Frasca et al v. NCL (Bahamas) Ltd. et al
Filing
179
ORDER granting 161 Frasca's Motion to Strike Dr. El Sergany as an expert witness. Dr. El Sergany, however, may testify as a fact witness. Signed by Magistrate Judge Jonathan Goodman on 3/12/2014. (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 STRIKING REBUTTAL EXPERT WITNESS
Plaintiff Thomas Frasca (“Frasca”) asks the Court to strike defendants NCL
(Bahamas) Ltd., Norwegian Cruise Lines, and NCL America’s (collectively, “NCL”)
rebuttal expert witness Dr. Ali Yasser El Sergany. [ECF No. 161]. The Court has
reviewed the motion, NCL’s response [ECF No. 174], and the relevant portions of the
record. As explained below, the Court grants Frasca’s motion and strikes Dr. El Sergany
as an expert witness. Dr. El Sergany, however, may testify as a fact witness.
I.
BACKGROUND
This dispute can be traced back to Frasca’s untimely production of his liability
expert’s report. The substance of Dr. Richard Gill’s report concerned the purportedly
unreasonable and dangerous condition of NCL’s ship’s deck when wet. [ECF No. 114‐
1]. For example, Dr. Gill tested and opined on such matters as the safe‐slip resistance of
the ship’s deck and the coefficient of friction. [Id.]. NCL moved to strike Dr. Gill because
it said it was unduly prejudiced by the late production of his report. [ECF No. 103].
Frasca conceded he made a mistake, but requested that the Court not strike Dr. Gill.
[ECF No. 110]. After holding a hearing, the Court denied NCL’s motion to strike but
extended NCL’s rebuttal expert deadline until January 20, 2014, so that NCL could
retain a rebuttal expert to counter Dr. Gill’s expert opinions. [ECF No. 121].
NCL timely submitted its rebuttal expert witness disclosures, and in addition to
identifying a rebuttal expert to Dr. Gill, NCL listed Dr. El Sergany as a rebuttal expert.
Dr. El Sergany was the on‐board ship physician who treated Frasca. Before January 20,
2014, both Frasca and NCL had identified Dr. El Sergany as a fact witness, but not as an
expert witness.
Frasca moves to strike Dr. El Sergany for several reasons. [ECF No. 161]. First,
Frasca contends that Dr. El Sergany violated the doctor‐patient privilege when he
discussed Frasca’s medical information with NCL’s counsel prior to his deposition.
Second, Frasca argues that Dr. El Sergany’s disclosure is past the initial rebuttal expert
disclosure deadline and was not encompassed by the Court’s order relating to Dr. Gill.
Finally, Frasca asserts that he is unduly prejudiced by the late disclosure because he
was notified the day after Dr. El Sergany’s deposition and the disclosure does not
contain a report from Dr. El Sergany.
NCL contends that there was no violation of the doctor‐patient privilege because
Dr. El Sergany is an employee of NCL and is permitted to discuss Frasca’s medical
2
information with NCL’s counsel. NCL also contends that Frasca is not prejudiced
because its non‐compliance with Federal Rule of Civil Procedure 26 was harmless and
Frasca’s counsel extensively examined Dr. El Sergany at his deposition. Finally, NCL
asserts that because Dr. El Sergany is a treating physician no report is required.
II.
LEGAL STANDARD
Compliance with Rule 26’s expert witness disclosure requirements is mandatory
and self‐executing. Lohnes v. Level 3 Commc’ns, Inc., 272 F.3d 49, 51 (1st Cir. 2001). The
purpose of the rule is to safeguard against surprise. Thibeault v. Square D Co., 960 F.2d
239, 244 (1st Cir. 1992). A failure to comply with the expert witness disclosure
requirements may result in the striking of expert reports or the preclusion of expert
testimony. Kendall Lakes Towers Condo. Assʹn, Inc. v. Pac. Ins. Co., Ltd., No. 10‐24310‐CIV,
2011 WL 6372198, at *3 (S.D. Fla. Dec. 20, 2011). Courts routinely strike expert reports or
exclude expert testimony which is not timely disclosed, even if the consequence is to
preclude a party’s entire claim or defense. See, e.g., Santiago‐Diaz v. Laboratorio Clinico y
de Referencia del Este, 456 F. 3d 272, 277‐78 (1st Cir. 2006) (affirming preclusion even
though the result was to exclude evidence critical to plaintiff’s claim); see generally
Bearint v. Dorell Juvenile Grp., Inc., 389 F.3d 1339, 1348‐49 (11th Cir. 2004) (excluding
untimely expert report).
While preclusion is an appropriate sanction for a failure to comply with the
expert witness disclosure requirements, a court has great discretion in deciding whether
3
to impose such a sanction. Jackson v. Harvard Univ., 900 F.2d 464, 468‐69 (1st Cir. 1990).
In doing so, courts will analyze several factors, including the history of the litigation,
the proponent’s need for the challenged evidence, the justification for the late
disclosure, and the degree of prejudice and whether it can be cured or ameliorated.
MaCaulay v. Anas, 321 F.3d 45, 51 (1st Cir. 2003).
III.
ANALYSIS
To ameliorate Frasca’s late disclosure of Dr. Gill’s expert report, the Court
extended NCL’s rebuttal expert deadline. [ECF No. 121]. As Frasca points out, the
extension of that deadline was for NCL to submit a rebuttal expert to counter Dr. Gill’s
late‐disclosed expert testimony. It was not an extension for NCL to submit general
rebuttal experts that could have been (and should have been) disclosed earlier. Indeed,
the Court’s order refers to NCL’s “rebuttal expert,” not “rebuttal experts.” [Id. at p. 2].
Dr. El Sergany is not going to testify regarding the same kind of subjects Dr. Gill
is opining on, e.g., slip‐safe resistance, coefficient of friction. Rather, Dr. El Sergany is
opining on such issues as whether Frasca had “an avulsion of the right hamstring when
he examined him.” [ECF Nos. 161, p. 16; 174, p. 5]. Thus, Dr. El Sergany is not a rebuttal
expert to Dr. Gill, but is instead a general rebuttal expert to Frasca’s other experts, who,
unlike Dr. Gill, were timely disclosed. As such, in order to justify its late disclosure,
NCL must explain why it did not disclose Dr. El Sergany earlier. NCL has provided no
4
such explanation. Accordingly, the Court finds that NCL’s disclosure of Dr. El Sergany
as a rebuttal expert is untimely.
The Court also finds that Frasca would be unduly prejudiced by the late
disclosure under these circumstances. In particular, NCL allowed Frasca to depose Dr.
El Sergany as a fact witness on January 19, 2014 in Hawaii. At no time before the
deposition did NCL’s counsel advise Frasca’s counsel that he was going to designate
Dr. El Sergany as a rebuttal expert. It was not until the day after the deposition that
NCL first identified Dr. El Sergany as a rebuttal expert. [ECF No. 174‐5]. NCL’s
argument that Frasca’s deposition of Dr. El Sergany as a fact witness would have been
the same had Frasca known that Dr. El Sergany was a rebuttal expert is unpersuasive.
The deposition of an expert witness and a fact witness are very two different things.
Here, for instance, Frasca’s counsel did not know to ask questions regarding Dr. El
Sergany’s yet‐to‐be disclosed expert opinions.
Finding that the disclosure was late and that Frasca was unduly prejudiced by
the late disclosure, the Court finds that it is not possible to cure the prejudice. In the
Court’s view, the only fair approach is to allow Frasca to take Dr. El Sergany’s
deposition again in Hawaii. The Court, however, declines to order that kind of relief in
a case that is less than six weeks away from trial and where discovery has closed and
the summary judgment briefing has concluded.
5
IV.
CONCLUSION
The Court grants Frasca’s motion and strikes Dr. El Sergany as an expert
witness.1 Dr. El Sergany, however, may testify as a fact witness.
DONE AND ORDERED in Chambers, Miami, Florida, March 12, 2014.
Copies furnished to:
All Counsel of Record
Because they are not material to its decision, the Court makes no decision on the
following issues: (1) whether Dr. El Sergany violated the physician‐patient privilege
when he discussed Frasca’s medical condition with NCL’s counsel, without Frasca’s
consent; and (2) whether Dr. El Sergany is a treating physician under Rule 26.
1
6
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?