Florentino Prieto v. Manuel Malgor

361 F.3d 1313, 63 Fed. R. Serv. 1069, 58 Fed. R. Serv. 3d 198, 2004 U.S. App. LEXIS 4212, 2004 WL 396479
CourtCourt of Appeals for the Eleventh Circuit
DecidedMarch 4, 2004
Docket02-16921
StatusPublished
Cited by58 cases

This text of 361 F.3d 1313 (Florentino Prieto v. Manuel Malgor) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Florentino Prieto v. Manuel Malgor, 361 F.3d 1313, 63 Fed. R. Serv. 1069, 58 Fed. R. Serv. 3d 198, 2004 U.S. App. LEXIS 4212, 2004 WL 396479 (11th Cir. 2004).

Opinions

PER CURIAM:

Helenio Prieto filed this appeal following an adverse jury verdict in a suit against two police officers and the County of Miami-Dade for excessive force and battery. Prieto claims that the district court improperly allowed expert testimony on the appropriate use of force despite the failure of Defendants to provide the expert witness report required under Federal Rule of Civil Procedure 26(a)(2). Prieto also claims that the district court improperly entered a direct verdict in favor of the officers in their individual capacity on his state battery claim. Because we find that Plaintiffs counsel effectively waived objection to the failure to provide the required expert witness report, and find no error otherwise, we affirm.

[1316]*1316 I. Background,

Florentino Prieto1 filed suit over his treatment by officers Manuel Malgor and Luke Marckioli after his 1997 arrest for driving with a suspended license. Prieto claimed that the officers threatened to plant drug evidence in his car, repeatedly threatened to harm him, and physically abused him upon arrival at the station. In the station processing room, Prieto was ordered to take off his belt, at which point an altercation ensued. Under Prieto’s version of events, the officers pinned him to the wall and punched him in the face without provocation. The punch left his vision permanently impaired and caused significant psychiatric problems. Under the officers’ version of events, Prieto swung his belt violently toward Marckioli’s head, causing him to duck in order to avoid being struck. Marckioli then attempted to restrain Prieto in a bear hug, but Prieto punched him in the stomach. Malgor responded by twice punching Prieto in the face, just above his eye.

Prieto filed a complaint in state court alleging (1) excessive force under 42 U.S.C. § 1983 against the two officers; (2) battery under Florida law against the two officers in their individual capacity, which required a showing of bad faith or malice; and (3) battery under Florida law against Miami-Dade County. Defendants removed the action to federal district court, which granted summary judgment to the officers on the federal claim on the basis of qualified immunity.2 On appeal, we reversed with respect to Malgor, holding that the acts alleged by Prieto constituted excessive force and, thus, that the disputed versions of the facts had to be resolved at trial.

At the jury trial on remand, Plaintiff presented recorded testimony from Prieto about the arrest and alleged battery, evidence from Prieto’s family and original lawyer about his condition after the incident, and an extended cross-examination of the two officers involved. At the close of Plaintiffs case, the court directed a verdict in favor of the individual officers on the state battery claim, finding as a matter of law that they had acted within the scope of their employment and that there was insufficient evidence to find they had acted maliciously. The court, however, allowed the battery claim against the County to go forward,3 as well as the excessive force claim against Malgor.

The defense presented testimony by medical and psychological experts and other Miami-Dade officers who had been involved shortly before or after the incident. The defense then called Ivan Rodriguez, who regularly trained Miami-Dade officers on the use of force, and proffered him as an expert on police procedures and the use of force. Plaintiff immediately objected, arguing that Defendants had failed to provide the expert witness report required by Local Rule 16.1(E) and Federal Rule [1317]*131726(a)(2)(B).4 Defendants conceded they had failed to provide the report but countered that, as an employee, Rodriguez was exempt from the requirements imposed upon specially hired experts. The judge examined the witness list submitted before trial, which indicated that Rodriguez would testify as to the use of force,5 and permitted the testimony. Rodriguez testified that Prieto’s use of his belt would be considered a “deadly force attack” and that the officers were justified in their use of force specifically in response to the use of the belt.

After two days of deliberation, the jury issued a verdict specifically finding that Prieto had posed an immediate threat to the officers when he removed his belt, that Malgor did not use excessive force against Prieto, and that neither Malgor nor Marckioli had committed battery within the meaning of Florida law. This appeal followed.

II. Discussion

A. Rule 26 Expert Witness Report s

Prieto first attacks the district court refusal to exclude Rodriguez’ expert testimony, a decision we review for abuse of discretion. Griffith v. Gen. Motors Corp., 303 F.3d 1276, 1282 (11th Cir.2002). Rule 26 imposes specific disclosure requirements upon any witness “who is retained or specially employed to provide expert testimony in the case or whose duties as an employee of the party regularly involve giving expert testimony.” Fed. R. Civ. Proc. 26(a)(2)(B). Notice of the expert witness’ name is not enough. Each [1318]*1318witness must provide a written report containing “a complete statement of all opinions to be expressed and the basis and reasons therefor,” as well as information about the data considered, the witness’ qualifications, the compensation earned, and any other recent cases in which he or she offered testimony. Id. Any party that “without substantial justification” fails to disclose this information is not permitted to use the witness as evidence at trial “unless such failure is harmless.” Fed. R. Civ. Proc. 37(c)(1). The district court may impose other appropriate sanctions in addition to or in lieu of the evidentiary exclusion. Id.

In this case, both parties agree that Rodriguez did not make the expert witness disclosures required by Rule 26(a)(2)(B), even though Defendants explicitly proffered him as “an expert in use of force and police procedures.” Defendants argue that Rodriguez is exempt from the rule on the dual grounds that he is a “hybrid” witness called upon to testify to both factual and expert matters and that he is an employee and therefore exempt from the rule. They alternatively contend that, ultimately, Plaintiff waived any objection to the testimony.

We begin by noting that if Rodriguez’ normal duties as an employee involve giving expert testimony, he was obliged to provide the detailed expert witness report required by Rule 26.6 We also agree with the Southern District of New York that allowing a blanket exception for all employee expert testimony would “create a category of expert trial witness for whom no written disclosure is required” and should not be permitted. Day v. Consolidated Rail Corp., 1996 WL 257654 (S.D.N.Y.1996) at *2. The Day court stressed the Rule’s “evident purpose of prompting full pre-trial disclosure of expert information” and noted that recent Rule amendments consistently broadened the scope of disclosure. Id.

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361 F.3d 1313, 63 Fed. R. Serv. 1069, 58 Fed. R. Serv. 3d 198, 2004 U.S. App. LEXIS 4212, 2004 WL 396479, Counsel Stack Legal Research, https://law.counselstack.com/opinion/florentino-prieto-v-manuel-malgor-ca11-2004.