Proper Disclosures of Expert Witnesses

On May 10, 2018 the United States Court of Appeals for the Eleventh Circuit issued an unpublished opinion which reinforced the need for parties to strictly adhere to all requirements of the Federal Rules of Civil Procedure. In Olena Goncharenko v. Royal Caribbean Cruises, Ltd., No. 17-13069 (11th Cir., May 10, 2018), the Eleventh Circuit Court of Appeals affirmed the District Court of the Southern District of Florida’s order striking the Appellant’s expert witness and order granting summary judgment to the Appellee. In Goncharenko, Plaintiff Olena Goncharenko (“Goncharenko”) brought suit against Royal Caribbean Cruises, LTD (“Royal Caribbean”) for negligence. Goncharenko was a passenger on board the cruise ship Anthem of the Seas operated by Royal Caribbean. Goncharenko was allegedly injured when one of the cruise ship’s ice cream machines struck her in the head.

Prior to trial, the district court issued a scheduling order that required the parties to disclose expert witnesses by February 7, 2017. Goncharenko provided an email to Royal Carribbean that purported to be Goncharenko’s expert witness disclosure. Although technically timely, the email failed to disclose the names of the witnesses or other information required by the Federal Rules of Civil Procedure. Goncharenko attempted to supplement the disclosure two (2) days later with an email which included names, but no other information concerning the witnesses’ expert opinion(s). Plaintiff further amended the disclosure once Royal Caribbean moved to strike the expert witnesses. The Magistrate Judge granted the motion to strike the expert witnesses and the District Judge affirmed the decision over Plaintiff’s objections.

When a party seeks to provide testimony using an expert witness, Federal Rules of Civil Procedure Rule 26(a)(2)(A) provides that, “a party must disclose to the other parties the identity of any witness it may use at trial to present evidence under Federal Rules of Evidence, 702, 703, or 705.”  Fed. R. Civ. P. 26(a)(2)(A). Any party seeking to call a witness at trial must disclose, “(i) the subject matter on which the witness is expected to present evidence under Federal Rules of Evidence, 702, 703, or 705; and (ii) a summary of the facts and opinions to which the witnesses is expected to testify.” Fed. R. Civ. P. 26(a)(2)(C).

The Eleventh Circuit held that the district court did not abuse its discretion in striking Goncharenko’s expert witnesses. Goncharenko provided insufficient disclosures under Rule 26(a) with vague references as to the opinion(s) of the experts and little to no information provided to the Defendant. In affirming the district court decision, the Eleventh Circuit cited to Federal Rules of Civil Procedure Rule 37 which holds, “If 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.” Although Goncharenko submitted her initial email timely, it lacked the identity of the witnesses and provided insufficient references to the subject matter on which the witnesses were to opine and testify. As a result, the Eleventh Circuit Court affirmed the district court’s decision to strike the witnesses. The decision was costly for the Plaintiff, as she could not meet her burden to establish medical causation of her injuries once the medical experts were struck. Therefore, the Court entered summary judgment in favor of Defendant Royal Caribbean.

To read the full opinion of the Eleventh Circuit, please click here.

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