DIAZ

v.

CARNIVAL CORPORATION

ORDER ON PLAINTIFF’S MOTION TO STRIKE AN EXPERT WITNESS

This matter is before the Court on Noel Diaz’s (“Plaintiff”) motion to strike David Keyes (“Dr. Keyes”) as an expert witness. [D.E. 35]. Carnival Corporation (“Defendant” or “Carnival”) responded to the motion on March 8, 2021 [D.E. 41] to which Plaintiff replied on March 15, 2021. [D.E. 43]. Therefore, the motion is now ripe for disposition. After careful consideration of the motion, response, reply, relevant authorities, and for the reasons discussed below, Plaintiff’s motion to strike Dr. Keyes is GRANTED in part and DENIED in part.

I. ANALYSIS

This is a maritime personal injury case, where Plaintiff alleges that, after he boarded Defendant’s vessel, a Carnival employee negligently struck him with a motorized scooter on his right ankle/foot. [D.E.¹]. On December 7, 2020, the Court entered a Scheduling Order and imposed a deadline to disclose experts for February 4, 2021. [D.E. 23]. On the afternoon of February 4, 2021, Plaintiff claims that Defendant requested, for the first time, his availability to attend a Rule 35 examination. Plaintiff also says that, later that same day, Defendant disclosed Dr. Keyes as an expert witness but failed to serve that disclosure with an expert report or provide any clarity as to whether Carnival intended to use him for rebuttal purposes. The next day, Plaintiff requested Dr. Keyes’ expert report and the lawyers for both parties conferred without reaching a resolution. Because Defendant failed to serve an expert report within the time provided under the Court’s Scheduling Order and there is no support for using Dr. Keyes as a rebuttal expert, Plaintiff seeks to strike him as an expert witness. Carnival’s response is that it complied with the Scheduling Order when it disclosed Dr. Keyes as an expert witness on February 4, 2021. The only reason Carnival says that an expert report was omitted with that disclosure was because Dr. Keyes had not yet conducted a compulsory medical examination. However, after Plaintiff appeared for that examination on February 22, 2021, Carnival produced a rebuttal report for Dr. Keyes on March 8, 2021.1 So, although Plaintiff alleges that Carnival prejudiced him with the service of an untimely expert report and only four weeks until the close of the discovery period, Carnival finds that contention to be unavailing because the discovery period did not expire until March 22, 2021. And to the extent Plaintiff cannot depose Dr. Keyes or serve any other discovery before the time to do so expires, Carnival is amenable to reaching an

Here, Plaintiff’s motion is well taken, in many respects, because Defendant failed to provide any explanation as to why it waited until February 4, 2021 to make a request for Plaintiff to appear for a medical examination. It also appears that Dr. Keyes’ rebuttal report is not an actual “rebuttal” to Plaintiff’s experts. A rebuttal expert is an individual that offers evidence that is “intended solely to contradict or rebut evidence on the same subject matter identified by” the affirmative expert of another party. Burger King Corp. v. Berry, 2019 WL 571483, at *2 (S.D. Fla. Jan. 8,

2019) (quoting Fed. R. Civ. P. 26(a)(2)(D)(ii)) (emphasis added). A rebuttal expert satisfies that standard as long as the information provided repels the affirmative expert testimony of the other party. See Papasan v. Dometic Corp., 2019 WL 7376716, at *3 (S.D. Fla. Apr. 10, 2019). That is not the case here because there are several instances where Dr. Keyes’ expert report makes opinions that are nowhere to be found in Plaintiff’s expert reports. And that casts substantial doubt that Dr. Keyes is a rebuttal expert. Instead, it appears that Defendant designated Dr. Keyes as a rebuttal expert solely because Carnival missed the deadline to produce his report on February 4, 2021. That means Defendant’s service of Dr. Keyes’ expert report is approximately 32 days late. The only question remaining is what remedy is appropriate for Defendant’s failure. Plaintiff requests that the Court strike Dr. Keyes because Defendant has prejudiced Plaintiff with an opportunity to serve a rebuttal report to Dr. Keyes. Plaintiff’s report would have been due on March 8, 2021, but he could not comply with that deadline because that was the same date that Defendant produced Dr. Keyes’ report. While Plaintiff’s argument would generally be persuasive in some cases, the procedural posture here cautions against that approach. The deadline to file all pre-trial motions, except for motions in limine, is not until April 26, 2021 and the trial date is more than 3 months away. That means there is ample time to cure any prejudice that Plaintiff has suffered for Defendant’s failure to comply with the Court’s Scheduling Order. This is not a case where trial is imminent nor is this a situation where a party was so late in making a disclosure that the prejudice cannot be cured in a timely fashion. See Avramides v. Liberty Mut. Fire Ins. Co., 2014 WL 202662, at *4 (M.D. Fla. Jan. 17, 2014) (finding that a defendant’s untimely disclosure was harmless as a rebuttal expert because the “disclosure of [the expert] as a rebuttal witness was only one day late, due to inadvertence, and his expert report, although late, was provided approximately six months before trial.”); see also Ferguson v. Bombardier Servs. Corp., 244 F. App’x 944, 950 (11th Cir. 2007) (finding that a district court’s decision to permit an expert report submitted after the deadline, but approximately eight months before the start of trial, was not an abuse of discretion). Accordingly, Plaintiff's motion is DENIED as to the request to strike Dr. Keyes but GRANTED to the extent that Plaintiff requests additional time to serve a rebuttal expert report. Plaintiff shall have twenty-one (21) days from the date of this order to serve a rebuttal expert report and to take any discovery in support of that effort.

II. CONCLUSION

For the foregoing reasons, it is hereby ORDERED AND ADJUDGED that Plaintiff’s motion to strike is GRANTED in part and DENIED in part: A. Plaintiff’s motion to strike Dr. Keyes is DENIED. B. Plaintiff's motion for additional time to serve a rebuttal expert report is GRANTED. Plaintiff shall have twenty-one (21) days from the date of this order to serve a rebuttal expert report and to take any discovery in support of that effort.

DONE AND ORDERED in Chambers at Miami, Florida, this 5th day of April, 2021. /s/ Edwin G. Torres

EDWIN G. TORRES

United States Magistrate Judge