United States District Court, S.D. California
MEMORANDUM OF DECISION FOLLOWING TRIAL
DAVID H. BARTICK, Magistrate Judge.
Plaintiff, Douglass Strauss, brings this negligence action against the United States of America based on an alleged accident that occurred aboard the USS McCLUSKY on December 2, 2011.
The parties consented to have this action tried before the undersigned Magistrate Judge pursuant to 28 U.S.C. § 636(c). A bench trial was held on November 12, 13 and 14, 2014. Preston Easley and Levi Plesset appeared on behalf of Plaintiff, and Vickey L. Quinn appeared on behalf of Defendant.
Having carefully reviewed the evidence and the arguments of the parties as presented at trial, the Court finds for Plaintiff and directs an award of $1, 855, 149.67 in his favor. The Court sets forth the following findings of fact and conclusions of law pursuant to Rule 52 of the Federal Rules of Civil Procedure.
I. JURISDICTION AND VENUE
The Court has jurisdiction of this action pursuant to the Public Vessels Act, 46 U.S.C. § 31101-31113; the Suits in Admiralty Act, 46 U.S.C. § 30901-30918; and admiralty, 28 U.S.C.§ 1333. This suit is also brought subject to the provisions of the Longshore and Harbor Worker's Compensation Act, 33 U.S.C. § 901-950 ("LHWCA"). Venue is proper because the USS McCLUSKY, a public vessel of the United States, was moored at a pier in navigable waters of the United States at Naval Station, San Diego, California, at the time of the alleged accident. 46 U.S.C. § 31104, 30906.
II. PLAINTIFF'S MOTION TO STRIKE TESTIMONY OF JONATHAN NISSANOFF, M.D.
On November 13, 2014, Defendant called Jonathan Nissanoff, M.D. as an expert witness. Prior to trial, Dr. Nissanoff authored two expert reports, one dated March 12, 2013 and another dated June 24, 2014. These reports were admitted as Defendant's Trial Exhibit A. In the March 12, 2013 Report, Dr. Nissanoff recommended several treatment options for Plaintiff, including "[i]n the worst case scenario, he may come to a total knee replacement surgery, however we would try to defer this procedure ideally until he is in his sixties." In the June 24, 2014 Report, Dr. Nissanoff stated that Plaintiff had reached maximum medical improvement, and was unable to return back to his usual and customary duties. Dr. Nissanoff opined that Plaintiff "may need total knee replacement surgery in the future, however I do not believe this would afford him to return back to his usual and customary duties."
At trial, Dr. Nissanoff testified on direct examination that if Plaintiff had a total knee replacement surgery, he would be able to return to his prior work at NASSCO. Dr. Nissanoff stated there was literature that suggested 98 percent of people who have total knee replacement surgery go back to their usual work.
On cross-examination, Dr. Nissanoff admitted that his opinion had changed since he wrote his reports. Dr. Nissanoff stated that he changed his opinion based on a recent study that he had read. At that point, Plaintiff's counsel moved to strike Dr. Nissanoff's testimony that was inconsistent with his expert reports. The Court denied Plaintiff's motion. Thereafter, Plaintiff proceeded with his cross-examination.
The following day, on November 14, 2014, the Court advised the parties that it was willing to reconsider Plaintiff's motion to strike, and directed the parties to file supplemental post-trial briefing on the issue. On November 21, 2014, the parties filed their post-trial briefs. (ECF Nos. 136, 137.)
Having considered the arguments of counsel at trial and the parties written submissions, the Court reverses its prior ruling and grants Plaintiff's motion to strike Dr. Nissanoff's undisclosed trial testimony.
Plaintiff argues Dr. Nissanoff's opinion that Plaintiff could return to his full duties at NASSCO if he had a total knee replacement surgery was not properly disclosed prior to trial. Plaintiff notes that he was not provided with a copy of the study Dr. Nissanoff relied on. Plaintiff argues that Dr. Nissanoff's testimony was prejudicial, and that had his opinion been fully disclosed in advance, it would have altered Plaintiff's presentation of his case. Plaintiff also argues the testimony violated the Court's scheduling order and Rule 26.
Under Rule 26(a)(2), expert reports must contain "a complete statement of all opinions the witness will express and the basis and reason for them." Fed. R. Civ. P 26(a)(2)(B). Rule 26(e)(2) further provides that:
For an expert whose report must be disclosed under Rule 26(a)(2)(B), the party's duty to supplement extend both to information included in the report and to information given during the expert's deposition. Any additions or changes to this information 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 fails to properly supplement its expert reports, the party is not allowed to use the undisclosed information at trial, unless the failure to supplement was substantially justified or harmless. Fed. R. Civ. P 37(c)(1). See also In re Kreta Shipping, S.A., 181 F.R.D. 273, 275 (S.D.N.Y. 1998) ("Expert testimony exceeding the bounds of the expert's report is excludable pursuant to Rule 37(c)(1).").
In this case, Dr. Nissanoff's opinion that Plaintiff could return to his prior work duties if he had a total knee replacement surgery was not set forth in his expert reports, and was not disclosed before the September 16, 2014 pretrial disclosures deadline. ( See ECF No. 86.) The first time Dr. Nissanoff's opinion in this regard was revealed was during his trial testimony. Therefore, Dr. Nissanoff's undisclosed opinion is excludable, unless Defendant can show the failure to supplement his report was substantially justified or harmless.
Defendant argues Plaintiff's motion to strike Dr. Nissanoff's testimony was improper, that cross-examination was the proper trial tool to challenge Dr. Nissanoff's opinion, and that even if his testimony is considered a change from his reports, the failure to produce was substantially justified and harmless.
First, the Court finds the motion to strike was properly raised, and declines to deny Plaintiff's motion on that basis. Second, although cross examination is the proper way to challenge an expert's opinions, upon further reflection, the Court determines that this case presents a different issue. Here, the issue is whether the opinion was properly disclosed to begin with. If it was not, then the remedy is exclusion, not cross examination. Third, the Court finds Dr. Nissanoff's testimony did constitute a material change from his reports. Although Dr. Nissanoff identified total knee replacement as a potential treatment in his reports, his opinion that Plaintiff could return to his prior work at NASSCO if he had a total knee replacement was not disclosed. Moreover, Dr. Nissanoff testified that his opinion that Plaintiff would be able to return to full duty at NASSCO was based on a study he had recently read. Contrary to Defendant's argument, Dr. Nissanoff did not say that his opinion changed based on new evidence of Plaintiff's medical condition. Therefore, the Court finds the change in opinion was not based on new information that was presented at trial. Defendant also argues that Plaintiff could have deposed Dr. Nissanoff after he issued his second report, but he chose not to. The Court finds this is irrelevant. Deposition testimony does not cure deficiencies in the disclosure requirements of Rule 26. See LaMarca v. United States, 31 F.Supp.2d 110, 123 (E.D.N.Y. 1998).
The Court finds that Defendant has failed to establish that its failure to timely disclose Dr. Nissanoff's opinion was either substantially justified or harmless. Accordingly, the portion of Dr. Nissanoff's testimony relating to Plaintiff's ability to return to full duty at NASSCO if he had a total knee replacement will be stricken.
III. TRIAL TESTIMONY
The following summarizes the testimony of the witnesses at trial.
A. Douglas Strauss
Plaintiff Douglass Strauss started working at NASSCO in 1990. He subsequently went to work for other companies, but returned to NASSCO in 2000. In 2005 or 2006, Plaintiff was promoted to Machinery General Supervisor II. This was the position Plaintiff held on the date of his accident. Plaintiff's work at NASSCO involved extensive daily work onboard ships, which required Plaintiff to use stairs, vertical ladders, crawl spaces, and scaffolds.
Plaintiff testified that on the morning of December 2, 2011, he was injured while boarding the USS McCLUSKY, which was pier side in the harbor at the 32nd Street Naval Station. Plaintiff stated that he was with the Lawrence Stahl at the time the accident occurred. Plaintiff explained that as he boarded the ship, he stepped down from the brow onto a plastic pallet that was being used as a stair. When he stepped on the pallet, it bowed, and his foot slipped forward and caught on the lip of the pallet. Plaintiff's right knee buckled, and he stumbled onto the deck. He did not fall all the way down onto to the ship's deck because he was holding the hand rail with his left hand. Plaintiff stated that he was being careful as he boarded the ship, and did not have anything in his hands. Plaintiff was wearing rubber soled work boots, and the tread on the soles was in good condition. Plaintiff looked down at the pallet as he stepped onto it. The pallet did not have non-skid on it, and it was slippery with morning dew. The sea conditions were calm, and the ship was not moving.
After he slipped, Plaintiff told the Navy Gangway Watch officers that they needed to look at the pallet because someone was going to kill themselves. Approximately ten minutes later, Plaintiff called the safety department at NASSCO, and spoke with William Benjamin. He told Mr. Benjamin that there was an unsafe condition with the brow, and that he had jammed his knee. After Plaintiff got back to his office, he reported the unsafe condition and his injury to his supervisor, Frank Jurado. Plaintiff testified that prior to his injury he never had any right knee problems. Immediately after the accident, the pain in his knee was a five, on a scale of one to ten.
Plaintiff continued to work at NASSCO until February 1, 2012. During that time, he went aboard the USS McCLUSKY and at least one other ship. Plaintiff tried to compensate for his knee pain by having other employees physically go aboard the ships. He would also use a golf cart to get to meetings. In December 2011, NASSCO sent Plaintiff to see Dr. Adsit. Dr. Adsit recommended that Plaintiff continue to work, so he did. Several weeks later, Plaintiff was not improving, and told NASSCO's worker's compensation officer, Joshua Roundy, that he needed to get off his knee. Mr. Roundy scheduled an appointment with Dr. Levine for a second opinion, at Plaintiff's request.
Dr. Levine performed surgery on Plaintiff's right knee in August 2012. Plaintiff went to physical therapy before and after his surgery. Plaintiff testified that he tried as hard as he could to improve his knee through the physical therapy. When Plaintiff was released from Dr. Levine's care, his pain level was between four and five. At that time, he also avoided using stairs, and did not squat or kneel because it hurt. Dr. Levine limited Plaintiff to semi-sedentary work, and Plaintiff was not able to perform his duties at NASSCO with that restriction.
Plaintiff next saw Dr. Serocki, who performed a second surgery on Plaintiff's right knee. After the surgery, Plaintiff went to physical therapy, as prescribed by Dr. Serocki. Plaintiff was released from Dr. Serocki's care in February 2014. Dr. Serocki limited Plaintiff to sedentary work, and told Plaintiff he could not go back to his regular job at NASSCO. Plaintiff stated he has more pain in his knee after being treated by Dr. Serocki than before. Plaintiff estimated his pain level was between six and seven. Plaintiff stated his knee also pops, locks, and has a gritty feeling when he bends it.
Plaintiff testified that his pain level currently ranges between five and seven. He walks with a limp and he has pain in his left wrist and left ankle from using a cane. Plaintiff has pain medications that he takes as needed. Plaintiff states that he used to be very active, working all day and performing tasks around his home. Plaintiff currently avoids stairs, and doesn't climb ladders, squat, kneel, or crawl. Plaintiff tries to stay as active as possible, does exercises for his knee, and has tried to lose weight.
On December 5, 2012, Plaintiff was terminated from NASSCO. Plaintiff stated that losing his job was extremely difficult to deal with. Plaintiff loved his job and found it very satisfying. He often worked seven days a week. Plaintiff described losing his job as having his life taken away. Plaintiff did not immediately quit working after his injury because he felt he had a responsibility to people at NASSCO. He explained he initially delayed going to the medical clinic because he thought he could shake off the injury.
Plaintiff started vocational rehabilitation training in April 2014, and plans to start a vocational program that will continue through September 2015.
B. Lawrence Stahl
Lawrence Stahl was called as a witness by Plaintiff. Mr. Stahl was employed at NASSCO on December 2, 2011 as an outside machinist. On December 2, 2011, Mr. Stahl boarded the USS McCLUSKY approximately 30 to 40 seconds prior to Plaintiff. Mr. Stahl crossed the gangway and stepped down onto a plastic pallet to get to the deck of the vessel. The plastic pallet was wet and did not have any "non-skid" on it. Mr. Stahl did not slip, but he saw Plaintiff stumble a little bit when he stepped onto the pallet. Immediately thereafter, Plaintiff told Mr. Stahl that he did something to his knee, and a week or two later, Plaintiff said he really messed up his knee. After Plaintiff boarded the vessel, Mr. Stahl saw Plaintiff go over to the Navy Watch and presumably discuss the pallet.
C. Francisco Jurado
The second witness called by Plaintiff was Francisco Jurado. Mr. Jurado was Plaintiff's supervisor at NASSCO. On December 2, 2011, Plaintiff went to Mr. Jurado's office to report a safety issue with the brow on the USS McCLUSKY. Plaintiff showed Mr. Jurado pictures of the plastic pallet. Plaintiff also told Mr. Jurado that he twisted his knee. Mr. Jurado took the pictures from Plaintiff, scanned them and sent them to William Benjamin in the safety division. Mr. Jurado did not report the injury to Mr. Benjamin. A couple hours later Mr. Juardo noticed that Plaintiff was walking awkwardly and having trouble with his knee. Mr. Jurado instructed Plaintiff to seek medical attention. Mr. Jurado subsequently received a FROI report from the medical department that indicated Plaintiff reported his injury to medical on December 9, 2011. Plaintiff was placed on light duty and never returned to full duty.
Based on Mr. Jurado's investigation, a medical/safety incident evaluation was prepared. The report indicated that the brow was not set correctly, and noted that Plaintiff should have ...