Myhre, et al v. Marina LLC, et al

UNITED STATES DISTRICT COURT
DISTRICT OF HAWAII
CANDICE MYHRE; NORMAN DAVIDSON,
IV;
Plaintiffs,
vs.
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,
Defendants.
CIV. NO. 24-00217 LEK-WRP
ORDER GRANTING DEFENDANTS’ MOTION TO STRIKE DEREK JOHNSON, D.O.
AS AN EXPERT WITNESS, [FILED 12/8/25 (DKT. NO. 51)]
Defendants Marina LLC and Captain Kevin Vindinha
(collectively “Defendants”) seek to strike Plaintiffs Candice
Myhre (“Myhre”) and Norman Davidson, IV’s (collectively
“Plaintiffs”) expert witness, Derek Johnson, D.O. [Motion to
Strike Derek Johnson, D.O. as an Expert Witness, filed 12/8/25
(dkt. no. 51) (“Motion”).] As follows, the Motion is granted.
BACKGROUND
The instant matter arises out of a power catamaran
scenic and snorkel tour that Plaintiffs boarded on May 14, 2021
from Kikiaola Small Boat Harbor (“May 2021 Incident”). [First
Amended Complaint, filed 6/26/24 (dkt. no. 11), at ¶¶ 8-13.] As
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the vessel began to exit the harbor, it encountered large waves,
[id. at ¶ 16,] and Myhre states that she flew out of her seat,
hit her face on the vessel’s railings, and slammed down onto
metal seats, [id. at ¶¶ 23-24]. As a result, she was transported
to Kauai Medical Clinic for medical care and received treatment
for physical injuries to her face, knee, and lower leg. [Id. at
¶ 25.] The initial Rule 16 scheduling order set the matter for
trial to commence on March 9, 2026, and, as pertinent to the
issue at hand, set deadlines for disclosures by Plaintiffs
regarding expert witnesses for June 30, 2025, and the deadline
for completion of discovery for October 10, 2025. [Rule 16
Scheduling Order, filed 12/10/24 (dkt. no. 30) (“Scheduling
Order”), at ¶¶ 1, 3(a), 5(a).]
On June 24, 2025, Plaintiffs disclosed Dr. Derek S.
Johnson, D.O. (“Dr. Johnson”) as “Plaintiffs’ medical expert who
will testify, including but not limited, to Plaintiff CANDICE
MYHRE’s injuries and damages issues.” See Motion, Mem. in Supp.
at 2 (quoting Motion, Declaration of Gregory Y.P. Tom (“Tom
Decl.”), Exh. 1 (Plaintiffs’ Expert Witness Disclosures)); see
also Certificate of Service (service of Plaintiffs’ Expert
Witness Disclosures), filed 6/25/25 (dkt. no. 43). On October 9,
2025, Dr. Johnson’s hourly fees, his opinion regarding the cause
of Myhre’s sepsis, and his curriculum vitae were provided to
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defense counsel. [Tom Decl., Exh. 3 (e-mail dated 10/9/25 from
Douglas Thomas Moore) (“Pls’ Supplemental Disclosure”).]
DISCUSSION
Defendants submit that Dr. Johnson’s disclosure is
untimely because Plaintiffs failed to disclose him properly as a
medical expert. [Mem. in Supp. at 8.] Because trial is scheduled
to commence in less than sixty days and the discovery deadline
has expired, Defendants argue that they would be plainly
prejudiced should Dr. Johnson be permitted to testify as a
retained expert or as a treating physician at trial. [Id.]
Plaintiffs, however, contend that Dr. Johnson was disclosed on
June 24, 2025 as a non-treating medical expert, and his opinions
were disclosed on October 9, 2025. [Pls.’ Memorandum in
Opposition, filed 12/22/25 (dkt. no. 55-1) (“Mem. in Opp.”), at
4.] There was no failure to identify Dr. Johnson as a retained
non-treating physician, they argue, because they stated in the
initial disclosure that “‘Plaintiffs reserve the right to
supplement and/or amend [their] disclosure as necessary and as
additional information becomes available through discovery and
other means.’” [Id. (citation omitted) (quoting Tom Decl.,
Exh. 1 (Plaintiffs’ Expert Witness Disclosures), at 3.
Plaintiffs argue that if there was a failure to disclose, that
failure was merely harmless under Rule 37(c)(1). Id. at 5-6
(citing Marson v. Four Seasons Hotels Ltd., CIVIL NO. 18-00392
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JMS-WRP, 2020 WL 13180372 (D. Hawai`i March 5, 2020)). Because
“Plaintiffs have provided the required disclosure information to
Defendants on October 9, 2025, . . . any prejudice is cured.”
[Id. at 6.] Plaintiffs suggest a short extension of the
discovery deadline to permit Defendants to take Dr. Johnson’s
deposition and of Defendants’ expert disclosures requirement,
should they wish to name an expert witness to counter
Dr. Johnson. [Id.] Lastly, Plaintiffs deny any bad faith in
failing to disclose Dr. Johnson.
In reply, Defendants submit that “Plaintiffs concede
that Dr. Johnson was not properly disclosed as a non-retained
treating physician expert witness under Fed. R. Civ.
P. 26(a)(2)(C)”; that Plaintiffs failed to timely disclose
Dr. Johnson as required by Fed. R. Civ. P. 26(a)(2)(B); and that
Plaintiffs’ failure is not harmless because Defendants are
prejudiced by this failure to comply with the disclosure
requirements. [Reply Memorandum in Support of Motion to Strike,
filed 1/5/26 (dkt. no. 56) (“Reply”) at 1-2.] Defendants argue
that Myhre claims she contracted sepsis in January 2025 and that
the sepsis was caused by the May 2021 Incident. They contend
that Dr. Johnson’s opinion report – disclosed on October 9, 2025
– is devoted entirely to the cause of Myhre’s sepsis. [Id. at 4-
5.]
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The rules governing the disclosure of witnesses are
set forth in Federal Rule of Civil Procedure 26. First, there
are initial disclosures that must be made (except in limited and
specific types of proceedings) without waiting for a discovery
request. Fed. R. Civ. P. 26(a)(1)(A)-(B). Expert witness
disclosures are dictated by Rule 26(a)(2), which provides that
“[i]n addition to the disclosures required by Rule 26(a)(1), a
party must disclose to the other parties the identity of any
witness 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).
The rules of evidence specified in Rule 26(a)(2)(A) pertain to
witness testimony involving specialized knowledge. See, e.g.,
Fed. R. Evid. 702 (when an expert witness can give opinion
testimony). Where the witness has been “retained or specially
employed to provide expert testimony,” then disclosure of the
witness “must be accompanied by a written report – prepared and
signed by the witness . . . .” Fed. R. Civ. P. 26(a)(2)(B). The
time to make the disclosure and provide the accompanying report
is “at the times and in the sequence that the court orders.”
Fed. R. Civ. P. 26(a)(2)(D). In this matter, the deadline for
expert witness disclosures was June 30, 2025. [Scheduling Order
at ¶ 3(a).]
However, if the witness is not required to provide a
report, then the witness disclosure needs only to state the
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subject matter that the witness is expected to present evidence
on involving specialized knowledge, and a summary of the facts
and opinions that the witness is expected to testify. Fed. R.
Civ. P. 26(a)(2)(C); see, e.g., Goodman v. Staples The Off.
Superstore, LLC, 644 F.3d 817, 826 (9th Cir. 2011) (holding that
a treating physician is only exempt from Rule 26(a)(2)(B)’s
written report requirement to the extent that the physician’s
opinions were formed during the course of treatment).
The key question is: does Rule 26(a)(2)(B)’s written
report requirement apply to Dr. Johnson’s disclosure as an
expert witness? Dr. Johnson is not identified as a treating
physician; the opinions expressed do not indicate that they were
formed during Plaintiff’s treatment; and Plaintiffs state that
he was not a treating physician for Myhre. [Mem. in Opp. at 4-
5.] Therefore, Rule 26(a)(2)(B) applies. Plaintiffs thus were
required to disclose Dr. Johnson as an expert witness and
provide an accompanying written report by the expert witness
disclosure deadline of June 30, 2025. The expert report was not
provided by that deadline and, to the extent that Plaintiffs
contend that their submission of his report on October 9, 2025
was a supplemental disclosure, this contention falls short of
the mark because of Rule 26(a)(2)(B)’s directive that the
written report must accompany the expert witness disclosure.
Fed. R. Civ. P. 26(a)(2)(B). It defeats the disclosure
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requirement if the expert’s opinion report is not provided by
the same deadline. The Court concludes that Plaintiffs failed to
disclose Dr. Johnson’s expert opinion testimony as required by
Rule 26.
Federal Rule of Civil Procedure 37(c) provides that
“[i]f a party fails to provide information or identify a witness
as required by Rule 26(a) or (e), the party is not allowed to
use that information or witness to supply evidence . . . at a
trial, unless the failure was substantially justified or is
harmless.” Fed. R. Civ. P. 37(c)(1). “The burden to prove
harmlessness is on the party seeking to avoid Rule 37’s
exclusionary sanction.” Goodman, 644 F.3d at 827 (citation
omitted). Even if a court determines that the exclusionary
sanction applies, “on motion and after giving an opportunity to
be heard,” a court may elect to order different sanctions in
addition to or instead of the exclusion sanction, including
“order[ing] payment of the reasonable expenses, including
attorney’s fees, caused by the failure” or “impos[ing] other
appropriate sanctions.” Fed. R. Civ. P. 37(c)(1)(A), (C).
Here, Plaintiffs have not carried their burden of
proving harmlessness. Trial is scheduled to be held in two
months and discovery has been completed. Dr. Johnson’s opinion
report is not dated but the request for his opinions is dated
February 21, 2025, which is seven months before it was disclosed
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to Defendants and four months before the expert witness
disclosure deadline. [Tom Decl., Exh. 3 (e-mail dated 10/9/25
from Douglas Thomas Moore) at PageID.199-200.] No explanation is
offered as to why it took from February to October to obtain and
disclose Dr. Johnson’s written opinion report. There is no
indication that his report could not have been disclosed by the
June 30, 2025 expert disclosure deadline.
Plaintiffs submit that any prejudice is easily
remedied by an extension of the expert witness disclosure
deadline and urge the Court to adopt the approach in Marson,
2020 WL 13180372. They are mistaken. The prejudice found in
Marson for failure to make the proper expert disclosures stands
in sharp contrast to the case at hand as it involved a case that
was more than six months away from trial. See id. at *4. Thus,
the prejudice was readily able to be cured given the timeframe
and because the experts involved were treating physicians;
Plaintiff’s disclosures were improperly generalized; and there
was sufficient time for Plaintiff to produce an expert witness
disclosure that fully complied with Rule 26(a)(2)(C) prior to
trial. Id. at *3.
Here, a lesser sanction could be to require Plaintiffs
to pay the costs and attorney’s fees to allow Defendants to take
Dr. Johnson’s deposition; the costs and attorney’s fees for the
deposition of any expert witness that Defendants may elect to
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retain after taking Dr. Johnson’s deposition; and the costs of
retaining any expert witness that Defendants may elect to
retain. But taking Dr. Johnson’s deposition and possibly
retaining a defense medical expert with sufficient time to allow
that expert to review medical records and Dr. Johnson’s
testimony and having the defense expert prepare a report and
have his or her deposition taken takes time; most likely four to
six months, which is much more time than the two months before
this matter is scheduled for trial.
Thus, the Court concludes that the failure to disclose was
not harmless and that lesser sanctions are not reasonably
available.
Rule 37(c)(1) is an “automatic” sanction that prohibits the
use of improperly disclosed evidence. Yeti by Molly, Ltd. v.
Deckers Outdoor Corp., 259 F.3d 1101, 1106 (9th Cir. 2001)
(quotation marks and citation omitted). Thus, this Court may
impose an exclusion sanction where the failure to disclose is
not harmless. Id. at 1106-7. The caveat is that
if a Rule 37(c)(1) sanction will “deal[ ] a fatal
blow” to a party’s claim, a district court must
consider (1) “whether the claimed noncompliance
involved willfulness, fault, or bad faith” and
(2) “the availability of lesser sanctions.” [R &
R Sails, Inc. v. Insurance Co. of Pennsylvania,
673 F.3d 1240,] 1247 [(9th Cir. 2012)]. We
usually apply these factors to
Rule 37(b)(2)(A)(v) sanctions of dismissal. See,
e.g., Henry v. Gill Indus., Inc., 983 F.2d 943,
946, 948 (9th Cir. 1993); Wanderer v. Johnston,
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910 F.2d 652, 656 (9th Cir. 1990). But R & R
Sails held that when excluding case-dispositive
evidence under Rule 37(c)(1), a district court
must consider these two factors as part of its
“harmlessness inquiry.” 673 F.3d at 1247. R & R
Sails further held that a district court abuses
its discretion in excluding case-dispositive
evidence if it fails to “conduct[ ] this inquiry”
or “make the requisite findings.” Id. at 1248.
Merch. v. Corizon Health, Inc., 993 F.3d 733, 740–41 (9th Cir.
2021).
First, the Court cannot conclude that excluding
Dr. Johnson will deal a fatal blow to Plaintiffs’ claims. The
claims in the First Amended Complaint are for Negligence
(Count I); Gross Negligence (Count II); Negligent Infliction of
Emotional Distress (Count III); Intentional Infliction of
Emotional Distress (Count IV); Respondeat Superior (Count V);
and Loss of Consortium (Count VI). [First Amended Complaint at
pgs. 8-13.] Dr. Johnson’s opinion testimony has no bearing on
liability issues. While his testimony does bear upon Myhre’s
claims of physical injuries (more specifically, the cause of her
sepsis), there is no indication that her treating physicians are
unable to testify regarding the nature and extent of her
injuries for which she was treated and that they observed. The
First Amended Complaint appears replete with photographic images
depicting contusions, serious bruising and swelling. See id. at
pgs. 7-8. Most of Plaintiffs’ damages claims, except for her
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claim that the May 2021 Incident caused her to develop sepsis,
would go forward.
Second, even assuming for purposes of this Motion that
the exclusion sanction would be a fatal blow to Plaintiffs’
claims, the Court looks at whether there was willfulness, fault,
or bad faith and whether lesser sanctions are available. As
already discussed, the Court has concluded there are no lesser
sanctions reasonably available given the short time before the
trial date. The Court next turns to Plaintiffs’ noncompliance
with the expert witness disclosure deadline. Because Plaintiffs
requested Dr. Johnson’s opinions in February 2025 and Plaintiffs
have not explained that the opinion report was not provided to
them before the expert witness disclosure deadline in June, the
Court concludes that Plaintiffs’ failure to disclose by the
expert witness disclosure deadline of June 30, 2025 and their
disclosure on October 9, 2025 (over seven months after the
report was requested and over three months after the deadline)
was willful or that Plaintiffs are at fault for this
noncompliance. The Court cannot conclude that Plaintiffs had an
excuse for the late disclosure, such as needing additional time
for the expert disclosure, because they did not seek an
extension of the deadline from the magistrate judge nor explain
the reason for their failure to comply with the Rule 16
deadline.
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In sum, the Court concludes that the noncompliance was
not harmless; that there are no lesser sanctions available given
the short time before trial; and that the exclusion sanction is
warranted and will not result in a fatal blow to Plaintiffs’
claim. In the alternative, if the exclusion sanction results in
a fatal blow to Plaintiffs’ claims, the noncompliance was
Plaintiffs’ fault or due to Plaintiff’s willfulness given the
length of time between the expert disclosure deadline and when
the opinion report was requested and because it is likely that
Dr. Johnson provided Plaintiffs his opinion report in the four
months between the request and the expert witness deadline since
Plaintiffs did not seek an extension of the deadline.
CONCLUSION
For the reasons stated, Defendants’ Motion to Strike
Derek Johnson, D.O. as an Expert Witness, filed December 8,
2025, is GRANTED and Plaintiffs are not allowed to use
Dr. Johnson as a witness at a trial.
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DATED AT HONOLULU, HAWAII, January 14, 2026.
MYHRE ET AL. VS. MARINA LLC ET AL.; CV 24-00217 LEK-WRP;
ORDER GRANTING DEFENDANTS MOTION TO STRIKE DEREK JOHNSON,
D.O. AS AN EXPERT WITNESS, [FILED 12/8/25 (DKT. NO. 51)]
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