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Guevara v. NCL (Bahamas) Ltd.

United States Court of Appeals, Eleventh Circuit

April 1, 2019

PABLO GUEVARA, Plaintiff - Appellant,
v.
NCL (BAHAMAS) LTD., a Bermuda Company doing business as Norwegian Cruise Line, Defendant-Appellee.

          Appeal from the United States District Court for the Southern District of Florida Docket No. 1:15-cv-24294-KMW

          Before WILSON, JILL PRYOR, and SUTTON, [*] Circuit Judges.

          WILSON, CIRCUIT JUDGE

         Pablo Guevara slipped and fell as he stepped down from a landing located on the outer deck of a cruise ship operated by NCL (Bahamas) Ltd. Guevara claimed that he did not perceive the step down because NCL failed to adequately warn him of the change in elevation. Moreover, a lightbulb was out in the area where Guevara fell, making it harder for him to navigate the floor level change at night. Guevara sued NCL, alleging that NCL negligently failed to (1) warn passengers of the step down and (2) maintain and inspect the lighting in the area. The district court granted summary judgment in favor of NCL on both claims, holding that Guevara failed to create a genuine issue of material fact regarding NCL's actual or constructive notice of the allegedly dangerous conditions posed by the step down or the unilluminated light.

         Guevara appeals the district court's orders (1) striking his expert's supplemental reports and (2) granting summary judgment in favor of NCL. After careful review and with the benefit of oral argument, we reverse and remand the district court's ruling on Guevara's failure to warn claim. We affirm, however, the district court's orders (1) striking Guevara's expert's supplemental reports and (2) granting summary judgment on Guevara's negligent maintenance claim.

         I. Factual Background

         Guevara was a cruise passenger on the Norwegian Spirit, which departed from Barcelona, Spain. On his first night aboard, at approximately 11:30 p.m., Guevara was walking on an outdoor deck near the pool, searching for the ship's cigar lounge. He walked up three steps to a landing. After the landing, there is a single step down, which Guevara claims he did not see.[1] When he stepped down, Guevara slipped on the deck and fell, landing with his arm wedged between the wall and a handrail. As a result, Guevara broke his arm.

         After he fell, Guevara noticed a "sheen" of water on the floor where he slipped and that a lightbulb was out in one of the globe lamps at the top of the steps. Directly underneath the unilluminated lamp was a permanently affixed warning sign: "ATTENTION! FOR YOUR OWN SAFETY PLEASE USE THE HANDRAIL. WATCH YOUR STEP." Guevara contends that he could not see the warning sign because the bulb immediately above the sign was out.

         II. Procedural History

         Guevara filed a complaint against NCL in the Southern District of Florida. He alleged that NCL negligently failed to (1) warn passengers of the step down, and (2) maintain and inspect the lighting in the area.

         A. Expert Witness Reports

         The parties proceeded to discovery. The district court's Scheduling Order set Guevara's expert disclosure deadline for June 18th, NCL's expert disclosure deadline for July 2nd, and the disclosure deadline for any rebuttal expert witness reports for July 16th.

         Guevara disclosed Dr. Ronald Zollo as an expert and served a copy of his report on June 20th-two days after the expert disclosure deadline.

         NCL's human factors and illumination expert, Dr. Joseph B. Sala, opined that there was sufficient lighting on the deck of the Spirit for a reasonably alert and attentive person walking in the area to safely navigate the floor level change. Guevara successfully moved for an extension of time to file rebuttal expert reports. He served Dr. Zollo's rebuttal expert report on July 26th. Dr. Zollo's rebuttal report addressed the step's dimensions and the insufficient slip resistance on the flooring.

         On August 19th-the Friday before Dr. Zollo's Monday deposition- Guevara served NCL with a copy of a thirteen-page "Addendum to the Preliminary Report" (First Supplemental Report) that supplemented both Dr. Zollo's initial and rebuttal expert opinions. The First Supplemental Report contained previously undisclosed opinions and references to authoritative materials. NCL proceeded with Dr. Zollo's deposition notwithstanding its objection to the submission of the First Supplemental Report. Dr. Zollo terminated his deposition after three hours and refused to resume later in the day.

         Discovery closed on August 26th.

         On September 26th-a month after the close of discovery and three days after the district court's deadline for dispositive and Daubert motions-Guevara filed a second, three-page addendum to Dr. Zollo's preliminary report (Second Supplemental Report).

         NCL moved to strike Dr. Zollo's testimony and reports because of Guevara's untimely disclosure of Dr. Zollo as an expert witness, Dr. Zollo's early termination of his deposition, and the presentation of new arguments in Dr. Zollo's supplemental reports that were not addressed in NCL's expert's report or alleged in the complaint. NCL also filed a Daubert motion to exclude Dr. Zollo's opinions, arguing that (1) he was not qualified to offer opinions on the construction of seaworthy vessels or human factors; (2) he did not use a sufficiently reliable methodology; (3) his opinions were based on assumptions and speculation; and (4) his opinions would not assist the trier of fact.

         The district court did not strike Dr. Zollo's initial expert report as untimely, even though it was filed two days late. In considering Dr. Zollo's First and Second Supplemental Reports, the district court acknowledged that NCL was dilatory in setting the deposition of NCL's corporate representative, which was taken well after the expert discovery deadlines and a week before discovery closed on August 26th. During the corporate representative's deposition, NCL produced for the first time a drawing of the deck area, photographs of the area taken the night of Guevara's fall, and a coefficient of friction (COF)[2] testing report of the deck. The district court found that, given NCL's late production, Dr. Zollo was justified in supplementing his initial report based on the new information obtained during the corporate representative's deposition. Dr. Zollo did not, however, have "carte blanche to supplement everything in both his initial and rebuttal expert reports." As such, the district court excluded certain portions of the First Supplemental Report and the entirety of the Second Supplemental Report because Guevara failed to show that their late disclosure was either justified or harmless.

         The district court struck the portion of Dr. Zollo's First Supplemental Report listing industry standards on lighting because it was produced too close in time to Dr. Zollo's deposition. In reaching this conclusion, the district court explained that none of Dr. Zollo's opinions on lighting in the First Supplemental Report referred to any of the late discovery produced by NCL. The district court found that the late submission of the report was not harmless.

         The district court struck the entirety of Dr. Zollo's Second Supplemental Report because its late disclosure harmed NCL. While Dr. Zollo was justified in supplementing his initial expert reports on account of NCL's late production of the COF report, the court found no justification for Dr. Zollo supplementing his expert opinion more than five weeks after he received the COF report, over a month after the close of discovery, and three days after the district court's dispositive and Daubert motions deadline. Guevara did not seek leave to extend discovery, which left NCL with no opportunity to depose Dr. Zollo about his Second Supplemental Report.

         B. NCL's Motion for Summary Judgment

         NCL moved for summary judgment, arguing that there was no record evidence of a dangerous condition, or evidence of actual or constructive notice of a dangerous condition, in the area where Guevara fell. Guevara opposed NCL's motion, asserting two theories of NCL's negligence liability: duty to warn and negligent maintenance. Under the first theory, Guevara argued that NCL failed to adequately warn him of the dangerous condition posed by the step down. Under the negligent maintenance theory, Guevara argued that NCL "permit[ed] the light to go out and remain out and [did] not post[] warning signs (or other more effective warnings such as yellow tape) that could have been seen by passengers traveling from the direction that Mr. Guevara was traveling."

         The district court granted summary judgment in favor of NCL, holding that Guevara did not create a genuine issue of material fact regarding NCL's actual or constructive notice of the allegedly dangerous condition posed by the step down. The district court rejected Guevara's argument that the presence of the warning sign alone was sufficient to create an issue of fact regarding NCL's notice of the dangerous step.[3] The court reasoned that Guevara offered no evidence that NCL created or affixed the warning sign, and thus failed to create a "logical inference that [NCL] had prior knowledge of the dangerous condition necessitating the warning." Lipkin v. Norwegian Cruise Line Ltd., 93 F.Supp.3d 1311, 1323 (S.D. Fla. 2015).

         Guevara also argued that NCL was on constructive notice that the light had been out because, under NCL's normal practices, the light was checked at 7:00 or 8:00 p.m. The light thus theoretically could have been out for up to four hours before Guevara fell. The district court disagreed. The court reasoned that the possibility that the light could have been out for four hours was not evidence of when the light actually went out. The district court held that Guevara failed to create a genuine dispute of material fact about NCL's notice of the alleged dangerous condition posed by the unilluminated light. Guevara appealed.

         III. Discussion

         We now consider Guevara's argument that the district court erred in excluding Dr. Zollo's supplemental expert reports and in granting summary judgment to NCL.

         A. Exclusion of Supplemental Expert Reports

         Guevara challenges the district court's ruling to exclude his expert's supplemental reports, arguing that those reports would have created a genuine dispute of material fact. "We . . . review a district court's exclusion of expert reports for abuse of discretion." Corwin v. Walt Disney Co., 475 F.3d 1239, 1250 (11th Cir. 2007). "A district court abuses its discretion when it makes a clear error of judgment or applies an incorrect legal standard." Sorrels v. NCL (Bahamas) Ltd., 796 F.3d 1275, 1281 (11th Cir. 2015).

         Federal Rule of Civil Procedure 26 requires that "[a] party must make [expert witness] disclosures at the times and in the sequence the court orders." Fed.R.Civ.P. 26(a)(2)(D). In order to make a proper disclosure, parties must, by the deadline, disclose the identity of their experts "accompanied by a written report." Fed.R.Civ.P. 26(a)(2)(B). This written report "must contain a complete statement of all opinions the witness will express and the basis and reasons for them" and "the facts or data considered by the witness in forming them." Fed.R.Civ.P. 26(a)(2)(B)(i)-(ii).

         Rule 26(e) imposes a duty on an expert to supplement her report "in a timely manner if the party learns that in some material respect the disclosure . . . is incomplete or incorrect, and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing." Fed.R.Civ.P. 26(e)(1)(A). But "[a]ny additions or changes to" the expert report "must be disclosed by the time the party's pretrial disclosures under Rule 26(a)(3) are due." Fed.R.Civ.P. 26(e)(2) (emphasis added).

         If a party violates Rule 26(a) or (e), Rule 37(c) provides for the exclusion of the expert evidence "unless the failure was substantially justified or is harmless." Fed.R.Civ.P. 37(c)(1); see also OFS Fitel, LLC v. Epstein, Becker and Green, P.C., 549 F.3d 1344, 1363 (11th Cir. 2008) ("Under Rule 37(c)(1), a district court clearly has authority to exclude an expert's testimony where a party has failed to comply with Rule 26(a) unless the failure is substantially justified or harmless."). Courts have broad discretion to exclude untimely expert testimony-even when they are designated as "supplemental" reports. See Corwin, 475 F.3d at 1252 ("[A] supplemental ...


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