Transoceanic Cable Ship Company, Inc. v. Bautista

Filing 67

ORDER REGARDING BAUTISTA'S TREATING PHYSICIAN WITNESS re: 55 . Signed by JUDGE ALAN C. KAY on 7/20/2018. (afc)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
___________________________________
)
TRANSOCEANIC CABLE SHIP COMPANY LLC)
)
Plaintiff,
)
)
vs.
) Civ. No. 17-00209 ACK-KSC
)
JOSE FIESTA BAUTISTA, JR.
)
)
Defendant.
)
___________________________________)
ORDER REGARDING BAUTISTA’S TREATING PHYSICIAN WITNESS
For the reasons discussed below, the Court EXCLUDES
the expert testimony of Bautista’s treating physician, Dr.
Nicanor F. Joaquin, ALLOWS Dr. Joaquin’s testimony as a fact
witness, and DIRECTS Bautista to file a complete proffer of the
testimony he intends to solicit from Dr. Joaquin.
BACKGROUND
The Court recites herein only those facts that are
relevant to the issue of the parties’ obligations under Rule
26(a)(2) and the results of noncompliance.
On June 13, 2017, Magistrate Judge Kevin Chang issued
a Rule 16 Scheduling Order that, inter alia, laid out deadlines
for the parties’ expert witness disclosures:
11. Pursuant to Fed. R. Civ. P. 26(a)(2),
each party shall disclose to each other
party the identity and written report of any
person who may be used at trial to present
expert evidence under Rules 702, 703, or 705
of the Federal Rules of Evidence. The
1

disclosures pursuant to this paragraph shall
be according to the following schedule:
a. All plaintiffs shall comply by
January 29, 2018.
b. All defendants shall comply by
February 28, 2018.
Disclosure of the identity and written
report of any person who may be called
solely to contradict or rebut the evidence
of a witness identified by another party
pursuant to subparagraphs a and b
hereinabove shall occur within thirty (30)
days after the disclosure by the other
party.
ECF No. 23.
Plaintiff Transoceanic Cable Ship Co. (“Transoceanic”)
asserts that it “disclosed its Fed. R. Civ. P. 26(a)(2)
specifically retained expert witnesses to Defendant by handdelivered letter” on January 29, 2018, ECF No. 57 at 3–4, and
that, along with that letter, it provided “copies of its expert
witnesses’ signed reports, curriculum vitae including a list of
publications for the prior 10 years, statements of compensation
for study and testimony and lists of cases” in which
Transoceanic’s expert witnesses testified as experts in the
preceding four years, id. at 4. Transoceanic then identified its
specifically retained expert witnesses, Drs. Scoggin and
Kaneshiro, as trial witnesses in its Final Pretrial Statement,
filed on June 12, 2018. ECF No. 45 at 5. Defendant Jose Fiesta
Bautista, Jr. (“Bautista”) has not thus far disputed that

2

Transoceanic’s disclosures were timely and sufficient. See
generally ECF No. 58.
In his Initial Disclosures, filed on July 27, 2017,
Bautista listed Dr. Nicanor F. Joaquin (his treating physician)
and Dr. Jeffrey J.K. Lee (his treating surgeon) as persons
“likely to have discoverable information . . . that the
disclosing party may use to support its claims or defenses[.]”
ECF No.25 at 2–3; see also Fed. R. Civ. P. 26(a)(1)(A)(i). As to
the “subjects of [the discoverable] information” Drs. Joaquin
and Lee likely had, Bautista noted that both had information
regarding “[Bautista’s] accident, injuries and disability; and
medical/cure treatment.” ECF No. 25 at 3. On June 12, 2018, in
his Final Pretrial Statement, Bautista identified both Dr.
Joaquin and Dr. Lee as witnesses to be called, noting that “Dr.
Joaquin is Injured Seaman Bautista’s primary treating physician
who can testify regarding his injuries and disability and his
medical cure” and “Dr. Lee is Injured Seaman Bautista’s surgeon
who can testify regarding his injuries and his medical cure.”
ECF No. 46 at 8–9. At the July 9, 2018 status conference and in
Bautista’s July 13, 2018 Statement of Position, Bautista’s
counsel iterated that “the only medical witness Defendant
intends to call as a witness at trial is Defendant’s treating
physician, Dr. Nicanor Joaquin, M.D.” See ECF No. 58 at 2.

3

The Court held a status conference on Monday, July 9,
2018 at 11 a.m. to inquire, inter alia, about the status of the
parties’ expert reports and related disclosures. Transoceanic
indicated at the status conference that it had not received, as
to either of Bautista’s treating doctors, disclosures stating
“the subject matter on which the witness is expected to present
evidence under Federal Rule of Evidence 702, 703, or 705[] and a
summary of the facts and opinions to which the witness is
expected to testify,” as required by Federal Rule of Civil
Procedure (“Rule”) 26(a)(2)(C).
In its July 9, 2018 Minute Order, the Court directed
the parties to file their positions with respect to their own
and one another’s compliance with Rule 26(a)(2). ECF No. 55.
Transoceanic filed its Statement of Position on Thursday, July
12, 2018. ECF No. 57. Bautista filed his Statement of Position
on Friday, July 13, 2018. ECF No. 58. In its Statement of
Position, Transoceanic requested leave to reply to any arguments
Bautista might make regarding the harmlessness of his failure to
make the required disclosures. ECF No. 57 at 11. In a July 13,
2018 Minute Order, the Court granted the requested leave. ECF
No. 60. Transoceanic made a filing on July 17, 2018. ECF No. 62.
STANDARD
Rule 26(a)(2) spells out litigants’ obligations as to
expert witness disclosures. Rule 26(a)(2)(A) provides that,
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“[i]n addition to the disclosures required by Rule 26(a)(1), a
party must disclose to the other parties the identity of any
witness it may use to present evidence under Federal Rule of
Evidence 702, 703, or 705.”1 Rule 26(a)(2)(B) requires witnesses
“retained or specially employed to provide expert testimony” or
“whose duties as the party’s employee regularly involve giving
expert testimony” to prepare and sign written reports, which are
to be disclosed to the other parties. Under Rule 26(a)(2)(C), as
to each expert witness of whom a written report is not required,
the proffering party must disclose: “(i) the subject matter on
which the witness is expected to testify under Federal Rule of
Evidence 702, 703, or 705; and (ii) a summary of the facts and
opinions to which the witness is expected to testify.” And, as
relevant here, Rule 26(a)(2)(D) notes that “[a] party must make
these disclosures at the times and in the sequence that the
court orders.”2

1

2

Federal Rule of Evidence 702 provides, as relevant here, that
[a] witness who is qualified as an expert by
knowledge, skill, experience, training, or
education may testify in the form of an
opinion or otherwise if:
(a) the expert’s scientific, technical,
or other specialized knowledge will
help the trier of fact to understand
the evidence or to determine a fact in
issue[.]
Rule 26(a)(2)(D) goes on to state:
Absent a stipulation or a court order, the disclosures
must be made:

(Continued . . .)

5

Treating physicians testifying as to opinions formed
during the course of treatment are “experts” regarding whose
testimony the Rule 26(a)(2)(C) disclosures are required. See
Republic of Ecuador v. Mackay, 742 F.3d 860, 865 n.1 (9th Cir.
2014); Fed. R. Civ. P. 26(a)(2)(C) advisory committee's note to
2010 amendment (“A witness who is not required to provide a
report under Rule 26(a)(2)(B) may both testify as a fact witness
and also provide expert testimony under Evidence Rule 702, 703,
or 705. Frequent examples include physicians or other health
care professionals . . . . Parties must identify such witnesses
under Rule 26(a)(2)(A) and provide the disclosure required under
Rule 26(a)(2)(C).”); see also Goodman v. Staples the Office
Superstore, LLC, 644 F.3d 817, 826 (9th Cir. 2011) ("[A]
treating physician is only exempt from Rule 26(a)(2)(B)'s
written report requirement to the extent that his opinions were
formed during the course of treatment.”).

(i)

at least 90 days before the date set
for trial or for the case to be
ready for trial; or
(ii) if the evidence is intended solely
to contradict or rebut evidence on
the same subject matter identified
by another party under Rule
26(a)(2)(B) or (C), within 30 days
after the other party’s disclosure.
Here, the timing of the disclosures was governed the Rule 16
Scheduling Order issued by Magistrate Judge Chang. See ECF No.
23.
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Operating in tandem with Rule 26, Rule 37 provides
remedies for parties aggrieved by opposing parties’ failure to
fulfill their disclosure or discovery obligations, thus giving
“teeth” to Rule 26’s requirements. See Yeti by Molly, Ltd. v.
Deckers Outdoor Corp., 259 F.3d 1101, 1106 (9th Cir. 2001).
Pertinent here, Rule 37(c)(1) states 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 witness to supply evidence on
a motion, at a hearing, or at a trial,
unless the failure was substantially
justified or is harmless.
“In determining whether this sanction should be imposed, the
burden is on the party facing the sanction . . . to demonstrate
that the failure to comply with Rule 26(a) is substantially
justified or harmless.” Torres v. City of Los Angeles, 548 F.3d
1197, 1213 (9th Cir. 2008) (citing Yeti by Molly, Ltd., 259 F.3d
at 1107 (“Implicit in Rule 37(c)(1) is that the burden is on the
party facing sanctions to prove harmlessness.”)).
DISCUSSION
Transoceanic asserts that Bautista failed to make the
required disclosures as to his treating physicians, Drs. Joaquin
and Lee, and that therefore the Court should therefore “bar
Defendant . . . from using his Fed. R. Civ. P. 26(a)(2)(C)
treating physician expert witnesses at trial[.]” ECF No. 57 at
11. After stating that he does not intend to call Dr. Lee, see
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ECF No. 58 at 2, Bautista puts forward several arguments
regarding Dr. Joaquin’s testimony and Bautista’s related
disclosures. The Court will address in turn each of Bautista’s
arguments as to Dr. Joaquin.3
I.

Whether Bautista Satisfied Rule 26(a)(2)(C) via His
Initial Disclosures and Final Pretrial Statement
Bautista contends that he complied with Rule

26(a)(2)(C)’s requirements that he disclose “the subject matter”
and “a summary of the facts and opinions” to which Dr. Joaquin
is expected to testify by way of the information contained in
Bautista’s Initial Disclosures and his Final Pretrial Statement.
See ECF No. 58 at 4; see also ECF No. 25 at 3 (Initial
Disclosures; “Treating Physician: Defendant’s accident, injuries
and disability; and medical/cure treatment”), ECF No. 46 at 8
(Final Pretrial Statement; “Dr. Joaquin is Injured Seaman
Bautista’s primary treating physician who can testify regarding
his injuries and disability and his medical cure”). Bautista
also states that Transoceanic “should have received Dr.
Joaquin’s office visit/clinical notes” and that Transoceanic
“subpoenaed Dr. Joaquin’s records.” ECF No. 58 at 5. The Court
finds that Bautista has failed to comply with Rule 26(a)(2)(C).

3

If Bautista were to call Dr. Lee, the same analysis and
strictures laid out herein would apply to Dr. Lee’s testimony,
including the requirement, discussed below, of filing a complete
proffer of Dr. Lee’s testimony by July 26, 2018.
8

“A ‘summary’ is ordinarily understood to be an
‘abstract, abridgement, or compendium.’” Carrillo v. B & J
Andrews Enters., LLC, No. 2:11-CV-01450-RCJ-CWH, 2013 WL 394207,
at *6 (D. Nev. Jan. 29, 2013) (citing Kristensen ex rel.
Kristensen v. Spotnitz, No. 3:09-CV-00084, 2011 WL 5320686, at
*2 (W.D. Va. June 3, 2011)); see also Webster’s New
International Dictionary 2289 (3d ed. 2002) (defining “summary”
as “[a] short restatement of the main points”); BP Am. Prod. Co.
v. Burton, 549 U.S. 84, 91 (2006) (“Unless otherwise defined,
statutory terms are generally interpreted in accordance with
their ordinary meaning.”). “Courts must take care against
requiring undue detail” in Rule 26(a)(2)(C) disclosures. Fed. R.
Civ. P. 26(a)(2)(C) advisory committee's note to 2010 amendment.
As a matter of course, however, district courts in this circuit
have found parties to be noncompliant with Rule 26(a)(2)(C)
where their disclosures have failed to fairly inform the other
party of the substance and basis of a non-retained witness’s
testimony—in other words, where such disclosures have failed to
state the main points of that testimony. See, e.g., Robinson v.
HD Supply, Inc., No. 2:12-CV-00604-GEB-AC, 2013 WL 5817555, at
*2 (E.D. Cal. Oct. 29, 2013) (“Plaintiff’s disclosure that these
witnesses are ‘medical provider[s] and have knowledge as to
Plaintiff's medical diagnosis and/or treatment’ . . . suggests
the subject matter of these witnesses' testimony but fails to
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provide a ‘summary of the facts and opinions to which the
witness[es] are expected to testify.’”); Cooke v. Town of Colo.
City, No. CV 10-08105-PCT-JAT, 2013 WL 551508, at *4 (D. Ariz.
Feb. 13, 2013) (finding there was “no question” that parties
failed to meet the requirements of 26(a)(2)(C) where their
disclosures “advise[d] the reader that the witness will have
opinions in certain areas, but fail[ed] to state what the
opinions are, and the factual basis for those opinions.”).
Moreover, “courts have summarily rejected the argument
that mere disclosures of treatment records without an
accompanying disclosure summary satisfies Rule 26(a)(2)(C).”
Jones v. Colo. Casualty Ins. Co., No. CV-12-01968-PHX-JAT, 2015
WL 6123125, at *4 (D. Ariz. Oct. 19, 2015) (collecting cases);
see also Carrillo, 2013 WL 394207, at *5 (same); Ballinger v.
Casey’s Gen. Store, Inc., No. 1:10-CV-1439-JMS-TAB, 2012 WL
1099823, at *4 (S.D. Ind. Mar. 29, 2012) (“[A]llowing a party to
‘go beyond’ the requirements of Rule 26(a)(2)(C) by providing
medical records in lieu of a summary would invite a party to
dump a litany of medical records on the opposing party, contrary
to the rule’s attempt to extract a ‘summary.’”).

10

Bautista’s disclosures regarding Dr. Joaquin plainly
do not meet the requirements of Rule 26(a)(2)(C);4 they neither
summarize the opinions to which Dr. Joaquin would testify nor
indicate what facts he would use to support those opinions.
Instead, what little iterative information Bautista has provided
merely gestures at the general topics Dr. Joaquin would address,
leaving the opposition to guess at the specifics. That
Transoceanic has Dr. Joaquin’s “office visit/clinical notes” and
records, through which Transoceanic presumably might have combed
in an effort to divine Dr. Joaquin’s testimony, is not curative.
“An opposing party should be able (and be entitled) to read an
expert disclosure, determine what, if any, adverse opinions are
being proffered, and make an informed decision as to whether it
is necessary to take a deposition and whether a responsive
expert is needed.” Cooke, 2013 WL 551508, at *5. Bautista has
fallen far short of the mark and has violated Rule 26(a)(2)(C).

4

The Court also notes that, insofar as Bautista relies on his
Final Pretrial Statement as a Rule 26(a)(2)(C)-compliant
disclosure, it is untimely, having been disclosed to
Transoceanic(and filed with this Court) several months after the
deadline for Rule 26(a)(2) disclosures set forth in the Rule 16
Scheduling Order. See ECF No. 23 ¶ 11 (setting February 28, 2018
as the deadline for Bautista’s compliance with Rule 26(a)(2));
ECF No. 46 at 11 (Bautista’s Final Pretrial Statement was served
on Transoceanic on June 12, 2018).
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II.

Whether Bautista’s Failure to Make the Required
Disclosures is Substantially Justified or Harmless
Bautista next argues that Transoceanic has not been

prejudiced by his conduct because Transoceanic: (1) knew (by
virtue of Bautista’s Initial Disclosures) that Dr. Joaquin had
discoverable information; (2) was in possession of Dr. Joaquin’s
“office visit/clinical notes” and records; (3) never requested
to depose Dr. Joaquin; and (4) did not complain to Bautista
about the adequacy of his disclosures or its ability to prepare
for trial. ECF No. 58 at 5. Bautista does not argue that his
failure to make Rule 26(a)(2)(C) disclosures was substantially
justified, see generally ECF No. 58, and insofar as Bautista is
attempting to establish that his failure was harmless, the Court
finds that he has failed to carry his burden to do so.
The factors a district court may properly consider in
determining whether a party’s failure to comply with Rule
26(a)(2)(C) is justified or harmless include: “(1) prejudice or
surprise to the party against whom the evidence is offered; (2)
the ability of that party to cure the prejudice; (3) the
likelihood of disruption of the trial; and (4) bad faith or
willfulness involved in not timely disclosing the evidence.” See
Lanard Toys Ltd. v. Novelty, Inc., 375 F. App'x 705, 713 (9th
Cir. 2010) (citing David v. Caterpillar, Inc., 324 F.3d 851, 857
(7th Cir. 2003)).
12

At the outset, the Court notes that Bautista’s
noncompliance appears to spring not from a place of “bad faith
or willfulness,” but rather from one of counsel’s insufficient
familiarity with the Federal Rules of Civil Procedure.
Unfortunately, the absence of the fourth Lanard Toys factor is
insufficient to render Bautista’s failure harmless.
Trial in this matter is fast approaching, and will
commence in less than four weeks’ time. As such, and try as it
might, the Court cannot see how allowing Dr. Joaquin’s expert
testimony would not incurably prejudice Transoceanic and/or
disrupt the scheduled trial. In reasonable reliance on
Bautista’s disclosures, this Court’s scheduling order, and the
Federal Rules of Civil Procedure, Transoceanic has not deposed
Dr. Joaquin, and, due to Bautista’s noncompliance with Rule
26(a)(2)(C), has not been made aware of the “facts and opinions”
to which Bautista would have his treating physician testify. To
expect Transoceanic to be able to recover and prepare in less
than one month is to expect too much. At the very least,
Transoceanic would have to notice Dr. Joaquin’s deposition,
assess his credentials, prepare its expert witnesses to give
responsive testimony, and perhaps supplement its own expert
witness disclosures; it also might have to secure the testimony
of a new, responsive expert witness. Given how much would have
to be done—not to mention the possible necessity of reopening of
13

Transoceanic’s expert witness disclosure deadline—disruption of
the trial would be a near-certainty.
As noted above, it is not responsive or appropriate to
put the onus on Transoceanic to have guessed at Dr. Joaquin’s
testimony sufficiently well as to minimize any prejudice it
might suffer as a result of Bautista’s error. “If the Court were
to allow this kind of ‘find the Easter Egg’ approach, it would
allow litigants to manipulate the expert disclosure rule in a
way that would materially increase the cost of litigation.”
Cooke, 2013 WL 551508, at *5. As a case in point, the Court
notes that Bautista’s Initial Disclosures originally identified
two treating physicians, ECF No. 25 at 2–3, and that had
Transoceanic attempted (out of an abundance of caution, and
without the assistance of the proper disclosures) to prepare to
contend with two experts, half of Transoceanic’s efforts would
have been entirely wasted, as Bautista has now declared he will
not call Dr. Lee, ECF No. 58 at 2. Again, to expect Transoceanic
to have prepared for these circumstances is to expect far too
much; litigants should not have to make potentially futile
expenditures in order to guard against opposing parties’
shortcomings.
Lastly, regarding Bautista’s reliance on the fact that
Transoceanic “never complained,” ECF No. 58 at 5, the Court
notes that each party’s compliance with the Federal Rules of
14

Civil Procedure is its own responsibility and not that of its
adversaries. It simply was not Transoceanic’s job to inform
Bautista of his Rule 26(a)(2)(C) obligations or to complain to
him about inadequate disclosures. Transoceanic appears to have
comported itself with the Rules, and it reasonably expected
Bautista to do the same. Bautista’s failure to do so was his own
fault, and he has failed to establish that his noncompliance was
substantially justified or harmless.
III. Whether Dr. Joaquin May Testify as a Fact Witness
Lastly, Bautista requests that the Court remedy “any
of [Bautista’s] disclosure deficiencies” by excluding only Dr.
Joaquin’s expert testimony—that is, by permitting Dr. Joaquin to
appear as a percipient or fact witness, offering “testimony
about [his] observations that are not based upon ‘scientific,
technical, or specialized knowledge’ under [Federal Rule of
Evidence] 702 and is relevant, admissible, and not more
prejudicial than probative under [Federal Rules of Evidence]
401, 402, and 403.” ECF No. 58 at 10.5

Transoceanic, for its

5

Bautista suggests two other potential remedies, both of which
the Court rejects.
First, citing Goodman, 644 F.3d at 817, Bautista asks
that he be allowed to “rectify [his] error” by disclosing a
report for Dr. Joaquin, by which he presumably means a Rule
26(a)(2)(B) report such as those that were at issue in Goodman.
See ECF No. 58 at 10; 644 F.3d at 826. The Court rejects this
remedy for several reasons. Most obviously, a Rule 26(a)(2)(B)
report is not required in the present instance. Moreover,
(Continued . . .)

15

part, asserts that such testimony “would be irrelevant to the
issues presented for trial.” ECF No. 62 at 5. Though mindful of
Transoceanic’s concerns, the Court adopts Bautista’s proposed
remedy, in the manner and with the proviso detailed below.
District courts faced with circumstances similar to
those now before the Court have often conceptually bifurcated
witnesses like Dr. Joaquin, barring them from giving testimony
grounded in their medical expertise but permitting them to
testify as percipient or fact witnesses. See, e.g., Jones, 2015
WL 6123125, at *5; Titus v. Golden Rule Ins. Co., No. CV-1200316-PHX-ROS, 2014 WL 11515698, at *2 (D. Ariz. Apr. 4, 2014);
Daniels v. District of Columbia, 15 F. Supp. 3d 62, 72–73
(D.D.C. 2014); see also Fed. R. Civ. P. 26(a)(2)(C) advisory

Goodman is inapposite because there the Ninth Circuit clarified
the previously murky strictures of Rule 26(a)(2)(B), and chose
for the sake of equity to apply the newly-clarified rule
prospectively only, therefore allowing a party then before it to
“rectify her error” by disclosing the requisite reports. See 644
F.3d at 826 (“Under these circumstances, it would be unjust to
allow Goodman’s mistake about a previously unsettled point of
law to be the coup de grâce to her case.”). By contrast, the
Court is breaking no new ground here; indeed, Bautista’s
Statement of Position indicates his understanding that Rule
26(a)(2)(C) applies in these circumstances. See ECF No. 58 at 2–
3. Finally, and pursuant to its discussion regarding the lack of
harmlessness here, the Court does not find that disclosure at
this late date would be curative of harm caused by the failure.
Second, citing Ingram v. Novartis Pharmaceuticals
Corp., 282 F.R.D. 563 (W.D. Okla. 2012), order clarified on
reconsideration (June 29, 2012), Bautista requests to be allowed
to submit the required disclosure now. Again, the Court finds
that, under the instant circumstances, disclosure at this late
date would be insufficient to cure the harm.
16

committee's note to 2010 amendment (“The [26](a)(2)(C)
obligation does not include facts unrelated to the expert
opinions the witness will present.”).
The Court finds such bifurcation to be appropriate in
the present instance. Again, Rule 37(c)(1) provides (as relevant
here) that, absent substantial justification or harmlessness, a
party who fails to make the disclosures required under 26(a) is
not allowed to use that witness at trial. Bautista has failed to
make the proper Rule 26(a)(2)(C) disclosures as to his nonretained expert witness Dr. Joaquin, and because Bautista has
failed to establish substantial justification or harmlessness,
the exclusion of Dr. Joaquin as a non-retained expert witness is
proper. But Bautista did include Dr. Joaquin in his Initial
Disclosures, see ECF No. 25 at 2–3, and appears to have complied
with Rule 26(a) as to Dr. Joaquin as a fact witness. The Court
therefore holds that Dr. Joaquin may testify at trial in the
limited capacity of a fact witness, but that he may not give any
testimony that draws on his medical expertise. Said another way,
Dr. Joaquin may testify regarding what he perceived and did
during his visits with Bautista, the timing and frequency of
such visits, and other matters to which he is competent to
testify by way of personal—but not specialized—knowledge. See
Fed. R. Evid. 602, 701. Dr. Joaquin may offer no testimony
regarding his medical opinion, as such testimony would
17

necessarily be grounded in his “scientific, technical, or other
specialized knowledge.” See Fed. R. Evid. 701, 702; Titus, 2014
WL 11515698, at *2–3 (holding that a treating physician who was
not properly disclosed as a 26(a)(2)(C) expert could testify
about his treatment “to the same extent any lay witness would be
able to describe that treatment,” but that he could not describe
why he undertook particular treatments “if, as is likely,
explaining ‘why’ would require [him] to offer an impression
based on his specialized knowledge and skill.”); Fed. R. Evid.
701 advisory committee's note to 2000 amendment (“[A]ny part of
a witness’s testimony that is based upon scientific, technical,
or other specialized knowledge is governed by the standards of
Rule 702 and the corresponding disclosure requirements of the
Civil . . . Rules.”).
The Court shares Transoceanic’s concern that any
testimony Dr. Joaquin may offer as a fact witness may be
irrelevant to the issues presented for trial. The Court is also
concerned that Dr. Joaquin’s trial testimony may stray into
impermissible grounds. Therefore, and in order to avoid
confusion at trial, the Court directs Bautista to file a
complete proffer of the testimony he will elicit from Dr.
Joaquin, keeping in mind that Dr. Joaquin’s testimony must be
(1) limited to factual matters or opinions not based on
specialized knowledge or skill, and (2) relevant, admissible,
18

and not more prejudicial than probative under Federal Rules of
Evidence 401, 402, and 403. See Titus, 2014 WL 11515698, at *3.
CONCLUSION
For the foregoing reasons, the Court holds that
Bautista, having failed to comply with Rule 26(a)(2)(C) in
regard to the expert testimony of Dr. Joaquin, is precluded from
using that testimony at trial. Bautista may, however, call Dr.
Joaquin as a fact witness. Bautista is directed to file a
proffer of the testimony he plans to solicit from Dr. Joaquin,
in light of the Court’s resolution of the permissible scope of
Dr. Joaquin’s testimony and the requirements of the Federal
Rules of Evidence, no later than Thursday, July 26, 2018.
IT IS SO ORDERED.
DATED: Honolulu, Hawai‘i, July 20, 2018.

________________________________
Alan C. Kay
Sr. United States District Judge

Transoceanic Cable Ship Co. v. Bautista, Civ. No. 17-00209 ACK-KSC, Order
Regarding Bautista’s Treating Physician Witness.

19