United States District Court, S.D. Florida
CECILIA M. ALTONAGA UNITED STATES DISTRICT JUDGE.
CAUSE came before the Court on Plaintiffs, Andrea Rossi and
Leonardo Corporation's Daubert Motion to Strike
and Exclude Defendants' Experts (“Plaintiffs'
Motion”) [ECF No. 215]; and Defendants' Motion to
Exclude the Opinions and Testimony of Dr. K. Wong
(“Defendants' Motion”) [ECF No.
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.
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.
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.
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).
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
Failure to Comply with Rule 26 - The Murray
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
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).
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; 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).
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)).
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).
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)).
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)).
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.
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.
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).
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.).
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 or by bringing the matter to Magistrate
Judge O'Sullivan. 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.
Daubert and the ...