Isaac et al v. Forcillo et al, No. 2:2019cv01452 - Document 93 (D. Nev. 2022)
Court Description: ORDER Denying 68 Motion to Strike and Denying 70 Motion to Strike. IT IS FURTHER ORDERED that the parties must meet and confer regarding appropriate deadlines for completion of the above noted depositions and the provision of rebuttal expert reports by Defendants no later than 4/22/2022. IT IS FURTHER ORDERED that the parties must file a joint status report with the finalized schedule by 4/29/2022. Signed by Magistrate Judge Brenda Weksler on 4/14/2022. (Copies have been distributed pursuant to the NEF - KF)
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Isaac et al v. Forcillo et al Doc. 93 1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 *** 4 Darlene Isaac, et al., 5 Case No. 2:19-cv-01452-KJD-BNW Plaintiffs, ORDER re ECF Nos. 68 and 70 6 v. 7 Nicolas Forcillo, et al., 8 Defendants. 9 10 Before the Court, without oral argument, is Defendants’ motion to strike Plaintiffs’ untimely 11 expert reports and animation. ECF Nos. 68, 70. Plaintiffs opposed at ECF No. 73, and Defendants 12 replied at ECF No. 75. The Court requested supplemental briefing that the parties provided at ECF 13 Nos. 83 and 84. 14 For the reasons discussed below, the Court declines to impose the extreme exclusion 15 sanctions under Fed. R. Civ. P. 37(c)(1).1 To the extent Defendants contend that Plaintiffs’ expert 16 disclosures were incomplete and have prejudiced them, the fact that the Court will re-open expert 17 discovery for Defendants and direct Plaintiffs to bear the associated costs will cure any harm. 18 See Holen v. Jozic, No. C17-1147JLR, 2018 WL 5761775, at *2 (W.D. Wash. Nov. 2, 2018). 19 (“District courts are given ‘particularly wide latitude’ in determining whether to issue sanctions, 20 including the exclusion of evidence, under Rule 37(c)(1).”) (quoting Bess v. Cate, 422 F. App’x 569, 21 571 (9th Cir. 2011)). 22 // 23 1 24 25 26 27 28 The Court also highlights the plain language of Rule 37(c)(1). Rule 37(c)(1) provides courts with the discretion to exclude improper Rule 26 disclosures that are not “substantially justified” or “harmless.” But it also allows courts to impose additional or alternate sanctions: If a party fails to provide information or identify a witness as required by Rule 26(a) or (e), 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). Rule 37(c)(1) (emphasis added). 1 Dockets.Justia.com 1 I. Expert Reports 2 It is undisputed that the initial and rebuttal expert disclosure deadlines were January 19, 2021 3 and February 19, 2021, respectively. ECF No. 67. It also is undisputed that, on August 12, 2021, 4 Plaintiffs served their Third Supplemental Disclosure of Expert and Rebuttal Witnesses with six 5 previously undisclosed reports. What is, however, disputed is whether Plaintiffs’ disclosures 6 constituted “supplemental” disclosures, were “timely,” or were otherwise “substantially justified” 7 or “harmless” in their untimeliness. 8 Defendants argue that these reports are not supplements and that their disclosure was 9 untimely. ECF No. 68 at 5. They further contend that the delay in disclosure “is without justification” 10 and the “prejudice to the defense is obvious[,]” noting that Plaintiffs had “an unfair advantage of 11 having access to the entirety of Defendants’ expert opinions prior to preparing the untimely reports” 12 and that many of these disputed reports were not produced until “after many expert depositions were 13 completed.” Id. at 5, 10. Defendants’ concern, at least with respect to expert depositions, appears 14 focused on the disputed animation video. Id. at 10. 15 Plaintiffs counter that the disputed reports were “supplemental and rebuttal reports [that] 16 were disclosed by the close of discovery.” ECF No. 73 at 4. Without conceding the timeliness of the 17 reports, they also claim that any delay in their disclosure was “because the previous supervising 18 attorney on this case left” Plaintiffs’ counsel’s firm. Id. Plaintiffs further explain that the disputed 19 reports were disclosed “before the deposition of a number of experts” and, where the disclosure took 20 place after the expert’s deposition, there was no prejudice because Defendants asked for the expert’s 21 opinion that was also discussed in the disputed report. Id. at 4–5. 22 A. Legal Standard 23 Fed. R. Civ. P. 26(a)(2)(C) states that a party must make expert disclosures “at the times and 24 in the sequence that the court orders.” “If a party fails to provide information or identify a witness 25 as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply 26 evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is 27 harmless.” Fed. R. Civ. P. 37(c)(1). A court must exercise its broad discretion in determining whether 28 2 1 exclusion sanctions should be ordered, but if either exception is established, the court cannot impose 2 such sanctions. Silvagni v. Wal-Mart Stores, Inc., 320 F.R.D. 237, 242 (D. Nev. 2017) (citing Fed. 3 R. Civ. P. 37(c)(1)); Lanard Toys Ltd. v. Novelty, Inc., 375 F. App’x 705, 713 (9th Cir. 2010). 4 To determine whether a violation is either substantially justified or harmless,2 a court 5 considers several factors, including (1) the prejudice or surprise to the party against whom the 6 evidence is offered, (2) the ability of that party to cure the prejudice, (3) the likelihood of disruption 7 at trial, and (4) bad faith or willfulness involved in not timely disclosing the evidence. Lanard Toys 8 Ltd., 375 F. App’x at 713. This is “an equitable analysis entrusted to the Court’s discretion.” Silvagni, 9 320 F.R.D. at 242 (citing Goodman v. Staples The Office Superstore, LLC, 644 F.3d 817, 826 (9th 10 Cir. 2011)) (exercising discretion to deny exclusion sanction as a matter of “fairness” and to avoid 11 an “unjust” result). 12 If the court finds that a violation was neither substantially justified nor harmless, it must 13 then consider another set of factors in determining whether Rule 37(c)(1) exclusionary sanctions 14 are appropriate.3 Nat’l R.R. Passenger Corp. v. Young’s Com. Transfer, Inc., No. 15 113CV01506DADEPG, 2016 WL 1573262, at *2 (E.D. Cal. April 19, 2016). The five factors are 16 (1) the public’s interest in expeditious resolution of litigation, (2) the court’s need to manage its 17 docket, (3) the risk of prejudice to the defendants, (4) the public policy favoring disposition of 18 cases on their merits, and (5) the availability of less drastic sanctions. Wendt v. Host Int’l, Inc., 19 125 F.3d 806, 814 (9th Cir. 1997) (citing Wanderer v. Johnston, 910 F.2d 652, 656 (9th Cir. 20 1990)). 21 B. Disputed Reports 22 Here, expert disclosures are governed by this Court’s August 18, 2021 Scheduling Order that 23 set discovery to close on November 6, 2021 and maintained the initial and rebuttal expert disclosure 24 deadlines of January 19, 2021 and February 19, 2021, respectively. ECF No. 67. 25 26 While substantial justification “implicates the reason for the delay,” harmlessness “requires inquiry into resulting prejudice.” St. John v. Toyota Motor Sales, U.S.A., Inc., No. 810ML2151JVSFMOX, 2013 WL 12182029, at *2 (C.D. Cal. Aug. 20, 2013) (citations omitted). 3 Neither party addressed this legal standard in their initial or supplemental briefs. 2 27 28 3 1 With respect to the six disputed expert reports, the Court first must determine whether each 2 disclosure was a proper supplemental disclosure under Fed. R. Civ. P. 26. If it finds that it was not, 3 it next must determine whether the improper disclosure was either “substantially justified” or 4 “harmless.” Finally, if it finds that the disclosure was untimely, not substantially justified, and not 5 harmless, it must consider the five factors discussed above to determine whether imposing exclusion 6 sanctions is appropriate. 7 As a threshold matter, the Court finds that this matter is ripe to decide, as Plaintiffs have 8 noted in the proposed joint pretrial order (ECF Nos. 87, 90) that they will attempt to use the disputed 9 expert reports at trial. See, e.g., Elizondo v. SeaWorld Parks & Ent., Inc., No. 20-CV-00829-GPC- 10 BGS, 2021 WL 1626320, at *2 (S.D. Cal. Apr. 27, 2021). i. 11 Kenneth Hogan, D.C. 12 By way of background, on February 19, 2021, Plaintiffs filed an emergency motion seeking 13 a one-week extension (from February 19, 2021 to February 26, 2021) to disclose Dr. Hogan’s 14 rebuttal report. ECF No. 56. Because Plaintiffs noted that they were unable to properly confer with 15 Defendants, the Court issued a minute order directing the parties to meet and confer about the 16 proposed extension by February 26, 2021. ECF No. 57. In that same minute order, the Court directed 17 Plaintiffs to withdraw their motion by February 26, 2021 if they were able to resolve the matter 18 through the conferral process. Plaintiff subsequently withdrew their emergency motion on February 19 26. ECF No. 58. 20 In their supplemental briefing, Defendants withdrew their objection to Dr. Hogan’s February 21 23, 2021 report, noting, however, that the withdrawal was limited only to the instant motion to strike. 22 ECF No. 83 at 9. In light of the withdrawal, the Court will deny Defendants’ motion to strike Dr. 23 Hogan’s February 23, 2021 report as moot. ii. 24 Travis Snyder, D.O. 25 Dr. Snyder authored an initial report on October 19, 2020. ECF No. 84-2 at 2. Plaintiffs 26 disclosed that report on January 19, 2021, the deadline for initial disclosures. ECF No. 84-10 at 18– 27 22. 28 4 1 According to Plaintiffs, Dr. Snyder authored a “supplemental” report on April 16, 2021 after 2 receiving and reviewing a 2017 imaging study. ECF No. 84-3 at 3. Plaintiffs subsequently disclosed 3 the “supplemental” report on August 12, 2021. ECF No. 84 at 5. 4 Although the imaging study—a lumbar spine MRI—was performed in 2017 (and several 5 years before Dr. Snyder authored the initial report) Plaintiffs explain that, despite their requests for 6 the films, Defendants did not provide them with the study until “two days before the expert 7 disclosure deadline[.]”4 Id. at 4–5. And because of this last-minute disclosure, Dr. Snyder was unable 8 to review and update his report before the initial disclosure deadline. Id. Nonetheless, Dr. Snyder’s 9 opinions did not change after reviewing this 2017 study. Id. at 5. But, as Defendants correctly point 10 out, Dr. Snyder’s “supplemental” report referenced more than the 2017 MRI; it also referenced two 11 additional lumbar spine X-rays dated August 29, 2018 and October 12, 2018, respectively, and a 12 sinus CT dated February 5, 2020. ECF No. 83 at 7; ECF No. 84-3 at 3–4. Defendants also state that 13 “[e]ach of these studies was available long before the initial expert disclosure deadline.” ECF No. 14 83 at 7. But they do not explain how Dr. Snyder had these studies available to him at the time of the 15 initial disclosure deadline. 16 The Court finds that Dr. Snyder’s disputed report was a supplemental disclosure. Burger v. 17 Excel Contractors, Inc., No. 2:12-cr-01634-APG-CWH, 2013 WL 5781724, at *3 (D. Nev. Oct. 25, 18 2013) (setting out a two-part test in determining whether a supplement is really supplemental 19 under Rule 26(e): “(1) whether the supplemental information corresponds to a prior Rule 20 26(a) disclosure and, if so, (2) whether the supplemental information was available at the time set 21 for the initial disclosure”). First, Plaintiffs disclosed Dr. Snyder’s original report to Defendants with 22 their initial expert disclosures. ECF No. 84-10 at 18–22. Defendants were, therefore, on notice that 23 Dr. Snyder was a retained expert and of the extent of his testimony, which he affirmed following a 24 review of additional diagnostic studies. Compare ECF No. 84-2 at 2–9 with ECF No. 84-3 at 2–10. 25 Second, it appears that the supplemental imaging studies that Dr. Snyder reviewed in his disputed 26 Plaintiffs state that Defendants did not disclose the imaging study until “1/7/21,” though they also explain that this disclosure came only two days before the expert disclosure deadline. ECF No. 84 at 4. Given that the initial expert disclosure deadline was January 19, 2021, the Court understands the reference to January 7 (rather than January 17) to be a typographical error. 4 27 28 5 1 report were not reasonably available to him at the time of the initial disclosure deadline. See ECF 2 No. 84 at 4. Thus, Plaintiffs were not designating an entirely new expert under the guise of a 3 supplemental disclosure. They were, instead, fulfilling their obligation to supplement under Fed. R. 4 Civ. P. 26(e). 5 Plaintiffs could (and should) have disclosed Dr. Snyder’s supplemental report to Defendants 6 as soon as they received it in April 2021 (and the Court admonishes Plaintiffs’ counsel for not doing 7 so). But, at the same time, Defendants have not been prejudiced in that they were able to depose Dr. 8 Snyder about his opinions discussed in the supplemental report. See, e.g., ECF No. 84-5 at 4, 11, 9 13–16. Plaintiffs disclosed the supplemental report on August 12, 2021, and Defendants deposed 10 Dr. Snyder about a month later, on September 20, 2021.5 Compare ECF No. 68 at 10 with ECF No. 11 84-5 at 2. At that deposition, Defendants acknowledged that “there is a second report that was 12 recently produced. It’s dated April 16, 2021, but it’s the subject of a discovery dispute, so I would 13 like to focus on the initial report.” ECF No. 84-5 at 4. However, later in the deposition, Dr. Snyder, 14 in responding to Defendants’ questions regarding whether Plaintiff Harold Howman’s injuries were 15 acute, repeatedly referenced the September 2017 MRI. Id. at 13–14. 16 Therefore, even assuming that Dr. Snyder’s April 2021 report was untimely and that its 17 untimeliness was not substantially justified, the Court finds that Defendants were not harmed, as 18 they had an opportunity to question Dr. Snyder about the disputed report at his deposition that was 19 scheduled more than five weeks after receiving the disputed report. See NeSmith v. Cty. of San Diego, 20 No. 15-CV-629 JLS (AGS), 2022 WL 272011, at *16 (S.D. Cal. Jan. 28, 2022); Wong v. Regents of 21 Univ. of California, 410 F.3d 1052, 1060 (9th Cir. 2005) (explaining that “[d]eadlines must not be 22 enforced mindlessly, of course”); Southridge P’ship v. Aspen Specialty Ins. Co., No. C08-0931-JCC, 23 2010 WL 11523561, at *2 (W.D. Wash. Jan. 7, 2010) (“Although Plaintiff's counsel appears to have 24 been less rigorous in the preparation for trial than the Court would hope, its actions were harmless. 25 Defendant has been familiar with [the expert’s] opinions since the outset of trial and has already had 26 an opportunity to depose him.”). 27 28 5 Defendants filed the instant motion to strike on September 24, 2021. See ECF Nos. 68, 70. 6 1 Additionally, the Court finds that there is minimal likelihood of disruption at trial, as trial is 2 set for at least eight months away and neither party has filed dispositive motions. See ECF No. 90 3 (“Jury Trial set for 12/5/2022 at 09:00 AM in LV Courtroom 4A before Judge Kent J. Dawson”). 4 Moreover, the Court does not find that Plaintiffs acted with bad faith or willfulness in not timely 5 disclosing the evidence. Rather, it accepts Plaintiffs’ representation that the “third expert supplement 6 was delayed in their submission because the previous supervising attorney on this case left” 7 Plaintiffs’ counsel’s firm.6 ECF No. 84 at 3. Accordingly, the Court will not strike Dr. Snyder’s supplemental report. 8 iii. 9 David Oliveri, M.D. 10 Plaintiffs timely disclosed Dr. Oliveri’s initial report and first supplemental report. At dispute 11 is whether his third report dated March 29, 2021, and disclosed on August 12, 2021, is actually a 12 supplement or an untimely rebuttal report. 13 In the disputed report, Dr. Oliveri noted that he reviewed additional information, including 14 four imaging records, eight rebuttal reports, and MCV Physicians records and billings. ECF No. 69 15 at 16. He concluded that “[b]ased on my review of the other information and my review of my initial 16 report and two supplemental reports, my previously outlined conclusions and opinions are 17 unchanged.” Id. at 35. He also explained that his “direct review of imaging is consistent with 18 assumptions made when I authored my reports.” Id. Finally, he stated that he does not have 19 “comments with respect to the radiology rebuttal by Dr. Posin[,] the biomechanical analysis of Brian 20 Jones[, or] the rebuttal by Dr. Larmore.” Id. 21 Here, the Court finds that the third report is not entirely supplemental as Dr. Oliveri’s 22 opinion, though unchanged and not exceeding the scope of the first two reports, relied on eight 23 rebuttal reports, four imaging studies, and another set of medical records that either were or should 24 have been available to him at the time he submitted his first supplemental report on February 19, 25 2021. See Fed. R. Civ. P. 26(e); see also Burger, 2013 WL 5781724, at *3. 26 27 6 28 This explanation is further supported by the stipulations to extend discovery deadlines and their reference to personal issues affecting Plaintiffs’ counsel. See, e.g., ECF No. 66 at 4. 7 1 As noted above, and as Defendants correctly state, Fed. R. Civ. P. 26(e)’s supplementation 2 “means correcting inaccuracies, or filling the interstices of an incomplete report based on 3 information that was not available at the time of the initial disclosure.” Lo v. United States, No. 2:17- 4 CV-01202-RAJ, 2021 WL 5121745, at *1 (W.D. Wash. Nov. 3, 2021) (citations omitted). Plaintiffs 5 do not argue that Dr. Oliveri’s third report is correcting inaccuracies. Rather, their position is that 6 the doctor was updating his report because he did not have several medical records and expert reports 7 available to him prior to the February 19, 2021 rebuttal expert disclosure deadline. However, these 8 records appeared to have been disclosed by Defendants in March 2020, December 2020, and 9 February 2021. With respect to the February 2021 disclosures, Plaintiffs could have moved for an 10 extension (as they did with Dr. Hogan’s rebuttal report). But they did not. 11 Having found that Dr. Oliveri’s disputed report was not a supplement, the Court next 12 considers whether the failure to timely provide this third report was substantially justified or 13 harmless under Fed. R. Civ. P. 37(c)(1). 14 Assuming that the February 12, 2021 disclosures were not “reasonably” available to Dr. 15 Oliveri in time for him to meet the February 19, 2021 deadline, Plaintiffs have not explained how 16 the March and December 2020 disclosures were not “reasonably” available to him. As such, the 17 Court finds that Plaintiffs have not met their burden in showing that their untimely disclosure of Dr. 18 Oliveri’s third report was substantially justified. 19 The Court next considers whether the untimely disclosure harmed Defendants. Defendants 20 speak generally about the prejudice that they will experience. They note that they have deposed 21 many of Plaintiffs’ experts, though it is unclear, from the moving papers, whether they deposed Dr. 22 Oliveri prior to the disclosure of the disputed report. See ECF No. 68 at 10. That said, the Court was 23 able to confirm that Defendants deposed Dr. Oliveri on July 28, 2021, a few weeks before Plaintiffs 24 disclosed the disputed report. ECF No. 73 at 9. Defendants also generally argue that Plaintiffs have 25 “an unfair advantage of having access to the entirety of Defendants’ experts’ opinions prior to 26 preparing the untimely reports.” ECF No. 68 at 10. While many of the disputed reports were written 27 prior to the disclosure deadlines, Dr. Oliveri’s was written after—on March 29, 2021. ECF No. 84- 28 8 1 7 at 2. Finally, Defendants claim, without any specificity, that their experts “may” need to update 2 their rebuttal reports. ECF No. 68 at 10. 3 While this untimely disclosure of Dr. Oliveri’s third report could prejudice Defendants, there 4 is time to cure this minimal prejudice.7 First, despite being written after the rebuttal disclosure 5 deadlines, Dr. Oliveri’s report reads almost verbatim to his second report that was timely disclosed. 6 Compare ECF No. 84-6 with ECF No. 84-7. Aside from summarizing four imaging studies and eight 7 expert reports, his diagnoses and findings remain unchanged from his second (and timely) disclosed 8 report. Compare ECF No. 84-6 at 19 with ECF No. 84-7 at 21–22. Second, unlike in Yeti by Molly, 9 259 F.3d at 1105, where the disclosures occurred only 28 days before trial, there are still almost 8 10 months until trial in this case. Moreover, at the time Defendants filed the instant motion, there 11 remained over one month until discovery closed. Additionally, no dispositive motions have been 12 filed. Furthermore, the Court does not find that Plaintiffs acted with bad faith or willfulness in not 13 timely disclosing the evidence. 14 Thus, if Defendants find it necessary, there is time for the Court to reopen discovery for the 15 limited purpose of having Defendants re-depose Dr. Oliveri for the limited purpose of addressing 16 the additional imaging studies and reports8 and allowing Defendants’ rebuttal experts an opportunity 17 to update their reports in response only to the new language found in Dr. Oliveri’s third report.9 See, 18 e.g., Liberty Mut. Fire Ins. Co. v. Bosa Dev. Cal. II, Inc., No. 17CV666 AJB (BGS), 2019 WL 19 3554938, at *1 (S.D. Cal. Aug. 5, 2019) (finding that striking untimely disclosed expert reports was 20 “not warranted” and, instead, ordering the non-moving party to pay for the cost of deposing, for a 21 Even if the Court were to find that Plaintiffs’ untimely disclosures prejudiced Defendants and such prejudice could not be cured, the Court does not find that the five Wanderer factors weigh in favor of imposing Rule 37(c)(1) exclusion sanctions, particularly in light of the public policy favoring disposition of cases on their merits and the availability of less drastic sanctions. See Nat’l R.R. Passenger Corp., 2016 WL 1573262, at *2. 8 The Court orders that this deposition, if it takes place, to last no longer than one hour, to occur via Zoom or in person, and to take place within 30 days from the date of this Order. That additional deposition time cannot be spent for any other purpose. It further orders Plaintiffs’ counsel to bear the cost. See Liberty Mut. Fire Ins. Co., 2019 WL 3554938, at *1. 9 If they so choose, Defendants must obtain these rebuttal report(s) within 30 days from the date of this Order. Plaintiffs’ counsel is ordered to bear the (reasonable) cost. See Liberty Mut. Fire Ins. Co., 2019 WL 3554938, at *6 (noting that “there is time available to allow [the recipient of an untimely disclosure] a rebuttal expert(s) to respond to the combined initial and supplemental reports of each expert, so [the party] has not been denied an opportunity to fully rebut these opinions”). 7 22 23 24 25 26 27 28 9 1 second time, the expert who wrote the disputed report and further allowing the moving party an 2 opportunity to provide rebuttal expert(s)); Corbrus, LLC v. 8th Bridge Cap., Inc., No. 3 219CV10182CASAFMX, 2021 WL 4439220, at *6 (C.D. Cal. Aug. 9, 2021) (permitting the parties 4 leave to re-open the depositions of the experts who provided untimely disclosures because the 5 moving party “argued that it may be prejudiced because it was not adequately prepared to cross 6 examine” the expert at his deposition). iv. 7 8 William Muir, M.D. Dr. Muir prepared two reports that were timely disclosed by the initial and rebuttal expert 9 disclosure deadlines. ECF No. 83 at 6; ECF No. 84 at 8. At dispute is Dr. Muir’s third report dated 10 March 29, 2021. ECF No. 73 at 13; ECF No. 83 at 6–7. According to the report, Plaintiff’s expert 11 reviewed additional medical records (that Defendants argue were or should have been available to 12 him prior to the initial expert disclosure deadline) and rebuts several defense rebuttal expert reports. 13 ECF No. 83 at 6–7. 14 The Court finds that Dr. Muir’s disputed report is not entirely a supplement and, therefore, 15 is untimely. See Bessler v. City of Tempe, No. CV-19-04610-PHX-MTL, 2021 WL 3089104, at *12 16 (D. Ariz. July 22, 2021), amended on reconsideration in part, No. CV-19-04610-PHX-MTL, 2021 17 WL 4122247 (D. Ariz. Sept. 9, 2021) (internal quotation marks and citations omitted) (“Courts have 18 rejected supplemental expert disclosures where they attempted to deepen and strengthen the expert’s 19 prior reports with previously available information.”). This is so because it appears that—at least 20 with respect to the medical records—he had or should have had access to them prior to either expert 21 disclosure deadline. See ECF No. 84-9 at 4, 6 (Defendants’ disclosure of Holy Rosary Healthcare 22 and Ortho Montana records on March 23, 2020). 23 24 25 26 The Court next turns to whether this untimely disclosure was substantially justified or harmless. Plaintiffs have not met their burden in establishing that their untimely disclosure was substantially justified (or even justified). They simply gloss over this issue. ECF No. 73 at 13–14. 27 28 10 1 Plaintiffs, however, do argue that disclosing the disputed report after Dr. Muir was deposed 2 is harmless, as his opinions “remained constant” except with respect to his opinion on defense expert 3 Kathleen Hartman’s report. Id. at 14. They further claim that even the changed opinion is harmless 4 because Defendants discussed this opinion at his deposition. Id. Defendants counter that Dr. Muir’s 5 disputed report is prejudicial because its untimely disclosure precluded Ms. Hartman from 6 addressing his opinions “either in a rebuttal report or at deposition.” ECF No. 75 at 5–6. 7 As discussed above, the Court finds that there is time to cure the prejudice. 10 Thus, if 8 Defendants find it necessary, there is time for the Court to reopen discovery for the limited purpose 9 of having Defendants re-depose Ms. Hartman for the limited purpose of addressing Dr. Muir’s 10 opinions regarding her report11 and allowing her to update her report in response to Dr. Muir’s third 11 report.12 v. 12 Thomas/Terrence Clauretie, Ph.D.13 Plaintiffs timely disclosed Dr. Clauretie as an initial expert on January 19, 2021. ECF No. 13 14 83 at 8; ECF No. 84 at 9. On April 14, 2021, Dr. Clauretie authored a disputed report titled, in 15 pertinent part, “Response to the Rebuttal Reports of Dr. Eugenia Larmore, Ph.D.” ECF No. 83 at 8. 16 Defendants argue that Dr. Clauretie’s disputed report is a “sur-rebuttal report [that] should 17 be excluded at trial because the majority of documents relied upon were available prior to the initial 18 expert disclosure date.” Id. They further claim that his report “does not correspond to any of his 19 earlier reports and is inappropriate.” Id. They also generally note that their experts “were deprived 20 of the opportunity to address Mr. Clauretie’s additional opinions either in rebuttal reports or 21 deposition.” ECF No. 75 at 6. 22 10 23 24 25 26 27 28 Even if the Court were to find that Plaintiffs’ untimely disclosures prejudiced Defendants and such prejudice could not be cured, the Court does not find that the five Wanderer factors weigh in favor of imposing Rule 37(c)(1) exclusion sanctions, particularly in light of the public policy favoring disposition of cases on their merits and the availability of less drastic sanctions. See Nat’l R.R. Passenger Corp., 2016 WL 1573262, at *2. 11 The Court orders that this deposition, if it takes place, to last no longer than one hour, to occur via Zoom or in person, and to take place within 30 days from the date of this Order. That additional deposition time cannot be spent for any other purpose. It further orders Plaintiffs’ counsel to bear the cost. See Liberty Mut. Fire Ins. Co., 2019 WL 3554938, at *1. 12 Ms. Hartman must update her report within 30 days from the date of this Order. The update is limited only to replying to Dr. Muir’s opinions about her rebuttal report. Plaintiffs’ counsel is ordered to bear the (reasonable) cost. See Liberty Mut. Fire Ins. Co., 2019 WL 3554938, at *6. 13 Defendants refer to Dr. Clauretie as Terrence Clauretie (ECF No. 83 at 8) whereas Plaintiffs refer to him as Thomas Clauretie (ECF No. 73 at 15). 11 1 Plaintiffs counter that Defendants have not suffered any harm or prejudice as they were able 2 to question Dr. Clauretie about his opinions on Dr. Larmore’s report during his deposition, as he 3 specifically stated, on at least two occasions, that his opinions are “in response” to Dr. Larmore’s 4 findings. ECF No. 73 at 15–16. 5 When comparing Dr. Clauretie’s initial report (that was timely disclosed) with his disputed 6 report, it is clear, as Defendants argue, that the disputed report is exclusively a sur-rebuttal to defense 7 expert Dr. Larmore’s rebuttal report. Compare ECF No. 84-18 with ECF No. 84-20. 8 Although the Federal Rules of Civil Procedure are silent on sur-rebuttal expert reports, many 9 courts do not prohibit them, though they do require parties to seek leave of court before filing such 10 reports. Canyon Ests. Condo. Ass’n v. Atain Specialty Ins. Co., No. 2:18-CV-01761-RAJ, 2020 WL 11 3048016, at *1 (W.D. Wash. June 8, 2020). 12 Here, Plaintiffs did not seek leave of court (or obtain a stipulation) before disclosing Dr. 13 Clauretie’s sur-rebuttal report. Thus, the Court finds that the report was improperly disclosed under 14 Fed. R. Civ. P. 26. 15 The Court next addresses whether sanctions under Fed. R. Civ. P. 37(c)(1) are appropriate. 16 As addressed earlier, whether Plaintiffs’ failure to properly disclose Dr. Clauretie’s disputed report 17 is subject to discovery sanctions turns on whether the failure was substantially justified or harmless. 18 Plaintiffs have not shown that the failure to properly disclose the disputed report was 19 substantially justified. But they have shown that it was harmless. The Court finds that there is time 20 to cure this prejudice and do so in a way that does not necessarily delay the case. 14 Dr. Clauretie’s 21 report was provided before the close of discovery, sufficiently far before the trial date, and well 22 before dispositive motions deadlines. As such, the Court will reopen discovery for the limited 23 purpose of having Defendants re-depose Dr. Clauretie on his opinions related to Dr. Larmore’s 24 25 26 Even if the Court were to find that Plaintiffs’ untimely disclosures prejudiced Defendants and such prejudice could not be cured, the Court does not find that the five Wanderer factors weigh in favor of imposing Rule 37(c)(1) exclusion sanctions, particularly in light of the public policy favoring disposition of cases on their merits and the availability of less drastic sanctions. See Nat’l R.R. Passenger Corp., 2016 WL 1573262, at *2. 14 27 28 12 1 February 16, 2021 report15 and allowing Dr. Larmore an opportunity to update her report in response 2 to Dr. Clauretie’s third report dated April 14, 2021.16 vi. 3 Ira Spector, M.S., C.R.C. 4 Mr. Spector is a certified rehabilitation counselor whose initial and rebuttal expert reports 5 were timely disclosed on January 19, 2021 and February 19, 2021, respectively. See ECF No. 84-10 6 at 12; ECF No. 84-11 at 15. He authored a third “supplemental” report (dated March 17, 2021) that 7 opined on Plaintiff Darlene Isaac’s loss of earning capacity. ECF No. 69 at 36, 43. In authoring the 8 disputed report, Mr. Spector noted that he reviewed three additional documents: Ms. Isaac’s 9 deposition transcript, James Wilcher’s rebuttal and supplemental report dated February 15, 2021, 17 10 and Eugenia Larmore’s economic loss of earning capacity report dated February 16, 2021. Id. at 36. 11 Mr. Spector’s report rebutted both Mr. Wilcher and Dr. Larmore’s opinions. Id. at 36–40. 12 Here, the Court finds that Mr. Spector’s disputed report is not entirely a supplement. While 13 the Court finds that Mr. Spector’s disputed report includes supplemental information that 14 corresponds to a prior Rule 26(a) disclosure, it also finds that this supplemental information was 15 available to him at the time he authored his second report. See Fed. R. Civ. P. 26(e). Specifically, 16 information relating to Ms. Isaac’s deposition transcript was, as Plaintiffs concede, available to Mr. 17 Spector well before his February 15, 2021 rebuttal report. ECF No. 84 at 11. 18 Having found that Mr. Spector’s disputed report was not entirely a supplement, the Court 19 next considers whether the failure to timely provide this third report was substantially justified or 20 harmless under Fed. R. Civ. P. 37(c)(1). 21 The Court finds that Plaintiffs have not met their burden in showing that their untimely 22 disclosure of Mr. Spector’s third report was substantially justified. Plaintiffs concede that Mr. 23 15 24 25 26 27 28 The Court orders that this deposition, if it takes place, to last no longer than one hour, to occur via Zoom or in person, and to take place within 30 days from the date of this Order. That additional deposition time cannot be spent for any other purpose. It further orders Plaintiffs’ counsel to bear the cost. See Liberty Mut. Fire Ins. Co., 2019 WL 3554938, at *1. 16 Dr. Larmore must update her report within 30 days from the date of this Order. The update is limited only to replying to Dr. Clauretie’s opinions about her rebuttal report. Plaintiffs’ counsel is ordered to bear the (reasonable) cost. See Liberty Mut. Fire Ins. Co., 2019 WL 3554938, at *6. 17 According to Plaintiffs’ February 19, 2021 disclosures, Mr. Spector reviewed Mr. Wilcher’s expert report and video interview. ECF No. 84-11 at 17. It is, therefore, unclear whether Mr. Spector’s reference to Mr. Wilcher’s February 15, 2021 report as a new document that he reviewed in authoring the disputed report is a typographical error. 13 1 Spector had access to both Ms. Isaac’s deposition transcript and Mr. Wilcher’s report, though they 2 do not address whether he had access to Dr. Larmore’s report before the rebuttal expert disclosure 3 deadline. Plaintiffs could have moved for an extension (as they did for Mr. Hogan’s expert report), 4 but they did not. The Court next turns to whether Plaintiffs’ untimely disclosure of Mr. Spector’s disputed 5 6 report prejudiced Defendants. 7 In their reply, Defendants explain that they were prejudiced because they deposed Mr. 8 Spector before receiving his disputed report and because their experts “were not given the 9 opportunity to address” his opinions provided in the disputed report. ECF No. 75 at 6. 10 The Court finds that there is time to cure this prejudice and do so in a way that does not 11 necessarily delay the case.18 Mr. Spector’s report was provided before the close of discovery, 12 sufficiently far before the trial date, and well before dispositive motions deadlines. As such, the 13 Court will reopen discovery for the limited purpose of having Defendants re-depose Mr. Spector for 14 the limited purpose of addressing his opinions related to Ms. Isaac’s deposition, Mr. Wilcher’s 15 February 15, 2021 report, and Dr. Larmore’s February 16, 2021 report19 and allowing Defendants’ 16 rebuttal experts an opportunity to update their reports in response to Mr. Spector’s third report dated 17 March 17, 2021.20 18 II. Animation Video 19 Defendants move the Court to strike Plaintiffs’ animation video as untimely, reasoning that 20 the animation was not subject to the expert disclosure deadlines because it “allegedly used the 21 Defendants’ accident reconstruction video created by defense expert Erik Johnson of Rimkus, as a 22 23 24 25 26 27 28 Even if the Court were to find that Plaintiffs’ untimely disclosures prejudiced Defendants and such prejudice could not be cured, the Court does not find that factors weigh in favor of imposing Rule 37(c)(1) exclusion sanctions, particularly in light of the public policy favoring disposition of cases on their merits and the availability of less drastic sanctions. See Nat’l R.R. Passenger Corp., 2016 WL 1573262, at *2. 19 The Court orders that this deposition, if it takes place, to last no longer than one hour, to occur via Zoom or in person, and to take place within 30 days from the date of this Order. That additional deposition time cannot be spent for any other purpose. It further orders Plaintiffs’ counsel to bear the cost. See Liberty Mut. Fire Ins. Co., 2019 WL 3554938, at *1. 20 If Defendants so choose, Dr. Larmore and Mr. Wilcher must update their reports within 30 days from the date of this Order. The update is limited only to replying to Mr. Spector’s opinions about their reports. Plaintiffs’ counsel is ordered to bear the (reasonable) cost. See Liberty Mut. Fire Ins. Co., 2019 WL 3554938, at *6. 18 14 1 basis for the animation[.]” ECF No. 68 at 5–6. Plaintiffs counter that the video is not expert evidence 2 but, rather, demonstrative evidence and, therefore, not subject to the expert disclosure deadlines. 3 ECF No. 73 at 5. The Court agrees with Plaintiffs. 4 “Computer animations are allowed in the Ninth Circuit.” Allison v. Smoot Enterprises Inc., 5 2019 WL 5095779, at *4 (D. Oregon 2019). Additionally, they are generally considered 6 demonstrative evidence. See, e.g., Friend v. Time Mfg. Co., 2006 WL 2135807, at *20 (D. Ariz. July 7 28, 2006) (“The use of computer animations is allowed when it satisfies the foundational 8 requirements for demonstrative evidence.). 9 “[D]emonstrative exhibits that merely support an expert’s analysis, or ‘demonstrate existing 10 expert opinion in the record,’ do not fall within the scope of FRCP 26(a)(2)(B)’s pretrial disclosure 11 requirements.” In re SFPP Right-of-Way Claims, No. SACV 15-00718 JVS (DFMx), 2017 WL 12 2378363, at *7–*8 (C.D. Cal. May 23, 2017); see also Rodriguez v. Vill. of Port Chester, 535 F. 13 Supp. 3d 202, 217-18 (S.D.N.Y. 2021) (explaining that demonstrative exhibits do not “fit 14 comfortably within the disclosure requirements” of FRCP 26 because they normally do not exist at 15 the outset of a case and stating that there exists no requirement to disclose such materials at a specific 16 time; it is within the trial court’s “discretion to require parties to make pretrial disclosures of such 17 materials by specific deadlines”). 18 Here, Plaintiffs created an animated video depicting what they believe occurred on the day 19 of the accident. This constitutes demonstrative evidence and, therefore, is not subject to pretrial 20 disclosure. Accordingly, the Court finds that Plaintiffs’ disclosure of the demonstrative animation 21 was not untimely.21 22 III. Conclusion and Order 23 Other than the sanctions of fees and costs related to Plaintiffs’ untimely disclosure of Dr. 24 Clauretie, Dr. Muir, Dr. Oliveri, and Mr. Spector’s expert reports set forth above, IT IS ORDERED 25 that Defendants’ Motion to Strike (ECF Nos. 68, 70) is DENIED. 26 27 21 28 Notably, the Court is not addressing whether Plaintiff may introduce the video at trial, as this question is best addressed in a motion in limine. 15 1 IT IS FURTHER ORDERED that the parties must meet and confer regarding appropriate 2 deadlines for completion of the above noted depositions and the provision of rebuttal expert reports 3 by Defendants no later than April 22, 2022. 4 5 IT IS FURTHER ORDERED that the parties must file a joint status report with the finalized schedule by April 29, 2022. 6 7 DATED: April 14, 2022. 8 9 10 BRENDA WEKSLER UNITED STATES MAGISTRATE JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 16
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