United States District Court, S.D. Florida
ORDER ON PLAINTIFF'S DAUBERT MOTION
G. TORRES UNITED STATES MAGISTRATE JUDGE
matter is before the Court on Craig Salvani's
(“Plaintiff”) motion to exclude Wexford Health
Sources, Inc.'s and Marta Castillo's
(“Defendants”) expert witness, Dr. Inwood. [D.E.
103]. Defendants responded to Plaintiff's motion on July
19, 2019 [D.E. 105] to which Plaintiff replied on July 25,
2019. [D.E. 106]. Therefore, Plaintiff's motion is now
ripe for disposition. After careful review of the motion,
response, reply, relevant authority, and for the reasons
discussed below, Plaintiff's motion is GRANTED in
is a former inmate at the Florida Department of Corrections
(“FDOC”) who filed this action on December 18,
2017 for a violation of his civil rights. [D.E. 1]. Plaintiff
entered the custody of the FDOC at the South Florida
Reception Center on February 6, 2014. Employees of Wexford
Health Sources, Inc. (“Wexford”) provided medical
services at the prison. On February 12, 2014, a urinalysis
indicated that Plaintiff had an infection. A nurse ordered an
x-ray and another urinalysis was scheduled in seven days. The
x-ray allegedly included a granuloma in Plaintiff's left
lung and another x-ray was recommended. Plaintiff claims,
however, that the follow-up x-ray was never performed and
that five days later a nurse noticed that Plaintiff had an
increased heart rate.
February 20, 2014, prison officials transferred Plaintiff to
the Regional Medical Center - a hospital that FDOC owns and
where Corizon provides medical services. Plaintiff alleges
that he complained to medical personnel during the next
several days. At 1:14 a.m. on February 24, 2014, Plaintiff
claims that he suffered from hyperventilation and low blood
pressure. Plaintiff then alleges that Jorge Caraballo
(“Dr. Caraballo”) examined him at 4:20 a.m. and
that Dr. Caraballo ordered an IV and laboratory testing.
Plaintiff was transferred to an outside hospital later that
morning and he was diagnosed with sepsis, pneumonia, and
endocarditis. Approximately two weeks later, Plaintiff's
legs were amputated. Plaintiff alleges that he was injured
because Corizon has a policy of saving money at the expense
of delivering quality medical care. Plaintiff claims that Dr.
Caraballo could not treat him immediately because Dr.
Caraballo was required to get permission before he could send
Plaintiff to the hospital. Because Corizon failed to deliver
quality healthcare and attempted to save money at the cost of
Plaintiff's legs, Plaintiff believes that Corizon
violated his civil rights.
APPLICABLE PRINCIPLES AND LAW
Rule 26 Standard
Rule of Civil Procedure 26(a)(2)(A) provides that “a
party must disclose to the other parties the identity of any
witnesses it may use at trial to present evidence under
Federal Rule of Evidence 702, 703, or 705.”
Fed.R.Civ.P. 26(a)(2)(A). This disclosure must include
“a written report-prepared and signed by the witness-if
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.” Fed.R.Civ.P. 26(a)(2)(B). The report must
also contain the following information: a complete statement
of all the opinions the expert plans to express and the basis
for them, the data considered by the expert in forming the
opinions, any exhibits intended to be used in summarizing or
supporting the opinions, the experts' qualifications
including a list of all authored publications in the previous
ten years, a list of all the other cases in which the witness
testified as an expert during the previous four years, and a
statement of the compensation the expert is to receive for
the study and testimony in the case. Fed.R.Civ.P.
26(a)(2)(B)(i)-(vi). These disclosures must be made “at
the times and in the sequence that the court orders.”
the expert witness discovery rules are designed to allow both
sides in a case to prepare their cases adequately and to
prevent surprise . . . compliance with the requirements of
Rule 26 is not merely aspirational.” Cooper v.
Southern Co., 390 F.3d 695, 728 (11th Cir. 2004)
(internal citation omitted), overruled on other
grounds, Ash v. Tyson Foods, Inc., 546 U.S. 454
(2006). To this end, Rule 37(c)(1) provides a self-executing
sanction for untimely expert reports. In relevant part, Rule
37(c)(1) states that [i]f a party fails to provide the
information required by Rule 26, “the party is not
allowed to use that information or witness to supply evidence
on a motion, at a hearing, or at a trial, unless the failure
was substantially justified or is harmless.”
justification is “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.” Ellison v. Windt, 2001 WL
118617(M.D. Fla. Jan. 24, 2001) (quotation and citation
omitted). A failure to timely make the required disclosures
is harmless when there is no prejudice to the party entitled
to receive the disclosure. See Home Design Servs. Inc. v.
Hibiscus Homes of Fla., Inc., 2005 WL 2465020 (M.D. Fla.
Oct. 6, 2005). The party failing to comply with Rule 26(a)
bears the burden of establishing that its non-disclosure was
either substantially justified or harmless. See
Surety Assocs., Inc. v. Fireman's Fund Ins. Co.,
2003 WL 25669165 (M.D. Fla. Jan. 7, 2003).
decision to admit or exclude expert testimony is within the
trial court's discretion and the court enjoys
“considerable leeway” when determining the
admissibility of this testimony. See Cook v. Sheriff of
Monroe County, Fla., 402 F.3d 1092, 1103 (11th Cir.
2005). As explained in Daubert v. Merrell Dow
Pharm., Inc., 509 U.S. 579 (1993), the
admissibility of expert testimony is governed by Fed.R.Evid.
702. The party offering the expert testimony carries the
burden of laying the proper foundation for its admission, and
admissibility must be shown by a preponderance of the
evidence. See Allison v. McGhan Med. Corp., 184 F.3d
1300, 1306 (11th Cir. 1999); see also United States v.
Frazier, 387 F.3d 1244, 1260 (11th Cir. 2004)
(“The burden of establishing qualification,
reliability, and helpfulness rests on the proponent of the
expert opinion, whether the proponent is the plaintiff or the
defendant in a civil suit, or the government or the accused
in a criminal case.”).
Rule 702 and Daubert, district courts must act as
‘gate keepers' which admit expert testimony only if
it is both reliable and relevant.” Rink v.
Cheminova, Inc., 400 F.3d 1286, 1291 (11th Cir. 2005)
(citing Daubert, 509 U.S. at 589). The purpose of
this role is “to ensure that speculative, unreliable
expert testimony does not reach the jury.” McCorvey
v. Baxter Healthcare Corp., 298 F.3d 1253, 1256 (11th
Cir. 2002). Also, in its role as “gatekeeper, ”
its duty is not “to make ultimate conclusions as to the
persuasiveness of the proffered evidence.” Quiet
Tech. DC-8, Inc. v. Hurel-Dubois UK Ltd., 326 F.3d 1333,
1341 (11th Cir. 2003)
facilitate this process, district courts engage in a three
part inquiry to determine the ...