National Railroad Passenger Corporation v. Young's Commercial Transfer, Inc. et al., No. 1:2013cv01506 - Document 82 (E.D. Cal. 2016)

Court Description: ORDER Granting Defendants' 54 Motion to Strike Plaintiff's Expert Disclosure and Reports, signed by District Judge Dale A. Drozd on 4/18/2016. (Gaumnitz, R)

Download PDF

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 12 NATIONAL RAILROAD PASSENGER CORPORATION, Plaintiff, 13 v. 14 15 16 YOUNG S COMMERCIAL TRANSFER, INC., a corporation, and RIGOBERTO FERNANDEZ JIMENEZ, an individual, d/b/a JIMENEZ TRUCKING, 17 No. 1:13-cv-01506-DAD-EPG ORDER GRANTING DEFENDANTS MOTION TO STRIKE PLAINTIFF S EXPERT DISCLOSURE AND REPORTS (Doc. No. 54.) Defendants. 18 19 This matter came before the court on April 5, 2016, for a hearing on defendants motion to 20 strike plaintiff s expert disclosure and corresponding expert reports. (Doc. No. 54). Attorney Jeff 21 Reich of the Reich Law Firm appeared on behalf of the plaintiff Celia Ramirez, attorney Ryan D. 22 Libke of Emerson, Corey, Sorensen, Church & Libke appeared on behalf of defendants Young s 23 Commercial Transfer, Inc. and Rigoberto Fernandez Jimenez, and attorney D. Clyde Hutchinson 24 of Lombardi Loper & Conant, LLP appeared telephonically on behalf of defendants, cross- 25 defendants and cross-complainants National Railroad Passenger Corporation aka Amtrak, BNSF 26 Railway Company and Barbara Neu. Following oral argument, the motion was taken under 27 submission. 28 ///// 1 1 BACKGROUND 2 The National Railroad Passenger Corporation (“Amtrak”), filed a complaint against 3 defendants, Young s Commercial Transfer, Inc. and Rigoberto Fernandez Jimenez, individually 4 and d/b/a Jimenez Trucking, on September 10, 2013. (Doc. No. 1.) On September 5, 2014, the 5 action was consolidated with Ramirez v. Jimenez, et al., Case Number 1:13-cv-02085. (Doc. No. 6 27.) On January 25, 2016, this court dismissed the parties in the lead case of the consolidated 7 action, leaving only the claims brought by plaintiff Celia Ramirez against defendants Rigoberto 8 Fernandez Jimenez, Jimenez Trucking, National Railroad Passenger Corporation, Barbara Neu, 9 BNSF Railway Company, Young s Commercial Transfer, Inc., and Does 1 through 200. 10 Under the court s amended scheduling orders, the deadline for disclosing experts in this 11 action was October 30, 2015, (Doc. No. 42 at 4); the deadline for disclosing rebuttal experts was 12 January 4, 2015, (Doc. No. 44 at 4); and the cutoff for conducting expert discovery was March 13 18, 2016, (Doc. No. 53 at 2). The parties, apparently pursuant to their own agreement, exchanged 14 expert disclosures on November 3, 2015, rather than by October 30, 2015. (Doc. No. 71 at 2, ¶ 15 3.) At that time defendants disclosed as experts Dr. Kurt V. Miller and Agnes M. Grogan. (Doc. 16 No. 54 at 3–4.) Plaintiff disclosed Dr. Harvey Lawrence Edmonds as their expert. (Doc. No. 71 17 at 2, ¶ 4.) Although the deadline set by the amended scheduling order for doing so was January 4, 18 2015, on January 8, 2016, plaintiff disclosed two new supplemental/rebuttal experts: Johanna D. 19 Evans Budge and Cassandra Lynn Hall Valdivia. (Doc. Nos. 55 at 3, ¶ 9; 55-4 at 2, 24.) Ms. 20 Budge s expert report begins by stating that she has rendered opinions “with regard to the 21 reasonable cost of healthcare [for plaintiff] to date, future plan of care and reasonable care cost(s) 22 thereof,” though the report does not ultimately state opinions regarding plaintiff s future life care 23 or future life care costs. (Doc. No. 55-4 at 5.) Ms. Valdivia s report describes a “Nursing Life 24 Care Plan Recommendations” for the plaintiff, setting out a life care plan spanning 46.8 year that 25 includes six hours a day of home care, a gym membership, and a house cleaner, with a total 26 estimated cost of $3,000,000. (Doc. No. 54 at 6.) 27 28 On February 5, 2016, counsel for National Railroad Passenger Corporation, Barbara Neu, and BNSF Railway Company, moved to strike plaintiff s rebuttal expert disclosure and 2 1 corresponding expert reports as untimely and improper, requesting that the portions of those 2 expert reports concerning plaintiff s future life care needs or associated costs be struck, and that 3 these rebuttal experts be precluded from testifying at deposition or at trial on these topics. (Doc. 4 No. 54.) Plaintiff filed their opposition to that motion on March 22, 2016. (Doc. No. 70.) On 5 March 25, 2016, defendants filed their reply. (Doc. No. 72.) 6 LEGAL STANDARDS 7 8 9 10 11 12 13 14 15 16 17 18 Federal Rule of Civil Procedure 37 provides, in relevant part: If a party fails to provide information or identify a witness as required [under the Federal Rules of Civil Procedure,] 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). Fed. R. Civ. P. 37(c)(1). A district court has ultimate discretion in imposing discovery sanctions under Federal 19 Civil Procedure Rule 37. Payne v. Exxon Corp., 121 F.3d 503, 507 (9th Cir. 1997); see also Von 20 Brimer v. Whirlpool Corp., 536 F.2d 838, 844 (9th Cir. 1976). If a party fails to timely disclose 21 its expert witnesses in a manner prescribed by the court, the court has the authority to strike 22 expert disclosure and reports. In this regard, the Ninth Circuit has stated: 23 24 25 26 27 28 Rule 26 of the Federal Rules of Civil Procedure requires the parties to disclose the identities of each expert and, for retained experts, requires that the disclosure includes the experts written reports. Fed. R. Civ. P. 26(a)(2). Parties must make these expert disclosures at the times and in the sequence that the court orders. Id. Rule 37 “gives teeth” to Rule 26 s disclosure requirements by forbidding the use at trial of any information that is not properly disclosed. Yeti by Molly Ltd., 259 F.3d at 1106 (citing Fed. R. Civ . P. 37(c)(1)). Rule 37(c)(1) is a “self-executing,” “automatic” sanction designed to provide a strong inducement for disclosure. Id. (quoting Fed. R. Civ. P. 37 advisory committee s note (1993)). The only exceptions 3 1 to Rule 37(c)(1) s exclusion sanction apply if the failure to disclose is substantially justified or harmless. Fed. R. Civ. P. 37(c)(1). 2 3 Goodman v. Staples The Office Superstore, 644 F.3d 817, 827 (9th Cir. 2011). In determining whether imposition of Rule 37(c)(1) s exclusionary sanction is appropriate, 4 5 the district court is to consider five factors: (1) the public s interest in expeditious resolution of 6 litigation; (2) the court s need to manage its docket; (3) the risk of prejudice to the defendants; (4) 7 the public policy favoring disposition of cases on their merits; and (5) the availability of less 8 drastic sanctions. Wendt v. Host International, Inc., 125 F.3d 806, 814 (9th Cir. 1997) (citing 9 Wanderer v. Johnston, 910 F.2d 652, 656 (9th Cir. 1990)); see also Lanard Toys, Ltd. v. Novelty, 10 Inc., 375 Fed. Appx. 705, 713 (9th Cir. 2010)1 (explaining that these five factors should be 11 considered when deciding whether the untimely disclosure was harmless) (citing David v. 12 Caterpillar, Inc., 324 F.3d 851, 857 (7th Cir. 2003)). However, the burden is on the party facing 13 the sanction to demonstrate that the failure to comply with Rule 26(a) was substantially justified 14 or harmless. Goodman, 644 F.3d at 827; Torres v. City of Los Angeles, 548 F.3d 1197, 1213 (9th 15 Cir. 2008); Yeti by Molly, Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 1107 (9th Cir. 2001). 16 ANALYSIS 17 Rule 26 of the Federal Rules of Civil Procedure provides that parties are required to 18 disclose the identity of any expert witness who will present evidence under Federal Rule of 19 Evidence 702, 703, or 705; most expert disclosures must be accompanied by a written report. 20 Fed. R. Civ. P. 26(a)(2)(A)–(B). The parties are required to make those disclosures at the times 21 and in the sequence the court orders. Fed. R. Civ. P. 26(a)(2)(D); Goodman, 644 F.3d at 827. The Federal Rules of Civil Procedure recognize a distinction between rebuttal expert 22 23 disclosures and supplemental disclosures. Rebuttal expert disclosures are proper when the parties 24 seek to present evidence “intended solely to contradict or rebut evidence on the same subject 25 matter identified by another party under Rule 26(a)(2) (B) or (C).” Fed. R. Civ. P. 26(a)(2)(D). 26 Thus, to constitute proper rebuttal expert disclosure, the expert s opinion must be designed “to 27 1 28 Citation to this unpublished Ninth Circuit opinion is appropriate pursuant to Ninth Circuit Rule 36–3(b). 4 1 contradict or rebut” directly an opinion set forth in the opponent s initial expert disclosure. Van 2 Maanen v. Youth with a Mission-Bishop, No. 1:10-cv-00493 AWI JLT, 2011 WL 5838185, at *3 3 (E.D. Cal. Nov. 21, 2011) (an expert opinion that offers new theories or addresses topics 4 unrelated to the affirmative expert opinion is not proper rebuttal expert testimony); see also Vu v. 5 McNeil–PPC, Inc., No. CV 09-1656 ODW (RZx), 2010 WL 2179882, 2010 U.S. Dist. LEXIS 6 53639, at *3 (C.D. Cal. May 7, 2010) (noting that “[i]f the phrase „same subject matter [in Rule 7 26] is read broadly to encompass any possible topic that relates to the subject matter at issue, it 8 will blur the distinction between „affirmative expert and „rebuttal expert . . . and will lead to 9 unjust results”). An opinion needed to prove an element of plaintiff s case in chief is generally 10 not proper rebuttal evidence. See Wong v. Regents of the Univ. of Cal., 410 F.3d 1052, 1061– 11 1062 (9th Cir. 2005); see also Daly v. Far Eastern Shipping Co. PLC, 238 F. Supp.2d 1231 1238 12 (W.D. Wash. 2003) (noting exclusion of testimony because it “related to issues that were the 13 subject of plaintiff s case-in-chief and therefore was not proper rebuttal”) 14 Under Federal Civil Procedure Rule 26(a)(2)(E), a party has the duty to “supplement or 15 correct its disclosure” in a timely manner when the party learns that, in a material respect, the 16 disclosure is incomplete or incorrect, and the additional or corrective information is unknown to 17 other parties. Fed. R. Civ. P. 26(e)(1)(A). Thus, disclosure of supplemental experts “is an 18 ongoing obligation of the parties to correct earlier opinions disclosed by an expert. It does not 19 refer to the disclosure of a new expert after the court-ordered deadline for simultaneous 20 disclosure.” United States v. Southern Cal. Edison Co., No. 1:01–CV–5167 OWW DLB, 2005 21 WL 7862243, at *3, 2005 U.S. Dist. LEXIS 24592, at *8 (E.D. Cal. Sept. 23, 2005) (quoting 22 Hampton v. Schimpff, 188 F.R.D. 589, 590 (D. Mont. 1999)). Supplemental disclosures are not 23 intended to provide an extension of the court s expert designation and report production 24 deadlines. North View Estates, GP v. Yreka Holdings, No. 2:08-cv-02230-JAM-GGH, 2010 WL 25 2035713, at *1 (E.D. Cal. May 20, 2010) (“[A] party may not use a supplement to extend the 26 discovery deadline and introduce [a] new opinion, nor may a party simply use an existing expert s 27 disclosure as a placeholder to spring a supplemental opinion in the eleventh hour”) (internal 28 quotation marks and citations omitted); Southern Cal. Edison Co., 2005 WL 7862243, at *3, 2005 5 1 U.S. Dist. LEXIS 24592, at *8; see also Metro Ford Truck Sales, Inc. v. Ford Motor Co., 145 2 F.3d 320 (5th Cir. 1998) (supplementary disclosures “are not intended to provide an extension of 3 the expert designation and report production deadline”); cf. Gray v. United States, No. 05-cv- 4 1893, 2007 WL 4644736, at *2 n.1 (S.D. Cal. Mar. 12, 2007) (rejecting the suggestion that new 5 opinions are never allowed by way of supplemental disclosure, and finding that parties are only 6 prohibited from introducing substantially different opinions when supplementing). 7 Defendants have moved to strike plaintiff s rebuttal expert disclosure and corresponding 8 expert reports, arguing that the disclosure of experts Johanna D. Evans Budge and Cassandra 9 Lynn Hall Valdivia was both untimely and improper. (Doc. No. 54 at 1.) Defendants make two 10 arguments. First, they contend that the challenged opinions constitute improper rebuttal expert 11 disclosures because the portions of those reports concerning plaintiff s future life care needs and 12 the associated costs of such care do not in any way contradict or respond to the opinions of 13 defendants properly disclosed experts. (Id. at 5–6.) In particular, defendants argue that initial 14 report of their expert Dr. Miller included his opinions as to plaintiff s past and future medical 15 care, but did not include any opinion as to plaintiff s future life care needs. (Id. at 7; Doc. No. 72 16 at 3.) Second, defendants argue that the belatedly disclosed expert opinions are improper 17 supplemental expert disclosures because the reports of Ms. Budge and Ms. Valdivia do not in any 18 way act to supplement the opinion of plaintiff s initially disclosed expert, but instead introduce 19 entirely new expert opinions addressing an area previously unaddressed. (Doc. No. 54 at 5–8.) 20 Defendants contend that Federal Civil Procedure Rule 26(e) only permits parties to correct or 21 supplement incomplete earlier expert disclosures, but does not permit designation of new experts 22 after expiration of the court-ordered deadline for expert disclosures. (Id. at 6.) Defendants argue 23 that “[n]one of plaintiff s earlier disclosed experts opined as to plaintiff s future life care needs.” 24 (Id. at 7.) 25 Because it is not their burden, defendants have not explicitly address the question of 26 whether plaintiff s allegedly improper supplemental/rebuttal disclosures were substantially 27 justified or harmless. However, defendants do suggest that “failure to timely disclose the 28 opinions of Ms. Budge and Ms. Valdivia . . . prejudices defendants” by denying them the 6 1 opportunity to retain experts to rebut the newly-introduced opinions. (Doc. No. 54 at 7; 72 at 4.) 2 At oral argument, counsel for defendants elaborated on the prejudicial impact of plaintiff s 3 belated disclosures. First, defense counsel argued that plaintiff s late disclosure prejudiced 4 defendants in planning their litigation strategy. Specifically, counsel argued that if the disclosure 5 had been timely, defendants would have: deposed plaintiff s new experts; reopened the 6 deposition of plaintiff in order to question her about the new issues and claims raised by the most 7 recent expert reports; and retained their own experts to rebut the life care plan recommendations 8 made by plaintiff s newly announced experts. Defense counsel disagreed with the notion that 9 their own experts had already been able to respond to plaintiff s new expert disclosures. While 10 acknowledging that Dr. Miller had responded briefly to the reports of Budge and Valdivia, (Doc. 11 No. 71-2 at 2), defense counsel emphasized that Dr. Miller had been retained to address only 12 plaintiff s medical conditions and not her future life care plans, and that his response to those 13 recently revealed expert opinions had necessarily been only a cursory one. Additionally, defense 14 counsel noted that plaintiff had not come forward with any showing that their untimely expert 15 disclosures had been substantially justified or harmless. 16 Plaintiff s counsel refutes defendants arguments concerning the disclosure of experts 17 Budge and Valdivia, arguing that the court should deny defendants motion to strike for two 18 reasons. First, according to plaintiff, the disclosures were timely and constituted proper rebuttal 19 and/or supplemental disclosures. (Doc. No. 70 at 2–4.) Plaintiff s counsel states that their new 20 rebuttal/supplemental experts were disclosed on January 8, 2016, which counsel describes as the 21 agreed upon extended deadline for rebuttal expert disclosures. (Doc. No. 71 at 4, ¶ 11.) 22 Plaintiff s counsel also claims that the January 8, 2016 expert disclosures were proper rebuttal 23 expert disclosures, explaining that they countered opinions provided by defendant experts Dr. 24 Miller and Grogan concerning “the need for [plaintiff s] future care and the costs associated with 25 that care.” (Doc. No. 70 at 3.) Plaintiff s counsel also contends that the January 8, 2016 26 disclosures were proper supplemental disclosures, because they elaborated on opinions 27 concerning future care of plaintiff that were set forth in original report from plaintiff s expert, Dr. 28 Edmonds. (Doc. No. 70 at 4.) In this regard, plaintiff s counsel states that “Dr. Edmonds 7 1 addressed future care of plaintiff in his report but did not discuss cost,” and explains that plaintiff 2 offered the new expert reports to fill in these gaps. (Doc. No. 70 at 4.) 3 Second, plaintiff argues that even if the expert reports were disclosed in an untimely or 4 improper manner, the court should deny defendants motion to strike because any untimeliness 5 was harmless. (Doc. No. 70 at 4–5.) Plaintiff asserts that the arguably belated disclosure of these 6 experts and their reports has not prejudiced defendants since they have had sufficient time to 7 respond. (Doc. No. 71 at 4, ¶ 11.) Plaintiff points specifically to the fact that defendants expert, 8 Dr. Miller, was able to submit a supplemental report on January 25, 2016, responding to Ms. 9 Valdivia s conclusions as to plaintiff s future life care needs, and that Dr. Miller testified about 10 this report during his deposition. (Doc. No. 71 at 2–3, ¶ 8; 71-2 at 2.) 11 Having considered the arguments of the parties, the court concludes that plaintiff s 12 disclosure of experts Budge and Valdivia was untimely. Plaintiff did not disclose these experts or 13 their reports until January 8, 2015. (Doc. No. 55-4 at 3.) However, under the court s scheduling 14 order, the deadlines for initial expert disclosures was October 30, 2015, and the deadline for 15 rebuttal expert disclosures was January 4, 20162, respectively. (Doc. Nos. 42 at 4; 44 at 4.) The 16 disclosure was clearly untimely as an initial expert disclosure. Moreover, Budge and Valdivia 17 cannot be fairly characterized as rebuttal experts since they addressed in their reports a life care 18 plan for plaintiff that was unaddressed by defendant s expert and unrelated to the opinion he had 19 expressed. See Van Maane, 2011 WL 5838185, at *3 (an expert opinion that offers new theories 20 or addresses topics unrelated to the affirmative expert opinion is not proper rebuttal expert 21 testimony); Hellman-Blumberg v. University of the Pacific, No. 12-cv-0286, 2014 WL 813062, at 22 *2-3 (E.D. Cal. Feb. 28, 2014). 23 Both because their disclosure was untimely under either deadline and because they are not 24 proper rebuttal experts, the next question is whether plaintiff s disclosure of the two experts and 25 their reports constituted proper supplemental disclosures. The court concludes that they are not. 26 27 28 2 As all counsel are aware, the deadlines set by the court in the scheduling order are controlling. While counsel may reach informal agreements between one another, those agreement are not enforceable when at odds with the court s own orders. 8 1 Budge and Valdivia were not designated in plaintiff s initial expert disclosures. (Doc. No. 71 at 2 2, ¶ 4.) Plaintiff s counsel describes the January 8, 2016, disclosures as merely supplementing 3 the original expert report from Dr. Edmonds. The court disagrees. Experts Budge and Valdivia 4 addressed a life care plan for plaintiff and the costs thereof. That was a subject that was 5 unaddressed by plaintiff s initially disclosed expert, Dr. Edmonds. Of course, plaintiff may not 6 properly designate entirely new experts under the guise of supplemental disclosure. See Southern 7 Cal. Edison Co., 2005 WL 7862243, at *3; North View Estates, GP, 2010 WL 20357136, at *1. 8 As noted above, however, exclusion of the untimely disclosed experts is not appropriate 9 where plaintiff can satisfy her burden of establishing that the belated disclosure was either 10 substantially justified or harmless. Plaintiff has failed to meet that burden. First, plaintiff has 11 offered no evidence demonstrating a substantial justification for the untimely disclosure of 12 experts Budge and Valdivia and their reports. Indeed, at oral argument counsel for plaintiff 13 conceded that “in a perfect world,” plaintiff would have obtained and disclosed those expert 14 reports at an earlier time. Second, plaintiff has offered no persuasive argument that the late 15 disclosure under these circumstances was harmless. On the other hand, defendants have 16 persuasively argued that allowing the untimely expert disclosures in this case would significantly 17 prejudice them. In this regard, plaintiff has merely argued that defendants expert, Dr. Miller, 18 was able to respond to the expert reports of Budge and Valdivia in the time remaining under the 19 court s scheduling order. However, defendants have pointed out that Dr. Miller s response was 20 limited since he was not qualified to speak to the future life care plan raised for the first time by 21 the reports of Budge and Valdivia, and that if disclosure had been timely, defendants would have 22 sought to conduct further discovery (including a further deposition of plaintiff) so as to be 23 prepared to introduce additional evidence at trial with respect to this new issue. (Doc. Nos. 71 at 24 4, ¶ 11; 71-2 at 2); cf. Manneh v. Inverness Medical Innovations, Inc., No. 086cv53 WGH (NLS), 25 2010 WL 3212129, at *4 (S.D. Cal. Aug. 12, 2010) (finding that failure to disclose documents 26 and witness was not harmless because the opposing party was unable to prepare its defense in 27 time for trial). 28 ///// 9 1 As also noted at the outset, in determining whether to exclude the untimely disclosed 2 experts the court is to consider: (1) the public s interest in expeditious resolution of litigation; (2) 3 the court s need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public 4 policy favoring disposition of cases on their merits; and (5) the availability of less drastic 5 sanctions. Wendt, 125 F.3d at 814. This action has been pending before the court since 6 September 2013. Under the court s scheduling order, amended upon the stipulation of the parties 7 on several occasions, all discovery, including expert discovery, is closed; the time for the filing of 8 dispositive law and motion has passed, the Final Pretrial Conference is scheduled for less than six 9 weeks from now and the jury trial is set for July of 2016. Consideration of the first three factors 10 weighs in favor of exclusion under these circumstances. Consideration of the forth factor is 11 neutral because exclusion of the reports in question with respect to a life care plan for plaintiff 12 will not prevent disposition of this case on its merits. Finally, less drastic sanctions are not 13 available here unless the court were to continue the Final Pretrial and Trial dates and reopen both 14 fact and expert discovery. Given the age of this case, that alternative is untenable. 15 Accordingly, and in light of the absence of substantial justification and because of the 16 prejudice to defendants if the late disclosure were allowed, the court grants defendants motion to 17 strike. The court now exercises its discretion to exclude Ms. Valdivia s expert report; to preclude 18 Ms. Valdivia s testimony at trial; to strike the introductory portions of Ms. Budge s report 19 relating to plaintiff s future life care needs; and to preclude testimony from Ms. Budge at trial on 20 the subject of plaintiff s future life care needs. 21 CONCLUSION Accordingly, defendants motion to strike plaintiff s rebuttal/supplemental expert 22 23 disclosures and corresponding expert reports (Doc. No. 54) is granted to the extent set forth 24 above. 25 IT IS SO ORDERED. 26 27 Dated: April 18, 2016 UNITED STATES DISTRICT JUDGE 28 10

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.