Kuklock v. Nevada Department Of Transportation

Opinion

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 4 JENNIFER KUKLOCK 3:19-cv-00369-LRH-CLB

5 Plaintiff,

6 v. ORDER

NEVADA DEPARTMENT OF 8 TRANSPORTATION, 9 Defendant.

10 Before the court is Defendant Nevada Department of Transportation’s (NDOT) 11 motion to strike related to Plaintiff’s supplemental expert report. (ECF No. 39). Plaintiff 12 opposed the motion, (ECF No. 40, 41, 42), and NDOT replied. (ECF No. 43). Having 13 thoroughly reviewed the record and papers, the finds that NDOT’s Motion to Strike (ECF 14 No. 39) is GRANTED, in part, and DENIED, in part, for the reasons stated herein. 15 I. FACTUAL AND PROCEDURAL HISTORY 16 On July 1, 2019, Plaintiff Jennifer Kuklock (“Kuklock”) initiated this lawsuit alleging 17 the Nevada Department of Transportation (“NDOT”) engaged in discriminatory 18 employment practices in their decision to fire Kucklock and in their subsequent refusal to 19 rehire. (ECF Nos. 1, 7). The current motion arises out of Kuklock’s supplementation of 20 her expert report on damages prepared by Kit Darby (“Darby”). (ECF No. 39 at 1). 21 Pursuant to the court’s scheduling order (ECF No. 32), the parties exchanged initial expert 22 reports before the May 4, 2020 deadline. (ECF Nos. 34-1; 34-2.) The parties then each 23 submitted a rebuttal report by the August 28, 2020 deadline. (ECF No. 34-3; 34-4.) Fifty- 24 one days after the rebuttal disclosure deadline and two business days before Darby’s 25 scheduled deposition, Kuklock sent a supplemental expert report (“Third Report”) to 26 NDOT changing portions of the initial disclosure. (ECF No. 34 at 1.) This Third Report 27 1 increased damages and was accompanied by a new settlement demand. (ECF No. 43 2 at 2.) NDOT promptly filed the present motion to strike arguing the Third Report is an 3 improper supplementation and requesting sanctions under Rule 37. (ECF No 39 at 1-3.) 4 II. LEGAL STANDARDS 5 Initial disclosures provide significant benefits to litigation and “courts have a duty 6 to enforce the initial disclosure requirements; however, courts must apply the Rules with 7 an eye toward ‘common sense,’ keeping in mind the purposes that the Rules are intended 8 to accomplish.” Silvagni v. WalMart Stores Inc, 320 F.R.D. 237, 240 (D. Nev. 2017). The 9 initial disclosure of damages computation “enables the defendant to understand the 10 contours of its liability and, by extension, to make informed decisions regarding 11 settlement.” Id. 12 Under the Federal Rules of Civil Procedure, the initial disclosure of expert opinions 13 are conducted in accordance with the timeframe set by a scheduling order or, if no order 14 is entered, pursuant to the timeframe stated in the Rules. Fed. R. Civ. P. 26(a)(2)(B). 15 The Rules require the initial disclosure of an expert’s opinion to be “a complete statement 16 of all opinions the witness will express and the basis and reasons for them.” Fed. R. Civ. 17 P. 26(a)(2)(B)(i). “A party must make its initial disclosures based on the information then 18 reasonably available to it.” Fed. R. Civ. P. 26(a)(1)(E). After initial disclosures are made, 19 a party is required to supplement the initial disclosure “in only three situations: 1) upon 20 court order; 2) when the party learns that the earlier information is inaccurate or 21 incomplete; or 3) when answers to discovery requests are inaccurate or incomplete.” 22 Keener v. United States, 181 F.R.D. 639, 640 (D. Mont.1998); see also Fed. R. Civ. P. 23 26(e)(1). 24 Supplementation “means correcting the interstices of an incomplete report based 25 on information that was not available at the time of disclosure. Keener, 181 F.R.D. at 26 640. If the second disclosure presents “rebuttal evidence,” the disclosure must be 27 1 submitted in accord with Rule 26(a)(2)(D)(ii). Keener, 181 F.R.D. at 640. Evidence is 2 “rebuttal” evidence when it is “intended solely to contradict or rebut evidence on the same 3 subject matter identified by another party under paragraph(a)(2)(B),” and must be made 4 “within 30 days after the disclosure made by the other party.” Fed. R. Civ. P. 5 26(a)(2)(D)(ii); see also Keener, 181 F.R.D. at 640. 6 III. DISCUSSION 7 A. Proper Supplementation of Expert Report 8 Here, Kuklock’s supplemental expert disclosure contains information that is both 9 proper and improper under the Rules. Rule 26(e) “creates a ‘duty to supplement,’ not a 10 right.” Luke v. Family Care & Urgent Med. Clinics, 323 Fed. Appx. 496, 500 (9th Cir. 11 2009). Supplementation is not “a loophole through which a party who submits partial 12 expert witness disclosures, or who wishes to revise her disclosures in light of her 13 opponent’s challenges to the analysis and conclusions there in, can add to them to her 14 advantage after the court’s deadline has passed.” Id. Overall, Rule 26(e) “does not give 15 license to sandbag one’s opponent with claims and issues which should have been 16 included in the expert witness’ report.” Beller ex rel. Beller v. United States, 221 F.R.D. 17 689, 695 (D.N.M. 2003). 18 “To countenance a dramatic, pointed variation of an expert’s disclosure under the 19 guise of Rule 26(e)(1) supplementation would be to invite the proverbial fox into the 20 henhouse. The experienced expert could simply ‘lie in wait’ so as to express his genuine 21 opinions only after [the opposing party] discloses hers.” Keener, 181 F.R.D. at 641. While 22 some information added in Kuklock’s supplemental disclosure would have such an effect, 23 Kuklock had a duty to supplement certain pieces of information that were included in the 24 Third Report. For example, the Third Report corrects mistakes made in the initial report. 25 The initial report mistakenly treated the PERS employer pay contribution plan like a 401K 26 when, in fact, it is distinguishable from a 401k. (ECF No. 40 at 16.) Moreover, certain 27 1 information contained in the Third Report was not readily available to Darby at the time 2 of the initial report. New information, such as Kuklock’s continued unemployment during 3 the COVID-19 pandemic, is the proper subject of supplementation. 4 The court finds that the information contained in Table One below is proper 5 supplementation and is permissible. The table identifies the specific page references in 6 the supplemental expert report where the information is contained, the material or 7 information at issue, and a brief statement for the court’s determination that the 8 information is proper supplementation. 9 10 Table 1 – Proper Supplementation 11 12 Page Number Material Explanation 13 ECF No. 34-5 14 Permitted because this material corrected a 15 typographical error in the initial report which 2-year delay and 6.8 16 8 – 9 stated there was a one-year delay. This was years wrong and the underlying calculation was 17 based upon a 2-year delay. 18 19 20 21 22 23 24 25 26 27 1 Page Number Material Explanation 2 ECF No. 34-5 3 Permitted because this information was not 4 readily available to the expert at the time of 5 disclosure. The assumption that female “Women Pilots are pilots are actively recruited was presented in 6 actively recruited…” the original report. However, due to 7 and women pilots are technological errors the database showing 8 9 -10 hired 2 to 4 years the precise information needed to be 9 earlier than male recovered. NDOT had notice of the 10 pilots. existence of the information in the initial 11 report and a timely disclosure of that information occurred with this supplemental 12 report. 13 Permitted because this information was 14 Ex. I – Intl. Soc. Of included in the database discussed above. 15 11, 60-62 Women Airline Pilots The information was not obtainable by 16 data expert at time of initial disclosure and is a 17 proper supplement of the initial report. Permitted because NDOT agrees it was not 18 Table regarding pilot 14 new information after original objection. 19 hiring (ECF No 42-5 at 6.) 20 Permitted because this corrects an 21 Airline Transport Pilot 15 inadvertent error in the expert’s articulation Certificate 22 of Kuklock’s pilot certification. 23 24 25 26 27 1 Page Number Material Explanation 2 ECF No. 34-5 3 Permitted because this is a proper 4 correction to a misunderstanding of NDOT’s 5 internal pay structure. The initial report 19 NDOT Pilot Pay assumed Kuklock would have reached a 6 Pilot 3 position, however, this was a mistake 7 and expert agreed with NDOT that Kuklock 8 would only reach Pilot 2 position. 9 Permitted because this corrects an error — 10 failing to calculate wage based upon actual 11 W-2’s—and properly supplements based 19 Other corporate pay upon new information—Kuklock’s continued 12 unemployment during the COVID-19 13 pandemic. 14 Permitted because this additional section is 15 PERS Employer Pay correcting an inaccuracy in the initial report. 16 Contribution Plan – The initial report treated the PERS 26-28 17 Calculation of PERS contribution as a 401k plan. The expert benefit realized this was a mistake because PERS 18 is not a 401k. 19 20 Voluntary additional 30 This information is not new and is permitted. pilot contributions… 21 22 Permitted because this address an 23 inadvertent tabulation error present in the 32 Total career earnings initial report and adjusts to changed 24 circumstances—Kuklock’s unemployment 25 during the COVID-19 pandemic. 26 27 1 Page Number Material Explanation 2 ECF No. 34-5 3 Permitted because this addresses a 6.8-year, 23.6-year 4 33 typographical error in the initial report. The career 5 underlying calculation did not change. 8.8-year, includes 7- Permitted because this addresses a 6 34 month (.6-year) job typographical error in the initial report and 7 search the underlying calculation did not change. 8 Permitted because this addresses 9 typographical errors and does not change 10 any of the underlying assumptions or 11 information. NDOT even recognized in their motion to strike that this information is 12 consistent in both the initial and Third 13 Report, but objects because it “replies” to an 14 38, 39 6.8-year, 8.8 year inconsistency NDOT pointed out in the 15 rebuttal report. (ECF No. 39-6 at 12.) 16 However, because the inconsistency was 17 the result of a typographical error and nothing about the underlying opinion is 18 actually changed, the information added is a 19 proper supplement to fix an error in the 20 report. 21 22 23 24 25 26 27 1 Page Number Material Explanation 2 ECF No. 34-5 3 Permitted because the effects of the 4 COVID-19 pandemic on Kuklock’s 5 employment were unforeseeable at the Tables and time. While she may have been recently laid 6 38, 39 calculations off at the time of the initial report, the 7 understanding that she would remain 8 unemployed for an extended period is a 9 changed circumstance. 10 Permitted because the change here corrects 11 numerical errors in the initial report. Tabulation errors changed circumstances 12 due to COVID-19, and inadvertent 13 40 Career value inaccuracies in the PERS calculation are 14 properly supplemented by the Third Report. 15 The underlying method for calculating loss 16 remains the same from the initial report to 17 the Third Report. Assumption of 18 Plaintiff’s career at Permitted because this information is 19 63 NDOT: 1.5 years correcting an error in the initial report—that 20 intern, 5.3 years Pilot Kuklock would reach Pilot 3 status. 21 2 22 Permitted because this information corrects 23 Tables for Age at errors in the initial report stating that 24 Termination and plaintiff’s career is 23.3 years when actual 64 Major Career estimate is 23.6 years. The 23.6-year 25 Assumptions assumption was also included in the initial 26 report, the Third Report fixes the typo. 27 1 Page Number Material Explanation 2 ECF No. 34-5 3 Tables for Model Permitted because this information 4 Comparison and 65 addresses changed circumstances in 5 Career Loss Kuklock’s employment status. Summary 6 Assumptions and Permitted because this information 7 79 theories for career at addresses the expert’s erred treatment of 8 NDOT PERS as a 401k. 9 Permitted because, as previously 10 Assumptions and discussed, prolonged unemployment during 80 11 theories for mitigation the pandemic was an unforeseeable changed circumstance affecting mitigation. 12 Table – Plaintiff’s W- 13 2s; Transparent Permitted because it corrects an error in the 14 81 Nevada Benefit initial report. 15 Statement 16

17 B. Improper Supplementation of Expert Report 18 Although some of the information in Kuklock’s supplemental expert report is 19 appropriate as described above, some of the information in the report is improper. To 20 allow free supplementation and permit rebuttal in a “supplement” would “circumvent the 21 full disclosure requirement implicit in Rule 26. . .” and there would be no finality to expert 22 reports. Beller, 221 F.R.D. at 701-702. In fact, it appears in some instances Kuklock took 23 the opportunity to supplement as an open door to add information that is not proper under 24 the Rules. There are places in the report where information was changed to respond to 25 criticisms by NDOT. (See, e.g., ECF No. 42-5 at 10.) These instances of improper 26 supplementation do not address errors or new information but instead add information 27 1 that should have been included in the initial report. Allowing such information to be added 2 to the report would allow parties in litigation to circumvent the full disclosure requirements 3 of Rule 26 and would lead to endless rebuttal reports disguised as supplements. Beller, 4 221 F.R.D. at 701. 5 The court finds that the information contained in Table Two below violated the 6 Rules and was not proper supplementation. Once again, the table identifies the specific 7 page references in the supplemental expert report where the improper information is 8 contained, the material or information at issue, and a brief statement explaining the 9 reasons for the court’s determination that the information is improper supplementation. 10 Table 2 – Improper Supplementation 11 12 Page number 13 ECF No. 34-5 Material Explanation 14 This is not supplementation based upon 15 an error or information that was not known 16 8 Retirement age of 65 at the time. The statement directly 17 responds to criticism by NDOT. Therefore, 18 this is improper supplementation 19 This information is not based upon any 20 new information and was known at the Paragraph 2: very low time of the initial report. To allow 21 9 initial flight time supplementation in this scenario would cut 22 against the finality objectives of Rule 23 26(e). 24 25 Paragraph 3: “intern in Kuklock agreed to withdraw. (ECF No. 42- 9 name only” 5 at 2.) 26 27 1 Page number 2 ECF No. 34-5 Material Explanation 3 While the statement might expressly state 4 an implicit understanding in the initial 5 Paragraph 4: “any 9 report, an untimely supplement is the 6 work loss calculation” improper time to make explicit the implicit 7 assumptions of the expert. 8 Supplementation does not give a party 9 carte blanch to change the report outside Last Paragraph: of what is necessary to fix errors. While 10 10 probability of Plaintiff “similar statements” may have been made 11 achieving these goals in the initial report, changing these 12 statements now is an improper bolstering 13 of the report. 14 Kuklock had this information before the 15 initial report. Adding this now is improper 11, 58 Ex. G-99’s scholarship 16 bolstering in response to NDOT’s criticism of the initial report. 17 18 Ex. H-NDOT General Kuklock admits this should be withdrawn. 11, 59 19 Operations Manual (ECF No. 42-5 at 8.) 20 This information was known and 21 Captain Kuklock is the obtainable at the time of the initial report 22 15-16 recipient of a 99’s and should have been included in the scholarship 23 report then. 24 There were 7,136 This information was known and 25 women with Airline obtainable at the time of the initial report 18 Transport Pilot and should have been included in the 26 licenses report then. 27 1 Page number 2 ECF No. 34-5 Material Explanation 3 4 Kuklock admits this should be withdrawn. 18 Maintenance items 5 (ECF No. 42-5 at 8.) 6 This information was left out of initial 7 report and there is no indication that it was 8 21 Profit sharing new information or correcting an error. 9 Therefore, supplementation is improper 10 Kuklock admits this is “in response to No wage growth has 11 NDOT’s rebuttal report.” (ECF No. 42-5 at 21 been added to this 12 10.) Therefore, improper model… supplementation. 13 New tables that “show the basis for 14 statement in initial report” improperly 15 bolster an opinion. Additionally, this 16 Major airline pay 22 information was obtainable at the time of increases 17 initial report and no permissible reason 18 was given for its addition in the Third 19 Report. This additional language is in response to 20 NDOT’s criticism and makes explicit an 21 implicit assumption in the initial report. An 22 25 To be conservative… untimely supplement is the improper time 23 to make explicit the expert’s implicit 24 assumptions. 25 26 27 1 Page number 2 ECF No. 34-5 Material Explanation 3 Nothing suggests this information was left 4 out in err. Additionally, this information 5 78 Retirement Dates was clearly known at the time of the initial 6 report which provided a retirement 7 consideration. 8

9 C. Sanctions 10 Having determined that the information contained in Table Two was improper and 11 violated the rules, the court must next determine the appropriate sanction, if any, that 12 should be imposed. NDOT requests the imposition of sanctions for the improper 13 supplementation of the expert report under Rule 37(c)1. (ECF No. 39 at 3). Rule 37(c)(1) 14 permits the court to implement sanctions that include the payment of reasonable 15 expenses, striking documents in whole or in part, and barring the use of information to 16 supply evidence at a motion, hearing or trial. Fed. R. Civ. P. 37(c)(1)(A)-(C). Rule 37(c)(1) 17 “was intended to foster stricter adherence to discovery requirements and to broaden the 18 power of the district court to sanction violations of Rule 26.” Yeti by Molly, Ltd. v. Deckers 19 Outdoor Corp., 259 F.3d 1101, 1106 (9th Cir. 2001). “Two express exceptions ameliorate 20 the harshness of Rule 37(c)(1): the information may be introduced if the parties’ failure to 21 disclose the required information is substantially justified or harmless.” Id. (citing Fed. R. 22

23 1 The court notes that “when a dispute arises concerning violation of expert disclosure obligations pursuant to a court approved discovery plan, the Court should first 24 look to Rule 16(f) for determining both compliance and sanctions, as opposed to Rule 37(c).” Aveka LLC v. Mizuno Corp., 212 F.R.D. 306, 309 (M.D.N.C. 2002). However, 25 because NDOT only requested sanctions under Rule 37(c), not Rule 16(f) and both Rules 26 permit the court to impose sanctions contained in Rule 37(b)(2)(B) & (C), the court will analyze sanctions in accordance with the sanctions requested by NDOT under Rule 27 37(c). 1 Civ. P. 37(c)(1)). To determine whether substantial justification and harmlessness exist, 2 the court looks to several factors, including “(1) prejudice or surprise to the party against 3 whom the evidence is offered; (2) the ability of that party to cure the prejudice; (3) the 4 likelihood of disruption of trial; and (4) bad faith or willfulness in not timely disclosing the 5 evidence.” Silvagni, 320 F.R.D. at 242. Ultimately, “this is an equitable analysis entrusted 6 to the Court’s discretion.” Id. 7 Here, the circumstances require the imposition of some lesser form of sanctions 8 that does not amount to exclusion of the evidence at trial. When disclosure is provided 9 during the discovery period and the delay can be remedied during the existing discovery 10 period or with a limited and brief extension of discovery, lesser sanctions and other 11 measures are more appropriate than evidence preclusion. Silvagni, 320 F.R.D. at 243. 12 The relevant factors dictate that some level of sanctions is required to give the rules teeth. 13 See id. However, in light of the information’s mixed status as proper and improper, the 14 imposition of a harsh sanction like evidence preclusion is not justified. Indeed, the 15 circumstances surrounding the disclosure of the Third Report are suspect. “Courts 16 distinguish ‘true supplementation’ (e.g., correcting inadvertent errors or omissions) from 17 gamesmanship. . . .” Gallagher v. Southern Source Packaging, LLC, 568 F. Supp. 2d. 18 624 (E.D.N.C. 2008). The Third Report, which increased the amount of damages, was 19 disclosed to NDOT at the same time as a new settlement demand and only a few days 20 before Darby’s scheduled deposition. (ECF No. 34 at 1.) These circumstances give 21 pause to the court and seem to suggest that Kuklock is engaged in gamesmanship to 22 improperly influence a settlement. 23 Moreover, NDOT was most certainly surprised by the Third Report and the effect 24 on damages, however, the information that altered the damages calculation was properly 25 supplemented. Ultimately, the information that is improper comes in the form of changes 26 to the report’s narrative. (See ECF No. 42-5.) The changes bolster the language in 27 1 || response to criticism of the initial report. While this is violative of the rules, it is not an 2 || egregious violation that expands theories of liability or otherwise prejudices a party on the 3 || eve of trial. See Silvagni, 20 F.R.D. at 243. Furthermore, NDOT still has the opportunity 4 || to cure the surprise through Darby’s deposition. (See ECF No. 40 at 25.) While Kuklock 5 || argues the information provided is otherwise harmless, the circumstances and violation 6 || of the rules do not permit Kuklock to completely escape sanctions. Therefore, the court 7 || orders the information detailed in Table Two above that violates Rule 26 to be stricken 8 || from the report. 9 || IV. CONCLUSION 10 Consistent with the discussion above, IT IS ORDERED that NDOT’s Motion to 11 || Strike (ECF No. 39) is GRANTED, in part, and DENIED, in part; and, 12 IT IS FURTHER ORDERED that the information contained in Table 2 — Improper 13 || Supplementation, be STRICKEN from the report. 14 DATED: December 2, 2020 . 15 .

16 UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28 15