1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 *** 4 2:18-cv-01219-APG-VCF 5 LILIA JARRELL, ORDER 6 Plaintiff, 7 vs. M [EO CFT I NO ON . F 4O 5]R EXCLUSION SANCTIONS 8 WAL-MART STORES, INC., et al.,
9 Defendants. 10 Before the Court is defendants Wal-Mart Stores, Inc. and Walmart, Inc. d/b/a Walmart #2593’s 11 (referred to as singular “Walmart” or “defendant” throughout) motion to exclude plaintiff's past medical 12 damages and lost wages, earning capacity and future damages claim. (ECF No. 45). The Court denies 13 the motion. 14 I. Background 15 Plaintiff alleges that she slipped and fell on a wet floor at Walmart: she brings claims for (1) 16 negligence (premises liability); and (2) negligent hiring, training, supervision and retention. (ECF No. 17 45-3). The expert disclosure deadline in this case was January 4. 2019. (ECF 17 at 3). Discovery closed 18 in this case on March 4. 2019. (Id.) On April 9, 2019, Judge Hoffman granted Walmart’s motion to take 19 two depositions after discovery closed. (ECF No. 27). On May 3, 2019, Walmart filed a motion for 20 summary judgment. (ECF No. 28). On February 19, 2020, Judge Gordon denied Walmart’s summary 21 judgment motion. (ECF No. 33). On March 24, 2020, the Court referred this case for the scheduling of a 22 settlement conference. (ECF No. 35). After an unsuccessful case settlement conference, Judge Albregts 23 recused himself from this case, and in October 2020 this case was randomly reassigned to the 24 undersigned magistrate judge. (ECF No. 41). On October 14, 2020, the parties stipulated to continue the 25 1 1 trial due in part to Walmart having new defense counsel. (ECF No. 44 at 2). On February 10, 2021, the 2 parties stipulated to continue the trial again due in part to the instant pending motion for exclusion 3 sanctions and the Court granted the stipulation: trial is now set for August 17, 2021. (ECF No. 53). 4 Defendant argues in their motion to exclude that plaintiff’s emergency room records show that 5 she initially only reported left wrist pain and pain in her upper extremities, but since then, she has 6 received multiple treatments for numerous additional injuries. (ECF No. 45 at 2). Defendant states that it 7 did not learn about some of her damages (such as calculations for surgeries) until it received her expert 8 disclosures and her supplemental disclosure statement on January 24, 2019.1 (Id.) Defendant also argues 9 that plaintiff continued to send it multiple supplements after discovery closed which increased her 10 damages and prejudiced defendant. (Id. at 22). 11 Plaintiff argues in her response that she timely served her damages disclosures via written 12 discovery and she timely served her expert reports pertaining to liability and damages. (ECF No. 48 at 13 4). Plaintiff argues that Walmart waited two years to file this motion, i.e. it did not file a sanctions 14 motion before the close of discovery, it did not mention anything regarding damages or experts in its 15 motion to take additional depositions after the close of discovery, did not request a Rule 35 exam, did 16 not depose any of plaintiff’s treating physicians, and that Walmart could have taken additional discovery 17 regarding plaintiff’s damages disclosures before the close of discovery in March 2019. (Id.) Plaintiff 18 admits that she made multiple disclosures in January 2019, but she argues these disclosures were 19 substantially justified because her expert reports contained opinions of first impression (and she alleges 20 she timely produced these reports and supplemented per these reports). (Id.) Plaintiff argues that she 21 continued to supplement after the close of discovery due to her ongoing treatments, including surgery. 22 (Id.) Plaintiff alleges that she produced multiple supplements since the close of discovery regarding her 23
24 1 Defendant presents a lengthy chronology regarding the timing of multiple disclosures in its 25-page motion. For brevity, the Court will refer to disclosures plaintiff made before the close of discovery and 25 after discovery closed. 2 1 ongoing treatments because two years has passed since the close of discovery. (Id. at 12). Plaintiff 2 argues that Walmart is bringing this motion on the eve of trial to attempt to gain a tactical advantage at 3 trial. (Id. at 21) 4 Defendant argues in its reply that the federal rules mandate that plaintiff make her disclosures at 5 the outset of discovery. (ECF No. 51 at 4). Defendant alleges it suffered prejudice in its ability to 6 prepare its challenge to plaintiff’s untimely damages claims as it learned, for the first time 7 approximately 45 days prior to the close of discovery, that plaintiff needed additional surgeries and she 8 had new information regarding her claimed damages. (Id. at 8). Walmart also argues in its response that 9 if the Court declines exclusion sanctions, in the alternative, it should allow defendant to retain and offer 10 rebuttal opinions related to all future damages, loss of household services and lost wages experts, and 11 order plaintiff to pay for the deposition practice. (Id. at 10). 12 II. Discussion 13 Federal Rule of Civil Procedure 37(c)(1) allows courts to exclude evidence that a party fails to 14 disclose under Rule 26 “unless the failure was substantially justified or is harmless.” Allstate Ins. Co. v. 15 Nassiri, 2010 WL 5248111, at 4 (D. Nev. Dec. 16, 2010). “‘Extreme situations’ in which the plaintiff 16 did not provide a damage computation until shortly before trial or until well after the close of discovery” 17 justify an order of exclusion. Id. (quoting City & County of San Francisco v. Tutor-Saliba Corp., 218 18 F.R.D. 219, 221-22 (N.D. Cal. 2003) & citing Hoffman v. Constr. Protective Servs., Inc., 541 F.3d 1175 19 (9th Cir. 2008). The party facing exclusion sanctions bears the burden of demonstrating a substantial 20 justification or harmlessness under Rule 37. Nitta v. United States, 2019 WL 8272658, at 2 (D. Nev. 21 June 28, 2019) (citing Yeti by Molly, Ltd. v. Deckers Outdoor Corp., 59 F.3d 1106-1107 (9th Cir. 2001). 22 Motions for exclusionary sanctions are infrequently granted given that “[c]ourts universally recognize 23 the strong preference for deciding cases on the merits whenever reasonably possible.” Silvagni v. Wal- 24 Mart Stores, Inc., 320 F.R.D. 237, 243 (D. Nev. 2017). 25 3 1 Although Rule 37 does not contain an express time limit for filing a motion for sanctions, 2 “[u]nreasonable delay may render a motion for sanctions untimely.” Tourgeman v. Collins Fin. Servs., 3 Inc., No. 08CV1392-JLS NLS, 2012 WL 28289, at 3 (S.D. Cal. Jan. 5, 2012), citing to Long v. Howard 4 Univ., 561 F.Supp.2d 85, 91 (D.D.C.2008); see also Freeman v. Allstate Life Insurance Co., 253 F.3d 5 533 (9th Cir.2001) (district court did not abuse discretion in denying motion in limine upon basis that 6 the issue contained therein could have been prosecuted earlier during discovery before the magistrate 7 judge.) 8 “It is generally agreed that a motion for sanctions, regardless of the source of authority for the 9 imposition of sanctions, must be timely filed.” MGA Ent., Inc. v. Nat'l Prod. Ltd., No. CV 10-07083 10 JAK SSX, 2012 WL 4052023, at 4 (C.D. Cal. Sept. 14, 2012). “Courts have also found that 11 unreasonable delay in filing a motion for sanctions under the court's inherent powers may render the 12 request untimely.” Id., citing to Clark v. United States, 2011 WL 66181 at 4 (D. Hawai'i Jan.7, 2011).
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1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 *** 4 2:18-cv-01219-APG-VCF 5 LILIA JARRELL, ORDER 6 Plaintiff, 7 vs. M [EO CFT I NO ON . F 4O 5]R EXCLUSION SANCTIONS 8 WAL-MART STORES, INC., et al.,
9 Defendants. 10 Before the Court is defendants Wal-Mart Stores, Inc. and Walmart, Inc. d/b/a Walmart #2593’s 11 (referred to as singular “Walmart” or “defendant” throughout) motion to exclude plaintiff's past medical 12 damages and lost wages, earning capacity and future damages claim. (ECF No. 45). The Court denies 13 the motion. 14 I. Background 15 Plaintiff alleges that she slipped and fell on a wet floor at Walmart: she brings claims for (1) 16 negligence (premises liability); and (2) negligent hiring, training, supervision and retention. (ECF No. 17 45-3). The expert disclosure deadline in this case was January 4. 2019. (ECF 17 at 3). Discovery closed 18 in this case on March 4. 2019. (Id.) On April 9, 2019, Judge Hoffman granted Walmart’s motion to take 19 two depositions after discovery closed. (ECF No. 27). On May 3, 2019, Walmart filed a motion for 20 summary judgment. (ECF No. 28). On February 19, 2020, Judge Gordon denied Walmart’s summary 21 judgment motion. (ECF No. 33). On March 24, 2020, the Court referred this case for the scheduling of a 22 settlement conference. (ECF No. 35). After an unsuccessful case settlement conference, Judge Albregts 23 recused himself from this case, and in October 2020 this case was randomly reassigned to the 24 undersigned magistrate judge. (ECF No. 41). On October 14, 2020, the parties stipulated to continue the 25 1 1 trial due in part to Walmart having new defense counsel. (ECF No. 44 at 2). On February 10, 2021, the 2 parties stipulated to continue the trial again due in part to the instant pending motion for exclusion 3 sanctions and the Court granted the stipulation: trial is now set for August 17, 2021. (ECF No. 53). 4 Defendant argues in their motion to exclude that plaintiff’s emergency room records show that 5 she initially only reported left wrist pain and pain in her upper extremities, but since then, she has 6 received multiple treatments for numerous additional injuries. (ECF No. 45 at 2). Defendant states that it 7 did not learn about some of her damages (such as calculations for surgeries) until it received her expert 8 disclosures and her supplemental disclosure statement on January 24, 2019.1 (Id.) Defendant also argues 9 that plaintiff continued to send it multiple supplements after discovery closed which increased her 10 damages and prejudiced defendant. (Id. at 22). 11 Plaintiff argues in her response that she timely served her damages disclosures via written 12 discovery and she timely served her expert reports pertaining to liability and damages. (ECF No. 48 at 13 4). Plaintiff argues that Walmart waited two years to file this motion, i.e. it did not file a sanctions 14 motion before the close of discovery, it did not mention anything regarding damages or experts in its 15 motion to take additional depositions after the close of discovery, did not request a Rule 35 exam, did 16 not depose any of plaintiff’s treating physicians, and that Walmart could have taken additional discovery 17 regarding plaintiff’s damages disclosures before the close of discovery in March 2019. (Id.) Plaintiff 18 admits that she made multiple disclosures in January 2019, but she argues these disclosures were 19 substantially justified because her expert reports contained opinions of first impression (and she alleges 20 she timely produced these reports and supplemented per these reports). (Id.) Plaintiff argues that she 21 continued to supplement after the close of discovery due to her ongoing treatments, including surgery. 22 (Id.) Plaintiff alleges that she produced multiple supplements since the close of discovery regarding her 23
24 1 Defendant presents a lengthy chronology regarding the timing of multiple disclosures in its 25-page motion. For brevity, the Court will refer to disclosures plaintiff made before the close of discovery and 25 after discovery closed. 2 1 ongoing treatments because two years has passed since the close of discovery. (Id. at 12). Plaintiff 2 argues that Walmart is bringing this motion on the eve of trial to attempt to gain a tactical advantage at 3 trial. (Id. at 21) 4 Defendant argues in its reply that the federal rules mandate that plaintiff make her disclosures at 5 the outset of discovery. (ECF No. 51 at 4). Defendant alleges it suffered prejudice in its ability to 6 prepare its challenge to plaintiff’s untimely damages claims as it learned, for the first time 7 approximately 45 days prior to the close of discovery, that plaintiff needed additional surgeries and she 8 had new information regarding her claimed damages. (Id. at 8). Walmart also argues in its response that 9 if the Court declines exclusion sanctions, in the alternative, it should allow defendant to retain and offer 10 rebuttal opinions related to all future damages, loss of household services and lost wages experts, and 11 order plaintiff to pay for the deposition practice. (Id. at 10). 12 II. Discussion 13 Federal Rule of Civil Procedure 37(c)(1) allows courts to exclude evidence that a party fails to 14 disclose under Rule 26 “unless the failure was substantially justified or is harmless.” Allstate Ins. Co. v. 15 Nassiri, 2010 WL 5248111, at 4 (D. Nev. Dec. 16, 2010). “‘Extreme situations’ in which the plaintiff 16 did not provide a damage computation until shortly before trial or until well after the close of discovery” 17 justify an order of exclusion. Id. (quoting City & County of San Francisco v. Tutor-Saliba Corp., 218 18 F.R.D. 219, 221-22 (N.D. Cal. 2003) & citing Hoffman v. Constr. Protective Servs., Inc., 541 F.3d 1175 19 (9th Cir. 2008). The party facing exclusion sanctions bears the burden of demonstrating a substantial 20 justification or harmlessness under Rule 37. Nitta v. United States, 2019 WL 8272658, at 2 (D. Nev. 21 June 28, 2019) (citing Yeti by Molly, Ltd. v. Deckers Outdoor Corp., 59 F.3d 1106-1107 (9th Cir. 2001). 22 Motions for exclusionary sanctions are infrequently granted given that “[c]ourts universally recognize 23 the strong preference for deciding cases on the merits whenever reasonably possible.” Silvagni v. Wal- 24 Mart Stores, Inc., 320 F.R.D. 237, 243 (D. Nev. 2017). 25 3 1 Although Rule 37 does not contain an express time limit for filing a motion for sanctions, 2 “[u]nreasonable delay may render a motion for sanctions untimely.” Tourgeman v. Collins Fin. Servs., 3 Inc., No. 08CV1392-JLS NLS, 2012 WL 28289, at 3 (S.D. Cal. Jan. 5, 2012), citing to Long v. Howard 4 Univ., 561 F.Supp.2d 85, 91 (D.D.C.2008); see also Freeman v. Allstate Life Insurance Co., 253 F.3d 5 533 (9th Cir.2001) (district court did not abuse discretion in denying motion in limine upon basis that 6 the issue contained therein could have been prosecuted earlier during discovery before the magistrate 7 judge.) 8 “It is generally agreed that a motion for sanctions, regardless of the source of authority for the 9 imposition of sanctions, must be timely filed.” MGA Ent., Inc. v. Nat'l Prod. Ltd., No. CV 10-07083 10 JAK SSX, 2012 WL 4052023, at 4 (C.D. Cal. Sept. 14, 2012). “Courts have also found that 11 unreasonable delay in filing a motion for sanctions under the court's inherent powers may render the 12 request untimely.” Id., citing to Clark v. United States, 2011 WL 66181 at 4 (D. Hawai'i Jan.7, 2011). 13 “The timeliness of a motion for sanctions for discovery violations depends on such factors as when the 14 movant learned of the violation, how long he waited before bringing it to the court's attention, and 15 whether discovery has been completed.” Long, 561 F. Supp. 2d at 85, citing to FRCP 37(c)(1). 16 Despite allegedly learning of some of plaintiff’s additional damages claims for the first time in 17 January 2019, Walmart did not file its motion for exclusion sanctions before discovery closed in March 18 2019. Walmart asked the Court to take additional depositions after discovery closed, but it did not ask 19 the Court to allow it to retain and offer rebuttal opinions related to all future damages, loss of household 20 services and lost wages experts (its proposed alternative in this motion). The Court referred this case for 21 a settlement conference 14-months after Walmart allegedly learned of the updated damages disclosure, 22 and at no time during that 14-month period (before the referral) did Walmart file a motion for sanctions 23 or seek alternative relief regarding any potential prejudice (such as asking the Court to retain rebuttal 24 experts). Walmart instead seeks sanctions now, almost two years after it alleges it learned of the 25 4 1 || additional damages disclosures’; long after discovery closed and on the eve of trial (the parties note in 2 || their stipulation to continue that the trial should be rescheduled in part because defendant filed this 3 |} motion). Based on this record, this long delay is unreasonable, and the Court denies the motion for 4 || sanctions for alleged discovery violations as untimely. 5 Even assuming arguendo that Walmart’s motion is timely, this is not an extreme situation that 6 || would justify exclusion sanctions, as most of the disclosures defendant takes issue with occurred before 7 || discovery closed two years ago (i.e. the January 2019 disclosures did not occur after discovery closed or 8 || on the eve of trial). Plaintiff has met her burden to show a substantial justification for not making all her 9 || disclosures earlier in the discovery process: this is a personal injury case, treatments and assessments 10 || were ongoing, and her expert reports were opinions of first impression. Plaintiff makes a detailed 11 || showing that she made multiple supplemental disclosures regarding her treatments, past medical 12 || damages, lost wages, earning capacity, and future damages both throughout the discovery process and 13 || before the discovery deadline. It is also reasonable for the plaintiff in this case to make supplemental 14 || disclosures after discovery closed to reflect her ongoing treatments, especially given the length of time 15 || that has elapsed since discovery closed. This case should be decided on the merits and the defendant’s 16 || motion for exclusion sanctions is denied. 17 Accordingly, 18 IT IS ORDERED that defendant’s motion for exclusion sanctions (ECF No. 45) is DENIED. 19 DATED this 25th day of March 2021. on
71 CAM FERENBACH _
39 UNITED STATES MAGISTRATE JUDGE
23 24 || > Although Walmart also argues that plaintiff made disclosures after discovery closed, the thrust of the 25 || motion is focused on the disclosures that plaintiff made before discovery closed in March 2019.