1 2 3 4 5 6 7 10 11 LARISSA ARAUJO (SURVIVAL Case No.: 20-cv-01800-AJB-MMP ACTION), et al., 12 ORDER: Plaintiffs, 13 v. (1) DENYING AS MOOT 14 DEFENDANTS’ MOTION TO COACHELLA VALLEY WATER 15 EXCLUDE EXPERT OPINION DISTRICT; JOSUE GONZALEZ; and TESTIMONY ON COSTS OF 16 DOES 1 TO 25, inclusive, MEDICAL CARE 17 Defendants. 18 COACHELLA VALLEY WATER (2) GRANTING IN PART AND DISTRICT, DENYING IN PART DEFENDANTS’ 19 MOTION TO EXCLUDE EXPERT Cross-Complainant, OPINIONS OF MARCOS KRUSE; 20 v. AND 21 COUNTY OF IMPERIAL, a Public (3) GRANTING IN PART AND 22 Entity; and DOES 1-10, inclusive, DENYING IN PART PLAINTIFFS’ 23 MOTION TO EXCLUDE EXPERT 24 Cross-Defendant. WITNESSES
25 (Doc. Nos. 182, 183, 184)
27 Presently before the Court are several motions to exclude expert witnesses by 28 1 Plaintiffs Larissa Araujo (Survival Action), Jose Carlos De Araujo, Helenilza Maria 2 Oliveira De Araujo, Andressa Dos-Santos (Survival Action), Renato Dos Santos, and 3 Maria Tereza De Carvalho’s (collectively, “Plaintiffs”) and Defendants CVWD and Josue 4 Gonzalez (collectively, “Defendants”). On September 11, 2023, the Parties attended a 5 hearing on the motion. After considering the Parties’ motions, the applicable law, and the 6 arguments raised at the hearing, the Court DENIES AS MOOT Defendants’ motion to 7 limit expert opinion testimony on cost of medical care, (Doc. No. 182), GRANTS IN 8 PART AND DENIES IN PART Defendants’ motion to the exclude expert opinion 9 testimony of Marcos Kruse, (Doc. No. 183), and GRANTS IN PART AND DENIES IN 10 PART Plaintiffs’ motion to exclude experts Reza Marshal and John Gay at trial, (Doc. No. 11 184). 13 This action arises out of a tragic accident that occurred in unincorporated Imperial 14 County. On October 2, 2019, Cross-Defendant Andre Dos-Santos De-Sa was driving a 15 Hyundai Elantra when he, along with Plaintiffs Larissa Araujo and Andressa Dos Santos, 16 were involved in a two-car, broadside collision with a van driven by Defendant Josue 17 Gonzalez, an employee of Defendant CVWD. (Doc. No. 109-1 at 9.) The automobile 18 accident resulted in the death of two decedents, Larissa Araujo and Andressa Dos Santos. 19 (Id. at 10.) 20 On October 15, 2021, the County filed a motion for summary judgment. (Doc. No. 21 59.) On January 14, 2022, the Court denied the County’s motion. (Doc. No. 93.) On 22 January 9, 2023, the Court granted the Parties’ joint motion to dismiss County of Imperial’s 23 third-party Complaint against Imperial Irrigation District. (Doc. No. 154.) On January 10, 24 2023, the Court granted Cross-Defendant Andre Dos-Santos De-Sa’s motion for 25 determination of good faith settlement with Plaintiffs. (Doc. No. 155.) On February 16, 26 2023, the Court granted Plaintiffs’ motion to dismiss the County of Imperial pursuant to a 27 settlement agreement. (Doc. No. 162.) 28 On July 6, 2023, the Parties attended the Final Pretrial Conference at which the 1 Parties requested they brief Plaintiffs’ objections to experts Reza Marshal and John Gay 2 testifying at trial. (See Doc. No. 177.) The Parties filed their respective briefs on August 7, 3 2023, (Doc. Nos. 182–84), and their respective responses on August 21, 2023, (Doc. Nos. 4 185–87). Thereafter, on September 11, 2023, the Parties attended a hearing on the matter. 5 This order follows. 6 II. DEFENDANTS’ MOTION TO LIMIT EXPERT OPINION TESTIMONY ON 8 During the September 11, 2023 hearing on the instant motions, the Parties 9 represented to the Court that they had reached an understanding regarding this motion, 10 rendering it moot. As such, the Court DENIES the motion as MOOT. (Doc. No. 182.) 11 III. DEFENDANTS’ MOTION TO EXCLUDE EXPERT OPINION TESTIMONY 13 Upon review of the Parties’ arguments and considering Evidence Rules 401 and 403, 14 the Court DENIES Defendants’ motion to exclude the expert opinion testimony of Mr. 15 Kruse and will allow Mr. Kruse to testify as to his opinion of the economic loss of future 16 income/economic capacity as stated in his opinion report. (Doc. No. 183.) Specifically, as 17 to Larissa Araujo, Mr. Kruse may testify as to the net salary of a college graduate working 18 in Brazil for a multi-national company until age 62, net salary meaning salary less tax, 19 insurance, meal voucher, transportation. Mr. Kruse’s opinion regarding Andressa Dos 20 Santos will be allowed for her as a college graduate and as an advertising and marketing 21 manager in Brazil—again, in net salary until age 62. 22 However, Defendants’ motion to exclude is GRANTED to the extent that Mr. Kruse 23 may not testify about Brazilian law jurisprudence, (see, e.g., Doc. No. 186-4 at 5 n.2), 24 damage models or compensation plans, or pain and suffering, monetized or otherwise. He 25 may not suggest that the totality of the earning capacity or any part thereof will be what 26 decedents would have contributed to family members as there is no basis stated for that 27 proposition. Finally, he may not testify about Araujo’s religious character or religious 28 plans, goals, etc., (see, e.g., id. at 8), as it is irrelevant and highly prejudicial. 1 Mr. Kruse will be open to full cross examination on the methodology and a motion 2 to strike any other opinions. 4 A. Reza Marshal 5 Plaintiffs first seek to preclude Defendants from calling Plaintiffs’ expert, Reza 6 Marshal, as a witness or using his expert report. (See Doc. No. 184 at 10–22.) Plaintiffs 7 designated Mr. Marshal in their Rule 26 Disclosure on October 4, 2021. (Doc. No. 185 at 8 2.) Thereafter, Mr. Marshal provided his written expert report, filed a declaration on behalf 9 of Plaintiffs, and was deposed. (Id.) Mr. Marshal was thereafter de-designated on March 10 13, 2023, after settling their claims with the County of Imperial, a former defendant in this 11 case. (Id.) 12 Plaintiffs argue under Fed. R. Civ. P. 26(b)(4)(D)(ii) and Lehan v. Ambassador 13 Programs, Inc., 190 F.R.D. 670, 671 (E.D. Wash. 2000), one party may not call the 14 opposing party’s witness except in “exceptional circumstances” and no such exceptional 15 circumstances exist here. (Doc. No. 184 at 15–17.) Plaintiffs further assert Defendants 16 previously retained their own traffic engineer, Edward Ruzak, who the Court previously 17 excluded under Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 592–93 (1993), (see 18 Doc. No. 143), and because Defendants “failed to provide Mr. Ruzak with the necessary 19 evidence to formulate his opinions and that failure resulted in Mr. Ruzak’s exclusion[,]” 20 there are no exceptional circumstances here. (Doc. No. 184 at 17–19.) Defendants respond 21 that under Fed. R. Civ. P. 26(b)(4)(A), once an expert witness has been designated to testify 22 at trial, has submitted a report, and has been deposed, the opposing party’s demand to 23 depose and use the expert at trial is no longer analyzed under the “exceptional 24 circumstances” standard, even if the expert’s designation has thereafter been withdrawn. 25 (Doc. No. 185 at 3–4.) 26 In this case, the parties dispute the legal standard that applies when a designated 27 expert is withdrawn by the original retaining party and then called by the opposing party 28 in its case-in-chief. The Court observes that district courts have applied different 1 approaches in these circumstances and there appears to be no controlling Ninth Circuit 2 authority. Some district courts have found that the balancing test of Federal Rule of 3 Evidence 403 applies. See Hous. Auth. of the City of Los Angeles v. PCC Tech. Indus., Inc., 4 No. CV 11-1626 FMO (CWx), 2015 WL 13757602, at *6 (C.D. Cal. Apr. 28, 2015); 5 Morris v. Mitsubishi Motors N.
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1 2 3 4 5 6 7 10 11 LARISSA ARAUJO (SURVIVAL Case No.: 20-cv-01800-AJB-MMP ACTION), et al., 12 ORDER: Plaintiffs, 13 v. (1) DENYING AS MOOT 14 DEFENDANTS’ MOTION TO COACHELLA VALLEY WATER 15 EXCLUDE EXPERT OPINION DISTRICT; JOSUE GONZALEZ; and TESTIMONY ON COSTS OF 16 DOES 1 TO 25, inclusive, MEDICAL CARE 17 Defendants. 18 COACHELLA VALLEY WATER (2) GRANTING IN PART AND DISTRICT, DENYING IN PART DEFENDANTS’ 19 MOTION TO EXCLUDE EXPERT Cross-Complainant, OPINIONS OF MARCOS KRUSE; 20 v. AND 21 COUNTY OF IMPERIAL, a Public (3) GRANTING IN PART AND 22 Entity; and DOES 1-10, inclusive, DENYING IN PART PLAINTIFFS’ 23 MOTION TO EXCLUDE EXPERT 24 Cross-Defendant. WITNESSES
25 (Doc. Nos. 182, 183, 184)
27 Presently before the Court are several motions to exclude expert witnesses by 28 1 Plaintiffs Larissa Araujo (Survival Action), Jose Carlos De Araujo, Helenilza Maria 2 Oliveira De Araujo, Andressa Dos-Santos (Survival Action), Renato Dos Santos, and 3 Maria Tereza De Carvalho’s (collectively, “Plaintiffs”) and Defendants CVWD and Josue 4 Gonzalez (collectively, “Defendants”). On September 11, 2023, the Parties attended a 5 hearing on the motion. After considering the Parties’ motions, the applicable law, and the 6 arguments raised at the hearing, the Court DENIES AS MOOT Defendants’ motion to 7 limit expert opinion testimony on cost of medical care, (Doc. No. 182), GRANTS IN 8 PART AND DENIES IN PART Defendants’ motion to the exclude expert opinion 9 testimony of Marcos Kruse, (Doc. No. 183), and GRANTS IN PART AND DENIES IN 10 PART Plaintiffs’ motion to exclude experts Reza Marshal and John Gay at trial, (Doc. No. 11 184). 13 This action arises out of a tragic accident that occurred in unincorporated Imperial 14 County. On October 2, 2019, Cross-Defendant Andre Dos-Santos De-Sa was driving a 15 Hyundai Elantra when he, along with Plaintiffs Larissa Araujo and Andressa Dos Santos, 16 were involved in a two-car, broadside collision with a van driven by Defendant Josue 17 Gonzalez, an employee of Defendant CVWD. (Doc. No. 109-1 at 9.) The automobile 18 accident resulted in the death of two decedents, Larissa Araujo and Andressa Dos Santos. 19 (Id. at 10.) 20 On October 15, 2021, the County filed a motion for summary judgment. (Doc. No. 21 59.) On January 14, 2022, the Court denied the County’s motion. (Doc. No. 93.) On 22 January 9, 2023, the Court granted the Parties’ joint motion to dismiss County of Imperial’s 23 third-party Complaint against Imperial Irrigation District. (Doc. No. 154.) On January 10, 24 2023, the Court granted Cross-Defendant Andre Dos-Santos De-Sa’s motion for 25 determination of good faith settlement with Plaintiffs. (Doc. No. 155.) On February 16, 26 2023, the Court granted Plaintiffs’ motion to dismiss the County of Imperial pursuant to a 27 settlement agreement. (Doc. No. 162.) 28 On July 6, 2023, the Parties attended the Final Pretrial Conference at which the 1 Parties requested they brief Plaintiffs’ objections to experts Reza Marshal and John Gay 2 testifying at trial. (See Doc. No. 177.) The Parties filed their respective briefs on August 7, 3 2023, (Doc. Nos. 182–84), and their respective responses on August 21, 2023, (Doc. Nos. 4 185–87). Thereafter, on September 11, 2023, the Parties attended a hearing on the matter. 5 This order follows. 6 II. DEFENDANTS’ MOTION TO LIMIT EXPERT OPINION TESTIMONY ON 8 During the September 11, 2023 hearing on the instant motions, the Parties 9 represented to the Court that they had reached an understanding regarding this motion, 10 rendering it moot. As such, the Court DENIES the motion as MOOT. (Doc. No. 182.) 11 III. DEFENDANTS’ MOTION TO EXCLUDE EXPERT OPINION TESTIMONY 13 Upon review of the Parties’ arguments and considering Evidence Rules 401 and 403, 14 the Court DENIES Defendants’ motion to exclude the expert opinion testimony of Mr. 15 Kruse and will allow Mr. Kruse to testify as to his opinion of the economic loss of future 16 income/economic capacity as stated in his opinion report. (Doc. No. 183.) Specifically, as 17 to Larissa Araujo, Mr. Kruse may testify as to the net salary of a college graduate working 18 in Brazil for a multi-national company until age 62, net salary meaning salary less tax, 19 insurance, meal voucher, transportation. Mr. Kruse’s opinion regarding Andressa Dos 20 Santos will be allowed for her as a college graduate and as an advertising and marketing 21 manager in Brazil—again, in net salary until age 62. 22 However, Defendants’ motion to exclude is GRANTED to the extent that Mr. Kruse 23 may not testify about Brazilian law jurisprudence, (see, e.g., Doc. No. 186-4 at 5 n.2), 24 damage models or compensation plans, or pain and suffering, monetized or otherwise. He 25 may not suggest that the totality of the earning capacity or any part thereof will be what 26 decedents would have contributed to family members as there is no basis stated for that 27 proposition. Finally, he may not testify about Araujo’s religious character or religious 28 plans, goals, etc., (see, e.g., id. at 8), as it is irrelevant and highly prejudicial. 1 Mr. Kruse will be open to full cross examination on the methodology and a motion 2 to strike any other opinions. 4 A. Reza Marshal 5 Plaintiffs first seek to preclude Defendants from calling Plaintiffs’ expert, Reza 6 Marshal, as a witness or using his expert report. (See Doc. No. 184 at 10–22.) Plaintiffs 7 designated Mr. Marshal in their Rule 26 Disclosure on October 4, 2021. (Doc. No. 185 at 8 2.) Thereafter, Mr. Marshal provided his written expert report, filed a declaration on behalf 9 of Plaintiffs, and was deposed. (Id.) Mr. Marshal was thereafter de-designated on March 10 13, 2023, after settling their claims with the County of Imperial, a former defendant in this 11 case. (Id.) 12 Plaintiffs argue under Fed. R. Civ. P. 26(b)(4)(D)(ii) and Lehan v. Ambassador 13 Programs, Inc., 190 F.R.D. 670, 671 (E.D. Wash. 2000), one party may not call the 14 opposing party’s witness except in “exceptional circumstances” and no such exceptional 15 circumstances exist here. (Doc. No. 184 at 15–17.) Plaintiffs further assert Defendants 16 previously retained their own traffic engineer, Edward Ruzak, who the Court previously 17 excluded under Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 592–93 (1993), (see 18 Doc. No. 143), and because Defendants “failed to provide Mr. Ruzak with the necessary 19 evidence to formulate his opinions and that failure resulted in Mr. Ruzak’s exclusion[,]” 20 there are no exceptional circumstances here. (Doc. No. 184 at 17–19.) Defendants respond 21 that under Fed. R. Civ. P. 26(b)(4)(A), once an expert witness has been designated to testify 22 at trial, has submitted a report, and has been deposed, the opposing party’s demand to 23 depose and use the expert at trial is no longer analyzed under the “exceptional 24 circumstances” standard, even if the expert’s designation has thereafter been withdrawn. 25 (Doc. No. 185 at 3–4.) 26 In this case, the parties dispute the legal standard that applies when a designated 27 expert is withdrawn by the original retaining party and then called by the opposing party 28 in its case-in-chief. The Court observes that district courts have applied different 1 approaches in these circumstances and there appears to be no controlling Ninth Circuit 2 authority. Some district courts have found that the balancing test of Federal Rule of 3 Evidence 403 applies. See Hous. Auth. of the City of Los Angeles v. PCC Tech. Indus., Inc., 4 No. CV 11-1626 FMO (CWx), 2015 WL 13757602, at *6 (C.D. Cal. Apr. 28, 2015); 5 Morris v. Mitsubishi Motors N. Am., Inc., No: CV-08-0396-RMP, 2011 WL 13228438, at 6 *2–3 (E.D. Wash. Mar. 28, 2011); House v. Combined Ins. Co. of Am., 168 F.R.D. 236, 7 249 (N.D. Iowa 1996); Brigham Young Univ. v. Pfizer, Inc., Nos. 2:12-mc-143 TS BCW, 8 5:12-cv-041, 2012 WL 1029304, at *5 (D. Utah Mar. 26, 2012); Ferguson v. Michael 9 Foods, Inc., 189 F.R.D. 408 (D. Minn. 1999); Agron v. Trustees of Colum. Univ., 176 10 F.R.D. 445, 450 (S.D. N.Y. 1997). 11 Moreover, a leading treatise states: 12 Once a party has designated an expert witness as someone who will testify at trial, the later withdrawal of that designation may neither prevent the 13 deposition of that witness by the opposing party nor the expert's testimony at 14 trial. Furthermore, if a party is deemed to have waived the privilege as to documents provided to its named expert, that party may not avoid production 15 of those documents under Rule 26(b)(4)(A) by later changing the designation 16 of that expert from “testifying” to “non-testifying” expert.
17 6 Moore’s Federal Practice § 26.80[1][a](3d ed.); see CP Kelco U.S. Inc. v. Pharmacia 18 Corp., 213 F.R.D. 176 (D. Del. 2003). 19 Other courts have held that such a decision is “committed to the sound discretion of 20 the district court” and reviewed for abuse of discretion. See Peterson v. Willie, 81 F.3d 21 1033, 1037–38 n.4 (11th Cir. 1996). Yet other courts have applied the “exceptional 22 circumstances” test under Rule 26. See FMC Corp. v. Vendo Co., 196 F. Supp. 2d 1023, 23 1046–48 (E.D. Cal. 2002) (applying both the “exceptional circumstances” test under Rule 24 26 and the balancing test of Rule 403). Finally, other courts have held that such testimony 25 is permissible based on the structure of Rule 26, which distinguishes between the 26 protections afforded to testifying and consulting experts. See S.E.C. v. Koenig, 557 F.3d 27 736, 744 (7th Cir. 2009). 28 1 The Court is aware that prior decisions in this District have adopted the “exceptional 2 circumstances” standard of Fed. R. Civ. P. 26(b)(4)(D). See Lehan, 190 F.R.D. at 674. 3 However, the decision of a federal district court judge is “not binding precedent in either a 4 different judicial district, the same judicial district, or even upon the same judge in a 5 different case,” Lawrence B. Solum, Stare Decisis, Law of the Case, and Judicial Estoppel 6 18-134 Moore’s Federal Practice § 134.02 (3d Ed. 1997). While the Court respectfully 7 acknowledges the reasoned conclusions of Lehan, the Court finds a different outcome 8 appropriate to the present facts. As such, the Court adopts the balancing test of Federal 9 Rule of Evidence 403. 10 As a starting point, Fed. R. Evid. 402 provides that “All relevant evidence is 11 admissible,” except as otherwise provided. “We let jurors see and hear even marginally 12 relevant evidence, because we trust them to weigh the evidence appropriately.” United 13 States v. Hitt, 981 F.2d 422, 423 (9th Cir. 1992). A district court exercises broad discretion 14 in deciding whether the probative value of evidence outweighs its prejudicial effect 15 pursuant to Fed. R. Evid. 403, and abuses that discretion only by admitting evidence of 16 very slight or no probative value when there is a likelihood of unfair prejudice or risk of 17 misleading the jury. Id. at 424. 18 In this case, Mr. Marshal’s report contains opinions on the issue of comparative fault 19 in this case,1 whether the intersection where the accident occurred was dangerous due to 20 the obstruction caused by a berm built and maintained by third parties, and on causation 21 and whether the site obstruction was a substantial factor in causing the accident. (Expert 22 23 1 Plaintiffs also object to the testimony on relevance grounds arguing that the County of Imperial settlement removes any consideration of the County’s comparative fault from the case. The Court 24 disagrees. Defendants have asserted, “Defendants Gonzalez and CVWD contend that other non-parties 25 were negligent, and their negligence was a cause or contributed to the collision and resulting injuries and deaths. Defendants contend the driver of Plaintiffs’ vehicle, Andres Dos Santos De-Sa, was negligent. 26 Defendants also contend that the County of Imperial was negligent due to a dangerous condition of public property. Defendants CVWD and Gonzalez contend fault for the accident and resulting injuries and deaths 27 should be allocated among the parties found to be at fault.” (See Doc. No. 179 at 2); Cal. Civ. Code §§ 1431.1 and 1431.2. 28 1 Report of Reza Marshal, Doc. No. 107-2, at 22–25.) Moreover, Mr. Marshal has produced 2 his report and been deposed. Given these circumstances, the Court finds the various 3 approaches discussed above—the balancing test of Rule 403, the discretionary authority of 4 courts to control the mode and order of examining witnesses, and the plain language of 5 Rule 26 itself—all weigh in favor of permitting Defendants to call Mr. Marshal as a 6 witness. 7 However, the Court will not permit testimony or argument as to which party 8 originally retained Mr. Marshal, who paid him in whole or in part, or refer in any way to 9 the designation/de-designation issue or this Court’s ruling. See Brigham Young Univ., 2012 10 WL 1029304, at *5 (“Defendants, however, are cautioned against eliciting and using 11 testimony at trial regarding the fact that [the expert] was originally hired and then dropped 12 by Plaintiffs. Such testimony is potentially very prejudicial and may confuse a jury.”); 13 Peterson, 81 F.3d at 1037 (“Several courts have noted the prejudice that results from 14 informing a jury that an expert had been originally consulted by the opposing party.”). 15 Subject to this limitation, the Court DENIES Plaintiffs’ Motion to Exclude 16 Witnesses at Trial as to Reza Marshal. (Doc. No. 184.) See In re Taco Bell Wage & Hour 17 Actions, No. 1:07-cv-01314-SAB, 2016 WL 815634, at *3 (E.D. Cal. Mar. 2, 2016) 18 (“There is no per se rule prohibiting a party from calling the opposing party’s expert in 19 their case in chief . . . Courts have found that the weight of authority favors allowing a 20 party to introduce opinion testimony of the opposing party’s expert during their case in 21 chief.”). Defendants may call Mr. Marshal in their case, at their expense, based on his 22 customary rates. 23 B. John Gay 24 1. Background 25 Plaintiffs next similarly seek to exclude the expert report and testimony of John Gay 26 from trial. (Doc. No. 184-1 at 23–29.) Mr. Gay was produced and designated by the County 27 of Imperial in response to Plaintiffs’ Rule 30(b)(6) notice. (Doc. No. 185 at 3.) Plaintiffs 28 thereafter took Mr. Gay’s deposition on June 29, 2021. (Id.) In December 2022, the Parties 1 submitted a stipulation requesting the Court to amend the scheduling order, (Doc. No. 150), 2 which was granted by the Court, (Doc. No. 151). The operative scheduling order required 3 the Parties to “comply with the pre-trial disclosure requirements of Fed. R. Civ. P. 26(a)(3) 4 on or before March 13, 2023 . . . .” (Doc. No. 150 ¶ 8.a.) Defendants did not timely file or 5 serve their pre-trial disclosures. (Declaration of Robert J. Ounjian, Doc. No. 184-2, ¶ 9.) 6 Thus, on April 3, 2023, Plaintiffs filed an objection to Defendants’ failure to file and serve 7 any pre-trial disclosures. (Doc. No. 161.) 8 On April 10, 2023, the Parties filed a proposed pre-trial order, in which Defendants 9 identified Mr. Gay as a percipient witness they intended to call at trial. (Doc. No. 167 at 10 12.) Plaintiffs objected due to Defendants’ failure to disclose him. (Id. at 13; Doc. No. 168 11 at 4.) 12 On April 14, 2023, the Court sua sponte issued an Order, which included the 13 following: “Specifically, Defendants must complete their Federal Rule of Civil Procedure 14 26(a)(3) disclosures within 14 days of this Order; . . . . Defendants’ further failure to 15 meet the deadline for the Rule 26(a)(3) disclosures will result in a court order denying 16 any witnesses or exhibits from admission in the trial of this case.” (Doc. No. 169 at 2 17 (emphasis added).) The Order further directed the Parties to file a new pre-trial order by 18 June 9, 2023. (Id.) 19 On April 27, 2023, Defendants filed their pre-trial disclosures pursuant to Federal 20 Rule of Civil Procedure 26(a)(3). (Doc. No. 170.) This new pre-trial disclosure did not 21 include Mr. Gay. (See generally id.) However, in the Parties’ June 9, 2023 pre-trial order, 22 Defendants identified Mr. Gay as a percipient witness intended to be called at trial. (Doc. 23 No. 175 at 11.) Plaintiffs again objected, as Mr. Gay was not disclosed in the pre-trial 24 disclosures. (Id. at 12.) Defendants responded “that in light of the Plaintiffs noticing and 25 taking Mr. Gay’s deposition under Rule 30(b)(6) that not listing Mr. Gay on a subsequent 26 disclosure until April 27, 2023, was harmless . . . .” (Id.) 27 2. Discussion 28 Plaintiffs first assert Defendants failed to comply with Federal Rule of Civil 1 Procedure 26(a)(3)(A), requiring all parties to file pre-trial disclosures which include the 2 name of each witness that it may present at trial. (Doc. No. 184-1 at 26.) 3 Federal Rule of Civil Procedure 26(a)(3)(A) states: 4 [A] party must provide to the other parties and promptly file the following information about the evidence that it may present at trial other than solely for 5 impeachment: 6 (i) the name and, if not previously provided, the address and telephone number of each witness--separately identifying those the party expects to present and 7 those it may call if the need arises . . . . 8 9 Moreover: 10 A party who has made a disclosure under Rule 26(a) . . . must supplement or correct its disclosure” in a “timely manner if the party learns that in some 11 material respect the disclosure . . . is incomplete or incorrect, and if the 12 additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing. 13
14 Fed. R. Civ. P. 26(e). A party that does not timely identify a witness under Rule 26 may 15 not use that witness to supply evidence at a trial “unless the failure was substantially 16 justified or is harmless.” Id. Fed. R. Civ. P. 37(c)(1); see also Yeti by Molly, Ltd. v. Deckers 17 Outdoor Corp., 259 F.3d 1101, 1105 (9th Cir. 2001). Indeed, Rule 37(c)(1) is “intended to 18 put teeth into the mandatory . . . disclosure requirements” of Rule 26(a) and (e). 8B Charles 19 Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2289.1 (3d ed. 2014). 20 In any event, Defendants withdrew Mr. Gay as a witness after the Court, during the 21 September 11, 2023 hearing, indicated it would deny Plaintiffs’ motion to exclude as to 22 Mr. Marshal. This is another basis on which to grant the motion. Thus, because Defendants 23 failed to comply with Federal Rule of Civil Procedure 26(a)(3)(A) and this Court’s prior 24 order stating that “Defendants’ further failure to meet the deadline for the Rule 26(a)(3) 25 disclosures will result in a court order denying any witnesses or exhibits from admission 26 in the trial of this case[,]” (Doc. No. 169 at 2), and because Defendants have withdrawn 27 Mr. Gay as a witness, the Court GRANTS Plaintiffs’ motion to exclude Mr. Gay from 28 1 || testifying at trial. 3 Based on the foregoing, the Court: 4 DENIES AS MOOT Defendants’ motion to limit expert opinion testimony on cost 5 || of medical care, (Doc. No. 182); 6 GRANTS IN PART AND DENIES IN PART Defendants’ motion to the exclude 7 expert opinion testimony of Marcos Kruse, (Doc. No. 183); and 8 DENIES Plaintiffs’ motion to exclude as to Reza Marshal and GRANTS the motion 9 to John Gay, (Doc. No. 184). 10 1] IT IS SO ORDERED. 12 lI Dated: September 14, 2023 | □□ rz □ Ze 13 Hon. Anthony J.@Battaglia 14 United States District Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10