Orthopedic Surgery Expert’s Testimony on Physical Injuries Excluded
Posted on January 16, 2026 by Expert Witness Profiler
The instant matter arises out of a power catamaran scenic and snorkel tour that Plaintiffs Candice Myhre and Norman Davidson, IV boarded on May 14, 2021 from Kikiaola Small Boat Harbor.
As the vessel began to exit the harbor, it encountered large waves, and Myhre stated that she flew out of her seat, hit her face on the vessel’s railings, and slammed down onto metal seats. 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.
On June 24, 2025, Plaintiffs disclosed Dr. Derek S. Johnson, D.O. as “Plaintiffs’ medical expert who will testify, including but not limited, to Plaintiff Candice Myhre’s injuries and damages issues.”
Defendants contended that Johnson’s disclosure was untimely because Plaintiffs failed to disclose him properly as a medical expert.
Orthopedic Surgery Expert Witness
Dr. Derek S. Johnson, D.O. is a graduate of the Doctor of Osteopathic Medicine Program at Midwestern University-Glendale Medical School and completed his Orthopaedic Surgery residency at Pinnacle Health System in Harrisburg, PA. He currently serves as the Department Chair of Orthopedic Surgery at Wilcox Medical Center.
Discussion by the Court
Defendants argued that they would be plainly prejudiced should Johnson be permitted to testify as a retained expert or as a treating physician at trial because the trial is scheduled to commence in less than sixty days and the discovery deadline has expired.
Plaintiffs, however, contended that Johnson was disclosed on June 24, 2025 as a non-treating medical expert, and his opinions were disclosed on October 9, 2025. There was no failure to identify Johnson as a retained non-treating physician, they argued, 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.’” Plaintiffs argued that if there was a failure to disclose, that
failure was merely harmless under Rule 37(c)(1).
The key question is: does Rule 26(a)(2)(B)’s written report requirement apply to Johnson’s disclosure as an expert witness? 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. Therefore, Rule 26(a)(2)(B) applies. Plaintiffs thus were required to disclose 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 contended that their submission of his report on October 9, 2025 was a supplemental disclosure, this contention fell short of the mark because of Rule 26(a)(2)(B)’s directive that the written report must accompany the expert witness disclosure.
Analysis
The Court concluded that the failure to disclose was not harmless and that lesser sanctions are not reasonably available.
Plaintiffs have not carried their burden of proving harmlessness. Trial is scheduled to be held in two months and discovery has been completed. 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 to Defendants and four months before the expert witness disclosure deadline.
A lesser sanction could be to require Plaintiffs to pay the costs and attorney’s fees to allow Defendants to take Johnson’s deposition. However, taking Johnson’s deposition and possibly retaining a defense medical expert with sufficient time to allow that expert to review medical records and 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.
While Johnson’s 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.
Since Johnson’s opinion testimony has no bearing on liability issues, the Court cannot conclude that excluding Johnson will deal a fatal blow to Plaintiffs’ claims. The Court also 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.
Held
The Court granted Defendants’ motion to strike Derek Johnson, D.O. as an expert witness.
Key Takeaway
It should be noted that no explanation is offered as to why it took from February to October to obtain and disclose 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.
The Court concluded that the non-compliance 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.
Case Details:
| Case Caption: | Myhre V. Marina LLC |
| Docket Number: | 1:24cv217 |
| Court Name: | United States District Court, Hawaii |
| Order Date: | January 14, 2026 |
