Poulis-Minott v. Smith

• Citation: 388 F.3d 354
• Decision Date: 28 October 2004
• Docket Number: No. 03-2601.,03-2601.
• Parties: Kathy POULIS-MINOTT, as personal representative of the Estate of Carlyle Minott, Plaintiff, Appellant, v. David W. SMITH, Defendant, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

Page 354

388 F.3d 354

Kathy POULIS-MINOTT, as personal representative of the Estate of Carlyle Minott, Plaintiff, Appellant, v. David W. SMITH, Defendant, Appellee.

No. 03-2601.

United States Court of Appeals, First Circuit.

Heard August 2, 2004.

Decided October 28, 2004.

Appeal from the United States District Court for the District of Maine, D. Brock Hornby, J.

COPYRIGHT MATERIAL OMITTED

David J. Berg, with whom Carolyn M. Latti and Latti & Anderson LLP, were on brief, for appellant.

Mark E. Dunlap, with whom Norman Hanson & DeTroy, LLC, was on brief, for appellee.

Before TORRUELLA, DYK^*, and HOWARD, Circuit Judges.

TORRUELLA, Circuit Judge.

On October 23, 2000, Captain Carlyle Poulis-Minott took the forty-four foot fishing vessel, the F/V KATINA ASHLEY (the "Vessel"), out on a solo fishing trip and never returned. On October 24, 2000, the Coast Guard received a distress call from the Vessel's Emergency Position Indicating Radio Beacon ("EPIRB").¹ The Vessel and its life raft were never found, and no one knows exactly what happened to the Vessel or whether Captain Minott had any opportunity to access the Vessel's lifesaving gear before he drowned.

Plaintiff-appellant Kathy Poulis-Minott, as personal representative of the estate of Carlyle Minott (the "Estate"), filed an action against the owner of the Vessel, defendant-appellee David W. Smith, seeking damages based on two theories of liability: Jones Act negligence and unseaworthiness. The Estate then filed a motion for summary judgment, claiming that the existence of several Coast Guard safety regulation violations aboard the Vessel entitled it to summary judgment on the Jones Act and unseaworthiness claims, and eviscerated Smith's contributory negligence and primary duty rule affirmative defenses. Smith, in turn, contested the Estate's arguments and sought summary judgment arguing that (1) the Estate failed to show the causation necessary for its Jones Act and unseaworthiness claims; (2) Minott was the owner pro hac vice of the Vessel; and (3) that Minott was contributorily negligent.

The district court granted Smith's motion for summary judgment as to all claims, finding that the Estate failed to establish any triable issues of fact regarding causation with respect to its Jones Act and unseaworthiness theories of liability.

The Estate now appeals the decision of the district court. First, the Estate challenges the district court's failure to exclude certain testimony of Smith's experts and to strike portions of their late-filed affidavits. The Estate also challenges the inclusion in the Magistrate Judge's factual narrative of defendant experts' opinions that "the likely cause of the sinking of the Vessel is that it was struck and dragged by another vessel ..." and that "the safety equipment on the Vessel was in place and up to date as of late September 2000," both for failing to comply with Federal Rule of Evidence 56 and for other evidentiary reasons. Finally, the Estate claims that the district court erred in dismissing the Estate's Jones Act and unseaworthiness claims based on its failure to invoke the burden-shifting Pennsylvania Rule (The S.S. Pennsylvania v. Troop, 86 U.S. (19 Wall.) 125, 135, 22 L.Ed. 148 (1873)).

After careful review of the record, we affirm the judgment of the district court.

I. The Facts

A. Evidentiary Issues

It is important to address at the outset the district court's evidentiary rulings in response to the Estate's Motions to Strike and to Exclude because these decisions partially define the world of facts that are available for consideration of the summary judgment motions. We will reverse the district court's evidentiary rulings only where there is an abuse of discretion. Díaz-Rivera v. Rivera-Rodríguez, 377 F.3d 119, 123 (1st Cir.2004) (citing Cummings v. Standard Register Co., 265 F.3d 56, 62 (1st Cir.2001)).

The appellant raises three related challenges to the district court's discovery management. First, the appellant argues that the district court erred in failing to strike as outside the scope of Smith's expert designation, portions of three late-filed expert affidavits submitted by Smith on July 1, 2003, four days after the discovery deadline of June 26, 2003, and one and a half months after the defendant's expert disclosure deadline of May 15, 2003. The disputed affidavits came from three of the experts named in Smith's May 15, 2003 expert designation: Lea Leavitt, Craig Mifflin and David DuBois. Second, the Estate contends that the district court abused its discretion by failing to exclude several of the expert opinions that the Estate claims (1) lacked the reliability required by Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and Kumho Tire Co. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999), and (2) contained conclusory assertions that did not explain the experts' reasoning. Finally, the Estate claims it was an error of law for the district court not to address the qualifications of the defendant's experts. See Fed.R.Evid. 702.

1. Disclosure and Timeliness of Expert Opinions

In considering the Estate's motions to strike and exclude, the Magistrate Judge meticulously reviewed each paragraph the plaintiff identified as containing newly disclosed expert opinions and granted the plaintiff's motion for certain paragraphs and denied the motion for others. See Plaintiff's Motion to Exclude Various Opinions of Defendant's Experts, Minott v. Smith, No. 03-10-P-H, 2003 WL 22078070 (D.Me. Sep.05, 2003) (No. 13) ("Motion to Exclude"); Plaintiff's Motion to Strike Portions of Defendant's Affidavits in Support of His Cross Motion for Summary Judgment, Minott, 2003 WL 22078070 (No. 19) ("Motion to Strike"). The appellant now claims that the Magistrate Judge erred by failing to strike or exclude the remaining objected-to paragraphs.

Federal Rule of Civil Procedure 26(a) provides that "a party shall disclose to other parties the identity of any person who may be used at trial to present [expert opinion evidence]" and submit a detailed report including the expert's qualifications and "a complete statement of all opinions to be expressed and the basis and reasons therefor." Fed.R.Civ.P. 26(a)(2)(A)-(B). This Court has held these directives to be mandatory since the adoption of Rule 37(c)(1), which "clearly contemplates stricter adherence to discovery requirements, and harsher sanctions for breaches of this rule." Klonoski, M.D. v. Mahlab, M.D., 156 F.3d 255, 269 (1st Cir. 1998). "[T]he required sanction in the ordinary case is mandatory preclusion." Id.

Rule 37(c)(1) enforces Rule 26(a) by providing that "[a] party that without substantial justification fails to disclose information required by Rule 26(a) ... is not, unless such failure is harmless, permitted to use as evidence ... any witness or information not so disclosed." Fed. R.Civ.P. 37(c)(1). Although Rule 37(c)(1) is traditionally invoked to preclude expert testimony at trial, it can also be applied to motions for summary judgment. See Lohnes v. Level 3 Communications, Inc., 272 F.3d 49, 60 (1st Cir.2001) (citing Trost v. Trek Bicycle Corp., 162 F.3d 1004, 1007-09 (8th Cir.1998) (finding that a products liability defendant, whose summary judgment motion relied partially on the plaintiff's lack of expert testimony, would have been significantly prejudiced by plaintiff's untimely expert disclosure)). However, as we have previously noted, Rule 37(c)(1) "allows the court to admit belatedly proffered expert evidence if the proponent's failure to reveal it was either substantially justified or harmless." Lohnes, 272 F.3d at 60.

The purpose of the expert disclosure rules is "to facilitate a `fair contest with the basic issues and facts disclosed to the fullest practical extent.'" Id. (quoting Thibeault v. Square D. Co., 960 F.2d 239, 244 (1st Cir.1992)). Thus Rules 26(a) and 37(c)(1) seek to prevent the unfair tactical advantage that can be gained by failing to unveil an expert in a timely fashion, and thereby potentially deprive a plaintiff of the opportunity to "depose the proposed expert, challenge his credentials, solicit expert opinions of his own, or conduct expert-related discovery." Id.

Here, the Magistrate Judge focused on determining whether the expert opinions in the affidavits had been disclosed during the discovery period in accordance with Rule 26(a). Unlike the situation in Lohnes or Trost, Smith actually disclosed the identity of his experts and provided the Estate and court with expert designations that included the opinions the experts would express in accordance with the court's deadline for expert designations. The issue here is not that the experts' affidavits were entirely new and unannounced, but rather whether any new information was included in the expert affidavits that was not included in the "complete statement of all opinions to be expressed," as required by Rule 26(a).

In ruling on the affidavits, the Magistrate Judge clearly evaluated each segment of the affidavits individually. In some paragraphs, the court found that the May 15, 2003 designation of experts adequately encompassed the opinions in the affidavits. In paragraphs where the district court found the expert opinion to be beyond the scope of expert designation, the Estate's motion to strike was granted. In so doing, the Magistrate Judge ensured that consideration of any remaining information in the affidavits would be harmless to the plaintiff. For example, the Magistrate Judge granted in part Plaintiff's Motion to Strike with regard to Paragraph 23 of Leavitt's affidavit where Leavitt "opines that the Vessel was rammed" because the Judge found it was not fairly disclosed in Smith's expert designation. Minott v. Smith, No. 03-10-P-H, 2003 WL 22078070, at *5 (D.Me. Sep.05, 2003). However, the Judge denied the motion as to the second sentence in Paragraph 23 because he determined that the...