Chappell v. Carnival Corporation

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Case No. 21-cv-23787-SMITH/DAMIAN

ANGELIQUE CHAPPELL,

Plaintiff,

v.

CARNIVAL CORPORATION,

Defendant.

___________________________________/

ORDER ON DEFENDANT’S DAUBERT MOTION [ECF NO. 42]

THIS CAUSE is before the Court on Defendant, Carnival Corporation’s

(“Defendant”), Daubert Motion, filed December 2, 2022 [ECF No. 42] (the “Motion”). In the

Motion, Defendant seeks to strike the testimony of Plaintiff’s engineering expert, Andres

Correa, and to strike or limit the testimony of Plaintiff’s treating physicians, Dr. Catherine

Cahill and Dr. Anthony Florschutz. The Motion was referred to the undersigned by the

Honorable Kathleen M. Williams, United States District Judge. [ECF No. 43]. See 28 U.S.C.

§ 636(b)(1)(A).1

THIS COURT has reviewed the Motion, the Response [ECF No. 46], and Reply

thereto [ECF No. 52], as well as the documents submitted in support of the Motion, the

pertinent portions of the record, and all relevant authorities and is otherwise fully advised in

the premises. For the reasons set forth below, Defendant’s Daubert Motion [ECF No. 42] is

GRANTED IN PART AND DENIED IN PART.

1 On January 27, 2023, the case was reassigned to the Honorable Rodney Smith,

I. FACTUAL AND PROCEDURAL BACKGROUND

This is a maritime negligence action in which Plaintiff seeks damages for injuries

allegedly sustained while a passenger aboard Defendant’s cruise ship, the Carnival Horizon.

[ECF No. 21] (“Amended Complaint”) ¶¶ 12–14. Plaintiff alleges she was severely injured

when she slipped on a wet, foreign, or transitory substance on the metal nosing of the second

to last step of a staircase on the vessel causing her to fall and sustain serious injuries. Id.

In the operative Amended Complaint, filed July 8, 2022, Plaintiff asserts two claims:

(1) negligent maintenance and (2) negligent failure to warn. Id. at 4–7. More specifically,

Plaintiff alleges Carnival was negligent for its alleged failure to: (a) “timely and adequately [

] inspect the staircase on which . . . Plaintiff fell for slipping hazards”; (b) “cordon off or

restrict access to the dangerous area of the staircase”; (c) “timely [ ] correct the dangerous

condition of the staircase”; and (d) “adequately maintain the staircase.” Id. ¶ 21. Plaintiff also

alleges Carnival failed to warn her of the “dangerous condition on the onboard staircase

leading from Deck 4 to Deck 2” of the vessel. Id. ¶ 24. And she alleges that as a result of her

slip and fall, she sustained permanent and continuing injuries, including a tibial fracture, pain,

mental anguish, sustained disfigurement, disability, and the inability to lead a normal life. Id.

¶ 16. Defendant filed an Answer and Affirmative Defenses to the Amended Complaint on

July 19, 2022. [ECF No. 22].

On November 4, 2022, Defendant filed a Motion for Summary Judgment [ECF No.

34], which is ripe as of November 28, 2022.2 Thereafter, on December 2, 2022, Defendant

2 On April 3, 2023, Judge Smith referred Defendant’s Motion for Summary Judgment

to the undersigned for a Report and Recommendation and for appropriate ruling on any

related matters. [ECF No. 56].

filed the Motion now before the Court.3 In the Motion, Defendant seeks to strike the opinions

of Plaintiff’s engineering expert, Mr. Correa, on grounds he is unqualified, his methodology

is unreliable, and his opinions constitute legal conclusions, are irrelevant to the case, and

unhelpful to the jury. Defendant also seeks to strike or limit the testimony of Plaintiff’s treating

physicians, Dr. Cahill and Dr. Florschutz, on grounds neither doctor provided a report

pursuant to Federal Rule of Civil Procedure 26(a), their anticipated testimony is cumulative,

and Dr. Cahill allegedly failed to appear for her deposition. [ECF No. 42].

The Motion is now fully briefed and ripe for adjudication.4

II. APPLICABLE LEGAL STANDARDS

A. Analyzing The Admissibility Of Expert Testimony

Federal Rule of Evidence 702 governs the admissibility of expert testimony. Pursuant

to Rule 702, an expert witness may testify in the form of an opinion if: “(a) the expert’s

scientific, technical, or other specialized knowledge will help the trier of fact to understand

the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or

data; (c) the testimony is the product of reliable principles and methods; and (d) the expert

has reliably applied the principles and methods to the facts of the case.” Fed. R. Evid. 702.

The Court serves as a gatekeeper to the admission of scientific and technical expert evidence.

Quiet Tech. DC-8, Inc. v. Hurel-Dubois UK Ltd., 326 F.3d 1333, 1340 (11th Cir. 2003) (citing

3 That same day, Plaintiff filed a Motion to Exclude the anticipated testimony of

Defendant’s toxicology expert. [ECF No. 41]. This Court addressed Plaintiff’s Motion in a

separate order. [ECF No. 55].

4 Although this case was previously set for trial during the trial period beginning March

27, 2023, the jury trial and calendar call were terminated on January 30, 2023. Thereafter, on

February 15, 2023, the parties filed a Joint Motion for Status Conference or, alternatively,

Motion for Extension of Time to File Joint Pretrial Stipulation and Joint Summary of the

Parties’ Motions In Limine. [ECF No. 54].

Daubert, 509 U.S. at 594–95). The Court’s role is especially significant given that an expert’s

opinion can be both powerful and quite misleading. United States v. Frazier, 387 F.3d 1244,

1260 (11th Cir. 2004). Thus, the party offering the expert testimony bears the burden of laying

the proper foundation, and that party must demonstrate admissibility by a preponderance of

the evidence. See Rink v. Cheminova, Inc., 400 F.3d 1286, 1291–92 (11th Cir. 2005).

In determining the admissibility of expert testimony, the Court engages in a three-part

inquiry to consider whether:

(1) the expert is qualified to testify competently regarding the matters he intends

to address; (2) the methodology used by the expert in reaching his conclusions

is sufficiently reliable as determined by the sort of inquiry mandated in Daubert;

and (3) the testimony assists the trier of fact to understand the evidence or to

determine a fact in issue through the application of scientific, technical or

specialized expertise.

City of Tuscaloosa v. Harcros Chemicals, Inc., 158 F.3d 548, 562 (11th Cir. 1998) (citing Daubert,

509 U.S. at 589). The Eleventh Circuit refers to each of these requirements as the

“qualification,” “reliability,” and “helpfulness” prongs. Frazier, 387 F.3d at 1260. While some

overlap exists among these requirements, the Court must analyze each one individually. Id.

Qualifications: An expert may be qualified by knowledge, skill, experience, training,

or education. Easterwood v. Carnival Corp., No. 19-CV-22932, 2020 WL 6880369, at *2 (S.D.

Fla. Nov. 23, 2020) (Bloom, J.). An expert is not necessarily unqualified simply because his

experience does not precisely match the matter at hand. Id. So long as the expert is minimally

qualified, objections to the level of the expert’s expertise go to credibility and weight of the

expert’s testimony, not its admissibility. Id.

Reliability: In determining the reliability of an expert’s methodology, the Court

considers: (1) whether the expert’s theory can be and has been tested; (2) whether the theory

has been subjected to peer review and publication; (3) the known or potential rate of error of

the particular scientific technique; and (4) whether the technique is generally accepted in the

scientific community. Frazier, 387 F.3d at 1262. The same criteria applies to both scientific

opinions and experience-based testimony. Id. at 1261–62. (citing Kumho Tire Co. v. Carmichael,

526 U.S. 137, 152 (1999)). Even so, the Court is allowed significant flexibility to consider

other factors relevant to reliability. Kumho Tire, 526 U.S. at 152.

Helpfulness: Expert testimony is only admissible if it concerns matters that are beyond

the understanding of the average lay person and offers something more than what lawyers

can argue in closing arguments. Webb v. Carnival Corp., 321 F.R.D. 420, 425 (S.D. Fla. 2017)

(Torres, J.) (quoting Frazier, 387 F.3d at 1262–63). While an expert may testify regarding his

opinions on an ultimate issue of fact, “he may not testify as to his opinions regarding ultimate

legal conclusions.” Umana–Fowler v. NCL (Bah.) Ltd., 49 F. Supp. 3d 1120, 1122 (S.D. Fla.

2014) (Williams, J.) (quoting United States v. Delatorre, 308 Fed. Appx. 380, 383 (11th Cir.

2009)). “[M]erely telling the jury what result to reach is unhelpful and inappropriate.” Id. at

1122 (citing Montgomery v. Aetna Cas. & Sur. Co., 898 F.2d 1537, 1541 (11th Cir. 1990)).

III. DISCUSSION

With the foregoing in mind, the Court first considers Defendant’s challenges regarding

Plaintiff’s engineering expert, Mr. Correa, and the opinions set forth in his Report, and then

addresses Defendant’s challenges to Plaintiff’s treating physicians, Drs. Cahill and

Florschutz, and whether they should be permitted to offer their expert opinions at trial.

A. Proposed Engineering Expert Andres Correa

Plaintiff disclosed Mr. Correa as an engineering expert and provided Mr. Correa’s

Expert Report [ECF No. 42-1 (“Correa Report”)] which sets forth the opinions he intends to

offer at trial regarding the condition of the staircase on which Plaintiff fell. Mr. Correa was

also deposed in this case. [ECF No. 42-2 (“Correa Dep. Tr.”)]. Defendant seeks to preclude

Mr. Correa from offering expert testimony at trial altogether based upon the opinions set forth

in Mr. Correa’s Report. In his Expert Report, Mr. Correa states that he relied on Plaintiff’s

deposition testimony, the guest and crew accident summary reports, as well as observations

made, and photographs taken during his site inspection. Correa Report at 3–7. The Report

also summarizes various federal and international regulations governing maritime vessels that

Mr. Correa reviewed. Id. At the end of the Report, Mr. Correa sets forth five opinions and

conclusions:

1) The Defendant created an unsafe condition by allowing the existence of

a walking surface that did not contain a uniformly slip resistant surface.

2) The Defendant created an unsafe condition by allowing the existence of

excessively large handrails that were not graspable.

3) The Defendant created an unsafe condition by allowing the existence of

an excessively sloped tread surface.

4) The Defendant knew, or should have known, of the dangerous and

noncompliant conditions present along the subject stairway, but failed to rectify

the deficiencies in a timely manner, in order to provide safe pedestrian access

and egress.

5) The dangerous and noncompliant conditions present along the

pedestrian route were not readily apparent to users, the route was not safe for

pedestrian use at the time of the accident, and the Defendant was responsible

for its deficient conditions.

Id. at 7.

Defendant raises two general bases for precluding Mr. Correa’s testimony. First,

Defendant challenges Mr. Correa’s proposed testimony concerning his first, fourth, and fifth

opinions on grounds they do not satisfy the qualifications, reliability, and helpfulness prongs

under Daubert. Mot. at 3–11. Second, Defendant argues Mr. Correa’s second and third

opinions are improper because they are based on alternative theories of liability not pled by

Plaintiff in the Amended Complaint. See id. at 11–12.

1. Defendant’s Daubert Challenges To Mr. Correa’s Expert Opinions

Defendant contends Mr. Correa should not be permitted to testify as to his first,

second, and fourth opinions because he is not qualified; his opinions are not based on a

reliable methodology; and his opinions constitute improper legal conclusions, are irrelevant

to the case, and are not helpful. See generally Mot. at 3–13. Plaintiff opposes the Motion by

highlighting Mr. Correa’s experience as an engineer and argues that his methodology is

reliable, and the opinions are helpful. See generally Resp. at 1–5.

Qualifications

Defendant first argues that Mr. Correa is not qualified to offer an opinion in this case

because his experience is limited to large-scale, land-based, civil engineering projects. Mot. at

4. According to Defendant, as a land-based engineer, Mr. Correa does not have any expertise

on uniquely maritime issues, including the design or construction of maritime stairs for

passenger use, human factors, or slip resistance. Id. at 3–4.5 In response, Plaintiff cites Mr.

Correa’s experience, as laid out in his Report, as a licensed professional engineer and building

inspector and points out that he has inspected cruise vessels on approximately twenty

occasions within the last decade. Resp. at 1–2.

An expert may be qualified “by knowledge, skill, experience, training, or education.”

Fed. R. Evid. 702. “The qualifications of an expert must satisfy a relatively low threshold,

beyond which qualification becomes a credibility issue for the jury.” McWilliams v. Novartis

5 Defendant also argues in its Reply that Mr. Correa is unqualified to opine on safety

standards of maritime vessels and that his testimony should be excluded because he did not

explain how his experience helped him formulate his opinions. [ECF No. 52 (“Reply”) at 1–

2]. Because Defendant did not raise these issues in its original brief, they are deemed waived

and are not considered in the instant Order. See KMS Rest. Corp. v. Wendy’s Int’l, Inc., 361 F.3d

1321, 1328 n.4 (11th Cir. 2004) (“A party cannot argue an issue in its reply brief that was not

preserved in its initial brief.”) (quotation marks omitted); see also Kellner v. NCL (Bah.), LTD.,

753 F. App’x 662, 667 (11th Cir. 2018) (collecting cases).

AG, No. 17-CV-14302, 2018 WL 3364617, at *2 (S.D. Fla. July 9, 2018) (Rosenberg, J.)

(quotation marks omitted); see also Lewis v. Carnival Corp., 570 F. Supp. 3d 1189, 1192 (S.D.

Fla. 2021) (Rosenberg, J.) (citing Hendrix v. Evenflo Co., 255 F.R.D. 568, 578 (N.D. Fla. 2009)

(“[S]o long as the expert is at least minimally qualified, gaps in his qualifications generally

will not preclude admission of his testimony, as this relates more to witness credibility and

thus the weight of the expert’s testimony, than to its admissibility.”)). Therefore, “[a]n expert

is not necessarily unqualified simply because her experience does not precisely match the

matter at hand.” Furmanite Am., Inc. v. T.D. Williamson, Inc., 506 F. Supp. 2d 1126, 1129 (M.D.

Fla. 2007) (citing Maiz v. Virani, 253 F.3d 641, 665 (11th Cir. 2001)).

The Court finds that Mr. Correa satisfies this relatively low threshold and is qualified

to testify as an engineering expert in this case. Review of Mr. Correa’s Report and deposition

testimony reflects that, as a licensed professional engineer and building inspector, Mr. Correa

has substantial relevant experience, including design, construction, building code compliance,

and maintenance. Correa Report at 2, 64–66. And, as noted in Plaintiff’s Response, Mr.

Correa has performed inspections of cruise vessels on approximately twenty occasions since

2012. See also Correa Dep. Tr. at 86. He specializes in inspecting and evaluating “the aspects

of vessels that are utilized by pedestrians,” such as “access and egress routes” and “common

areas” of the vessel that are “constructed similarly to how they are on land.” Resp. at 2; see

also Correa Dep. Tr. at 93–94. And, the Court notes that at least one other court in this District

has found Mr. Correa qualified to testify as an expert in a maritime case. Lewis, 570 F. Supp.

3d at 1192.

Defendant’s argument that Mr. Correa is unqualified because he is not an expert in

maritime vessels, human factors, or slip resistance seeks to hold Mr. Correa to a more

demanding standard than required by Rule 702 or Daubert. See Lewis, 570 F. Supp. 3d at 1192

(finding Mr. Correa qualified to testify as an expert in a maritime personal injury action).

Therefore, Defendant’s Motion is denied to the extent it is based on Mr. Correa’s

qualifications to offer his expert opinions in this case.

Reliability

Defendant next argues that Mr. Correa’s first opinion, that the walking surface of the

staircase at issue is not uniformly slip resistant, is not based on a reliable methodology because

Mr. Correa did not conduct any objective tests to determine the slip resistance of the nosing

on the subject staircase. Mot. at 4–7. Defendant contends that Mr. Correa’s methodology of

touching the nosing on the leading edges of the step with his fingers to determine its slip

resistance “is not a scientific method and is mere speculation.” Id. In Response, Plaintiff

asserts that although Mr. Correa did not conduct slip resistance or coefficient-of-friction

testing of the nosing on the subject stairs, he explains that he inspected the stairs, observed

and compared them with other stairs on the same vessel, documented these observations

through photographs, and took measurements of the nosing on the stairs where Plaintiff fell.

Resp. at 4–5. Mr. Correa then detailed his observations regarding slip resistance in his Report.

See Correa Report at 3–4. Based on his observations, detailed in the Report, Mr. Correa

concluded that “Defendant created an unsafe condition by allowing the existence of a walking

surface that did not contain a uniformly slip resistance surface.” Id. at 7.

When determining whether an expert’s testimony is reliable, “the trial judge must

assess whether the reasoning or methodology underlying the testimony is scientifically valid

and whether that reasoning or methodology properly can be applied to the facts in issue.”

Frazier, 387 F.3d at 1261–62. To make this determination, the Court typically examines: “(1)

whether the expert’s theory can be and has been tested; (2) whether the theory has been

subjected to peer review and publication; (3) the known or potential rate of error of the

particular scientific technique; and (4) whether the technique is generally accepted in the

scientific community.” Id. at 1262 (citing Quiet Tech., 326 F.3d at 1341). “The same criteria

that are used to assess the reliability of a scientific opinion may be used to evaluate the

reliability of non-scientific, experience-based testimony.” Id. Thus, the aforementioned

factors are illustrative, not exhaustive. Id. Furthermore, whether expert opinions require

“detailed measurements or experiments” depends on the type of analysis required to form an

opinion on the matter. See Higgs v. Costa Crociere S.P.A. Co., No. 15-60280-CIV, 2016 WL

4370012, at *6 (S.D. Fla. Jan. 12, 2016) (Cohn, J.) (finding that an expert opining on

conformity to industry safety standards could base his opinion on a “personal inspection and

pictures of the dining area where the incident occurred, a review of relevant discovery

documents, and his extensive experience”); see also Holley v. Carnival Corp., No. 20-cv-20495,

2021 WL 5371507, at *4 (S.D. Fla. Nov. 18, 2021) (Bloom, J.).

Upon review of Mr. Correa’s Report and deposition testimony, the Court finds that

the methodologies used to formulate his opinions regarding the slip resistance of the subject

staircase are sufficiently reliable. Mr. Correa conducted a visual inspection of the subject stairs

and compared them to different stairs on the same vessel, and he reviewed Plaintiff’s

deposition testimony and the guest and crew accident summary reports to obtain information

related to the accident. See Correa Report at 3. Mr. Correa explained that he also reviewed

federal and international regulations governing maritime vessels to evaluate compliance of

the subject staircase, and he consulted the Code of Federal Regulations, the International

Convention for the Safety of Life at Sea (SOLAS), and the International Safety Management

Code pertaining to maritime vessels. Id. at 2. To determine the “compatibility of the

designated pedestrian walking surface with internationally recognized construction and

maintenance Standards,” Mr. Correa reviewed relevant portions of NFPA 301, Code for

Safety to Life from Fire on Merchant Vessels, the International Building Code, and ASTM,

Standard Practice for Safe Walking Surfaces, F1637-13. Id. He acknowledged that cruise ships

are not specifically bound by certain building codes, but he explained that he identified and

relied on “universal criteria that govern[] the construction and maintenance of safe walking

surfaces.” Id. at 3; see also Correa Dep. Tr. at 37–46 (discussing codes and standards regarding

non-slip surfaces).6 That fact that Mr. Correa did not test the coefficient of friction of the

surface does not render his opinions or methodologies unreliable but, again, goes to the

strength of his opinions which can be explored on cross-examination. See Daubert, 509 U.S.

at 596 (“Vigorous cross-examination, presentation of contrary evidence, and careful

instruction on the burden of proof are the traditional and appropriate means of attacking

shaky but admissible evidence.”); Holderbaum v. Carnival Corp., No. 13-24216-CIV, 2015 WL

5006071, at *6 (S.D. Fla. Aug. 23, 2015) (Goodman, J.) (“Carnival’s contentions may surely

be addressed during cross examination, but they are not a reason to strike the expert’s findings

or preclude his testimony at trial.”).

6 Defendant argues that Mr. Correa relies on irrelevant and inapplicable “land-based”

standards to render his opinions, rather than applicable maritime standards, and that his

reliance on these standards is unfairly prejudicial and should therefore be stricken. Mot. at 7–

9. Plaintiff does not specifically address this argument in her Response. The Court concludes

that the probative value of the standards relied on by Mr. Correa is not substantially

outweighed by the risk of unfair prejudice or misleading the jury. Likewise, Defendant’s

challenges to some of the standards relied on by Mr. Correa, including provisions from the

ASTM, NFPA, and the International Building Code (see id.), do not warrant striking

testimony at this time. Although these standards are not binding on Defendant, as Mr. Correa

acknowledged in his Report, he explained that he reviewed these standards “in order to

determine the compatibility of the designated pedestrian walking surface with internationally

recognized construction and maintenance Standards” that address walking surface

conditions. Correa Report at 2; see also Correa Dep. Tr. at 48–49.

Defendant’s challenges to Mr. Correa’s methodologies go more to the weight that

should be given to the testimony by a trier of fact rather than admissibility based on a Daubert

challenge. The Court also notes that Defendant’s arguments that Mr. Correa is not qualified

to conduct slip-resistance testing and that his Report provides no learned treatises or literature

supporting the reliability of his methodology (see Motion at 6) are unavailing given the

methodologies and research he did conduct. Nor is this Court persuaded by Defendant’s

citations to Rosenfeld v. Oceania Cruises, Inc., 654 F.3d 1190, 1193–94 (11th Cir. 2011),7 Jordan

v. Celebrity Cruises, Inc., No. 17-20773-CIV, 2018 WL 3584702 (S.D. Fla. July 25, 2018), report

and recommendation adopted, 2018 WL 4776336 (S.D. Fla. Sept. 21, 2018),8 and Jay v. Royal

Caribbean Cruises Ltd., No. 20-CV-25052, 2022 WL 2187156, at *5 (S.D. Fla. June 17, 2022).9

The Court is satisfied that Mr. Correa’s inspection, observations, investigation, and

research, detailed in his Report and deposition testimony, demonstrate that his methodologies

are sufficiently reliable to withstand challenges under Rule 702 and Daubert. This Court

therefore agrees that “an engineer’s use of techniques of visual inspection, code review, and

7 Although the expert in Rosenfeld performed various coefficient-of-friction tests to

determine the slip resistance of flooring surfaces on a cruise ship, that case does not establish

that an expert must perform such testing on a defendant’s choice of flooring or that such testing

is the only reliable methodology to determine slip resistance. See Lewis, 570 F. Supp. 3d at

1192 (rejecting a similar argument challenging Mr. Correa’s methodology).

8 In Jordan, the district court found the expert lacked the “education, training, and

shipboard work experience in slip resistance to be qualified as an expert” because “his

background as a security officer does not render him an expert to determine when a bathroom

tile floor becomes unreasonably slippery.” Jordan, 2018 WL 3584702, at *6.

9 In Jay, this Court found that the methodology employed by the expert in forming the

opinion that a gangway was wet at the time of the plaintiff’s incident was not sufficiently

reliable to satisfy the requirements of Daubert, in part, because the expert’s report neither

provided “any scientific methods used to determine that the gangway was wet on the date of

the incident,” nor “any basis to believe anything other than common sense was used to reach

this opinion.” Jay, 2022 WL 2187156, at *5.

reliance on experience and expertise can satisfy the Daubert reliability prong.” St. Louis Condo.

Ass’n v. Rockhill Ins. Co., No. 18-21365-Civ, 2019 WL 2013007, at *4 (S.D. Fla. Mar. 11, 2019)

(Torres, J.) (quoting Clena Invs., Inc. v. XL Specialty Ins. Co., 280 F.R.D. 653, 664 (S.D. Fla.

2012) (finding that a structural engineer’s “experience as an engineer and his visual inspection

of the Property . . . lay a permissible foundation” for his opinions as to causation of roof

damage)).

Plaintiff has met her burden of demonstrating, by a preponderance of the evidence, the

reliability of Mr. Correa’s methodologies used to reach his opinions concerning the slip

resistance of the nosing on the subject stairs. See Rink, 400 F.3d at 1291–92 (party offering the

expert testimony must demonstrate admissibility by a preponderance of the evidence).

Therefore, to the extent Defendant’s Motion is based on the reliability of Mr. Correa’s

methodologies, the Motion is denied.

Helpfulness

Mr. Correa offers five opinions in his Report. See Correa Report [ECF No. 42-1] at 6.

Defendant argues that two of those opinions, the fourth and fifth, are improper legal

conclusions that would not be helpful to a jury. Mot. at 9–11. Specifically, Defendant

contends that Mr. Correa’s fourth opinion, regarding Defendant’s actual or constructive

notice, constitutes a legal conclusion that improperly invades the province of the jury. Id.

Similarly, Defendant maintains that Mr. Correa’s fifth opinion, that the conditions were not

readily apparent and were unsafe and that Defendant was responsible for those conditions,

should also be stricken because it offers improper legal conclusions concerning Defendant’s

fault and whether the alleged unsafe conditions were readily apparent. Id. Plaintiff does not

address Defendant’s helpfulness challenges to Mr. Correa’s fourth and fifth opinions in her

Response and has, therefore, conceded as much by failing to do so. See Pearson v. Deutsche

Bank AG, No. 21-cv-22437, 2023 WL 2613635, at *9 (S.D. Fla. Mar. 23, 2023) (Bloom, J.)

(“Whenever a party fails to respond to an opposing party’s argument in a responsive brief,

that party has forfeited any arguments in response; as a result, the party has conceded the

opposing party’s argument.”). Therefore, the Court finds Plaintiff has abandoned the fourth

and fifth opinions set forth in Mr. Correa’s Report. In any event, this Court has considered

those two opinions and agrees with Defendant that by assigning fault and indicating that

Defendant had actual or constructive notice of the alleged unsafe conditions or was otherwise

at fault, Mr. Correa intends to offer legal conclusions that improperly invade the province of

the jury. See Umana-Fowler, 49 F. Supp. 3d at 1122 (“An expert may testify as to his opinions

on an ultimate issue of fact . . . he ‘may not testify as to his opinion regarding ultimate legal

conclusions.’” (quoting United States v. Delatorre, 308 F. App’x 380, 383 (11th Cir. 2009));

Holley, 2021 WL 5371507, at *9 (citing cases).

Therefore, Mr. Correa is precluded from offering the fourth and fifth opinions

identified in his Report (regarding Defendant’s actual or constructive notice, whether the

alleged unsafe conditions were readily apparent, and whether Defendant was at fault).

The Court notes that Defendant only challenges Mr. Correa’s fourth and fifth opinions

as failing to satisfy the helpfulness prong of the Daubert test. Therefore, it does not appear

Defendant challenges Mr. Correa’s remaining opinions on helpfulness grounds. Nevertheless,

the Court finds Mr. Correa’s first opinion satisfies the helpfulness prong because the matters

of slip resistance explained in the Report are beyond the understanding and experience of the

average lay citizen. See Padula v. Carnival Corp., No. 16-23862-CIV, 2017 WL 7792714, at *6

(S.D. Fla. Oct. 13, 2017) (citing Rosenfeld, 654 F.3d at 1194). But, as explained below, Mr.

Correa’s second and third opinions are not relevant to the claims in this case and, as such,

their helpfulness to the jury’s understanding of the issues in this case need not be addressed.

Accordingly, based on Defendant’s Daubert challenges, Mr. Correa is precluded from

offering the fourth and fifth opinions set forth in his Report, but he may testify regarding the

first opinion in his Report pertaining to the slip resistance of the surface of the staircase where

Plaintiff fell.

2. Mr. Correa’s Expert Opinions Concerning Negligent Design Theory Of

Liability

The Court next addresses Defendant’s challenges to Mr. Correa’s second and third

opinions in which Mr. Correa opines that Defendant created an unsafe condition by: (1)

allowing the existence of excessively large handrails that were not graspable; and (2) allowing

the existence of an excessively sloped tread surface. Correa Report at 7. Defendant argues

that it would be unfairly prejudicial if Mr. Correa were permitted to offer his opinions

regarding the design of the handrail, the design of the nonskid material, and the design of the

nosing’s slope because Plaintiff did not allege a claim based on negligent design in the

Amended Complaint. Mot. at 11–12. Defendant maintains that the parties conducted

discovery based on the two theories of liability set forth in the pleadings (negligent

maintenance and failure to warn) and that Defendant’s expert did not offer any opinions

regarding the handrail, the dimensions of the non-skid material in relation to the nosing, or

the slope of the tread on the stairs. Id. at 13.

In her Response, Plaintiff appears to rebut Defendant’s argument by claiming, “Mr.

Correa also pointed out that the condition of the nosing was a matter of maintenance rather

than design, since the condition of the nosing should have been detected in the course of

routine inspections.” Resp. at 5. Plaintiff further asserts, “[t]he noncompliant handrails also

could readily have been retrofitted during routine maintenance.” Id.

As Defendant contends, the Amended Complaint does not include a claim based on

negligent design. Rather, in her Amended Complaint, Plaintiff asserts claims for negligent

maintenance and failure to warn. Unlike Mr. Correa’s first opinion, the second and third

opinions are directed at the design of the staircase and not Defendant’s maintenance of it, and

testimony about flaws in the staircase’s design are not relevant to Plaintiff’s claims but,

instead, would likely confuse the jury.

“Because of the powerful and potentially misleading effect of expert evidence,

sometimes expert opinions that otherwise meet the admissibility requirements may still be

excluded by applying Rule 403.” Frazier, 387 F.3d at 1263 (citations and footnote omitted).

“Exclusion under Rule 403 is appropriate if the probative value of otherwise admissible

evidence is substantially outweighed by its potential to confuse or mislead the jury[.]” Id.

Admitting speculative and potentially confusing testimony runs contrary to the purpose of

expert testimony contemplated by Rule 702. Id. “Simply put, expert testimony may be

assigned talismanic significance in the eyes of lay jurors, and therefore, the district courts must

take care to weigh the value of such evidence against its potential to mislead or confuse.” Id.

Because Plaintiff’s Amended Complaint does not include a claim of negligent design,

the Court finds that the probative value of Mr. Correa’s second and third opinions concerning

the design of the handrails and slope of the subject staircase is substantially outweighed by

the prejudice to Defendant and, most significantly, the potential to mislead or confuse the

trier of fact. See Kessler, 2019 WL 8128483, at *4 (precluding engineering expert’s opinions

concerning “handrails, slope/drainage or floor tile selection” because there was no negligent

design claim asserted in the case). Cf. Mendel v. Royal Caribbean Cruises, Ltd., No. 10-23398-

CIV, 2012 WL 2367853, at *3 (S.D. Fla. June 21, 2012) (King, J.) (“It is the law of this Circuit

that a plaintiff who presents no evidence that the defendant actually created, participated in,

or approved the design cannot prevail on a negligence claim to the extent that the claim is

premised on a theory of negligent design.”); Groves v. Royal Caribbean Cruises, Ltd., No. 09-

20800-CIV, 2011 WL 109639, at *1 (S.D. Fla. Jan. 11, 2011) (Torres, J.) (“[T]here is no

evidence in this record that [the cruise operator] actually participated in or approved of the

design of these areas” and “because no negligent design theory is possible in this case, the

expert’s testimony as to the design flaws in the relevant areas of this vessel is moot.”).

Therefore, Mr. Correa is precluded from offering his second and third opinions

regarding the design of the subject staircase, including the handrail, nonskid material, and

sloped tread surface, as the relevance of these is outweighed by the risk of confusion and

unfair prejudice.

3. Other Challenges To Mr. Correa’s Testimony

Defendant also seeks to preclude Mr. Correa from offering any opinions on causation,

tread depth, and the crewmember stairs based on Mr. Correa’s deposition testimony. Mot. at

12–13. As for causation and tread depth, Mr. Correa testified during his deposition that he

has no opinions concerning these issues. See Correa Dep. Tr. at 17–18; 57. To the extent

Defendant seeks to exclude Mr. Correa from offering expert opinions regarding causation and

the tread depth of the subject stairs, the requested relief is unnecessary because Mr. Correa

testified that he has no opinion on these topics and, therefore, there are no opinions to

exclude.

Defendant also challenges Mr. Correa’s testimony regarding his observations of the

crewmember stairs. Mr. Correa testified that he noticed that the nosing on those stairs was

similar to that on the subject stairs where Plaintiff fell but that the leading edge on the

crewmember stairs had a grooved aluminum, while the subject stairs did not. See Correa Dep.

Tr. at 33–34; 70 (Mr. Correa testified that, based on his observation as he was walking by the

crew stairs, he “was able to ascertain that the nosings were extremely similar [to the subject

stairs] aside from that leading edge having grooves, fine grooves.”). Defendant anticipates

that Mr. Correa may try to compare the passenger stairs where Plaintiff fell to the

crewmember stairs he observed during the inspection. Defendant argues that the crew stairs

were outside the scope of the area to be inspected and that they are not relevant nor

substantially similar to the subject stairs because they are for passenger use. Mot. at 12.

Defendant further contends that any opinion regarding the crew stairs is unreliable, unhelpful,

and unfairly prejudicial because Mr. Correa merely glanced at them as he walked by. Id. at

13. Plaintiff does not provide any response to Defendant’s argument concerning Mr. Correa’s

comparison of the crew stairs.

The Court finds that Mr. Correa’s testimony regarding his observation of the crew

stairs in the same vessel and comparison to the subject stairs is not an additional expert

opinion subject to exclusion under Rule 702 or Daubert. Instead, the testimony gives a

description of Mr. Correa’s observations which are relevant to the process he undertook in

formulating his expert opinions regarding the stairs at issue. Defendant is free to challenge

Mr. Correa’s description of the crew stairs on cross-examination if it believes the description

is inaccurate, and it may present evidence regarding the difference between stairs for

passenger use as opposed to crew use, but none of these points require expertise. Of course, if

Mr. Correa offers previously undisclosed expert opinions regarding the crew stairs, such an

opinion, like any previously undisclosed opinion, would be subject to striking, but his

observations of the crew stairs do not present that problem.

Accordingly, Defendant has not shown a basis for striking or precluding Mr. Correa’s

anticipated testimony regarding his observations of the crew stairs under Daubert or on

grounds of undue prejudice, and, as such, Mr. Correa is permitted to offer such testimony

inasmuch as they are not expert opinions.

B. Plaintiff’s Treating Physicians, Dr. Cahill and Dr. Florschutz

Defendant seeks to strike or limit the opinions of Plaintiff’s treating physicians, Drs.

Cahill and Florschutz, on three separate grounds. Mot. at 13–16. First, Defendant argues that

both doctors should be precluded from offering expert opinions because neither provided an

expert report as required by Federal Rule of Civil Procedure 26(a)(2)(C). Id. Alternatively,

Defendant argues that their testimony should be limited to the scope of their treatment as

documented in Plaintiff’s medical records. Id. Second, Defendant asserts that Dr. Cahill’s

testimony will be cumulative of Dr. Florschutz’s testimony. Id. at 15. And third, Defendant

argues that Dr. Cahill should be stricken as a witness because she did not appear for her

deposition. Id. at 16. The Court addresses each argument below.

1. Whether Plaintiff’s Treating Physicians Should Be Precluded From Offering

Expert Opinions Due To Insufficient Expert Disclosures

On October 18, 2022, Plaintiff served Amended Expert and Hybrid Witness

Disclosures (“Amended Disclosures”) in which she disclosed Drs. Cahill and Florschutz as

“hybrid” treating physicians. [ECF No. 42-4]. With regard to Dr. Cahill, an orthopedic

surgeon specializing in orthopedic sports medicine, Plaintiff’s Amended Disclosures state, in

relevant part:

Dr. Cahill is expected to testify as to the mechanics of Plaintiff’s injury,

causation, and treatment Plaintiff underwent in connection with her injury. Dr.

Cahill is also expected to testify as to the course of Plaintiff’s subsequent

medical care and the long term/permanent effects of the injury. Specifically,

Dr. Cahill will testify that the tibial plateau fracture was proximately caused by

the Plaintiff’s fall on the ship, that her surgical treatment was medically

necessary, and that the Plaintiff will require future treatment in the form of a

knee replacement as a result of the fracture . . . . The doctor is also expected to

testify to the reasonableness and necessity of her services and the charges for

same and whether they are representative of charges for similar services in the

medical community; whether the subject incident was a cause of the injury,

condition, symptom for which he [sic] treated the Plaintiff and the [sic] whether

the Plaintiff will need future healthcare and palliative treatments or continuing

treatment, procedures, medicines and services and the reasonable cost for those

prospective services all within reasonable medical probability and they are all

causally related to the subject incident. The doctor is also expected to testify as

to the effects the injuries from the incident will have upon Plaintiff in her later

years.

Id. at 1–2. As to Dr. Florschutz, other than the physician’s name and reference to the surgery

performed on Plaintiff, the Amended Disclosure is identical to the one for Dr. Cahill. Id. at

3. There is no dispute that neither of these doctors provided expert reports in this case.

In the Motion, Defendant argues that the Amended Disclosures include opinions

beyond facts observed as part of Plaintiff’s treatment and that Drs. Cahill and Florschutz

should not be permitted to offer such expert testimony because they did not provide written

reports as required by Rule 26(a)(2)(B). Mot. at 13. Defendant specifically argues that if

permitted to testify, Dr. Cahill’s and Dr. Florschutz’s testimony should be limited to the scope

of Plaintiff’s treatment and medical records, and neither should be permitted to offer expert

opinions regarding the mechanics of Plaintiff’s injury, causation, the permanency of her

injuries, prognosis, and long-term medical care. Id.

In Response, Plaintiff contends that Drs. Cahill and Florschutz should be permitted to

testify, as treating physicians, regarding Plaintiff’s diagnosis and treatment based on the

content of their own medical records and observations during their treatment of Plaintiff.

Resp. at 5–6. She does not address, in her Response, Defendant’s contention that the

Amended Disclosures indicate that she intends to elicit opinions from these witnesses that go

beyond treating physician testimony.

In its Reply, Defendant argues that Drs. Cahill and Florschutz cannot be considered

treating physicians because they did not have an “ongoing treatment relationship” with

Plaintiff. Reply at 4. According to Defendant, Dr. Florschutz had a limited role in Plaintiff’s

recovery, having first seen her the day after her injury and treating her for a total of eleven

days before discharging her. Id. at 5. Similarly, Defendant maintains that Dr. Cahill saw

Plaintiff only two times nearly two years after the incident. Id. at 6.

Defendant also argues in its Reply that Plaintiff’s Amended Disclosures regarding Drs.

Cahill and Florschutz do not comply with Rule 26(a)(2)(C)(ii). Id. Defendant maintains that

the Amended Disclosures “include boilerplate areas of testimony rather than the summary of

facts and opinions as to which the witness is expected to testify.” Id. at 7. Defendant asserts it

is unable to prepare for cross-examination of these witnesses and is therefore prejudiced due

to the deficient disclosures. Id. Defendant requests that if these witnesses are going to offer

the opinions set forth in the Amended Disclosures, Plaintiff should be required to submit

compliant disclosures for these two witnesses pursuant to Rule 26(a)(2)(C). Id.

Thus, unlike Mr. Correa, Defendant does not challenge the admissibility of Plaintiff’s

treating physicians under Daubert and the Rules of Evidence, but, instead, Defendant seeks

exclusion of their testimony due to Plaintiff’s alleged failure to comply with her expert

disclosure obligations under Rule 26 and a lack of a sufficient basis to consider these witnesses

as treaters. The Court first addresses Defendant’s challenges under Rule 26.

Rule 26 Expert Witness Disclosure Requirements

Federal Rule of Civil Procedure 26(a)(2) requires a party to disclose the identity of any

expert witness it may call upon at trial. Pursuant to Rule 26(a)(2)(B), if a witness is retained

or specifically employed to provide expert testimony in a case, the disclosure must be

accompanied by a written report prepared and signed by the witness that sets forth the

witness’s opinions and the bases for those opinions. Fed. R. Civ. P. 26(a)(2)(B). If a party fails

to provide information or identify an expert witness as required by Rule 26(a), the party is not

permitted to use that information or witness to supply evidence at a trial, unless the failure

was substantially justified or is harmless. Fed. R. Civ. P. 37(c)(1); Jones v. Royal Caribbean

Cruises, Ltd., No. 12-20322-CIV, 2013 WL 8695361, *3 (S.D. Fla. Apr. 4, 2013) (Torres, J.).

When, as here, a witness is not specifically retained or employed to provide expert

opinions and testimony but is, nevertheless, expected to provide expert opinions as part of his

or her testimony, Rule 26(a)(2)(C) requires the party offering such testimony to disclose the

identity of the witness, the subject matter on which the witness is expected to present evidence,

and a summary of the facts and opinions to which the witness is expected to testify. Fed. R.

Civ. P. 26(a)(2)(A)–(C). This summary disclosure required under Rule 26(a)(2)(C) is

considerably less extensive than the report required by Rule 26(a)(2)(B), which makes it easier

for non-retained experts to testify without preparing a comprehensive written report. See In re

Concept Boats, Inc., No. 19-CV-20526, 2020 WL 3162983, at *3 (S.D. Fla. May 28, 2020)

(McAliley, J.). Even so, compliance with Rule 26(a)(2)(C) still requires disclosure of the

subject matter regarding which the witness will present evidence, as well as a summary of the

witness’s opinions and the bases for those opinions. See Jones, 2013 WL 8695361, at *4. A

reader of the disclosure must have an idea of the opinion(s) the witness will offer and of the

facts on which the witness will base his or her opinion(s). Id. at *4.

Physicians are listed in the Advisory Committee Notes to the 2010 amendment to Rule

26(a)(2)(C) as one example of the types of witnesses typically subject to Rule 26(a)(2)(C).

Although treating physicians are not generally required to provide expert disclosures in

compliance with Rule 26, if the physician’s testimony is expected to include opinions beyond

mere facts observed as part of a patient’s treatment, such as opinions regarding the cause of

injuries, Rule 26(a)(2)(C) requires disclosures about such opinions of the physician, who was

not retained for the purpose of presenting expert testimony. See Ortega-Guzman v. Sam’s East,

Inc., No. 16-81977-CIV, 2018 WL 11343940, at *2 (S.D. Fla. Aug. 30, 2018) (Zloch, J.).

Thus, a treating physician may testify as a fact witness regarding observations made

during treatment of an injured person, and, if the testimony is so limited, the treating

physician need not satisfy the expert disclosure requirements of Rule 26. See Underwood v. NCL

(Bah.) Ltd., No. 17-24492-CV, 2019 WL 1559659, at *3 (S.D. Fla. Apr. 10, 2019) (Torres, J.)

(noting that treating physicians are not required to provide a Rule 26(a)(2)(B) report if

opinions are based on observations made during treatment). However, “when a treating

physician goes beyond the observations and opinions obtained by treating the individual and

expresses opinions acquired or developed in anticipation of trial, then the treating physician

steps into the shoes of an expert who may need to provide a Rule 26(a)(2)(B) report.” Leathers

v. Pfizer, Inc., 233 F.R.D. 687, 697 (N.D. Ga. 2006). Likewise, the review and rebuttal of an

opposing party’s expert reports implicates a physician’s expertise and exceeds the scope of

treatment and, therefore, cannot be the subject of testimony by a physician witness without a

written report. Ortega-Guzman, 2018 WL 11343940, at *4.

And, when a treating physician’s testimony exceeds the scope of treatment, the simple

disclosure of the name of the treating physician does not comply with Rule 26(a)(2)(B) or (C).

See Jones, 2013 WL 8695361, at *4. Nor does the provision of medical records alone satisfy

the “summary of the facts and opinions” requirement of Rule 26(a)(2)(C). Id. As Chief

Magistrate Judge Torres explained in Jones, “[a]llowing medical records to be submitted in

lieu of a summary would invite a party to dump voluminous medical records on the opposing

party, contrary to the rule’s attempt to extract a ‘summary.’” Id. (internal quotations omitted).

In the instant case, Plaintiff disclosed Drs. Cahill and Florschutz as “hybrid” witnesses

who are expected to offer opinions beyond those based on observations and opinions made

by treating Plaintiff but did not provide Rule 26 reports for either witness. Therefore, Plaintiff

has not complied with Rule 26 as to these witnesses insofar as their opinions beyond treatment

observations are concerned. The Court then considers the repercussions of the failure to

comply with the Rule.

Rule 37 And The Repercussions Of Failing To Comply With Rule 26(a)(2)

When a party fails to properly disclose an expert witness or expert opinions as required

by Rule 26(a)(2), that party may not use the expert or opinion “unless the failure was

substantially justified or is harmless.” Fed. R. Civ. P. 37(c)(1). Substantial justification

requires justification to a degree that could satisfy a reasonable person that parties could differ

as to whether the party was required to comply with the disclosure request. In re Denture Cream

Prod. Liab. Litig., No. 09-2051-MD, 2012 WL 5199597, at *4 (S.D. Fla. Oct. 22, 2012)

(Altonaga, J.), on reconsideration in part, 2012 WL 13008163 (S.D. Fla. Nov. 14, 2012). Failing

to comply with Rule 26 is “harmless” when “there is no prejudice to the opposing party.” Id.

(internal quotations omitted). When assessing whether there was substantial justification for

the failure to disclose or whether the failure to disclose was harmless, courts consider four

factors: (1) the importance of the excluded testimony; (2) the explanation of the party for its

failure to comply with the required disclosure; (3) the potential prejudice that would arise

from allowing the testimony; and (4) the availability of a continuance to cure such prejudice.

Jones, 2013 WL 8695361, at *4.

In Jones, Judge Torres considered a defendant’s request to exclude treating physicians

from presenting expert opinions under circumstances similar to those here and held that the

plaintiff’s failure to comply with Rule 26 by not providing expert disclosures for the testifying

physicians was not substantially justified. Id. Judge Torres also held that for treating

physicians whose depositions were not taken before the discovery cutoff, the plaintiff’s

“failure to provide expert reports, Rule 26 disclosures, or other discovery . . . result[ed] in

unfair prejudice to the [d]efendant, at least to the extent that [the plaintiff] intended to elicit

expert testimony from these doctors.” Id. at *6. In that case, the treating physicians were

precluded from testifying at trial as expert witnesses but, as treating physicians, they were

permitted to testify as fact witnesses regarding the general course of the plaintiff’s medical

treatment. Id.

With the foregoing in mind, the undersigned turns to Plaintiff’s disclosures regarding

her treating physicians, Drs. Cahill and Florschutz, and her Response to Defendant’s Motion.

Dr. Cahill and Dr. Florschutz May Not Offer Expert Testimony

Beyond Observations Made As Part of Plaintiff’s Treatment

Initially, the Court notes that although Plaintiff disclosed what are clearly expert

opinions beyond mere observations of treating physicians in her Amended Disclosures as to

Drs. Cahill and Florschutz, in her Response to the Motion, she claims she only intends to

offer their testimony regarding conditions observed in the course of treatment. That is, in her

Response, Plaintiff states that she intends to offer the testimony of Drs. Cahill and Florschutz,

as her treating physicians, regarding Plaintiff’s diagnosis and treatment based on the content

of their own medical records and observations learned as a result of treating Plaintiff’s injuries.

Resp. at 6. At the same time, however, Plaintiff claims that she disclosed their anticipated

opinions in her Amended Disclosures, which go well beyond observations of treating

physicians. Id. Notably, Plaintiff also indicates that she does not intend to elicit testimony

from Drs. Cahill and Florschutz regarding causation of Plaintiff’s injury or the place such

injury occurred because there is no dispute that her onboard fall caused her fracture. Id. The

difference between the Amended Disclosures and Plaintiff’s representations in her Response

to the Motion is problematic and has led to confusion.

To the extent Plaintiff intends to elicit Dr. Cahill’s and Dr. Florschutz’s opinions

disclosed in the Amended Disclosures, Plaintiff is precluded from doing so because the

Amended Disclosures include expert opinions beyond treatment observations for which the

doctors did not provide expert reports pursuant to Rule 26(a)(2)(B), nor summary expert

reports in compliance with Rule 26(a)(2)(C). Plaintiff’s Amended Disclosures regarding both

doctors do not satisfy Rule 26(a)(2)(C). Like those described by Magistrate Judge Goodman

in Worley v. Carnival Corporation, Plaintiff’s Amended Disclosures “merely list the topics of

possible opinions which doctors might render without actually disclosing the actual opinion

or tethering them to the specific facts of the case.” No. 21-CIV-23501, 2023 WL 1840107, at

*11 (S.D. Fla. Jan. 27, 2023) (finding the plaintiff’s expert witness disclosures, which are

strikingly similar to the ones in the instant case, “so generic that they could be used in any

lawsuit involving physical injuries”).

Thus, based on Rule 26 and the decisions interpreting the Rule’s requirements,

although a treating physician may offer testimony regarding information and observations

learned as part of a patient’s treatment without providing Rule 26 disclosures, such disclosures

are required if the physician is expected to offer information or opinions that implicate the

physician’s expertise and are beyond the scope or facts observed during the patient’s

treatment. Here, Plaintiff’s Amended Disclosures concerning Drs. Cahill and Florschutz

identify opinions that go beyond treating physician observations (including the mechanics of

Plaintiff’s injury, causation, prognosis, long-term effects, costs, future care, and disability)

such that reports complying with Rule 26(a)(2)(C) were required. See Collazo v. Progressive Select

Ins. Co., No. 20-25302-Civ, 2022 WL 178531, at *3 (S.D. Fla. Jan. 20, 2022) (Scola, J.) (the

plaintiff was “undoubtedly required to provide a report for the treating physicians to the extent

they are expected to testify about causation, prognosis, and any future implications”). And,

as noted above, Plaintiff’s Amended Disclosures do not satisfy the requirements of the Rule.

Moreover, in her Response, Plaintiff does not argue that the failure to provide adequate expert

disclosures for Drs. Cahill and Florschutz was substantially justified or will not cause

prejudice, and it does not appear that is the case.

Accordingly, to the extent Plaintiff intends to offer the opinions of Drs. Cahill and

Florschutz set forth in the Amended Disclosures regarding causation, prognosis, future

treatment, and costs, such testimony is not permitted because Plaintiff failed to provide Rule

26 disclosures regarding such expert opinions and failed to justify the failure to do so. Mindful

that the striking of a witness is a drastic remedy, the Court finds that Drs. Cahill and

Florschutz should be permitted to testify as treating physicians regarding their observations

about Plaintiff’s condition during her course of treatment, as well as Plaintiff’s medical

records.10 Dr. Cahill and Dr. Florschutz may not, however, offer the other opinions identified

in the Amended Disclosures, such as opinions about the mechanics of Plaintiff’s injury,

causation, disability, permanency of injuries, prognosis, the reasonableness of past medical

costs, and the need/cost of future medical care. See Worley, 2023 WL 1840107, at *12.

2. Whether Either Dr. Cahill Or Dr. Florschutz Should Be Excluded On

Grounds Their Testimony Will Be Cumulative

Defendant argues that Dr. Cahill’s testimony will be cumulative of Dr. Florschutz’s

testimony. Plaintiff again did not respond to this argument in her Response. The Court

observes that both doctors are orthopedic surgeons expected to testify concerning Plaintiff’s

course of treatment and medical records. As described in the Amended Disclosures, Dr.

10 In its Reply, Defendant contends that Drs. Cahill and Florschutz cannot be

considered treating physicians because they did not have an ongoing treatment relationship

with Plaintiff. Reply at 4–6. However, Defendant raises this argument, which is a separate

ground for striking the testimony of both doctors, for the first time in its Reply, and, therefore,

the Court will not consider this new argument. See KMS Rest., 361 F.3d at 1328 n.4.

Florschutz performed a surgery as part of Plaintiff’s initial treatment following the alleged

incident. Dr. Cahill appears to have treated Plaintiff’s injuries after Dr. Florschutz’s surgery.

Thus, their roles in treating Plaintiff were different, which Defendant does not deny. Based

on the information provided, the Court does not agree that these doctors will offer the same

testimony concerning Plaintiff’s course of treatment, and, therefore, neither should be

excluded as cumulative.

3. Dr. Cahill’s Failure To Appear For Her Deposition

Finally, Defendant argues that Dr. Cahill should be stricken as a witness because she

did not appear for her deposition. Mot. at 16. Defendant contends that Plaintiff was

responsible for rescheduling the deposition of Dr. Cahill before the Court’s deadline for

Daubert motions on December 2, 2022. Id.

In her Response, Plaintiff asserts that Defendant unilaterally noticed Dr. Cahill’s

deposition for November 18, 2022 but was informed by Dr. Cahill’s attorney prior to that date

that Dr. Cahill was not available that day. Resp. at 7. Plaintiff maintains that Dr. Cahill never

indicated that she would not be willing to sit for her deposition and that Defendant made no

effort to reschedule the deposition. Id.

Under these circumstances, the Court will not fault Plaintiff or her counsel for

Defendant’s failure to take Dr. Cahill’s deposition. Because Dr. Cahill is not a retained

witness, it is unlikely Plaintiff’s counsel could exert any more control over this doctor than

Defendant, whose counsel was in communication with the witness’s attorney (see ECF No.

52-1). See Worley, 2023 WL 1840107, at *10. Defendant offers no indication otherwise.

Moreover, given that Dr. Cahill is precluded from offering opinions outside the scope of

Plaintiff’s treatment and medical records, any prejudice to Defendant due to the inability to

take Dr. Cahill’s deposition is minimized.

Accordingly, Defendant’s request to strike Dr. Cahill based on her failure to appear

for deposition is denied.

IV. CONCLUSION

Based on the foregoing, it is hereby

ORDERED AND ADJUDGED that Defendant’s Daubert Motion [ECF No. 42] ts

GRANTED IN PART AND DENIED IN PART as follows:

(a) Mr. Correa is precluded from offering expert testimony as to the opinions identified

as numbers 2, 3, 4, and 5 in his Report regarding the design of the subject staircase, including

the handrails, nonskid material, and sloped tread surface, as well as Defendant’s actual or

constructive notice, whether the alleged unsafe conditions were readily apparent, and whether

Defendant was at fault. Mr. Correa may offer expert testimony as to the first opinion

identified in his Report regarding the slip resistance of the walking surface on the subject stairs

based on his observations and findings specified in his Report.

(b) Dr. Cahill and Dr. Florschutz are permitted to testify at trial as Plaintiff's treating

physicians and may offer testimony concerning Plaintiffs course of treatment for her injuries,

observations made during her treatment, and her medical records. Dr. Cahill and Dr.

Florschutz are precluded from offering expert opinions or testimony regarding the other areas

identified in Plaintiff's Amended Disclosures, including the mechanics of Plaintiffs injury,

causation, disability, permanency of injuries, prognosis, the reasonableness of past medical

costs, and the need/cost of future medical care.

DONE AND ORDERED in Chambers at Miami, Florida, this 18" day of April, 2023.

TVR

MELISSA DAMIAN

UNITED STATES MAGISTRATE JUDGE

Copies to:

Counsel of record

29