United States District Court, D. Arizona
Honorable James A. Soto, United States District Judge
before the Court are Plaintiff's Motion to Strike
Defendants' Objection to Plaintiff's First Through
Fifth Supplemental Disclosures (Doc. 30), Plaintiff's
motion in limine (Doc. 36), and Defendants' motions in
limine (Docs. 38-44). The Motions are fully briefed or the
time to respond has passed.
requests that the Court strike a filing by Defendants in this
matter. This document was not filed with the Court, instead a
Certificate of Service was filed with the Court (Doc. 29).
Accordingly, there is nothing for the Court to strike.
Plaintiff's motion to strike (Doc. 30) will be denied.
motion in limine (Doc. 36) shall be denied as moot as
Defendants no longer object and have agreed that Norma
Rodriguez and Adam Reyes will not testify as to the
industry's standard of care (Doc. 53).
filed seven motions in limine. (Docs. 38-44.) Plaintiff has
filed responses to the motions in limine. (Docs. 46-52.)
IN LIMINE NO. 1
Motion in Limine No. 1 (Doc. 38) requests that Carlos Verdugo
and Jorge Quintero not be permitted to testify. Defendants
argue that the two contested witnesses were not disclosed as
potential trial witnesses until months after the close of
discovery in the Joint Proposed Pretrial Order and that this
delay prejudiced Defendants; therefore the witnesses should
be excluded pursuant to Federal Rule of Evidence 403, General
Order 17-08, and Federal Rules of Civil Procedure
26(a)(1)(A), 37(c)(1). Plaintiff argues that the contested
witnesses were disclosed to Defendants on October 26, 2017,
well before the end of discovery, in a Request for
Admissions; and that the Request for Admission and that
Defendants questioned Plaintiff regarding the contested
witnesses in her deposition in combination with the Initial
Disclosure Statement and the Mandatory Initial Disclosure
Statement, which listed “Any and all witnesses listed
or mentioned in discovery or depositions and who may be
listed or called by defendants” as potential trial
witnesses provided Defendants with sufficient notice of the
potential trial witnesses. (Doc. 46.)
the Court must determine if Plaintiff violated Federal Rule
of Civil Procedure 26(a) and (e). It is unclear to the Court
when Plaintiff learned of the contested witnesses. If it was
prior to the initial disclosure, then Plaintiff failed to
comply with Federal Rule of Civil Procedure 26(a). If it was
after the initial disclosure, then Plaintiff likely notified
Defendants of the potential witnesses with sufficient time,
but this does not explain why the witnesses were not included
in Plaintiff's supplemental disclosures. The use of the
catch-all in the disclosures does not comply with the purpose
of Federal Rule of Civil Procedure 26, which is to prevent
gamesmanship and surprise. Fed.R.Civ.P. 26 advisory
committee's note to 1993 Amendments. Further, evasive or
incomplete disclosure is treated as a failure to disclose.
Fed.R.Civ.P. 37 (a)(4). The Court finds that Plaintiff failed
to comply with General Order 17-08, and Federal Rules of
Civil Procedure 26(a)(1)(A), 37(c)(1). Further, the Court
ordered that Plaintiff disclose all fact witnesses under Rule
26(a)(3) on or before February 28, 2018. (Doc. 21.)
Therefore, Plaintiff did not comply with the discovery
deadlines in this matter.
of the Federal Rules of Civil Procedure states that
“(c) Failure to Disclose, to Supplement an Earlier
Response, or to Admit. (1) Failure to Disclose or Supplement.
If 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 on a
motion, at a hearing, or at a trial, unless the failure was
substantially justified or is harmless. In addition to or
instead of this sanction, the court, on motion and after
giving an opportunity to be heard: (A) may order payment of
the reasonable expenses, including attorney's fees,
caused by the failure; (B) may inform the jury of the
party's failure; and (C) may impose other appropriate
sanctions, including any of the orders listed in Rule
37(b)(2)(A)(i)-(vi).” The burden is on the party
attempting to avoid sanctions. R & R Sails, Inc. v.
Ins. Co. of Penn., 673 F.3d 1240, 1246 (9th Cir. 2012).
While preclusion is not mandatory, it is warranted in the
ordinary case. Id. The Court will consider:
“(1) the surprise to the party against whom the
evidence would be offered; (2) the ability of that party to
cure the surprise; (3) the extent to which allowing the
evidence would disrupt the trial; (4) the importance of the
evidence, and (5) the nondisclosing party's explanation
for it[s] failure to disclose the evidence.” San
Francisco Baykeeper v. W. Bay Sanitary Dist., 791
F.Supp.2d 719, 733 (N.D. Cal. 2011) (quoting Dey, L.P v.
Ivax Pharm., Inc., 233 F.R.D. 567, 571 (C.D. Cal.
2005)). The Court will consider each of the five factors in
turn. First, Plaintiff did not disclose that she may call the
contested witnesses until after discovery was closed. The
pretrial disclosure deadline was February 28, 2018. (Doc.
21.) Therefore, the surprise to Defendants is substantial.
Plaintiff ignored the deadline set by this Court. Second, if
Defendants need further time to question the contested
witnesses, that time may be provided by the Court. Any
surprise that is present appears to be easily cured. Third,
any extension would not disrupt the trial as the trial has
not been set. Fourth, as the contested witnesses were
eyewitnesses, it does appear that they may have important
information for the fact-finder in this matter. Fifth,
Plaintiff did not provide a reason for the nondisclosure.
However, the reason for the nondisclosure does not alter the
balance of the other factors, weigh against preclusion. When
preclusion of the evidence would amount to a dismissal of the
claim, the Court should go further in their analysis. R
& R Sails, Inc., 673 F.3d at 1247. It does not
appear nor does Plaintiff argue that preclusion of the
contested witnesses amounts to a dismissal of the claim.
Therefore, the Court does not need to inquire into the
willfulness, bad faith, or fault implicated in the failure to
abide by the Federal Rules of Civil Procedure. Id.
The Court will deny Defendants' Motion in Limine No. 1
IN LIMINE NO. 2
Motion in Limine No. 2 requests that lay witnesses be
precluded from testifying regarding the cause of
Plaintiff's injuries at trial. (Doc. 39.) Defendants
argue that due to the complexity of Plaintiff's medical
history, which appears to be extensive, that the medical
cause of her specific injuries requires specialized
knowledge, skill, and expertise and that medical causation in
this matter requires an expert witness. Plaintiff states that
the fact witnesses listed will provide their first-hand
account of Plaintiff's condition prior to and after the
fall. (Doc. 47.) Further, Rule 701 of the Federal Rules of
Evidence allows lay witnesses to offer opinions when it is:
“(a) rationally based on the witness's perception;
(b) helpful to clearly understanding the witness's
testimony or to determining a fact in issue; and (c) not
based on scientific, technical, or other specialized
knowledge within the scope of Rule 702.” Fed.R.Evid.
lay witnesses will be permitted to testify regarding their
first-hand knowledge and may state their opinion within the
mandate of Rule 701 of the Federal Rules of Evidence. The
exact cause of each injury, especially as it is temporally
removed from the fall, would require scientific, technical,
or other specialized knowledge within the scope of Rule 702
and therefore will not be permitted. Accordingly,
Defendants' Motion in Limine No. 2 (Doc. 39) will be
granted to the extent the opinions require scientific,
technical, or other specialized knowledge within the scope of
Rule 702 and will not be permitted from the lay witnesses.
IN LIMINE NO. 3
Motion in Limine No. 3 requests that Plaintiff be precluded
from asserting a claim for future medical expenses and
treatment. (Doc. 40.) Defendants argue future medical
expenses and treatments require expert testimony and that
Plaintiff failed to assert that she will present expert
evidence. Further Defendants argue that Plaintiff responded
in the affirmative to the request for admission: “Admit
that you have completed all medical care for any injuries
allegedly sustained in the Subject Incident of July 5, 2015,
which is the subject of your Complaint.” Plaintiff
states that there are only follow up visits currently, which
her treating physicians could testify regarding. (Doc. 48.)
36(b) of the Federal Rules of Civil Procedure states
“[a] matter admitted under this rule is conclusively
established unless the court, on motion, permits the
admission to be withdrawn or amended.” Plaintiff has
not moved to have the admission withdrawn or amended and when
given the opportunity to deny it in the response to
Defendants' Motion in Limine No. 3, Plaintiff fails to do
so. Plaintiff will be precluded from arguing that her medical
treatment continues past October 2017. Defendants' Motion
in Limine No. 3 (Doc. 40) will be granted.
IN LIMINE NO. 4
Motion in Limine No. 4 requests that Plaintiff's treating
physicians be precluded from testifying regarding causation.
argue that because Plaintiff is not designating the treating
physicians as experts that they should be precluded from
testifying as to causation of her injuries. Defendants
further argue that the physicians' opinions are not
reliable and lack independent support. First, Plaintiff did
not visit Dr. Din or Dr. Rivero until approximately seven and
eleven months respectively after the fall. Second, each
doctor only received information regarding Plaintiff's
medical history from her, which Defendants allege is
incomplete. Neither doctor can present information regarding
Plaintiff's physical state prior to the fall. Defendants
surmise that the treating physicians' opinions should be
considered under Rule 702 of the Federal Rules of Evidence as
they are based on technical or specialized medical knowledge;
however, the opinions are insufficiently reliable and do not
have independent support. Further, Defendants argue that if
the Court applies Rule 701 of the Federal Rules of Evidence
that the opinions are not based on rational facts that the
witness perceived first hand.
argues that treating physicians, such as Dr. Gutierrez, Dr.
Din, Dr. Rivero, and Dr. Klein, consistently testify
regarding diagnosis, treatment, prognosis, and causation
without being classified as experts. (Doc. 49.) These
opinions come ...