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Transoceanic Cable Ship Co., LLC v. Bautista

United States District Court, D. Hawaii

July 20, 2018

TRANSOCEANIC CABLE SHIP COMPANY LLC Plaintiff,
v.
JOSE FIESTA BAUTISTA, JR. Defendant.

          ORDER REGARDING BAUTISTA'S TREATING PHYSICIAN WITNESS

          ALAN C. KAY SR. UNITED STATES DISTRICT JUDGE

         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 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 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. 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.

         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, “[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 ...


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