Henley v. Safeco Insurance Company of America

Opinion

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 NORTHERN DISTRICT OF CALIFORNIA 9 JOE HENLEY, as personal representative of 10 the Estate of EVA JO HENLEY, Case No. 21-cv-04243-RS

11 Plaintiff, ORDER DENYING MOTION FOR 12 v. RECONSIDERATION

13 SAFECO INSURANCE COMPANY OF AMERICA, 14 Defendant. 15 16 On January 18, 2023, Defendant’s motion to preclude Plaintiff’s expert Butch Waldron1 17 from testifying at trial was granted. The order was premised on the fact that Plaintiff had failed to 18 proffer an expert report, as required by Federal Rule of Civil Procedure 26(a)(2)(B), and thus 19 preclusion, the “automatic sanction” under Rule 37, applied. Plaintiff was then granted leave to 20 file a motion for reconsideration. In the motion, Plaintiff suggests that a less severe sanction than 21 full preclusion is warranted in light of the fact that his entire case turns on Mr. Waldron’s 22 testimony. Dkt. 59-1, at 2. The motion also states that Plaintiff’s counsel was both unfamiliar with 23 Rule 26(a)(2)(B)’s disclosure requirement and was unaware that Defendant had filed a motion to 24 preclude Mr. Waldron’s testimony. Finally, Plaintiff argues Defendant would not be prejudiced by 25 Mr. Waldron’s testimony, because the trial is still five months away — leaving Defendant plenty 26 of time to depose Mr. Waldron and review his expert report. 27 1 A review of the record in this case significantly undermines Plaintiff’s fairness arguments. 2 Plaintiff and Plaintiff’s counsel have made numerous errors which collectively indicate that the 3 preclusion of Mr. Waldron was warranted and remains so now. First, the fact that Plaintiff’s 4 counsel was unaware of the Rule 26 disclosure requirement (and apparently Rule 37’s automatic 5 sanction, as well) indicates a lack of diligence. This is not a particularly niche rule, nor could 6 reasonable minds disagree as to its application in this case. While this failure would likely not be 7 dispositive in the first instance, Plaintiff was afforded numerous opportunities to remedy it, and 8 repeatedly failed to do so. Plaintiff was on notice of Defendant’s intent to preclude Mr. Waldron at 9 least as of August 24, 2022, when, in the parties’ joint case management statement (which 10 Plaintiff’s counsel signed), Defendant clearly noted its intent to “file a motion to preclude the 11 testimony of Plaintiff’s retained expert.” Dkt. 42, at 2. On November 30, 2022, that’s exactly what 12 Defendant did. Plaintiff’s argument that not one of its four counsel of record (per ECF) was 13 notified of this motion is hard to swallow, especially given that Plaintiff’s counsel (incorrectly) 14 sought reconsideration of another order just a few weeks earlier. Plaintiff was then afforded nearly 15 a month of extra time to respond to Defendant’s motion, see Dkt. 49, and still did not do so. 16 Plaintiff’s credibility is further eroded by examining Mr. Waldron’s own declaration. As 17 Defendant points out, Mr. Waldron did not even inspect the property at issue in this case until 18 March 29, 2023.2 Dkt. 60 ¶ 5. Had trial proceeded on the original date of April 24, 2023, there is 19 no doubt Plaintiff would have effectively been “spring-loading an expert witness,” to Defendant’s 20 severe detriment. Castaneda v. Burger King Corp., 264 F.R.D. 557, 566 (N.D. Cal. 2009). This 21 was not a case in which Plaintiff simply disclosed Mr. Waldron’s report or testimony belatedly — 22 that is, a case where Mr. Waldron had conducted his analysis, prepared a report, and simply 23 transmitted it after the deadline. Rather, he did not conduct his analysis until nearly a year after 24 the close of discovery. Plaintiff does not explain this delay. 25

26 2 Incidentally (or perhaps conveniently), his inspection occurred only after the trial date was 27 continued to September. 1 “[T]he procedural rules governing civil actions are to be construed to achieve the just 2 determination of every action.” Flores v. Merced Irr. Dist., No. 09cv1529 LJO DLB, 2010 WL 3 4877795, at *3 (E.D. Cal. Nov. 23, 2010) (citing Fed. R. Civ. P. 1). Yet there comes a point at 4 || which Plaintiff (and Plaintiff’s counsel) must be held to account for their lack of diligence in 5 prosecuting this case. Justice also requires looking to the impact of these actions on Defendant and 6 || examining whether granting reconsideration would be fair to Defendant. Preclusion of Mr. 7 Waldron’s testimony may indeed be a severe penalty,’ but it is ultimately the appropriate one. The 8 motion for reconsideration is denied.* 9 10 || ITISSO ORDERED. 11 12 || Dated: April 14, 2023

RICHARD SEEBORG 14 Chief United States District Judge 15 16

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Z 18 19 20 21 22 23 Coe: 3 Although, given that Plaintiff intends to call a non-expert witness, see Dkt. 59-2, Ex. A, at 2, 24 || preclusion of Mr. Waldron does not appear necessarily to deal as “fatal” a blow as Plaintiff suggests. 25 oe * Per the order granting Plaintiff’s motion for leave to file a motion for reconsideration, both 26 || parties were limited to submitting briefs not exceeding 10 pages in length. Dkt. 55, at 2. Defendant plainly did not adhere to this. While its arguments are certainly compelling, Defendant is 27 || nonetheless admonished to follow the Court’s clear instructions moving forward. 28 ORDER DENYING MOTION FOR RECONSIDERATION CASE No. 21-cv-04243-RS