Early v. State

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

          ORDER

          Honorable Deborah M. Fine United States Magistrate Judge.

         This matter is before the Court on Defendants' motion to preclude Plaintiffs' damages expert from testifying at trial due to late disclosure (Docs. 236, 237). Plaintiffs responded, and a reply has been filed (Docs. 248, 250). This matter is ripe for decision. Because the motion before the Court involves sanctions under Rule 37, Federal Rules of Civil Procedure, undersigned may only issue a report and recommendation. See LRCiv 72.2(a)(1). This case was referred to undersigned for pretrial proceedings and was referred to undersigned specifically for a report and recommendation regarding the motion before the Court (Docs. 7, 256). After a review of the parties' briefing and the record in this matter, undersigned recommends that Defendants' motion to preclude (Docs. 236, 237) be granted.

         This case was removed to federal court on January 7, 2016 (Doc. 1). The expert disclosure deadlines began as of August 1, 2016 (Plaintiffs' expert reports), September 30, 2016 (Defendants' expert reports), and November 15, 2016 (rebuttal disclosures) (Doc. 16). The deadlines for disclosure of Plaintiffs' expert reports were extended six times on requests of the parties, most recently to May 15, 2018 (Docs. 55, 98, 128, 141, 170, 183). In addition to such and corresponding extensions of time for defense expert report disclosures as well as one two-week extension of defense expert disclosures, the parties jointly requested and obtain two additional deadline extensions for rebuttal experts disclosure and completion of depositions (Docs. 196, 198, 204, 206). Yet, Plaintiffs never sought any further extension to disclose expert witnesses. May 15, 2018, was Plaintiffs' deadline to disclose expert Dr. Luna, her report, qualifications and opinions in this case as required under the Federal Rules of Civil Procedure.

         Dr. Luna is a damages expert. The record reveals that no disclosure of Dr. Luna's report or opinions were made on May 15, 2018. On May 16, 2018, Plaintiffs' counsel filed a notice of service that “on May 15, 2018, Plaintiffs served their Eighth Supplemental Disclosure Statement” (Doc. 187). On May 30, 2018, defense counsel received in the mail from the office of Plaintiffs' counsel an envelope with Dr. Luna's biographical information, testimony history, and 44 pages of financial schedules (Doc. 236-1 at 4, affidavit of attorney Michael Smith).^[1] Codefendants' counsel received such as well. See Doc. 236-1. In the documents received, there was no report from Dr. Luna, and there was no Eighth Supplemental Disclosure. Id. Indeed, the time records by Plaintiffs' counsel, as described in the defense motion, seem to support a conclusion that no Eighth Disclosure Statement was even prepared. See Doc. 209-2.^[2]

         Despite that defense counsel repeatedly followed up with Plaintiffs' counsel, who represented through staff and directly that the Eighth Supplemental Disclosure statement was sent out, Plaintiffs' counsel have never produced such. Rather, an Amended Eighth Supplemental Disclosure was sent by Plaintiffs' counsel in August, 2018, which referenced and contained a report of Dr. Luna dated May 15, 2018, that Plaintiffs' counsel admits had never previously been disclosed to defense counsel. “Unfortunately, due to a miscommunication between a former employee of Plaintiffs' counsel's law firm and the expert witness, Dr. Luna provided only her final table; her C.V. and supporting documents, but the final version of the report (the “Luna Report”) with required disclosures was not provided to Defendants' counsel until August 12, 2018” (Doc. 248 at 3). The additional documents provided to defense counsel in August, 2018, were Dr. Luna's expert report dated May 15, 2018, a list of the case materials reviewed, before and after tax schedules, and four pages of additional schedules; these documents totaled 33 new pages (Doc. 236-1).

         While Plaintiffs' counsel did not provide an affidavit, it appears that Plaintiffs' counsel may not have received the Luna Report, either, until on or about August 12, 2018. Plaintiffs' counsel could have, but did not, raise any issue related to Plaintiffs' late disclosure of the Luna Report with the Court. Plaintiffs' counsel should have done so promptly upon discovering the problem on or before August 12, 2018. Indeed, Plaintiffs' counsel should have discovered the problem in June, 2018, when contacted by defense counsel. The parties stipulated for extensions of time on August 13, 2018 (Doc. 205). Plaintiffs have not given any good reason for Plaintiffs' failure to raise the late disclosure of Dr. Luna's report at that time and before the Court issued its final extension of Scheduling Order disclosure/discovery deadlines (Doc. 206). Instead, of being forthright with the Court about what occurred and asking for reasonable associated relief, Plaintiffs' counsel appears to have tried to gloss over the problem by submitting an “amended” disclosure statement in August, 2018, and hoping that defense counsel would follow up to depose Dr. Luna.

         Problems with this strategy should have been quite apparent at the time, including that the time for defense disclosure of experts had already passed, and the defense had not disclosed any damages expert. Plaintiffs' expert disclosure deadline precedes defense and rebuttal expert disclosure deadlines in order to allow the defense to consider the experts Plaintiffs disclosed before making final decisions on which type of experts to hire. Court relief for Plaintiffs' late disclosure of Dr. Luna's report would necessarily include opportunity for Defendants to consult and possibly retain and disclose a damages expert and report. Presently, the Court could not fashion such relief without throwing this case into disarray procedurally given that all the disclosure and discovery deadlines closed months ago, with expert depositions closing in December, 2018. The dispositive motions deadline passed last month. Summary judgment motions have been filed and are pending with the Court. The Scheduling Order requires Plaintiffs to file and serve a notice that the case is ready for trial within ten days of decision on the summary judgment motions (Doc. 16 at 10).

         Each party must disclose expert witnesses by a certain deadline set by the court. Fed.R.Civ.P. 26(a)(2). “Rule 37(c)(1) gives teeth to these requirements by forbidding the use at trial of any information required to be disclosed by Rule 26(a) 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 under Rule 26(a) . . ., 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 finding of willfulness or bad faith before excluding expert testimony at trial. See Hoffman v. Constr. Protective Servs., Inc., 541 F.3d 1175, 1180 (9th Cir. 2008) (rejecting the notion that the court must find willfulness or bad faith to exclude evidence because Rule 37 is “a self-executing, automatic sanction” meant to induce disclosure) (quotation omitted).

         Plaintiffs have not shown that the late disclosure was substantially justified or harmless. It appears the late disclosure was from a clerical or similar error that Plaintiffs' counsel did not try to forthrightly or timely remedy with appropriate Court relief. Defendants were entitled to assume that Rule 37(c)(1) means what it says, and that untimely disclosed evidence would be excluded from evidence at trial. Reopening discovery and setting new deadlines for depositions and additional expert reports at this juncture would lead to increased costs to the parties and a substantial delay and inconvenience for the Court. The Ninth Circuit has held that “[d]isruption to the schedule of the court and other parties . . . is not harmless.” Wong v. Regents of Univ. of Cal., 410 F.3d 1052, 1061-62 (9th Cir. 2005) (finding that trial court did not abuse its discretion in excluding expert witness not identified by the case management deadline). This is true even where the trial date is not imminent. See Id. at 1062 (exclusion of witness testimony appropriate even though “the ultimate trial date was still some months away”). Thus, the untimely disclosures prejudice Defendants and are not harmless.

         Accordingly, IT IS RECOMMENDED that Defendants' motion to preclude Plaintiffs' damages expert, Dr. Luna, from testifying at trial due to untimely disclosure (Doc. 236, 237) be granted.

         This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1) of the Federal Rules of Appellate Procedure should not be filed until entry of the District Court's judgment. The parties shall have fourteen days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6, 72; see also LRCiv 72.2(a)(1). The parties shall have fourteen days within which to file responses to any objections. Failure to file timely objections to the Magistrate Judge's Report and Recommendation may result in the acceptance of the Report and Recommendation by the District Court without further review. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Failure to file timely objections to any factual ...