United States District Court, D. Hawaii
ORDER REGARDING BAUTISTA'S TREATING PHYSICIAN
C. KAY SR. UNITED STATES DISTRICT JUDGE
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.
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.
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 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.
Transoceanic Cable Ship Co. (“Transoceanic”)
asserts that it “disclosed its Fed.R.Civ.P. 26(a)(2)
specifically retained expert witnesses to Defendant by
hand-delivered 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 Transoceanic's disclosures
were timely and sufficient. See generally ECF No.
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.
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).
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.
26(a)(2) spells out litigants' obligations as to expert
witness disclosures. Rule 26(a)(2)(A) provides that,
“[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.” 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 ...