Haro v. GGP-Tucson Mall LLC

          ORDER

          Honorable James A. Soto, United States District Judge

         Pending 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.

         Plaintiff 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.

         Plaintiff's 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).

         Defendants filed seven motions in limine. (Docs. 38-44.) Plaintiff has filed responses to the motions in limine. (Docs. 46-52.)

         MOTION IN LIMINE NO. 1

         Defendants' 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.)

         First, 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.

         Rule 37 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 (Doc. 38).

         MOTION IN LIMINE NO. 2

         Defendants' 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. 701.

         Plaintiff's 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.

         MOTION IN LIMINE NO. 3

         Defendants' 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.)

         Rule 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.

         MOTION IN LIMINE NO. 4

         Defendants' Motion in Limine No. 4 requests that Plaintiff's treating physicians be precluded from testifying regarding causation. (Doc. 41.)

         Defendants 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^[1] 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.

         Plaintiff 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 ...