Jeremy Cargill v. County of Fresno, et al.

• Court: District Court, E.D. California
• Decided: May 15, 2026
• Docket: 1:25-cv-00415
• Status: Unknown

Opinion

1 2 3 4 5 UNITED STATES DISTRICT COURT 6 FOR THE EASTERN DISTRICT OF CALIFORNIA 7 8 JEREMY CARGILL, Case No. 1:25-cv-00415-KES-FJS 9 Plaintiff, ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION 10 v. TO SUPPLEMENT EXPERT REPORTS 11 COUNTY OF FRESNO, et al., (ECF No. 32.) 12 Defendants. 13 14 Plaintiff Jeremy Cargill (“Plaintiff”) moved to supplement his expert reports. (ECF No. 15 32.) At bottom, Plaintiff seeks an order establishing that the tardy service of a preliminary life 16 care plan from witness Andrea Nebel, RN, BSN, CNLCP (“Nebel”) does not subject Nebel’s 17 opinions to automatic exclusion under Rule 37(c) of the Federal Rules of Civil Procedure. In the 18 alternative, Plaintiff seeks an order modifying the scheduling order pursuant to Rule 16(b)(4). 19 Defendants County of Fresno, Sheriff Margaret A. Mims, Lieutenant McCoy, Officer Sunny 20 Armenta, and Sergeant Luis Figueroa (collectively “Defendants”) oppose this motion. (ECF No. 21 33.) The court, after considering the parties’ submissions and determining that oral argument was 22 not necessary (ECF No. 34), finds that Plaintiff’s failure to timely serve information required by 23 Rule 26(a)(2) was harmless and grants Plaintiff’s motion in part, holding that the opinions tied to 24 Nebel’s 2025 life care plan are not excluded on timeliness grounds under Rule 37(c). 25 I. PROCEDURAL BACKGROUND 26 Two life care plans are at issue here: one from 2024 and another from 2025. Defendants 27 have had Nebel’s 2024 preliminary life care plan since January 30, 2025, when it was provided to 28 Defendants as an exhibit to Plaintiff’s supplemental mediation brief. (ECF No. 32 at 5; ECF No. 1 32-2.) 2 On July 9, 2025, the court issued a scheduling order requiring Plaintiff to make his 3 mandatory Rule 26(a)(2) expert witness disclosures and submit his reports no later than 4 December 10, 2025. (ECF No. 16.) Plaintiff served Defendants with an initial disclosure of expert 5 witnesses that identified Nebel and attached Nebel’s Rule 26 report. (ECF No. 32-5.) Nebel’s 6 Rule 26 report, a letter dated December 8, 2025, addressed to Plaintiff’s counsel, referenced as 7 enclosed the life care plan and stated that the “life care plan details current and future medical and 8 non-medical lifetime care needs and costs thereof, related to the injuries Jeremy Cargill sustained 9 on 08/10/2020” and provided a descriptive methodology of how the life care plan was created. 10 (ECF No. 32-5 at 5.) No life care plan was enclosed as indicated and Defendants’ counsel 11 inquired as to the missing life care plan on December 29, 2025. (ECF No. 33-1 at 2.) Upon 12 learning that the life care plan was omitted from Plaintiff’s December 10, 2025, transmittal, 13 Plaintiff produced the 2025 life care plan to Defendants that same day. (ECF No. 32 at 8.) 14 The court’s scheduling order required Defendants to produce supplemental expert 15 disclosures on January 23, 2026. (ECF No. 16.) After receipt of Nebel’s 2025 life care plan, 16 Defendants’ expert Derrick P. Olzack, PA-C, MMS, CLCP, (“Olzack”) analyzed Nebel’s 2025 17 life care plan as a part of his supplemental expert disclosure. Olzack’s disclosure was served on 18 January 23, 2026. (ECF No. 32 at 8; see ECF No. 32-7.) 19 On January 28, 2026, five days after submitting their supplemental expert disclosures, 20 Defendants served an objection to Plaintiff’s untimely expert disclosure. (ECF No. 32 at 8; ECF 21 No. 32-8.) Defendants did not seek relief from this court to exclude Plaintiff’s life care plans 22 between the time that Plaintiff served the 2025 life care plan and the time this motion was filed. 23 The court’s July 9, 2025, scheduling order set the expert discovery cutoff for February 20, 24 2026. (ECF No. 16.) That deadline was recently extended to August 28, 2026. (ECF No. 37.) The 25 court understands that Defendants noticed Nebel’s deposition for May 6, 2026. (ECF No. 35 at 5.) 26 A. Nebel’s Life Care Plans 27 The 2025 life care plan was prepared with the following additional information: (1) a 28 follow-up Facetime assessment with Plaintiff on November 7, 2025; (2) collaboration with 1 Plaintiff’s recently retained neurologist Jude Theriot in addition to prior collaborators 2 neuropsychologist Arthur Joyce and neurologist Riaz Tadia; (3) cost-of-living calculations based 3 on Dallas, Texas, Plaintiff’s current residence; (4) Plaintiff’s updated medical treatment including 4 a diagnosis of major depressive disorder, single episode, severe; (5) life expectancy calculations 5 based on the 2025 Life Expectancy National Vital Statistics Report increasing life expectancy by 6 approximately 1.1 years; and (6) Plaintiff’s updated inpatient comprehensive rehabilitation 7 program including only the Centre for Neuro Skills, Dallas, Texas, and eliminating the prior 8 option of Neuro Restorative. (ECF No. 32 at 6-7; ECF No. 33 at 5.) The 2025 life care plan adds 9 an additional $750,303 in opined costs. (ECF No. 33 at 5.) 10 B. Plaintiff’s Motion to Supplement Expert Reports 11 Apparently in response to (1) Defendant’s January 28, 2026, objection to Plaintiff’s use of 12 the 2025 life care plan and (2) other meet-and-confer efforts thereafter, Plaintiff filed this motion 13 to supplement expert reports. (See ECF No. 32-8; ECF No. 32-1 at 5-6.) 14 Plaintiff’s motion to supplement expert reports (ECF No. 32) seeks leave to use at trial 15 either Nebel’s 2024 preliminary life care plan and/or the 2025 life care plan.1 (ECF No. 32 a 2.) 16 In the alternative, the motion seeks an order modifying the court’s scheduling order. (ECF No. 32 17 a 2.) Plaintiff argues that admission of the 2025 life care plan is harmless because (1) it does not 18 add new legal theories or substantially alter the opinions that were previously raised in the 2024 19 preliminary life care plan, (2) any updates in the 2025 life care plan were easily anticipated based 20 on Plaintiff’s injuries and routine changes, (3) Defendant knew about and had possession of the 21 2024 preliminary life care plan since January 30, 2025 (i.e., for over one year), (4) Plaintiff 22 promptly produced the 2025 life care plan upon discovery that it had not been attached to Nebel’s 23 expert disclosures (nineteen days after expert disclosures were due), (5) Defendants’ expert 24 1 Although Plaintiff primarily focuses on the 2025 life care plan in this motion, Plaintiff also asks 25 disjunctively and conjunctively for the availability of the 2024 preliminary life care plan for use at trial. While the 2024 report was served in Plaintiff’s supplemental mediation brief, it was 26 apparently not served in this litigation. And neither party indicates that Olzack reviewed the 2024 27 preliminary life care plan in his 2026 supplemental expert disclosure. The court, therefore, does not find good cause on this record for deeming opinions tied solely to the 2024 life care plan 28 available for trial. Fed. R. Civ. P. 37(c). 1 Olzack prepared and submitted a rebuttal report based on the 2025 life care plan, and (6) expert 2 discovery is still open and Defendants noticed Nebel’s deposition for May 6, 2026. (ECF No. 32 3 at 6-7, 10-12; ECF No. 35 at 5.) 4 Conversely, Defendants argue that Plaintiff’s failure to disclose Nebel’s life care plan was 5 not substantially justified because a lack of diligence does not constitute substantial justification 6 and the information in Nebel’s 2025 life care plan was available to Plaintiff before the disclosure 7 deadline. (ECF No. 33 at 4.) Defendants also argue that allowing the 2025 life care plan for use at 8 trial is not harmless because there are substantive changes including the following: (2) the 2025 9 life care plan increased the estimated lifetime cost by $750,303, (2) Plaintiff’s depression 10 diagnosis was upgraded from mild to severe, (3) neurologist Jude Theriot was added as a 11 consultant for the 2025 life care plan, (4) cost calculations were shifted from Lindale to Dallas, 12 Texas, (5) Plaintiff’s life expectancy was extended approximately 1.1 years, and (6) one of two 13 rehabilitation options was eliminated. (ECF No. 33 at 5.) Defendants argue that these substantive 14 changes deepen and strengthen the original report and do not constitute a proper supplementation 15 under Rule 26(e). (ECF No. 33 at 6.) 16 II. LEGAL STANDARDS 17 Federal Rule of Civil Procedure 26(a)(2) governs the disclosure of expert testimony. 18 Cedant v. United States, 75 F.4th 1314, 1319 (11th Cir. 2023). Pursuant to Rule 26(a)(2)(A), 19 parties must disclose any person whom they may call as an expert witness during trial. If the party 20 specifically employed or retained the witness to give expert testimony in the case, or if the 21 witness is an employee of the party and the employee’s duties regularly involve giving expert 22 testimony, the expert disclosure must include a report from the witness. Fed. R. Civ. P. 23 26(a)(2)(B). The report must contain, among other things, (1) “a complete statement of all 24 opinions to be expressed and the basis and reasons for them,” (2) “the facts or data considered by 25 the witness in forming them,” and (3) “any exhibits that will be used to summarize or support 26 them.” Id. The purpose of Rule 26’s mandatory expert disclosure is to eliminate unfair surprise 27 and to conserve resources by providing the parties with the information needed to prepare for trial 28 and make informed decisions about settlement. Beller ex rel. Beller v. United States, 221 F.R.D. 1 689, 693-94. (D.N.M. 2003). The court may direct the timing and sequence of expert disclosures 2 by court order. Fed. R. Civ. P. 26(a)(2)(D). A party must supplement or correct their Rule 3 26(a)(2) disclosure “in a timely manner if the party learns that in some material respect the 4 disclosure or response is incomplete or incorrect, and if the additional or corrective information 5 has not otherwise been made known to the other parties during the discovery process or in 6 writing.” Fed. R. Civ. P. 26(e)(1)(A). 7 A party who fails to disclose or supplement information required by Rule 26(a)(2) will not 8 be allowed to use that information at hearing or at trial “unless the failure was substantially 9 justified or is harmless.” Fed. R. Civ. P. 37(c)(1). The advisory committee notes for Rule 37 state 10 that the preclusion of sanctions for violations that are “harmless” is “needed to avoid unduly 11 harsh penalties in a variety of situations.” Fed. R. Civ. P. 37(c)(1) advisory committee’s notes to 12 1993 amendment. Examples of “harmless” include “the inadvertent omission from a Rule 13 26(a)(1)(A) disclosure of the name of a potential witness known to all parties” or where there was 14 “the failure to list as a trial witness a person so listed by another party.” Id. 15 III. DISCUSSION 16 Upon notice, Plaintiff promptly remedied the omission of 2025 life care plan. Moreover, 17 the court cannot find harm sufficient to warrant exclusion of opinion testimony tied to the 2025 18 life care plan. 19 A. Substantial Justification 20 Plaintiff timely remedied the omission of Nebel’s 2025 life care plan. Plaintiff intended to 21 include Nebel’s 2025 life care plan in his December 10, 2025, disclosure but inadvertently failed 22 to do so even though the life care plan was referenced as an enclosure to Nebel’s Rule 26 report. 23 (ECF No. 32-1 ¶ 3 (Ex. D.)) On the same day Defendants alerted him that the life care plan was 24 not enclosed, Plaintiff provided Defendants with a copy of the 2025 life care plan. (ECF No. 32-1 25 ¶ 6; ECF No. 33-1 ¶ 5.) This supplement was a timely response on Plaintiff’s part when he 26 realized that his disclosure was inadvertently incomplete. The court does not see evidence that 27 Plaintiff’s counsel was gaming the deadline or sandbagging Defendants.

28 1 B. Harm 2 The court is not persuaded that the late disclosure harmed Defendants. Defendants were 3 aware that Nebel prepared the 2024 life care plan and should have anticipated that some similar 4 work product would be produced in Plaintiff’s expert disclosures in December 2025. Indeed, 5 Defendant’s expert served a rebuttal report exceeding fifty pages that analyzes Nebel’s 2025 life 6 care plan, despite having nearly three weeks less time to prepare the report. In spite of 7 Defendants’ contrary assertions, there seems to be modest substantive/methodological differences 8 between the 2024 and 2025 life care plans other than changes in Plaintiff’s life such as his change 9 of residence from Lindale to Dallas, Texas, resulting in a higher estimated cost of living and the 10 elimination of one rehabilitation option, an updated life-expectancy resulting in higher lifetime 11 costs, and an updated medical diagnosis, all of which were based on changes in Plaintiff’s life 12 circumstances. (ECF No. 32-1 ¶ 4.) The court sees no reason why Nebel should have anticipated 13 that Plaintiff would make those changes when the 2024 initial life care plan was served. 14 The impact of another neurologist consultant also seems modest because Nebel’s 2024 life 15 care plan already utilized the services of a neurologist consultant and a neuropsychologist. 16 Considering that Defendants did not object to Nebel’s 2025 life care plan until five days after 17 their rebuttal reports were served and did not seek this court’s assistance in either seeking more 18 time to respond or excluding the 2025 life care plan until their opposition to Plaintiff’s instant 19 motion, the court is not persuaded of harm. Moreover, because Defendants have the opportunity 20 to depose Nebel regarding the 2025 life care plan and Plaintiff’s late disclosure does not impact 21 the court’s schedule, the court finds that Defendants have not been harmed and the opinions tied 22 to the 2025 life care plan should not be excluded under Rule 37(c) on grounds of timeliness. 23 IV. CONCLUSION AND ORDER 24 The court emphasizes that federal trial courts routinely set schedules and establish 25 deadlines for efficient resolution of cases in a system often bogged down by heavy caseloads. 26 “Those efforts will be successful only if the deadlines are taken seriously by the parties, and the 27 best way to encourage that is to enforce the deadlines.” Wong v. Regents of Univ. of Cal., 410 28 F.3d 1052, 1060 (9th Cir. 2005). Although these deadlines should not be enforced mindlessly, 1 | “[p]arties must understand that they will pay a price for failure to comply strictly with scheduling 2 | and other orders, and that failure to do so may properly support severe sanctions and exclusions 3 | of evidence.” Jd. 4 In this instance, the progress towards the closure of discovery and resolution of the case 5 | was not frustrated because Defendants timely served rebuttal reports and can depose Nebel 6 || despite Plaintiffs late disclosure. To be sure, the court is disappointed in Plaintiff's original 7 | omission of the 2025 life care plan. Conversely, the court appreciates Defendants’ efforts to 8 | clarify the incomplete report and their expert’s efforts to expeditiously prepare a timely updated 9 | cost comparison based on the 2025 life care plan. But invoking exclusion under Rule 37(c) here is 10 | too harsh a consequence. 11 Based on the foregoing, Plaintiff's motion to supplement expert reports (ECF No. 32) is 12 | HEREBY GRANTED IN PART AND DENIED IN PART. 13 The motion is: 14 1. DENIED as to the 2024 preliminary life care plan; 15 2. DENIED as to modifying the scheduling order; 16 3. GRANTED as to the 2025 life care plan; and 17 4. The limited grant of this order addresses only whether the opinions tied to the 2025 18 | life care plan are subject to exclusion under Rule 37(c) because of that plan’s tardy disclosure. 19 | The court states no opinion on the admissibility of those opinions or alternative grounds for 20 | exclusion that the parties might raise in future motions or at trial. 21 IT IS SO ORDERED. yy 23 Dated: _ May 15, 2026 ahi A 04 UNITED STATESMAGISTRATE JUDGE

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