Aguirre Guerra v. Dematic Corp.

• Court: District Court, D. Nevada
• Decided: April 8, 2022
• Docket: 3:18-cv-00376
• Status: Unknown

Opinion

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 * * *

4 GUISELA AGUIRRE GUERRA, Case No. 3:18-CV-00376-LRH-CLB

5 Plaintiff, ORDER GRANTING MOTION TO STRIKE PLAINTIFF’S SUPPLEMENTAL EXPERT 6 v. REPORT AND GRANTING SUPPLEMENTS TO MOTION TO STRIKE 7 DEMATIC CORP., et al.,

8 Defendants. [ECF Nos. 117, 121, 123] 9

10 Before the Court is Defendant Dematic Corp.’s, (“Dematic”) motion to strike 11 Plaintiff Guisela Aguirre Guerra’s (“Guerra”) supplemental expert report by Dr. Brian 12 Bantum (“Dr. Bantum”). (ECF Nos. 117, 119, 121, 123.)1 Guerra opposed the motion, 13 (ECF No. 125), and Dematic replied. (ECF No. 126.) Having thoroughly reviewed the 14 record and papers, Dematic’s motion to strike (ECF No. 117) and supplements to the 15 motion to strike (ECF Nos. 121, 123) are granted, for the reasons stated herein. 16 I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY 17 On July 11, 2018, Guerra filed a complaint against Dematic in state court alleging 18 that it negligently caused, and is strictly liable for, an injury Guerra obtained while working 19 for Sally Beauty Supply, LLC (“Sally Beauty”). (ECF No. 1-1). Specifically, Guerra alleges 20 that a lift gate—manufactured and installed by Dematic—which allows the user to pass 21 through a portion of the conveyor belt system in Sally Beauty’s warehouse, injured 22 Guerra’s right arm on June 15, 2016. (ECF No. 1-1 at 5-6.) Dematic removed the case to 23 this Court on August 8, 2018, pursuant to 28 U.S.C. § 1441. (ECF No. 1.) 24 Discovery deadlines have been extended numerous times throughout this case. 25 On July 28, 2021, the parties filed a seventh stipulation for extension of time to complete 26

27 1 ECF Nos. 121 and 123 are supplements to ECF No. 117, which is the motion to strike. ECF No. 119 is a joinder to the motion to strike filed by Third Party Defendant Sally 1 discovery, which the Court granted. (ECF Nos. 97, 98.) Pursuant to the July 28, 2021 2 scheduling order, initial expert reports were due August 13, 2021, rebuttal expert 3 disclosures were due September 10, 2021, and the close of discovery was December 30, 4 2021. (ECF No. 98.) 5 On August 20, 2021, the parties filed a joint notice of discovery dispute. (ECF No. 6 100.) Dematic requested to continue discovery due to Guerra disclosing a new left 7 shoulder injury, while Guerra disagreed with a continuance. (Id.) Dematic claimed it would 8 be prejudiced because it could not conduct a full functional capacity evaluation to test the 9 accuracy or validity of opinions of Guerra’s expert witness, Rhonda Fiorillo—who gave an 10 opinion from her July 2, 2018 functional capacity evaluation—due to Guerra’s new left 11 shoulder injury. (Id.) The notice further stated, “[t]here is no dispute that the parties’ 12 experts can supplement their reports to take [Guerra’s] new left shoulder injury into 13 account to give opinions as to whether it is related to or caused by [Guerra’s] original right 14 arm injury.” (Id. at 3.) On August 23, 2021, the Court held a hearing regarding the notice 15 of discovery dispute. (ECF No. 101.) Counsel for Dematic and Sally Beauty advised the 16 Court that they intended to re-depose Guerra and depose other witnesses based on 17 Guerra’s newly disclosed injury but felt this could be completed within the current 18 discovery deadline of December 31, 2021. (ECF No. 102.) The Court denied the notice 19 without prejudice and tabled the issue for a later case management conference. (Id.) 20 On December 6, 2021, the Court held another case management conference. 21 (ECF No. 108.) Dematic requested an extension of discovery for the limited purpose of 22 completing expert and witness depositions. (Id.) The Court granted the limited extension 23 and set the close of discovery to complete expert and witness depositions for February 24 28, 2022. (Id.) The Court further advised the parties that no further case management 25 conferences would be scheduled and if discovery issues arose, counsel should file formal 26 discovery motions for the Court’s consideration. (Id.) 27 The instant motion arises out of Dematic’s assertion that an expert report from 1 Guerra claims she injured her left arm while working for Sally Beauty. (See ECF No. 117- 2 2 at 10.) Thus, Dr. Bantum issued a “supplemental” expert report on October 30, 2021, 3 with the opinion that the May 27, 2021 injury was caused by the original incident on June 4 15, 2016. (Id. at 13-16.) The expert report was disclosed to Dematic on November 9, 5 2021, as part of Guerra’s Eleventh Supplemental FRCP 26 disclosures. (Id. at 2-12.) 6 Dematic asserts there is an unjustifiable delay of 88 days between when Guerra 7 was required to disclose her expert report and when she actually disclosed the expert 8 report. (ECF No. 117.) Dematic requests the Court strike Dr. Bantum’s October 30, 2021 9 expert report as untimely. (Id.) 10 On February 8, 2022, Dematic filed a supplement to its original motion to strike 11 Guerra’s expert report asserting that Guerra had disclosed another untimely 12 Supplemental Expert Report by Dr. Bantum dated February 5, 2022, regarding Guerra’s 13 May 2021 left shoulder injury. (ECF No. 121.) This supplemental expert report involved 14 Dr. Bantum reviewing Guerra’s medical records from August 26, 2005, to January 19, 15 2022. (ECF No. 121-1 at 16-22.) Dematic again argues that Dr. Bantum should have 16 issued any opinions related to all available records prior to the initial expert report 17 deadline. (ECF No. 121.) In addition, Dr. Bantum opines that Guerra will require future 18 medical care regarding the left shoulder. (ECF No. 121-1 at 22-23.) Dematic argues this 19 opinion is untimely for the same reasons made in the moving Motion, but also that the 20 opinions in the February 5, 2022 report lack sufficient foundation and should also be 21 stricken. (ECF No. 121.) 22 On February 9, 2022, Dematic filed a second supplement to its original motion to 23 strike Guerra’s expert report asserting that Guerra had disclosed an addendum to the 24 February 5, 2022 expert report by Dr. Bantum. (ECF No. 123.) Dematic argues this 25 addendum report must also be stricken because it was untimely disclosed and lacks 26 proper foundation. (Id.) 27 Guerra filed an opposition to the motion to strike and supplements thereto. (ECF 1 in their August 20, 2021 joint notice of discovery dispute that the parties’ experts could 2 supplement their reports to take into account Guerra’s new left shoulder injury. (Id. at 2.) 3 Guerra asserts that because she continues to receive additional medical care and claims 4 on-going and future medical damages, she is required to supplement when new and 5 additional information becomes available. (Id.) 6 II. LEGAL STANDARDS 7 Under the Federal Rules of Civil Procedure, the initial disclosures of expert 8 opinions are conducted in accordance with the timeframe set by a scheduling order or, if 9 no order is entered, pursuant to the timeframe stated in the Rules. Fed. R. Civ. P. 10 26(a)(2)(B). The Rules require the initial disclosure of an expert’s opinion to be “a 11 complete statement of all opinions the witness will express and the basis and reasons for 12 them.” Fed. R. Civ. P. 26(a)(2)(B)(i). “A party must make its initial disclosures based on 13 the information then reasonably available to it.” Fed. R. Civ. P. 26(a)(1)(E). After initial 14 disclosures are made, a party is required to supplement the initial disclosure “in only three 15 situations: 1) upon court order; 2) when the party learns that the earlier information is 16 inaccurate or incomplete; or 3) when answers to discovery requests are inaccurate or 17 incomplete.” Keener v. United States, 181 F.R.D. 639, 640 (D. Mont. 1998); see also Fed. 18 R. Civ. P. 26(e)(1). 19 Supplementation “means correcting the interstices of an incomplete report based 20 on information that was not available at the time of disclosure.” Keener, 181 F.R.D. at 21 640. If the second disclosure presents “rebuttal evidence,” the disclosure must be 22 submitted in accord with Rule 26(a)(2)(D)(ii). Id. Evidence is “rebuttal” evidence when it 23 is “intended solely to contradict or rebut evidence on the same subject matter identified 24 by another party under paragraph(a)(2)(B),” and must be made “within 30 days after the 25 disclosure made by the other party.” Fed. R. Civ. P. 26(a)(2)(D)(ii); see also Keener, 181 26 F.R.D. at 640. 27 Rule 26(e) “creates a ‘duty to supplement,’ not a right.” Luke v. Family Care & 1 loophole through which a party who submits partial expert witness disclosures, or who 2 wishes to revise her disclosures in light of her opponent’s challenges to the analysis and 3 conclusions there in, can add to them to her advantage after the court’s deadline has 4 passed.” Id. Overall, Rule 26(e) “does not give license to sandbag one’s opponent with 5 claims and issues which should have been included in the expert witness’ report.” Beller 6 ex rel. Beller v. United States, 221 F.R.D. 689, 695 (D.N.M. 2003). 7 “To countenance a dramatic, pointed variation of an expert’s disclosure under the 8 guise of Rule 26(e)(1) supplementation would be to invite the proverbial fox into the 9 henhouse. The experienced expert could simply ‘lie in wait’ so as to express his genuine 10 opinions only after [the opposing party] discloses hers.” Keener, 181 F.R.D. at 641. 11 III. DISCUSSION 12 Guerra asserts that Dr. Bantum’s October 30, 2021 report was a permissible 13 supplementation of his initial expert opinion. In his October 30, 2021 report, Dr. Bantum 14 asserts that the purpose of the report “is to assess if there is a connection between 15 [Guerra’s] May 27, 2021 left shoulder injury and her previous right upper extremity injury.” 16 (ECF No. 117-2 at 13.) However, Dr. Bantum’s initial expert opinion did not include or 17 discuss the possibility or foreseeability that Guerra could injury another limb five years 18 after the initial injury at issue in this case. Thus, this report contained all new causation 19 opinions related to Guerra’s new injury. To allow free “supplementation” would 20 “circumvent the full disclosure requirement implicit in Rule 26. . .” and there would be no 21 finality to expert reports. Beller, 221 F.R.D. at 701-702. In fact, it appears in some 22 instances Guerra took the opportunity to “supplement” as an open door to add information 23 that is improper under the Rules. Dr. Bantum’s opinions in his October 30, 2021 were not 24 “supplementing” his initial report, as his opinions as to causation did not address errors 25 or new information but instead sought to add information that should have been included 26 in an initial report. As such, Guerra had a duty to disclose Dr. Bantum’s initial expert 27 opinion related to causation for the May injury before the August 13, 2021 initial expert 1 Dr. Bantum’s report states that he reviewed the following: (1) Guerra’s September 2 24, 2020 and October 2, 2020 depositions; (2) Guerra’s June 1, 2021 reporting of the May 3 27, 2021 injury; (3) Dr. Jarvis’s treatment records, dated June 1, 2021 through June 10, 4 2021; (4) MRI, dated July 30, 2021; and (5) Dr. Dobbs’s treatment records, dated August 5 30, 2021, September 27, 2021, and October 25, 2021. (Id. at 13-15.) All the referenced 6 documents, aside from those from Dr. Dobbs, were available well before the August 13, 7 2021 initial expert report deadline. Thus, Guerra not only should have disclosed Dr. 8 Bantum’s initial opinions related to causation before the initial expert report deadline, but 9 based on his own report, it is clear he had the information available to do so in a timely 10 manner. If Guerra had timely disclosed Dr. Bantum’s expert opinion, any further 11 supplementation to that initial report—such as his opinions related to Dr. Dobbs’s 12 treatment records—would have been appropriate to supplement at a later date. Thus, 13 because Dr. Bantum’s initial opinions on causation were untimely disclosed, all 14 subsequent reports as to causation, including the February 5, 2022 and February 9, 2022 15 reports are also untimely. 16 Having determined that Dr. Bantum’s expert reports were untimely filed, the Court 17 must next determine the appropriate sanction that should be imposed. Dematic requests 18 the imposition of sanctions, specifically that the report and supplements thereto be 19 stricken, for the untimely disclosure of the expert report under Rule 37(c). (ECF No. 117 20 at 7-8). 21 Rule 37(c)(1) permits the Court to implement sanctions that include the payment 22 of reasonable expenses, striking documents in whole or in part, and barring the use of 23 information to supply evidence at a motion, hearing or trial. Fed. R. Civ. P. 37(c)(1)(A)- 24 (C). Rule 37(c)(1) “was intended to foster stricter adherence to discovery requirements 25 and to broaden the power of the district court to sanction violations of Rule 26.” Yeti by 26 Molly, Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 1106 (9th Cir. 2001). “Two express 27 exceptions ameliorate the harshness of Rule 37(c)(1): the information may be introduced 1 harmless.” Id. (citing Fed. R. Civ. P. 37(c)(1)). To determine whether substantial 2 justification and harmlessness exist, the Court looks to several factors, including “(1) 3 prejudice or surprise to the party against whom the evidence is offered; (2) the ability of 4 that party to cure the prejudice; (3) the likelihood of disruption of trial; and (4) bad faith or 5 willfulness in not timely disclosing the evidence.” Silvagni, 320 F.R.D. at 242. Ultimately, 6 “this is an equitable analysis entrusted to the Court’s discretion.” Id. 7 Dematic was certainly surprised by the untimely disclosed report, as it was 8 received after the initial expert and rebuttal expert disclosure deadlines. The untimely 9 disclosure caused Dematic to be unable to have an opportunity to retain a rebuttal expert 10 or perform a medical evaluation on the cause of the original injury at issue. Any remedy involving permitting Dematic additional discovery would necessitate continuance of the 11 discovery deadlines, which is unreasonable at this juncture in the litigation, especially 12 given discovery has closed and dispositive motions have already been filed—ECF Nos. 13 136, 137. Dematic is undoubtedly prejudiced by the untimely disclosure and does not 14 have the ability to cure the prejudice. Guerra does not provide a sufficient explanation as 15 to why Dr. Bantum was unable to issue his initial expert opinion as to causation by the 16 initial expert report deadline. There has been no showing that Guerra’s failure to disclose 17 the report was substantially justified or harmless. For all these reasons, the Court grants 18 Dematic’s motions to strike (ECF Nos. 117, 121, 123) and hereby strikes Dr. Bantum’s 19 October 30, 2021, February 5, 2022, and February 9, 2022 expert reports as untimely. 20 IV. CONCLUSION 21 Consistent with the above, IT IS ORDERED that Dematic’s motions to strike (ECF 22 Nos. 117, 121, 123) are GRANTED; and, 23 IT IS FURTHER ORDERED that the information contained in Dr. Bantum’s 24 October 30, 2021, February 5, 2022, and February 9, 2022 reports be STRICKEN. 25 IT IS SO ORDERED. 26 DATED: _A_p_r_il_ 8_,_ 2_0_2_2_______. 27 UNITED STATES MAGISTRATE JUDGE