from the United States District Court for the Southern
District of Florida Docket No. 1:15-cv-24294-KMW
WILSON, JILL PRYOR, and SUTTON, [*] Circuit Judges.
WILSON, CIRCUIT JUDGE
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.
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
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. 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.
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.
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.
Expert Witness Reports
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.
disclosed Dr. Ronald Zollo as an expert and served a copy of
his report on June 20th-two days after the expert disclosure
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.
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.
closed on August 26th.
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).
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
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) 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.
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.
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
NCL's Motion for Summary Judgment
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
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. 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).
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.
consider Guevara's argument that the district court erred
in excluding Dr. Zollo's supplemental expert reports and
in granting summary judgment to NCL.
Exclusion of Supplemental Expert Reports
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).
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."
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).
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