Frontline Medical Associates, Inc. v. Coventry Health Care

263 F.R.D. 567, 2009 U.S. Dist. LEXIS 109349, 2009 WL 3792310
CourtDistrict Court, C.D. California
DecidedNovember 6, 2009
DocketNo. CV 09-3274-GHK (AGR)
StatusPublished
Cited by24 cases

This text of 263 F.R.D. 567 (Frontline Medical Associates, Inc. v. Coventry Health Care) is published on Counsel Stack Legal Research, covering District Court, C.D. California primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Frontline Medical Associates, Inc. v. Coventry Health Care, 263 F.R.D. 567, 2009 U.S. Dist. LEXIS 109349, 2009 WL 3792310 (C.D. Cal. 2009).

Opinion

ALICIA G. ROSENBERG, United States Magistrate Judge.

On October 15, 2009, Defendants filed a motion to compel and sanctions or, in the alternative, motion to preclude evidence and sanctions or, in the alternative, motion for terminating sanctions. (Dkt.Nos.49-50.) On October 27, 2009, Defendants filed a supplemental memorandum. (Dkt. No. 62.)

This matter is appropriate for adjudication without oral argument. Fed.R.Civ.P. 78; Local Rule 7-15.

[568]*568Defendants contend that Plaintiff failed to include in its Initial Disclosure “a computation of each category of damages” and failed to “make available for inspection and copying as under Rule 34 the documents or other evidentiary material, unless privileged or protected from disclosure, on which each computation is based, including materials bearing on the nature and extent of injuries suffered.” Fed.R.Civ.P. 26(a)(l)(A)(iii).

Defendants seek sanctions. Rule 37(e)(1) provides, in pertinent part, that a party which, “without substantial justification fails to disclose information required by Rule 26(a) or 26(e)(1), or to amend a prior response to discovery as required by Rule 26(e)(2), is not, unless such failure is harmless, permitted to use as evidence at a trial, at a hearing, or on a motion any witness or information not so disclosed.”1 Fed.R.Civ.P. 37(c)(1). The sanction is “a ‘self-executing,’ ‘automatic’ sanction to ‘provide[] a strong inducement for disclosure of material.’ ” Yeti by Molly, Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 1106 (9th Cir.2001). No showing of bad faith or willfulness is required. Id. No showing of prejudice to the opposing party is required. Torres v. City of Los Angeles, 548 F.3d 1197, 1213 (9th Cir.2008).

The party facing sanctions bears the burden of showing that its failure to comply with Rule 26(a), Rule 26(e)(1), or Rule 26(e)(2) is justified or harmless. Yeti, 259 F.3d at 1107; see Hoffman v. Construction Protective Services, Inc., 541 F.3d 1175 (9th Cir.2008); Wong v. Regents of the University of California, 410 F.3d 1052 (9th Cir.2005).

A. Computation of Each Category of Damages

Plaintiff contends that its initial disclosures contain “both the amount of damages that it currently believes to have suffered as well as the method that Frontline utilized to arrive at that amount.” (Joint Stipulation (JS) at 2.) Plaintiff is incorrect.

Initial Disclosure dated September 8, 2009. Plaintiffs Initial Disclosure described damages as follows: “Damages arising out of Defendants wrongful termination and exclusion of Frontline from their MPNs are estimated at 40%-50% total loss of gross yearly revenue, but this percentage is subject to fluctuation as additional damages will be accrued as long as Plaintiff continues to be excluded from the MPNs. Frontline is currently working to quantify this amount and will supplement its disclosure as soon as the information is available. All documents upon which Frontline basis its damages will be made available to Defendants, except those documents that are protected by applicable privileges.” (Exh. B at 4 to Capozzola Deck)

Supplemental Initial Disclosure dated September 17, 2009. After a meet and confer, Plaintiffs Supplemental Initial Disclosure stated: “Frontline calculated all of its gross revenues from all sources for calendar year 2008.... Frontline then went back and determined the amount of revenue that First Health Network accounts for on a percentage basis relative to all of the other sources of business.” Having calculated that First Health Network accounted for 30% to 33% of all revenues derived by Frontline during the relevant period, Frontline concluded that, based on 2008, First Health would be responsible for $5.8 to $6.5 million on an annual, going forward basis. (Exh. D to Capozzola Deck)

Second Supplemental Initial Disclosure dated October 17, 2009. Plaintiffs Second Supplemental Initial Disclosure stated that “Frontline’s damages consist of two components: (1) lost revenue from inability to service Defendants’ participants; and (2) consequential lost revenue as a result of removal from Defendants’ MPN.” (Exh. D to LaBrache Deck)

The first component “consists primarily of three factors: (1) loss of earnings from surgeries; (2) loss of earnings from medical [569]*569treatment; and (3) loss of earnings from medications.” Plaintiff states that its billing service is compiling these amounts. However, “[t]he lost profit analysis requires expert analysis, and is beyond the capability of Plaintiffs billing services.” Plaintiff provides “an estimation of lost profits derived as a result of Defendants’ termination of Front-line’s participation in their MPN based on the information currently available.” Plaintiff repeated the analysis stated in the First Supplemental Initial Disclosure. (Id.)

Plaintiff listed two other categories of damages, consequential damages and damage to reputation. Plaintiff stated that it was not in possession of sufficient information to quantify consequential damages, which it described as lost referrals to other providers. Plaintiff stated that damage to reputation will be subject to expert evaluation and opinion. (Id.)

“Rule 26 does not elaborate on the level of specificity required in the initial damages disclosure.” City & County of San Francisco v. Tutor-Saliba Corp., 218 F.R.D. 219, 220 (N.D.Cal.2003). Caselaw provides additional guidance. “Plaintiff should provide its assessment of damages in light of the information currently available to it in sufficient detail so as to enable each of the multiple Defendants in this case to understand the contours of its potential exposure and make informed decisions as to settlement and discovery.” Id. at 221.

Here, Plaintiffs complaint alleged damages under three causes of action for breach of contract, violation of fair procedure, and interference with prospective economic advantage. (Complaint ¶¶ 36, 50, 55-56, Dkt. No. 1.) Plaintiffs initial disclosure, therefore, should disclose a computation of each category of damages attributable to each cause of action. Id. at 222 (aggregation of damages for all claims insufficient).

Plaintiffs Second Supplemental Initial Disclosure articulates three categories of damages: lost profits or lost earnings, consequential damages and damage to reputation. (Exh. D to LaBraehe Decl.)

As to the first category, Plaintiff must disclose whether it is seeking lost profits or lost earnings. “ ‘Net profits are gains made from sales “after deducting the value of the labor, materials, rents, and all expenses”, together with the interest of the capital employed.’ ” Kids’ Universe v. In2Labs,

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263 F.R.D. 567, 2009 U.S. Dist. LEXIS 109349, 2009 WL 3792310, Counsel Stack Legal Research, https://law.counselstack.com/opinion/frontline-medical-associates-inc-v-coventry-health-care-cacd-2009.