Plaintiff, Wendy Marie Henshaw alleged that she slipped and fell on a liquid substance on Defendant Wal-Mart’s premises on October 28, 2021.
Henshaw filed a motion to strike Defendant’s expert witness Dr. Marc Fredric Glickstein. Henshaw noted that Defendant timely served its expert witness disclosure and listed Glickstein as an expert in diagnostic radiology; however, Defendant did not provide Plaintiff with Glickstein’s report.
Defendant contended that Glickstein has not yet prepared a report. Since Defendant is in the process of obtaining records and diagnostic studies for his review, the report will be provided to Plaintiff once it is completed.
Radiology Expert Witness
Marc Glickstein, MD, FACR, is a partner in a large private practice radiology group, on the senior medical staff of 8 area hospitals, and an assistant clinical professor of Radiology at University of CT School of Medicine. He has over 27 years of active clinical involvement in Neuroradiology, as well as General Radiology including MRI, Mammography, CT, and Ultrasound.
Discussion by the Court
Rule 26 clearly states that, “Unless otherwise stipulated or ordered by the court, this disclosure must be accompanied by a written report—prepared and signed by the witness.” Rule 37 makes it clear that the party that failed to comply with Rule 26(a) bears the burden of establishing that its non-disclosure was either substantially justified or harmless.
The Court held that Defendant has both failed to comply with Rule 26(a) and failed to show that its non-disclosure was either substantially justified or harmless. Consequently, Defendant will be prohibited from using Glickstein to supply evidence on a motion, at a hearing, or at trial.
Held
The Court granted Plaintiff Wendy Marie Henshaw’s motion to strike Defendant’s expert, Dr. Marc Frederic Glickstein. Consequently, Glickstein was stricken from Defendant’s expert witness disclosure.
Key Takeaway:
Despite timely serving its expert witness disclosure, Defendant did not provide Plaintiff with Glickstein’s report. Defendant also failed to show that its non-disclosure was either substantially justified or harmless.
Case Details:
| Case Caption: | Henshaw V. Wal-Mart Stores East, LP |
| Docket Number: | 6:23cv2388 |
| Court: | United States District Court, Florida Middle |
| Order Date: | July 11, 2024 |
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