Hernandez v. Walmart Stores Inc.
1:21-cv-20861
S.D. Fla.Apr 20, 2022Background:
- Slip-and-fall negligence claim: Hernandez alleges she slipped on a clear liquid at Walmart on August 6, 2019, sustaining serious injuries; suit removed to federal court.
- Scheduling Order: expert disclosures due November 17, 2021; discovery closed December 1, 2021; pretrial disclosures due April 23, 2022.
- Defendant disclosed Dr. Kenneth Jarolem (orthopedic/spine surgeon). Two preliminary reports (timely) addressed billing reasonableness but not causation/permanence.
- Supplemental reports: Nov. 24, 2021 (first time opined no permanent injury / no causal link to accident); Dec. 1, 2021 (superseded/corrected); Jan. 25, 2022 (reviewed previously unavailable MRIs; opinions unchanged).
- Plaintiff moved to exclude Dr. Jarolem under Rules 26/37 (untimely/incomplete disclosure) and Rule 702/Daubert (unreliable opinions). Magistrate Judge Damian recommends denying the motion.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness of expert opinions (Rule 26) | Nov. 24 report disclosed new causation/permanence opinions after Nov. 17 deadline; prejudicial | Scheduling Order silent on supplementation; opinions based on records that became available; offers to cure (additional depo) | Late disclosure found, but substantially justified and harmless — not excluded |
| Adequacy of disclosures / supplementation (Rule 26(e)) | Reports lacked bases for opinions and omitted relied-upon records | Supplemental reports corrected and completed prior reports; later reports reviewed newly available records | Supplemental information ultimately adequate; no basis to strike testimony |
| Reliability of medical opinions (F.R.E. 702 / Daubert) | Opinions unsupported by facts; did not review operative reports; billing opinions lack empirical support | Jarolem is qualified; he reviewed many records and later MRIs; billing opinions based on experience | Expert is qualified; methodology and factual basis sufficient; medical and billing opinions admissible |
| Remedy / Prejudice (Rule 37 sanctions) | Exclusion required because late disclosure deprived rebuttal and deposition opportunity | No significant prejudice: plaintiff deposed expert after Nov. 24 report, defendant offered further deposition; plaintiff declined; discovery still allowed preparation | Striking expert would be a harsh sanction not warranted here; testimony to stand |
Key Cases Cited
- Daubert v. Merrell Dow Pharms., 509 U.S. 579 (1993) (trial court gatekeeper role for expert testimony reliability)
- Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999) (Daubert inquiry applies to nonscientific expert testimony)
- United States v. Frazier, 387 F.3d 1244 (11th Cir. 2004) (Daubert framework: qualifications, reliability, helpfulness)
- City of Tuscaloosa v. Harcros Chemicals, Inc., 158 F.3d 548 (11th Cir. 1998) (three-part Daubert inquiry articulated)
- OFS Fitel, LLC v. Epstein, Becker & Green, P.C., 549 F.3d 1344 (11th Cir. 2008) (expert disclosure rules enable effective cross-examination and rebuttal)
- Prieto v. Malgor, 361 F.3d 1313 (11th Cir. 2004) (district court may impose sanctions other than exclusion for Rule 26 violations)
- Romero v. Drummond Co., 552 F.3d 1303 (11th Cir. 2008) (factors for excluding untimely expert testimony include explanation, importance, prejudice)
- American Gen. Life Ins. Co. v. Schoenthal Fam., LLC, 555 F.3d 1331 (11th Cir. 2009) (nonscientific expert testimony may be reliable based on personal knowledge/experience)
- Evans v. Mathis Funeral Home, Inc., 996 F.2d 266 (11th Cir. 1993) (district court has broad discretion to admit or exclude expert testimony)
- Thomas v. Arn, 474 U.S. 140 (1985) (procedural rule on filing objections to magistrate judge recommendations)