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Rossi v. Darden

United States District Court, S.D. Florida

May 17, 2017

ANDREA ROSSI, et al., Plaintiffs,
THOMAS DARDEN, et al., Defendants.



         THIS CAUSE came before the Court on Plaintiffs, Andrea Rossi and Leonardo Corporation's Daubert[1] Motion to Strike and Exclude Defendants' Experts (“Plaintiffs' Motion”) [ECF No. 215][2]; and Defendants' Motion to Exclude the Opinions and Testimony of Dr. K. Wong (“Defendants' Motion”) [ECF No. 197].[3]

         Plaintiffs seek to exclude the Expert Disclosure of Joseph A. Murray (“Murray Disclosure”) [ECF No. 215-1] as well as the Expert Report of Rick A. Smith (“Smith Report”) [ECF No. 215-2] and the Supplemental Expert Report of Rick A. Smith (“Supplemental Smith Report”) [ECF No. 235-10]. Plaintiffs level challenges to these documents based on: (1) Defendants' purported failure to comply with Federal Rule of Civil Procedure 26(a)(2)(B), and (2) the documents' alleged failure to satisfy Daubert and the Federal Rules of Evidence. (See generally Pls.' Mot.). For their part, Defendants challenge the Expert Disclosure of Dr. Kaufui V. Wong [ECF 197-1] under Daubert and the Federal Rules of Evidence. The Court has considered the parties' written submission, the record, and applicable law.


         A fuller factual background can be gleaned from the parties' pleadings and the Court's previous Orders. Relevant to some of the issues raised in the present briefing, the Scheduling Order [ECF No. 23] set the following discovery-related deadlines: the parties exchange written expert summaries or reports by January 30, 2017; the parties exchange rebuttal expert witness summaries or reports by February 13, 2017; the parties complete all discovery by February 27, 2017; and the parties file any pre-trial motions and Daubert motions by March 21, 2017.

         In accordance with the first deadline, Defendants served the Murray Disclosure and Smith Report on January 30, 2017. Murray was deposed on February 17, 2017. (See Murray Dep. Tr. [ECF No. 215-3]). At the deposition, he referred to a written report he had prepared for Defendants' counsel, but which had not been served on Plaintiffs, stating he needed to rely on this report to answer some of Plaintiffs' questions. (See Pls.' Mot. 8 (citing Murray Dep. Tr. 224:10-22, 227:2-16)). Plaintiffs assert, and Defendants do not appear to dispute, the Murray Disclosure does not satisfy the requirements of written expert reports under Rule 26(a)(2)(B). (See Pls.' Mot. 9; Defs.' Opp'n 6-7 (arguing Rule 26(a)(2)(B) is not applicable and Defendants were only required to provide a summary)). Defendants did not provide the written report prepared by Murray. (See Pls.' Mot. 8). Plaintiffs do not relate what action, if any, was taken to obtain the report, whether in conference with Defendants or before Magistrate Judge John J. O'Sullivan.

         In addition to the Murray Disclosure, on January 30, Defendants served Plaintiffs the Smith Report. It contains three opinions and indicates Smith had “not yet been able to inspect the E-Cat site in Florida.” (Smith Report 2, 22). At Smith's deposition on February 27, Smith revealed he had formed an additional, undisclosed opinion the “E-Cat never produced superheated steam.” (Pls.' Mot. 10 (citing Smith Dep. Tr. [215-4] 126:2-9)). After the deposition, Smith visited the Doral facility on March 2, 2017 (see Supp. Smith Report 3), and on March 20, 2017, Defendants served the Supplemental Smith Report which contains six conclusions not previously disclosed in the original Smith Report or at the deposition. (See Id. 28, 30).

         The Wong Disclosure was served on Defendants on February 13, 2017, within a fortnight of the original expert disclosure deadline, and was meant to operate as a rebuttal report to the Murray Disclosure and Smith Report. (See Wong Disclosure 3). Discovery closed on February 27, and the parties filed their respective Motions by the dispositive motion deadline.

         III. ANALYSIS

         A. Failure to Comply with Rule 26 - The Murray Disclosure

         Plaintiffs request the Murray Disclosure and the Smith Reports be excluded in their entirety because of Defendants' alleged discovery-related violations under Federal Rule of Civil Procedure 26. The Scheduling Order makes clear all discovery matters are referred to Judge O'Sullivan and no written discovery motions should be filed. The Court has previously denied two of Plaintiffs' discovery-related motions. (See Order [ECF No. 180]; Order [ECF No. 216]). Although the Court will not entertain those Rule 26 challenges related to the Smith Reports, the Court finds it prudent to address the challenges related to the Murray Disclosure.

         Rule 26 governs duties to disclose and contains other general provisions regarding discovery. See Fed. R. Civ. P. 26. Subsection (a)(2) of the Rule draws a distinction between witnesses who must provide a written report and those who do not. Compare Fed. R. Civ. P. 26(a)(2)(B) with Id. 26(a)(2)(C). “[I]f the witness is one retained or specially employed to provide expert testimony in the case or one whose duties as the party's employee regularly involve giving expert testimony, ” a written expert report prepared and signed by the witness must accompany the expert disclosure. Fed.R.Civ.P. 26(a)(2)(B) (alteration added). By contrast, if an expert is not required to submit a written report, the disclosure is “considerably less extensive.” Id. 26 Advisory Committee's Notes (2010 Amendment). A movant seeking to strike expert disclosures bears the burden of showing a valid basis for doing so, but the party seeking to avoid producing an expert report bears the burden of demonstrating the report is not required. See In re Denture Cream Products Liab. Litig., No. 09-2051-MD, 2012 WL 5199597, at *4 (S.D. Fla. Oct. 22, 2012) (citations omitted).

         Joseph Murray, former Vice President of Engineering of Industrial Heat (see Defs.' Opp'n 6 (citation omitted)), seeks to offer opinions regarding: (1) the power sold by Florida Power & Light versus the power reportedly absorbed by the E-Cat during testing at the Doral facility; (2) the inverse relationship between the power input to the Plant and the coefficient of power;[4] and the results of (3) heat simulations and (4) water flow testing he conducted to recreate E-Cat testing conditions in the Doral testing facility (see generally Murray Disclosure).

         Plaintiffs argue Murray should have submitted a written expert report under Rule 26(a)(2)(B) but failed to do so. (See Pls.' Mot. 7-10). According to Defendants, the Murray Disclosure was sufficient under Rule 26 because Murray is a “hybrid” witness who will provide both fact and opinion testimony based on his specialized knowledge. (See Defs.' Opp'n 7 n.4). Defendants argue hybrid witnesses need only submit disclosures to comply with Rule 26(a)(2)(C), and the Murray Disclosure was sufficient under this subsection. (See Id. (citation omitted)).

         An expert report might not always be required of a hybrid witness providing both factual testimony and opinions based on scientific, technical, or specialized knowledge. See Goodbys Creek, LLC v. Arch Ins. Co., No. 3:07-CV-947-J-34HTS, 2009 WL 1139575, at *4 (M.D. Fla. Apr. 27, 2009) (quoting Prieto v. Malgor, 361 F.3d 1313, 1318 (11th Cir. 2004) (per curiam)) (other citation omitted). “The determinative factor is the witness's function in the suit.” Id. Although employees frequently serve as fact witnesses, if their normal duties as employees involve giving expert testimony, they are required to provide an expert report under Rule 26(a)(2)(B). See Prieto, 361 F.3d at 1318 (stating a witness's status as an employee should not decide whether he is excepted from the requirements of Rule 26(a)(2)(B) because that practice “would create a category of expert trial witness for whom no written disclosure is required and should not be permitted.” (internal quotation marks omitted) (quoting Day v. Consolidated Rail Corp., No. 95-civ-968, 1996 WL 257654, at *2 (S.D.N.Y. May 15, 1996))). Similarly, experts “called solely or principally to offer expert testimony, whether or not they were employees, ” should submit a written expert report under Rule 26(a)(2)(B). Id. (internal quotation marks and citation omitted).

         The Advisory Committee Notes on Rule 26 provide some guidance for determining who qualifies as a hybrid witness, citing treating physicians and healthcare professionals as common examples of hybrid witnesses exempt from proving a report. See Fed. R. Civ. P. 26 Advisory Committee's Notes (1993 and 2010 Amendments). When physicians testify regarding opinions “formed and based upon observations made during the course of treatment” of a patient, the Rule 26(a)(2)(B) report is not necessary. In re Denture Cream, 2012 WL 5199597, at *4 (internal quotation marks and citation omitted). Yet even treating physicians might be subject to section (2)(B) if they offer opinions that extend beyond their treatment of a patient or if they form opinions upon review of information provided by an attorney or in anticipation of litigation. See Id. (citations omitted); see also Kondragunta v. Ace Doran Hauling & Rigging Co., No. 1:11-CV-01094-JEC, 2013 WL 1189493, at *12 (N.D.Ga. Mar. 21, 2013) (“If, however, the physician's opinion was based on facts gathered outside the course of treatment . . . or if the physician's testimony will involve the use of hypotheticals, then a full subsection B report will be required.” (alteration added; citations omitted)).

         Murray was Industrial Heat's Vice President of Engineering from May 2015 to October 2016. (See Defs.' Opp'n 6 (citation omitted)). He was listed as a potential fact witness in the initial disclosures exchanged by the parties. (See Id. 7 n.4). He appeared as either sender or recipient of hundreds of email communications produced in discovery, some of which were used at his deposition. (See id.). Defendants argue these details show Murray is a hybrid witness with “some connection to the specific events underlying the case” (id. (internal quotation marks omitted) (quoting Goodbys, 2009 WL 1139575, *4)), and make him “exempt from the robust reporting requirements . . . [of Rule] 26(a)(2)(B)” (id. (alterations added)).

         While Murray certainly appears to have direct and personal knowledge of some of the facts in the case, the opinions offered in his Disclosure fall in the realm of expert opinions subject to Rule 26(a)(2)(B). Unlike a treating physician's observations in the course of treatment, Murray's opinions are not based on observations or perceptions he made while working “in the ordinary course” of his job functions as an employee of Industrial Heat. (Reply 6 (internal quotation marks omitted) (quoting Murray Dep. Tr. 344:12-17)). They are based on data analyses and testing he performed at the direction of counsel in the summer and fall of 2016 - several months after the case was filed. (See Id. 5-6; see also Murray Dep. Tr. 209:16-210:3 (stating he was asked to review earlier collected data by counsel in August or September 2016); see Id. 210:17-211:3 (stating he conducted a flow meter analysis beginning in the summer and into the fall of 2016)). Murray acknowledged he prepared a report in October 2016 on the testing he conducted (see Murray Dep. Tr. 224:16-22), and charged Industrial Heat $175 per hour to for his services as a witness (see Id. 14:3-5).

         These facts indicate Murray “functioned exactly as an expert witness normally does, providing a technical evaluation of evidence he had reviewed in preparation for trial.” Prieto, 361 F.3d at 1319 (determining a police officer who did not have a connection to the case and was proffered as a hybrid witness and expert in use of force and police procedures was subject to Rule 26(a)(2)(B) disclosure requirements). Consequently, Defendants should have provided Plaintiffs with a written report by Murray under Rule 26(a)(2)(B), and so the Court considers the appropriate sanction for Defendants' violation.

         Rule 37(c) states failure to provide information or identify a witness can be sanctioned by exclusion of the information or witness unless the failure was “substantially justified or is harmless.” Fed.R.Civ.P. 37(c)(1). “In addition to or instead of” exclusion, the Court may order payment of reasonable expenses, inform the jury of the violating party's failure, and “impose other appropriate sanctions.” Id. 37 (a)(1)(A)-(C). Thus, the Court retains discretion to fashion an equitable remedy, “consonant with both the text and logic of Rule 37(c)(1).” Roberts ex rel. Johnson v. Galen of Virginia, Inc., 325 F.3d 776, 784 (6th Cir. 2003).

         Plaintiffs argue exclusion of Murray's testimony is the only appropriate remedy for this Rule 26 violation, as the violation was not justified or harmless. (See Pls.' Mot. 10). Defendants served Plaintiffs with the Murray Disclosure on January 30, 2017, and provided supplemental disclosure documents on February 16, 2017. (See Id. 5). Murray was deposed on February 17, 2017 and testified he had prepared a report to reach his opinions. (See Id. 5, 8). Plaintiffs asked Murray how he reached his opinions, what technology or methodology was used, and whether and how he had documented the analysis in a report. (See generally Murray Dep. Tr.).

         Despite being aware of possible Rule 26 violations by the February 17 deposition, Plaintiffs do not appear to have made any effort to obtain a written report through conference with Defendants[5] or by bringing the matter to Magistrate Judge O'Sullivan.[6] Instead, they waited nearly five weeks to file their Motion and raise these issues for the first time. Had they timely raised the issue when they learned of it at deposition - and before the close of discovery on February 27 - they might have been able to obtain an expert report and conduct additional investigation or depositions. Plaintiffs may not delay in challenging a Rule 26 violation and then seek the most extreme of sanctions in a Daubert motion filed after the proper time for challenging discovery violations has expired. While the Court will not strike the Murray Disclosure, Defendants shall serve Plaintiffs a written expert report prepared by Murray.[7]

         B. Daubert and the ...

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