In Re Illusions Holdings, Inc.

Steven M. Wagner (plaintiff) went scuba diving in the British Virgin Islands (BVI) from a boat named Illusions, owned by Illusions Holdings, Inc. (Illusions) (defendant). Wagner injured his shoulder during the dive, and he sued Illusions for damages. During discovery, Illusions notified Wagner that its counsel would be deposing Joe Giacinto, the President of BVI Dive Operators Association, and Michael Van Balricum, the owner of a scuba company located in the BVI. Wagner’s counsel served a demand for a report of expert witnesses on Illusions, then called Illusions’s counsel to object to the depositions without expert reports. Despite Wagner’s objection, Illusions went forward with the depositions and did not create an expert report for the witnesses, arguing that they were lay witnesses and not expert witnesses. During their depositions, Giacinto and Van Balricum testified about their knowledge and experience with and the conditions of dive sites in the BVI, proper techniques during dives, and the function and proper use of scuba gear. Neither was present when Wagner sustained his injuries or had any direct knowledge of the incidents or his injuries. Following the depositions, Wagner moved to preclude the testimony of Giacinto and Van Balricum because Illusions did not comply with the Federal Rules of Civil Procedure (FRCP) on expert witnesses, and Wagner sought the costs of the motion and attending the depositions.