Leland v. County of Yavapai

          THE HONORABLE STEVEN P. LOGAN U.S. DISTRICT JUDGE.

          REPORT AND RECOMMENDATION

          Honorable Deborah M. Fine United States Magistrate Judge.

         This 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.

         Plaintiffs 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^[1], Wexford Health Sources, Inc., and numerous Wexford employees^[2]. (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. (Id.)

         A Case 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.

         I. BACKGROUND^[3]

         Plaintiffs' 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:

         On May 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.)

         County 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.)

         Plaintiffs 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.)

         II. DISCUSSION

         By the 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.

         While 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.

         The 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 claims:

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 response.

(Doc. 4 at 4, lines 11-17.)

         At any 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 ...