Candice Myhre; Norman Davidson, IV v. Marina LLC d.b.a. Lady Ann Cruises, Inc. d.b.a. Blue Ocean Adventure Tours; Kevin Vidinha; Kevin LNU; Doe Defendants 1-10; Doe Corporations 1-10; Doe Partnerships 1-10; Doe Limited Liability Entities 1-10

Summary

The United States District Court for the District of Hawaii granted Defendants’ motion to strike Derek Johnson, D.O. as an expert witness. The court held that Plaintiffs failed to timely provide the written expert report required by Federal Rule of Civil Procedure 26(a)(2)(B), and that the failure was neither harmless nor substantially justified under Rule 37(c)(1). The court ordered that Plaintiffs may not use Dr. Johnson as a witness at trial.

Holdings

1. Rule 26(a)(2)(B) applied because Dr. Johnson was not identified as a treating physician, his opinions were not shown to have been formed during treatment, and plaintiffs stated that he was not Myhre's treating physician. Plaintiffs therefore were required to provide his written expert report by the June 30, 2025 disclosure deadline.
2. Plaintiffs failed to establish that their failure to provide Dr. Johnson's report by the court-ordered deadline was substantially justified or harmless.
3. Exclusion of Dr. Johnson's testimony was warranted because the disclosure violation was not harmless, no lesser sanction was reasonably available, and the noncompliance was attributable to plaintiffs' fault or willfulness.

Questions Presented

1. Whether Dr. Johnson was subject to the written-report requirement for retained or specially employed expert witnesses under Federal Rule of Civil Procedure 26(a)(2)(B).
2. Whether plaintiffs' failure to provide Dr. Johnson's written report by the court-ordered expert-disclosure deadline was substantially justified or harmless under Federal Rule of Civil Procedure 37(c)(1).
3. Whether exclusion of Dr. Johnson's testimony was appropriate, including whether lesser sanctions were reasonably available and whether exclusion would deal a fatal blow to plaintiffs' claims.

Disposition

other