United States District Court, D. Arizona
HONORABLE STEVEN P. LOGAN U.S. DISTRICT JUDGE.
REPORT AND RECOMMENDATION
Honorable Deborah M. Fine United States Magistrate Judge.
Report and Recommendation hereby amends the Order at Doc. 162
pursuant to LRCiv 72.2(a)(1), which requires a report and
recommendation regarding the nature of relief.
Valerie Leland and Julia Muncy, the daughter and mother of
Francis Naomi Wright, who died while detained in the Yavapai
County Jail, brought this civil rights action for alleged
constitutional and state law violations against Yavapai
County, numerous County employees, Wexford Health Sources,
Inc., and numerous Wexford employees. (Doc. 13, Ex. 1.)
Plaintiffs initiated this action in Yavapai County Superior
Court on December 29, 2016. (Doc. 1.) In April 2017, Wexford
Defendants removed the action to federal court.
Management Order issued on November 2, 2017, allowing
approximately one year for fact discovery and final
supplementation of MIDP responses. (Doc. 28.) This matter is
before the Court on Plaintiffs' Motion to Exclude Late
Disclosures (Doc. 132), to which responses (Docs. 142, 147
with exhibits which are on the Court's public record and
one which is sealed at Docs. 151, 153) and a reply (Doc. 158)
have been filed. District Judge Logan referred this matter to
undersigned (Docs. 14, 85, 144 at 3, lines 27-28). The Court
will recommend that District Judge Logan grant the motion in
part and deny the motion in part.
claims stem from Wright's death during her confinement as
a pretrial detainee in the Yavapai County Jail in 2016. (Doc.
13-1 ¶ 17.) In their First Amended Complaint, Plaintiffs
allege the following:
9, 2016, Wright was arrested and booked into the County Jail.
(Id.) During the booking process, she reported that
she took drugs, that she had withdrawal problems, that she
was currently detoxing, and that she had fainted or had a
head injury within the past 6 months. (Id.
¶¶ 17-21.) Around 10:00 p.m. that night, Wright was
assigned to the jail's infirmary for observation.
(Id. ¶ 25.) Beginning the morning of May 10,
2016, Wright's health began to deteriorate, and she
repeatedly requested medical assistance orally, in writing,
and, eventually, through use of the emergency button in her
cell. (Id. ¶¶ 31-38, 49, 52, 55, 63, 89.)
Other detainees also called for help over the intercom system
and emergency buttons in their cells. (Id.
¶¶ 64, 78, 84.) Wright suffered from headaches,
diarrhea, nausea, vomiting, tremors, chills, body aches, and
syncope episodes, and she became more and more pale.
(Id. ¶¶ 37, 41, 46, 52-53, 81, 90.) By the
early morning of May 11, 2016, Wright began to suffer
seizures and pass out, which caused her to hit her head on
the floor. (Id. ¶¶ 58, 61, 75-77, 84.)
Defendant detention officers Winton, Barbey, Kellerman,
Chavez, Russell, and Sergeant Valdez all interacted with
Wright, directly observed her interactions with medical
staff, and were present when she requested medical assistance
or took her written requests for medical attention.
(Id. ¶¶ 28, 30, 34, 37-38, 40, 44-45, 55.)
Wright specifically requested assistance from Winton and
Russell, but they walked away and did not help her.
(Id. ¶¶ 55-56, 71-72.) Russell and Valdez
responded to the cell when Wright passed out and fell and hit
her head, and, after she passed out a second time, they
revived her with smelling salts and thereafter joked about
her condition. (Id. ¶¶ 76-79, 84-85, 87.)
Neither Defendant nurses nor Defendant detention officers
would help Wright, despite her requests for help.
(Id. ¶¶ 89, 94.) Although Dr. Wilkinson
was in the medical office across the hall from Wright's
cell, he did not come out to check on Wright. (Id.
¶¶ 88, 96.) At approximately 4:00 p.m. on May 11,
2016, Wright was found dead. (Id. ¶ 95.)
set forth three claims for relief. In Count One, they assert
Eighth and Fourteenth Amendment claims under 42 U.S.C. §
1983 based on the denial of medical care. (Id.
¶¶ 97-102.) In Count Two, they assert a claim for
wrongful death under Arizona Revised Statutes § 12-611.
(Id. ¶¶ 103-109.) And in Count Three,
Plaintiffs assert a Fourteenth Amendment claim under §
1983 based on interference with the right to family society
and companionship. (Id. ¶¶ 110-112.)
Court's Case Management Order, the deadline for fact
discovery and to provide supplemental disclosures was
November 2, 2018. (Docs. 28.) The parties agree that they
stipulated to allow fact disclosures for a few additional
weeks, to November 16, 2018, and under such agreement, the
disclosures at issue were made within those few weeks. The
questions before the Court are whether the disclosures should
have been made earlier, and if so, whether the disclosures
should be precluded at trial.
Rule 26(a), Fed. R. Civ. P., requires only disclosure of the
identity of persons who are likely to have discoverable
information and “the subjects of that information,
” the Mandatory Initial Discovery Pilot
(“MIDP”), through General Order 17-08, supersedes
Rule 26(a), Fed.R.Civ.P. and requires that the parties:
State the names and, if known, the addresses and telephone
numbers of all persons who you believe are likely to have
discoverable information relevant to any party's claims
or defenses, and provide a fair description of the nature of
the information each such person is believed to possess.
(Doc. 4 at 6, lines 22-25.) Importantly, a “fair
description of the nature of the information” a fact
witness is believed to possess, not a detailed recitation of
each aspect of the person's possible testimony, is
required. Further, “[i]f new information is revealed in
a written discovery response or a deposition in a manner that
reasonably informs all parties of the information, the
information need not be presented in a supplemental
response.” (Doc. 4 at 6, lines 4-6.) While “facts
relevant” to “claims or defenses” must be
disclosed (Doc. 4 at 7, lines 17-18), the MIDP Order does not
require a detailed written preview of all the fact
testimonial evidence to be offered at trial.
MIDP disclosure duties extend to relevant matters, whether
favorable or not to a party: “Parties must provide the
requested information as to facts that are relevant to the
claims and defenses in the case, whether favorable or
unfavorable, and regardless of whether they intend to use the
information in presenting their claims or defenses.”
(Doc. 4 at 4, lines 18-20.) Further, and importantly, the
MIDP Order is clear that the parties are not to wait until
late in the case to develop information relevant to the
Each party's response must be based on the information
then reasonably available to it. A party is not excused from
providing its response because it has not fully investigated
the case, it challenges the sufficiency of another
party's response, or another party has not provided a
(Doc. 4 at 4, lines 11-17.)
time during discovery, a party “may request more
detailed or thorough responses to these mandatory discovery
requests if it believes the responses are deficient.”
(Doc. 4 at 8, lines 3-4.) Further, Rule 37(c)(1),
Fed.R.Civ.P. “gives teeth” to disclosure
requirements “by forbidding the use at trial of any
information required to be disclosed … that is not
properly disclosed.” Yeti by Molly, Ltd. v. Deckers
Outdoor Corp., 259 F.3d 1101, 1106 (9th Cir. 2001);
Fed.R.Civ.P. 37(c)(1) (“[i]f a party fails to provide
information or identify a witness as required . . ., the
party is not allowed to use that information”). The
information may be used at trial, however, if the party's
failure to disclose the required information is substantially
justified or harmless. Fed.R.Civ.P. 37(c)(1). The party
making the late disclosure bears the burden of establishing
that the failure to disclose is substantially justified or
harmless. See Yeti by Molly, 259 F.3d at 1107. In
determining whether substantial justification or harmlessness
exist, a court considers (1) prejudice or surprise to the
other party, (2) the ability of that party to cure the
prejudice, (3) the likelihood of disruption of trial, and (4)
willfulness or bad faith. Silvagni v. Wal-Mart Stores,
Inc., 320 F.R.D. 237, 242 (D. Nev. 2017). Still, a court
is not required to make a ...