Wilson v. Wal-Mart Stores, Inc., No. 2:2015cv01791 - Document 113 (D. Nev. 2016)

Court Description: ORDER granting ECF No. 89 Motion for the Court to Reconsider Magistrate Judge's Order. Signed by Judge Robert C. Jones on 9/7/2016. (Copies have been distributed pursuant to the NEF - KR)
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Wilson v. Wal-Mart Stores, Inc. Doc. 113 1 2 3 UNITED STATES DISTRICT COURT 4 DISTRICT OF NEVADA 5 6 7 8 9 10 11 ______________________________________ ) ) KATIE F. WILSON, ) ) Plaintiff, ) ) vs. ) ) WAL-MART STORES, INC., ) ) Defendant. ) ) 2:15-cv-01791-RCJ-VCF ORDER 12 13 This premises liability case arises out of a slip-and-fall accident. Pending before the 14 Court is a Motion for the Court to Reconsider the Magistrate Judge’s Order (ECF No. 89) under 15 Rule 72(a). The Court grants the motion. 16 I. 17 FACTS AND PROCEDURAL HISTORY On or about April 27, 2014, Plaintiff Katie Wilson slipped and fell at Defendant Wal- 18 Mart Stores, Inc.’s store at 1807 W. Craig Rd., Las Vegas, Nevada, suffering severe injury. 19 (Compl. ¶¶ 4, 8, ECF No. 1-2). Plaintiff sued Defendant in state court for negligence. 20 Defendant removed. Defendant asked the Magistrate Judge to exclude allegedly untimely 21 disclosed evidence of damages, and the Magistrate Judge granted the motion. Plaintiff has asked 22 the Court to reconsider under Rule 72(a), i.e., to overrule the Magistrate Judge. 23 /// 24 /// 1 of 6 Dockets.Justia.com 1 II. Rule 72(a) permits a district court judge to modify or set aside a magistrate judge’s non- 2 3 LEGAL STANDARDS dispositive ruling that is clearly erroneous or contrary to law: When a pretrial matter not dispositive of a party’s claim or defense is referred to a magistrate judge to hear and decide, the magistrate judge must promptly conduct the required proceedings and, when appropriate, issue a written order stating the decision. A party may serve and file objections to the order within 14 days after being served with a copy. A party may not assign as error a defect in the order not timely objected to. The district judge in the case must consider timely objections and modify or set aside any part of the order that is clearly erroneous or is contrary to law. 4 5 6 7 8 Fed. R. Civ. P. 72(a); see also Local R. IB 3-1(a). Rule 72(a) institutes an abuse-of-discretion- 9 type standard. See Grimes v. City and Cnty. of S.F., 951 F.2d 236, 241 (9th Cir. 1991) (citing 10 United States v. BNS Inc., 858 F.2d 456, 464 (9th Cir. 1988) (“We still must determine, however, 11 whether the court abused its discretion in issuing its order based on the facts before it which are 12 supported by the record. Under the abuse of discretion standard, we cannot simply substitute our 13 judgment for that of the district court, but must be left with the definite and firm conviction that 14 the court committed a clear error of judgment in reaching its conclusion after weighing the 15 relevant factors.”)). 16 III. ANALYSIS 17 The Scheduling Order in this case indicated a telephonic Rule 26(f) meeting between 18 counsel on October 20, 2015, an initial disclosure date of November 3, 2015, and a discovery 19 cut-off date of March 15, 2016. (See Sched. Order 1–2, ECF No. 9). Plaintiff argued in her 20 response to the original motion that she had included a computation of damages in her initial 21 disclosures on October 20, 2015, a month before the November 19, 2015 Rule 26(f) conference, 22 as required by Rule 26(a)(1)(A)(iii). The disclosure was attached to the response, and it included 23 a damages calculation of past medical expenses totaling $86,743.05. (See Initial Disclosures 9, 24 ECF No. 65-2). 2 of 6 1 Plaintiff also adduced evidence that on November 16, 2015, Plaintiff’s counsel wrote 2 Defendant’s counsel to note his client’s willingness to attend mediation in mid-December and 3 noting that Plaintiff was seeking to have spine surgery, which she would claim was necessitated 4 by the fall, and that she would therefore be seeking a large amount at mediation. (See Tanner 5 Letter, Nov. 16, 2015, ECF No. 65-10). Plaintiff also adduced a letter from her counsel to 6 Defendant’s counsel indicating that she had recently had the spine surgery. (See Tanner Letter, 7 Dec. 7, 2015, ECF No. 65-12). Plaintiff also adduced evidence of having provided a 8 supplemental damage calculation as part of supplemental disclosures made on December 18, 9 2015. (See Second Supplemental Disclosure 10, ECF No. 65-17). That calculation added bills 10 for three additional hospitals due to the spine surgery, such that the past medical damages totaled 11 $248,541.03. (See id.). Plaintiff argued that she had received additional information from her 12 consultants about potential future medical damages caused by the fall, and she immediately 13 disclosed the updated calculation. (See Fifth Supplemental Disclosure 12–13, ECF No. 65-21). 14 That calculation added $12,003.80 for a pain clinic, loss of household services of $117,972– 15 $295,505, and future medical care of $657,254.80, such that the damages totaled $1,112,673.66– 16 1,290,206.66. (See id.). Plaintiff contemporaneously disclosed her expert witnesses in support of 17 future damages. 18 Defendant moved to exclude all damages above $86,743.05 as untimely disclosed under 19 Rule 26, arguing that the initial disclosures did not indicate any loss of household services or 20 future medical damages would be sought at all, and that Defendant had based its discovery and 21 expert strategy based on that presumption. The Magistrate Judge granted the motion, reasoning 22 that Rule 26(a)(1) requires at least an estimate of damages that have not yet accrued, and that the 23 fact a plaintiff is still in treatment does not obviate the requirement of a reasonable estimate. 24 3 of 6 1 Magistrate Judge Johnston once granted a similar sanction in a case with very similar 2 facts. See Baltodano v. Wal-mart Stores, Inc., No. 2:10-cv-2062, 2011 WL 3859724 (D. Nev. 3 Aug. 31, 2011) (Johnston, M.J.). That case also involved a slip-and-fall at a Wal-Mart store. See 4 id. at *1. There, the initial disclosure stated, “This amount shall include Plaintiff's lost wages, 5 future and/or residual damages, and medical bills not yet received. However Plaintiff reserves 6 the right to supplement and/or amend this Computation of Damages as discovery is continuing,” 7 but the disclosure “did not contain any information or details about spinal fusion surgery.” Id. 8 The disclosure indicated a recommendation of spinal fusion but indicated the plaintiff would not 9 undergo the procedure because of a recent heart attack. See id. The defendant discovered during 10 the deposition of the plaintiff’s treating physician that the plaintiff would in fact undergo spinal 11 fusion surgery, which would raise the damages estimate from about $57,000 to about $457,000. 12 (See id. at *1–2). 13 The defendant moved to exclude those damages under Rule 37 for failure to timely 14 disclose any estimate of them under Rule 26. Judge Johnston found that there was no substantial 15 justification for the plaintiff not to have disclosed an estimate of the costs of the spinal fusion 16 surgery in the damages calculations, because the defendant had not had the opportunity to seek 17 contrary evidence, such as an expert opinion. Id. at *2–3. Judge Johnston rejected the argument 18 that a medical authorization given to the defendant relieved the plaintiff of the affirmative duty 19 of disclosure. See id. at * 4. Judge Johnston found that the failure was not harmless, because the 20 disclosure was not made sufficiently before the discovery cut-off date to allow the defendant the 21 needed discovery. See id. Specifically, the expert witness disclosure deadline had passed four 22 days before the defendant discovered the undisclosed damages at the doctor’s deposition. See id. 23 It was therefore impossible for the defendant to have obtained an expert to rebut the damages 24 related to the spinal surgery. Judge Johnston found the appropriate sanction to be exclusion of 4 of 6 1 the undisclosed damages, because the only other way to remedy the prejudice of the loss of an 2 opportunity to obtain a rebuttal expert as to the newly discovered damages would be to reopen 3 discovery for additional expert reports, which would have prevented an expeditious resolution of 4 the litigation and cluttered the court’s docket. See id. at *5. Additionally, the defendant would 5 incur additional litigation expenses made necessary by the failure to disclose. 6 Here, the discovery cut-off date was March 15, 2016. (See Sched. Order 2). The 7 evidence submitted to the Magistrate Judge indicated that Plaintiff’s counsel informed 8 Defendant’s counsel four months earlier on November 16, 2015 that Plaintiff intended to have 9 spinal surgery and would be seeking damages based thereon, and that Plaintiff’s counsel 10 informed Defendant’s counsel on December 7, 2015 that Plaintiff had had the surgery. The 11 disclosure of the surgery costs was made in the December 18, 2015 supplemental disclosure, 12 which was three months before the discovery cut-off date and two months before the rebuttal 13 expert disclosure date. 14 The Magistrate Judge noted that a Plaintiff who is continuing to treat must estimate the 15 ultimate damages figure in her initial disclosures. See Montilla v. Wal-Mart Stores, Inc., No. 16 2:13-cv-2348, 2015 WL 5458781 (D. Nev. Sept. 16, 2015) (Ferenbach, M.J.) (collecting cases). 17 In Montilla, the Magistrate Judge noted that Rule 26(e) permits a party to correct damages 18 calculations to correct inaccuracies if she later learns of some material change but ruled that the 19 plaintiff there had abused the rule by “leading the opposing party blindly into the future by 20 revising her initial disclosures to her advantage after the initial-disclosure deadline expired,” 21 which “prevented Walmart from being able ‘to prepare for trial or make an informed decision 22 about settlement.’” Id. (quoting Fed. R. Civ. P. 26(a) advisory committee’s note to 1993 23 amendment). 24 5 of 6 1 In this case, however, the Court respectfully finds that the Magistrate Judge’s ruling 2 under Rule 37(c) was clearly erroneous. Here, the disputed disclosures were not made nearly as 3 late as in Montilla. The Court accepts Plaintiff’s argument that she did not know from her 4 experts that she would require future medical care or household services until immediately 5 before she made her Fifth Supplemental Disclosure on January 20, 2015. And to the extent she 6 should have known this based on her knowledge of her spinal surgery, Defendant should also 7 have known that those types of damages would be sought, and it knew of Plaintiff’s spinal 8 surgery four months before the discovery cut-off date. In summary, the Court finds that Plaintiff 9 did not “fail[] to provide information or identify a witness as required by Rule 26(a) or (e)” 10 under Rule 37(c)(1), because she made the relevant disclosures reasonably promptly under Rule 11 26(e). Even assuming a violation, in the spirit of Rule 1, Defendant’s concerns over trial strategy 12 could have been alleviated and the disclosure failure rendered harmless by extending discovery if 13 necessary (and perhaps charging the cost to Plaintiff), options still available to the Magistrate 14 Judge, as the injustice of excluding the vast majority of Plaintiff’s claimed damages outweighs 15 the additional time and cost, even if Defendant were made to bear it. CONCLUSION 16 17 18 19 20 IT IS HEREBY ORDERED that the Motion for the Court to Reconsider the Magistrate Judge’s Order (ECF No. 89) is GRANTED. IT IS SO ORDERED. Dated this 4th day of May, 2016. 2016. Dated this 7th day of September, 21 22 _____________________________________ ROBERT C. JONES United States District Judge 23 24 6 of 6