc. v. Empire Indem. Ins. Co., No. 09‐CV‐
80787, 2010 WL 411088, at *2 (S.D. Fla. Jan. 29, 2010).
The Court notes that NCL’s response violates the Court’s Scheduling Order,
which requires all filings to be double‐spaced. [ECF No. 36, p. 10]. For the sake of
efficiency, the Court will not strike NCL’s response. However, the parties are advised
that the Court will strike any future filings that are not double‐spaced.
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The Court’s Trial Scheduling Order’s expert report requirements mirror the
obligations imposed by Federal Rule of Civil Procedure 26(a)(2)(B). [ECF No. 36]. Rule
26 requires, unless otherwise stipulated or ordered by the court, a witness disclosure for
an expert witness retained or specially employed to provide expert testimony in the
case to be “accompanied by a written report,” which must be prepared and signed by
the witness and contain the following: “(i) a complete statement of all opinions the
witness will express and the basis and reasons for them”; and “(ii) the facts or data
considered by the witness in forming them.”
An expert report must be complete to the point where “opposing counsel is not
forced to depose an expert in order to avoid ambush at trial; and moreover the report
must be sufficiently complete so as to shorten or decrease the need for expert
depositions and thus to conserve resources.” Dyett v. N. Broward Hosp. Dist., No. 03‐
60804, 2004 WL 5320630, at *1 (S.D. Fla. Jan. 21, 2004) (granting motion to strike expert
witness because, among other reasons, counsel’s summary was an inadequate
substitute for the required report) (internal citations and quotations omitted). In Dyett,
the court stated that “expert reports must not be sketchy, vague or preliminary in
nature” and found the summary provided by counsel as “fail[ing] miserably to satisfy
the requirements” of the Local Rule and Rule 26. Id.; see also Salgado v. General Motors
Corp., 150 F.3d 735, 743 (7th Cir. 1998); Fisher v. Carnival Corp., No. 11‐22316‐CIV, 2013
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WL 2157164 (S.D. Fla. May 17, 2013) (granting, in part, defendant’s motion in limine to
exclude expert opinion testimony).
Rule 37(c)(1) provides that “[i]f a party fails to provide information or identify a
witness as required by Rule 26(a) or (e), the party is not allowed to use that information
or the 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). “‘[T]he
sanction of exclusion is automatic and mandatory unless the sanctioned party can show
that its violation of Rule 26(a) was either justified or harmless.’” Dyett, 2004 WL
5320630, at *2 (quoting Salgado, 105 F.3d at 742).
Given these rules, courts do not hesitate to strike experts when adequate reports
have not been timely provided, and appellate courts regularly affirm orders excluding
experts under these scenarios. Reese v. Herbert, 527 F.3d 1253, 1266 (11th Cir. 2008)
(affirming district court’s exclusion of an expert’s affidavit and explaining that
compliance with Rule 26’s expert witness disclosure rule “is not merely aspirational”);
see also Managed Care Solutions, Inc. v. Essent Healthcare, Inc., No. 09‐60351‐CIV, 2010 WL
1837724 (S.D. Fla. May 3, 2010) (granting defendant’s motion to strike expert witnesses
and precluding them from testifying).
“Generally, when assessing whether there was substantial justification for the
failure to disclose or whether the failure to disclose was harmless courts consider four
factors: (1) the importance of the excluded testimony; (2) the explanation of the party for
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its failure to comply with the required disclosure; (3) the potential prejudice that would
arise from allowing the testimony; and (4) the availability of a continuance to cure such
prejudice.” Warner v. Ventures Health Care of Gainesville, Inc., No. 5:00‐CV‐308‐OC‐10‐
GRJ, 2001 WL 36098008, at *1 (M.D. Fla. Aug. 1, 2001) (internal citations omitted).
C. Analysis
The Court does not accept as logical or persuasive NCL’s argument that its
expert needs to provide another opinion and to supplement his report because he did
not earlier have the opportunity to inspect both shoes. NCL requested the shoes a long
time ago and never until very recently bothered to follow up and finalize the necessary
arrangements to have its expert inspect them or seek judicial intervention. Moreover, it
had a digital photograph in its possession since March 2011 but failed to arrange for its
expert to provide an opinion about the shoes’ tread from the photograph.
Filing a motion to amend an expert’s report to provide a supplemental opinion
after the expert deadline expired under the procedural history here is an illustration of
the too little/too late doctrine. Vazquez v. 4011 Prof’l Ctr. Condo, Inc., No. 07‐21276, 2008
WL 2625526, at *1 (S.D. Fla. Mar. 7, 2008). NCL could have raised the issue at any time
after May 2013 but it waited until the rebuttal expert deadline expired before seeking
another opinion. The Court purposefully scheduled the expert disclosure deadline
before the dispositive motion deadline ‐‐ so that the parties could, if they wished, have
generated a summary judgment motion (or other motion) on the basis of expert
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disclosures. [ECF No. 36]; see also Ruhland v. Walter Kidde Portable Equip., Inc., 179 F.R.D.
246, 250 (W.D. Wis. 1998) (the deadlines in a pretrial order “are not selected arbitrarily
by the court”). Moreover, the Court is unconvinced that NCL’s expert could not have
offered an opinion on the wear based on the photograph NCL’s security officer took
shortly after the fall. And, if the expert needed to actually examine both shoes, then
NCL has not explained why it never pursued the issue with the Court.
Permitting NCL to rely on a new expert witness opinion at this stage would
further delay the case. Frasca would surely want to take the expert’s deposition again,
in order to question him about the new opinion concerning the wear on the shoes ‐‐ and
Frasca’s expert then might want to amend his opinion to reach conclusions about the
new opinion offered by NCL’s expert.
By the same token, Frasca’s motion is also untimely and is his proverbial third
bite at the apple to obtain this information.
As the Court recently explained:
In February 2013, Frasca and NCL filed cross‐motions to compel
discovery before an upcoming discovery‐related trip to Hawaii. [ECF Nos.
37; 39]. The Court held a hearing on these motions on February 19, 2013,
and entered an Order on February 21, 2013 resolving some, but not all, of
the parties’ discovery disputes. [ECF Nos. 48; 52]. The reason for the
partial ruling was because the parties agreed at the hearing to only raise
“the discovery issues they deemed important for their Hawaii trip and for
the Court to hold a second hearing on the remaining discovery issues, if
necessary.” [ECF No. 52, p. 2]. For almost a year, neither party moved or
contacted the Court to resolve the remaining discovery issues.
[ECF No. 127, p. 2 (emphasis in original)].
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On January 16, 2014, Frasca filed a renewed discovery motion to have the Court
rule on the outstanding February 2013 discovery issues. [Id.; ECF No. 124]. One of those
February 2013 discovery issues was to compel NCL to produce information regarding
prior slip and falls for the five year period before Frasca’s accident. [ECF No. 124, p. 2].
The Court denied Frasca’s renewed discovery motion because it was untimely. [ECF
No. 127].
Frasca is now for the third time seeking to compel NCL to produce the same
information he sought to compel in February 2013. He did not seek reconsideration of
the Court’s recent order denying his motion as untimely [ECF No. 127], nor has he
explained why it took him almost a year to bring up this issue before the Court.
Accordingly, the Court yet again denies Frasca’s request for this information.
The Court similarly finds that Frasca could have (and should have) focused on
NCL’s year‐long failure to interpose objections to the list of topics to be covered by the
30(b)(6) deposition and demanded a response ‐‐ so that any objections could be timely
ruled upon before the deposition. Frasca listed 36 separate topics in the 30(b)(6) notice
he issued in December 2012. It is risky and likely illogical to assume that NCL was not
going to object to at least some of those topics. Although the deposition was rescheduled
numerous times, Frasca never required NCL to state its position on the 36 topics before
the actual deposition in January 2014. Likewise, he never sought an order compelling a
specific, category‐by‐category response. Instead, Frasca did not confront the issue until
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the written objections were received in January 2014. Even then, Frasca did not move to
compel or schedule a hearing on the objections before taking the deposition.6
From a pragmatic perspective, the Court notes that NCL’s 30(b)(6) representative
did answer questions regarding prior slip and falls. [ECF Nos. 146, pp. 29‐30; 152‐4]. In
addition, if the Court were to permit Frasca to take another 30(b)(6) deposition on
questions relating to topic 18 or enter the requested order compelling NCL to provide
“information” concerning prior slip and falls, then the already‐continued deadlines
would be at risk and the trial would likely need to be continued yet again.
As noted earlier, Frasca seeks alternative relief: an order finding that the
deposition testimony of an NCL security officer and answers to requests for admission
“establish notice and knowledge of the dangerous condition created by the wet Bolidt
deck.” Frasca did not specify which request for admission he thinks is supportive of his
request, however.
Nevertheless, notwithstanding the vague ground for the requested “finding,” the
Court is not prepared to make such a finding. In effect, Frasca is asking the Court to
enter a partial summary judgment relating to liability ‐‐ i.e., that NCL had sufficient
notice of a dangerous condition. If Frasca wanted to obtain a summary judgment ruling
Frasca had time to seek a ruling between January 16, 2014 (when NCL served its
objections) and January 29, 2014, when he took the 30(b)(6) deposition. Alternatively,
Frasca could have rescheduled the 30(b)(6) deposition for a later date up to the February
11, 2014 discovery cutoff deadline.
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in his favor on this issue, then he should have filed an appropriate motion.7 Given that
the summary judgment deadline has expired, Frasca cannot obtain summary judgment
relief now by filing a post‐deadline motion for a “finding.” See, e.g., McClaney v. Macon
Cnty. Bd. of Educ., No. 3:10CV219‐MHT, 2011 WL 9015 (M.D. Ala. Jan. 3, 2011) (declining
to consider dispositive motions filed after dispositive motions deadline). Thus, the
Court denies Frasca’s motion for alternative relief concerning a finding on notice.
III.
CONCLUSION
For the reasons stated above, the Court denies NCL’s motion and Frasca’s
motion.
DONE AND ORDERED in Chambers, in Miami, Florida, February 24, 2014.
NCL filed a summary judgment motion based, in part, on its contention that it
had no notice that the starboard deck is an unreasonably slippery location for
passengers to be walking on. Frasca opposes that summary judgment motion, but
defending a summary judgment motion is not the same as affirmatively seeking
summary judgment on the same factual issue. See, e.g., Delvecchio v. I.R.S., Nos. 07‐
14247‐CIV & 07‐14249‐CIV, 2008 WL 2883929, at *2 (S.D. Fla. July 5, 2008) (requiring
non‐movant to file a response and file its own motion for summary judgment on the
same issue); 10A Wright & Miller et al., Federal Practice and Procedure § 2720 (3d ed. 2013)
(explaining court’s options when party does not move for summary judgment).
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