June 16, 2015
T.G. and F.G vs K.K., vs A.G.,
This is a motion to strike the new, undisclosed opinions of the defendant’s expert, which was filed prior to commencing trial. The case involved the severe personal injuries suffered by an individual who crashed a wave runner when she was negligently allowed to operate such wave runner even though it was known that she had no prior training in the operation of a personal watercraft and had never operated a personal watercraft before.
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
FORT LAUDERDALE DIVISION
CASE NO. 12-61458-CIV-RNS
In the matter of: T.G. and
F.G., as owners of a
2012 11’ Sea-Doo Bombarder 21CA,
Hull Identification Number YDV22280B212,
for Exoneration from and Limitation of Liability,
Respondent/Counter-Claimant/Third-Party Plaintiff (“Claimant”),
CLAIMANT’S OBJECTIONS AND MOTION TO STRIKE NEW, UNDISCLOSED OPINIONS OF THIRD-PARTY DEFENDANT’S REBUTTAL EXPERT, D.S.
Respondent/Counter-Claimant/Third-Party Plaintiff, K.K. (“Claimant”), by and through undersigned counsel, hereby files her objections and moves to strike the new, undisclosed opinions of Third-Party Defendant, A.G.’S rebuttal expert, D.S. In furtherance thereof, the Claimant states as follows:
The instant matter arises out of the Claimant’s personal injuries that she suffered as a result of an accident involving a wave runner. This matter is specially set to commence a bench trial before this Honorable Court on June 22, 2015. [D.E. 125].
Throughout the course of litigation, A.G. disclosed D.S. as a rebuttal expert and submitted his report, dated December 18, 2013, to the Claimant. (A copy of the Rebuttal Expert Witness Disclosure and D.S.’s report are attached hereto as Exhibits 1 and 2, respectively.) Specifically, D.S. was disclosed as an aquatic safety expert to purportedly rebut the opinions contained within the report of the Claimant’s liability expert, K.C.B.
On March 16, 2015, the Parties jointly moved to take their experts’ depositions de bene esse, to be read at trial in lieu of calling the experts live at trial. [D.E. 116]. This Court granted such motion on April 2, 2015. [D.E. 119]. Accordingly, A.G. noticed the deposition for trial of D.S., and D.S.’s trial testimony was taken on May 22, 2015. (A copy of D.S.’s deposition is attached hereto as Exhibit 3.)
During the deposition, D.S. relied on material that was never previously provided or disclosed to the Claimant. He also testified as to new opinions that are outside the scope of the report submitted. The Claimant therefore files her objections herein and respectfully moves to strike such new, undisclosed opinions which are set forth in detail below.
II. S.’s New, Undisclosed Materials and Opinions
Pursuant to Federal Rule of Civil Procedure 26, experts who may testify at trial must provide a report containing the following information:
(i) a complete statement of all opinions the witness will express and the basis and reasons for them;
(ii) the facts or data considered by the witness in forming them;
(iii) any exhibits that will be used to summarize or support them;…
Fed. R. Civ. P. 26(a)(2)(B).
Further, the expert’s report must be supplemented “in a timely manner” if he “learns that in some material respect the disclosure or response is incomplete or incorrect, and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing.” Fed. R. Civ. P. 26(e)(1). The expert’s duty to supplement extends both to information included in the report and to information given during the expert’s deposition. Fed. R. Civ. P. 26(e)(2).
Pursuant to Rule 37, failure to supplement an expert report precludes the party’s use of the undisclosed information and expert opinions at trial, unless such failure is substantially justified or harmless. Fed. R. Civ. P. 37(c).
Herein, not only did D.S. rely on material that was never provided or disclosed to the Claimant, but he also offered numerous opinions that were never contained his expert report and were raised for the first time during his trial testimony.
First, when reviewing the list of documents that he relied on to reach his opinions on this case, D.S. testified that he “added more” documents than those disclosed in his report. (See Exhibit 3, Page 17, Line 6 through Page 19, Line 3.) These documents include: 1) Google and Yahoo map printouts of the accident site, 2) the Florida Boating Safety Handbook, 3) a printout from the Florida Fish and Wildlife Commission concerning reckless operation, and, 4) the U.S. Coast Guard Navigation Center’s Navigation Rules, numbers two through eight. (Id.)
Second, using the map printouts referenced above, D.S. testified as to the number of turns that the Claimant allegedly would have made while operating the wave running for three and a half miles from George English Park to the accident site. (See id. at Page 23, Line 8 to Page 26, Line 10.) These opinions were not included in D.S.’s report, nor were they previously disclosed to the Claimant. D.S. admitted that he did not produce the maps with his report. (See id. at Page 78, Lines 19-21.) And he admitted that the first time he gave the maps to A.G.’s counsel (the counsel who hired him) was the day before his trial testimony — one and a half years after disclosing his report and opinions and never subsequently supplementing his report or opinions prior to his trial testimony. (See id. at Page 159, Lines 22-24).
Third, D.S. – for the first time – offered opinions concerning the sufficiency of the training provided to the Claimant to operate a wave runner. Specifically, he opined that a passenger merely watching a wave runner being operated for three hours is the essential equivalent to a non-verbal tutorial and amounts to useful training. (See id. at Page 40, Line 14 through Page 42, Line 13.) Fourth, he opined that the Claimant received enough training by virtue of operating the wave runner for an hour through turns, and that such amount of training is reasonable for someone to expect that she had enough knowledge to operate a personal watercraft (PWC). (See id. at Page 46, Line 16 through Page 49, Line 3.) Again, these opinions were not included in his report and were never previously disclosed to the Claimant. Indeed, D.S. admitted that his report did not address whether the Claimant received sufficient instruction or training at all. (See id. at Page 82, Line 20 through Page 83, Line 10.)
Fifth, D.S. opined that the use of a learning key would not have prevented the Claimant’s accident. (See id. at Page 49, Line 16 through Page 50, Line 22.) Again, D.S.’s report did not address this issue. In fact, the only reference to a “learning key” in his report is the reference to the Claimant’s expert, Keven Breen’s opinion – an opinion that D.S. did not rebut in his report. (See id. at Page 95, Line 19 through Page 96, Line 17.)
Sixth, D.S. offered opinions as to the sufficiency of the warning labels on the subject wave runner. (See id. at Page 51, Line 2 through Page 60, Line 5.) Yet his report does not contain any conclusion or opinion with regard to whether or not there were warning labels on the subject wave runner, which D.S. admitted. (See id. at Page 83, Line 20 through Page 84, Line 13.) Notably, D.S. never inspected the subject wave runner.
Seventh, D.S. opined that A.G. was traveling at a slow speed through the no-wake zone. (See id. at Page 60, Line 6 through Page 61, Line 24.) During the Claimant’s cross-examination, when asked to direct the Claimant to the area in his report that opined or offered conclusions as to A.G.’s speed, D.S. admitted, “I don’t see a specific statement relative to [A.G.’s] speed.” Id. at Page 84, Line 14 through Page 85, Line 4.
Eighth, D.S. offered a new opinion as to the Claimant’s speed prior to the collision and, specifically, opined that the Claimant was acting irresponsibly with regard to her speed. (See id. at Page 62, Lines 16-24.) Like A.G.’s speed, D.S.’s report does not contain any opinion that the Claimant acted irresponsibly with regard to her speed. (See Exhibit 2.)
Ninth, D.S. opined that the Claimant violated various Rules of Navigation (i.e., 33 CFR). (See id. at Page 62, Line 25 through Page 69, Line 9.) However, D.S. admitted that his expert report does not even reference a single Rule of Navigation, let alone 33 CFR, and that the first mention of 33 CFR 2006 (i.e., the safe speed rule) was during his trial testimony. (See id. at Page 87, Lines 2-11.) D.S. also admitted that the first time he told A.G.’s counsel about this new opinion was the day before his trial testimony was taken. (See id. at Page 161, Lines 16-19.)
Tenth and final, D.S. testified for the first time that the Claimant violated the Boating Safety Handbook. (See id. at Page 69, Line 11 through Page 71, Line 12.) As stated above, his reliance on the Florida Boating Safety Handbook was never disclosed to the Claimant. In addition, D.S. admitted that his report does not contain any conclusions or opinions with regard to the Florida Boating Safety Handbook. (See id. at Page 87, Lines 12-19.) Further, the first time D.S. told even A.G.’s counsel about this new opinion was the day before his trial testimony was taken. (See id. at Page 161, Lines 20-23.)
Importantly, the report of D.S. was provided to the Claimant on or about December 18, 2013 (Exhibit 2). D.S. therefore had ample time — a year and a half — to supplement the materials he relied on as well as his opinions. However, his report was not supplemented a single time in the last year and a half. It is axiomatic that allowing A.G. to introduce the new, undisclosed materials and opinions by ambush for the first time at trial would severely prejudice the Claimant.
WHEREFORE, based on the foregoing, the Claimant respectfully moves this Honorable Court to strike the above new, undisclosed opinions of A.G.’s rebuttal expert, D.S., as well as any further relief this Court deems just and proper.
CERTIFICATE OF COMPLIANCE WITH LOCAL RULE 7.1(a)(3)
Undersigned counsel hereby certifies that he has conferred with counsel for A.G., who is opposed to the relief sought herein.
ALSINA & WINKLEMAN, P.A.
Attorneys for Claimant
One Biscayne Tower, Suite 1776
2 South Biscayne Boulevard
Miami, Florida 33131
Telephone No.: (305) 373-3016
Facsimile No.: (305) 373-6204
By: /s/ Jason R. Margulies
JASON R. MARGULIES
Florida Bar No. 57916
MICHAEL A. WINKLEMAN
Florida Bar No. 36719
CERTIFICATE OF SERVICE
I hereby certify that on June 16, 2015, I electronically filed the foregoing document with the Clerk of the Court using CM/ECF. I also certify that the foregoing document is being served this day on all counsel of record or pro se parties identified on the attached Service List in the manner specified, either via transmission of Notices of Electronic Filing generated by CM/ECF or in some electronically Notices of Electronic Filing.
By: /s/ Jason R. Margulies
JASON R. MARGULIES
 A.G. did not disclose any defense experts; only rebuttal experts.
 At the time A.G. filed his deposition designations (on May 8, 2015), the deposition of D.S. had not yet been taken. Therefore, A.G. designated the entire deposition from beginning to end, reserving the right to amend following the deposition. [D.E. 121, p. 2]. A.G. has not yet amended such designations. Therefore, the Claimant herein addresses the issues contained in the entire deposition.
 The Claimant was never provided with any training on how to properly operate a wave runner.