2 UNITED STATES DISTRICT COURT 3 DISTRICT OF NEVADA 4 5 LORI MENDEZ, 6 Case No. 3:23-CV-00181-ART-CLB Plaintiff, 7 vs. ORDER (ECF Nos. 44, 46, 47) 8 HOBBY LOBBY STORES, INC.; JOHN DOES I-XX, inclusive; ABC 9 CORPORATIONS I-X, inclusive; and BLACK AND WHITE COMPANIES, 10 I-X, inclusive,
11 Defendants. 12 Before the Court are Plaintiff’s Motion to Strike (ECF No. 46), Defendant’s 13 Motion for Summary Judgment (ECF No. 47), and Plaintiff’s Motion for Sanctions 14 (ECF No. 44). For the reasons below, the Court GRANTS Plaintiff’s Motion to 15 Strike the supplemental expert report of Dr. Hazany, DENIES Defendant’s Motion 16 for Summary Judgment, and GRANTS Plaintiff’s Motion for Sanctions. 17 I. Motion to Strike 18 Plaintiff’s otion to strike Defendant’s supplemental expert report of Dr. 19 Hazany argues that the supplemental report was untimely under Federal Rule of 20 Civil Procedure 26, and that it should therefore be excluded under Federal Rule 21 of Civil Procedure 37. The Court agrees and strikes in its entirety the 22 supplemental report of Dr. Hazany. 23 According to the Court’s scheduling order, the deadline for initial expert 24 reports was March 25, 2024. (ECF No. 25.) On that date, Hobby Lobby served 25 Plaintiff with its initial expert disclosure, which disclosed Dr. Hazany and 26 included his November 22, 2023 initial expert report. (ECF No. 46-17.) That 27 report listed 29 images that Dr. Hazany reviewed. (Id.) On October 8, 2024, Hobby 28 Lobby served Plaintiff with a supplemental report from Dr. Hazany, in which he 1 reviewed an additional seven images. (ECF No. 46-19.) It is undisputed that these 2 seven images were available to Dr. Hazany at the time of his initial expert report. 3 Discovery then closed on October 23, 2024. (ECF No. 38.) 4 A. The Supplemental Report was Untimely 5 Defendants do not appear to dispute that the disclosure was untimely. 6 Under Federal Rule of Civil Procedure 26(e), a party must supplement expert 7 disclosures “if the party learns that in some material respect the disclosure or 8 response is incomplete or incorrect, and if the additional or corrective information 9 has not otherwise been made known to the other parties during the discovery 10 process or in writing.” Supplementation is meant to correct inaccuracies or fill in 11 information that was not available at the time of the initial report disclosure. 12 Hologram USA, Inc. v. Pulse Evolution Corp., No. 2:14-CV-00772-GMN-NJK, 2016 13 WL 3965190, at *2 (D. Nev. July 21, 2016) (citing Luke v. Fam. Care & Urgent 14 Med. Clinics, 323 F. App’x 496, 500 (9th Cir. 2009)). “However, supplementation 15 is not a ‘loophole’ for parties who submit partial disclosures and it does not allow 16 parties to include claims and issues which should have been included in the 17 initial expert report.” Tamares Las Vegas Props., LLC v. Travelers Indem. Co., No. 18 2:16-CV-02933-JAD-NJK, 2018 WL 11326553, at *2 (D. Nev. Nov. 1, 2018) (citing 19 Hologram, 2016 WL 3965190, at *2.) Because the parties do not dispute that Dr. 20 Hazany had access to the seven images at the time of his initial report, the 21 supplemental report was improper under Rule 26(e). See id. at *3 (supplemental 22 expert report filed after expert report deadline was improper where it was made 23 based upon information available at the time); see also Hologram, 2016 WL 24 3965190, at *3 (same). 25 B. Striking is Warranted Under Rule 37 26 Under Federal Rule of Civil Procedure 37(c)(1), information or witnesses not 27 properly disclosed under Rule 26(e) are prohibited at trial unless the failure “was 28 substantially justified or is harmless.” Yeti by Molly, Ltd. v. Deckers Outdoor Corp., 1 259 F.3d 1101, 1106 (9th Cir. 2001). Courts consider the following factors in 2 determining whether a failure to disclose was justified or harmless: (1) prejudice 3 or surprise to the party against whom the evidence is offered; (2) the ability of 4 that party to cure the prejudice; (3) the likelihood of disruption of the trial; and 5 (4) bad faith or willfulness involved in not timely disclosing the evidence. Burger 6 v. Excel Contractors, Inc., No. 2:12-CR-01634-APG-CW, 2013 WL 5781724, at *4 7 (D. Nev. Oct. 25, 2013). 8 Defendant primarily argues that sanctions are not warranted because the 9 improper supplemental report was harmless. Defendant’s reliance on Hawks Hill 10 Ranch, LLC v. Yarak, No. 22-CV-01567-MMC-DMR, 2024 WL 1421265 (N.D. Cal. 11 Apr. 2, 2024), and Burger, 2013 WL 5781724, are misplaced. In Hawks Hill Ranch 12 the court found that the additions made in the supplemental report were “minor 13 changes” such as corrections of typos and the addition of “a few lines to clarify or 14 emphasize points made in the rebuttal report.” 2024 WL 1421265 at *2. Here, 15 there is no dispute that Defendants supplemental report reviews seven images 16 not reviewed at all in the initial report. The supplemental report makes findings 17 and conclusions as to several of these images, such as “No CT evidence for 18 traumatic brain injury,” “Other etiologies including traumatic brain injury are 19 unlikely,” and “No post-traumatic findings.” (ECF No. 46-19 at 3-5.) The finding 20 in Hawks Hill Ranch is therefore not applicable to the instant circumstances— 21 unlike in that case, here the supplemental report obviously “alters [] prior 22 opinions” and “adds new ones” as to these seven images. See 2024 WL 1421265 23 at *2. 24 In Burger, the court found that there was no harm to the opposing party 25 where the supplement was filed “well before the rebuttal expert disclosure 26 deadline, meaning the rebuttal expert had ample time to review and rebut the 27 supplements,” and “well before the close of discovery and expert depositions.” 28 2013 WL 5781724, at *4. Given this, the court held that any risk of prejudice or 1 surprise could easily be cured. Id. The same is not true here. The deadline for 2 rebuttal expert disclosure was May 22, 2024. (ECF No. 29.) Defendants did not 3 serve the supplemental disclosure until October 8, 2024, which was only 15 days 4 before discovery closed. As Plaintiffs point out, this meant that Plaintiff’s rebuttal 5 expert had no opportunity to review and rebut the supplement. 6 The facts of this case are closer to those in Tamares, 2018 WL 11326553. 7 There, the court granted a plaintiff’s motion to strike a supplemental expert report 8 where it was filed after the rebuttal expert deadline “despite numerous 9 extensions,” and where discovery had closed. Id. at *4; see also Hologram, 2016 10 WL 3965190, at *3 (granting motion to strike supplemental expert report filed 11 after rebuttal expert disclosure deadline and “on the twilight of the discovery 12 period”). Here, the late disclosure meant that Plaintiff’s rebuttal expert was not 13 able to review and rebut the new conclusions and opinions in the supplemental 14 report. The Court granted the parties multiple extensions of time during the 15 discovery period, including an extension of the rebuttal expert deadline. (See ECF 16 Nos. 25, 29, 36, 38.) Nor can the prejudice be cured at this stage. See Hawks Hill 17 Ranch, 2024 WL 1421265, at *4 (N.D. Cal. Apr. 2, 2024) (no cure where discovery 18 is closed and dispositive motion fully briefed). Accordingly, the Court grants 19 Plaintiff’s motion to strike Defendant’s supplemental expert report of Dr. Hazany. 20 II. Motion for Summary Judgment 21 Defendant’s motion for summary judgment makes two arguments: first, 22 that Plaintiff has failed to bring forth evidence that Hobby Lobby breached its 23 duty of care, and second, that the Plaintiff’s expert is not qualified, making his 24 opinions inadmissible. 25 A. Factual Background 26 On June 5, 2021, Plaintiff Lori Mendez was shopping at a Hobby Lobby 27 store with her daughter. (ECF No. 53-2 at 3.) As Plaintiff was browsing, she 28 noticed a framed picture that she thought her great-grandson would like. (Id. at 1 4.) Plaintiff reached for the frame and attempted to pull it off the display. (Id.) As 2 she did so, “the next thing I know I have stuff falling all over me.” (Id.) The images 3 provided by Hobby Lobby appear to show that the picture Plaintiff was reaching 4 for was positioned at the very top of a peg board display, and just above the 5 picture was a shelf positioned over the top of the display. (ECF No. 53-3 at 6-8.) 6 The incident report states that “[w]hile getting a photo the above shelf fell on Lori’s 7 head.” (Id. at 4.) This is consistent with what Plaintiff’s daughter wrote on the 8 “witness information” portion of the report; “the above shelf fell with many items 9 falling on my mother’s head, upper body . . .” (Id. at 5.) One of the images also 10 appears to show that the shelving above the picture collapsed downwards. (Id. at 11 7, 8.) Hobby Lobby’s Rule 30(b)(6) deponent testified that it is Hobby Lobby’s 12 position that the shelf dislodged. (ECF No. 53-7 at 5.) Plaintiff alleges that as a 13 result of the incident, she has sustained injuries to her head and neck. (ECF Nos. 14 1-2 at 3, 46 at 3-6.) 15 The displays at Hobby Lobby such as the one Plaintiff attempted to take a 16 picture from are set up using schematics, also referred to as “planograms.” (ECF 17 No. 48 at 8-10.) While the planogram for the superhero picture display at issue 18 did not include shelves above them, the manager in training at the time of the 19 incident testified that shelving above such displays was permitted by managers 20 and used at various times when needed based on product volume. (Id. 12-13, 17- 21 19.) 22 Plaintiff’s expert, Mr. Rodney Taylor, concluded that the shelf fell because 23 there was insufficient space between it and the pictures displayed below, making 24 it difficult for a customer to retrieve the item without disrupting the shelf above. 25 (ECF No. 48 at 61.) In his supplemental report, Mr. Taylor also noted that in one 26 of the pictures provided by Hobby Lobby, which appears to show the shelves just 27 after the collapse, there is only one peg between the top of the picture Plaintiff 28 had tried to remove and the top of the peg board where the shelf was. (Id. at 104.) 1 However, in another image apparently taken sometime after the incident, 2 approximately four peg holes can be seen between the picture and the top of the 3 display. (Id.) A store manger at the time agreed in her testimony that lifting one 4 of the pictures at the top of the display could potentially cause the shelf above to 5 dislodge. (ECF No. 53-5 at 4.) 6 B. Legal Standard 7 “The purpose of summary judgment is to avoid unnecessary trials when 8 there is no dispute as to the facts before the court.” Nw. Motorcycle Ass'n v. U.S. 9 Dep't of Agric., 18 F.3d 1468, 1471 (9th Cir. 1994). Summary judgment is 10 appropriate when the pleadings, the discovery and disclosure materials on file, 11 and any affidavits “show there is no genuine issue as to any material fact and 12 that the movant is entitled to judgment as a matter of law.” Celotex Corp. v. 13 Catrett, 477 U.S. 317, 322 (1986). An issue is “genuine” if there is a sufficient 14 evidentiary basis on which a reasonable factfinder could find for the nonmoving 15 party and a dispute is “material” if it could affect the outcome of the suit under 16 the governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986). 17 The court must view the facts in the light most favorable to the non-moving party 18 and give it the benefit of all reasonable inferences to be drawn from those facts. 19 Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). 20 The party seeking summary judgment bears the initial burden of informing 21 the court of the basis for its motion and identifying those portions of the record 22 that demonstrate the absence of a genuine issue of material fact. Celotex, 477 23 U.S. at 323. Once the moving party satisfies this burden, the burden shifts to the 24 non-moving party to “set forth specific facts showing that there is a genuine issue 25 for trial.” Anderson, 477 U.S. at 256. The nonmoving party “may not rely on 26 denials in the pleadings but must produce specific evidence, through affidavits 27 or admissible discovery material, to show that the dispute exists[.]” Bhan v. NME 28 Hosps., Inc., 929 F.2d 1404, 1409 (9th Cir. 1991). 1 C. Analysis 2 1. Mr. Taylor’s Expert Testimony 3 Federal Rule of Evidence 702 governs the admissibility of expert testimony. 4 Under Rule 702, an expert must be qualified by “knowledge, skill, experience, 5 training, or education.” If qualified, the expert’s testimony will be admissible if it 6 will help the trier of fact, is based on sufficient facts or data and reliable principles 7 and methods, and reliably applies those principles to the facts of the case. Fed. 8 R. Evid. 702. Defendant argues that Mr. Taylor is not qualified to offer an opinion 9 on “design standards,” rendering his opinions inadmissible under Rule 702. 10 Specifically, Defendant argues that Mr. Taylor lacks the required “knowledge, 11 skill, experience, training, or education” in “designing, constructing, or 12 maintaining shelving” required by Rule 702. (ECF No. 47 at 8.) 13 a. Qualified Expert 14 Mr. Taylor’s experience and testimony persuades the Court that he is 15 qualified. While Defendant’s motion focused on specific aspects of Mr. Taylor’s 16 experience in which he was not specifically working in shelving design, there are 17 many other aspects of his experience that convince the Court that he is 18 sufficiently qualified to render opinions under Rule 702. Mr. Taylor testified that 19 he has, throughout his 39 years of work experience, set up “hundreds” of retail 20 displays and conducted safety inspections on “thousands” of displays. (ECF No. 21 53-8 at 18.) Mr. Taylor is a member of the American Society of Safety 22 Professionals, where he holds several Safety Management Certifications. These 23 certifications include topics such as “hazard identification and prevention,” and 24 “job safety awareness.” (ECF No. 48 at 113-14.) In addition, Mr. Taylor testified 25 that this course addressed “material handling and storage,” including “how 26 things are supposed to be stored and how they are supposed to be secured.” (ECF 27 No. 53-8 at 6.) It also appears that based on his CV and his testimony that 28 several of his past positions entailed safety management in a retail setting and 1 included conducting safety inspections and audits in retail settings. (ECF No. 48 2 at 113.) The Court therefore finds that Mr. Taylor’s experience and certifications 3 qualify him as an expert regarding safety in a retail environment. See Rees v. 4 Target Corp., No. 06-10676, 2008 WL 7440009, at *3-4 (E.D. Mich. Mar. 31, 2008) 5 (finding that expert was qualified on safety practices in retail industry where he 6 had been involved in retail safety for 38 years, was a safety consultant, and had 7 several safety certifications). 8 b. Reliability and Standard of Care 9 Defendant also argues that even if Mr. Taylor is qualified, that he “cites no 10 standards that apply to designing, constructing, or maintaining a retail display.” 11 (ECF No. 47 at 1.) It is not clear to the Court whether Defendant proffers this 12 assertion as an argument that Mr. Taylor’s testimony is not reliable, or simply to 13 argue that Plaintiff has failed to proffer evidence in support of the breach element 14 of her negligence claim. If Defendant is arguing that Mr. Taylor’s testimony is 15 unreliable because of this, the Court disagrees. First, as Plaintiff’s opposition 16 points out, Mr. Taylor’s report did speak to the industry standard: it stated that 17 based on his experience, “it is widely accepted within the industry that customer 18 service standards direct the industry to maintain competent, safe, and secure 19 shelving requirements so that merchandise does not fall.” (ECF No. 48.) The 20 report also stated, “as a safety professional, it is expected that proper safety 21 measures would be in place to ensure the stability of the picture frames and 22 shelving units,” and that based on the Loss Prevention Foundation’s guidance, 23 “the industry anticipates that customers should have the ability to touch, select, 24 remove, and purchase frames, posters, and pictures from gondola displays 25 without encountering any hazards, structural issues, or collapses.” (Id. at 57, 26 59.) Testimony regarding industry standards is permitted by the Federal Rules of 27 Evidence. United States Fid. & Guar. Co. v. Ulbricht, 576 F. Supp. 3d 850, 857 28 (W.D. Wash. 2021) (permitting testimony on the applicable industry standards). 1 Turning to the reliability inquiry more broadly, it is undisputed that Mr. 2 Taylor is a non-scientific expert. Where the testimony concerns “non-scientific” 3 issues, the reliability inquiry “‘depends heavily on the knowledge and experience 4 of the expert, rather than upon scientific foundations.’” Ulbricht, 576 F. Supp. 3d 5 at 856 (W.D. Wash. 2021) (quoting Hangarter v. Provident Life & Acc. Ins. Co., 373 6 F.3d 998, 1017 (9th Cir. 2004)). In fulfilling its role as a “gatekeeper” in 7 determining the reliability of non-scientific expert testimony, the Court may look 8 to the expert’s knowledge and experience. Leite v. Crane Co., 868 F. Supp. 2d 9 1023, 1036 (D. Haw. 2012), aff'd, 749 F.3d 1117 (9th Cir. 2014) (citing Hangarter, 10 373 F.3d at 1018 (9th Cir. 2004)). 11 Mr. Taylor’s report indicates that he used his many years of experience in 12 the retail safety industry and his Safety Management Certifications, as well as 13 several other resources, in forming his opinions. Mr. Taylor cites to several 14 sources in his report, for example, the Accident Prevention Manual 12th Edition, 15 and OSHA 1910.22 General Requirements – Hazard Identification and Materials 16 Handling. (See ECF No. 48 at 58.) Defendants have made no argument as to why 17 Mr. Taylor’s experience, certifications, and consultation of these materials fails to 18 make his testimony reliable. The use of his experience, training, and these 19 resources take his opinions outside of the realm of “unsupported speculation.” 20 Leite, 868 F. Supp. 2d at 1036-37 (D. Haw. 2012) (affidavits setting forth 21 knowledge and experience of experts based on extensive experience in Navy 22 provided basis for opinions and took opinions “outside the realm of unsupported 23 speculation”). For the purposes of this motion, the Court finds that Mr. Taylor’s 24 testimony is reliable. 25 Additionally, based on his report and testimony, Mr. Taylor’s opinions are 26 based on sufficient facts and data: he reviewed discovery documents in this case, 27 conducted a site inspection, and interviewed Plaintiff. (ECF No. 48 at 39, 44, 77.) 28 Mr. Taylor’s experience and certifications are not within the knowledge of an 1 average juror. Mr. Taylor’s report speaks directly to industry standards, the cause 2 of the incident, and the element of breach. The Court accordingly finds that Mr. 3 Taylor’s testimony is based on sufficient facts and data, as well as relevant and 4 helpful to the jury. See Fed. R. Evid. 702. The Court finds that Mr. Taylor’s report 5 and testimony are admissible and will consider them in its analysis of 6 Defendant’s summary judgment motion. 7 2. Breach and Causation 8 To prevail on a negligence theory under Nevada law, “a plaintiff generally 9 must show that: (1) the defendant owed a duty of care to the plaintiff; (2) the 10 defendant breached that duty; (3) the breach was the legal cause of the plaintiff's 11 injury; and (4) the plaintiff suffered damages.” Bower v. Harrah’s Laughlin, Inc., 12 215 P.3d 709, 724 (2009) (quoting Doud v. Las Vegas Hilton Corp., 864 P.2d 796, 13 798 (Nev. 1993), superseded by statute on other grounds as stated in Estate of 14 Smith v. Mahoney’s Silver Nugget, Inc., 265 P.3d 688, 691 (Nev. 2011)). Here, 15 Defendant argues that Plaintiff has failed to present admissible evidence in 16 support of the breach element of her claim. The Court disagrees. 17 Defendant first argues that while Plaintiff relies on her expert in support of 18 her argument for breach, Mr. Taylor’s report does not identify (1) what caused 19 the shelf to fall, or (2) any act or omission that caused or contributed to the shelf 20 falling. This contention ignores several aspects of the report. Mr. Taylor’s report 21 states in multiple places that the shelf fell because the shelves were positioned 22 too close to the picture frames below them, such that the act of reaching for the 23 pictures could disrupt the shelf above and cause it to fall. (ECF No. 48 at 57, 61.) 24 The expert report and deposition testimony also state that the fact that the shelf 25 was not properly secured contributed to its collapse. (Id. at 56-57; ECF No. 53-8 26 at 13.) 27 Mr. Taylor’s report also identifies several acts or omissions by Hobby Lobby 28 that caused or contributed to the shelf falling, including: Hobby Lobby added a 1 top shelf to the display which was not present on the planogram, Hobby Lobby 2 set up the display such that the picture frames were too close to the top shelf, 3 Hobby Lobby failed to ensure that the display was stable, and Hobby Lobby failed 4 to properly inspect and identify the safety hazard. (ECF No. 48 at 57, 61, 62.) 5 Defendant next argues that Mr. Taylor failed to identify an applicable 6 standard of care. It is undisputed that Hobby Lobby owed a duty of care to 7 Plaintiff as a customer. In Nevada, there is a general duty to use reasonable care 8 in making premises safe for business invitees. Gresham v. Petro Stopping Centers, 9 LP, No. 3:09-CV-00034-RCJ-VP, 2010 WL 3070436, at *3 (D. Nev. Aug. 3, 2010) 10 (citing Twardowski v. Westward Ho Motels, Inc., 476 P.2d 946, 947 (Nev. 1970)); 11 Fowler v. Wal-Mart Stores, Inc., No. 2:16-CV-450-JCM-GWF, 2017 WL 2271571, 12 at *2 (D. Nev. May 24, 2017) (citing Sprague v. Lucky Stores, Inc., 849 P.2d 320, 13 322 (Nev. 1993)). The question, therefore, is whether Hobby Lobby breached its 14 duty of care by setting up a display in an unreasonably dangerous manner. See 15 Elliott v. Target Corp., No. 2:11-CV-1215-JCM-RJJ, 2012 WL 3278629, at *5 (D. 16 Nev. Aug. 9, 2012) (issue was whether store breached duty of care by displaying 17 wire shelves in an unreasonably dangerous manner). As discussed above, Mr. 18 Taylor’s report opined on industry standards for retail displays and shelving 19 safety, and stated that in his opinion, the display created a dangerous situation. 20 A reasonable juror could credit his testimony and find that the display was set 21 up in an unreasonably dangerous manner, and thus that Hobby Lobby breached 22 its duty of reasonable care to customers. 23 Finally, Defendant argues that not following the planogram is not evidence 24 of a breach because the law, and not internal policies, set the standard of care. 25 The Court agrees that evidence of adherence or nonadherence to internal policies 26 is not dispositive of a breach of the standard of care. McConnell v. Wal-Mart Stores, 27 Inc., 995 F. Supp. 2d 1164, 1169 (D. Nev. 2014) (“[W]hether Defendant adhered 28 to its own policies . . . is simply not relevant to whether it was negligent in this 1 case.”) Nonadherence to the planogram alone does not in and of itself show a 2 breach of the standard of care. However, Plaintiff’s argument with regards to 3 breach is not simply that Defendant failed to follow the planogram by adding a 4 shelf, but rather that Defendant’s addition of the shelf, combined with other acts 5 and omissions described above, breached a general duty of reasonable care 6 because it created an unreasonably dangerous condition. 7 The Court finds that Plaintiff has presented evidence, in the form of her 8 expert’s report and testimony, from which a reasonable juror could find that 9 Hobby Lobby breached its general duty to exercise reasonable care by building 10 and maintaining the display in an unreasonably safe manner. As such, 11 Defendant Hobby Lobby is not entitled to summary judgment. 12 III. Motion for Sanctions 13 Plaintiff’s motion for sanctions asks the Court to impose a sanction on 14 Hobby Lobby for spoliation because Hobby Lobby failed to preserve the items that 15 allegedly fell on Plaintiff during the incident. 16 It is unclear from the evidence what became of the moose antlers and other 17 merchandise that allegedly fell on Plaintiff in the incident. The store manager in 18 training, Mr. Evans, testified that he did not remember saving the items, but that 19 he most likely would have put them in the office for the store manager, Ms. 20 MacKinnon, to address. (ECF No. 44-14 at 5.) Ms. MacKinnon testified that Mr. 21 Evans informed her that he had put the moose antlers in the office but can’t 22 remember them being there. (ECF No. 44-12 at 8-9.) When Plaintiff requested 23 production of the items which fell from the shelves that day, Hobby Lobby 24 responded that it “does not have any items responsive to this request.” (ECF No. 25 44-16 at 2.) Plaintiff subsequently requested the antlers specifically and Hobby 26 Lobby responded that it “does not have the subject antlers.” (ECF No. 44-17 at 27 2.) Hobby Lobby’s 30(b)(6) deponent testified that the antlers “are gone” and that 28 “someone at Hobby Lobby must have” disposed of them. (ECF No. 44-11 at 22.) 1 It is not clear at what point the antlers were disposed of, or what happened to the 2 other items. 3 A. Legal Standard 4 District courts possess inherent power to sanction a party that has 5 despoiled evidence. Leon v. IDX Systems Corp., 464 F.3d 951, 958 (9th Cir. 2006). 6 “Spoliation of evidence is the ‘destruction or significant alteration of evidence, or 7 the failure to preserve property for another’s use as evidence, in pending or future 8 litigation.’” Kearney v. Foley & Lardner, LLP, 590 F.3d 638, 649 (9th Cir. 2009) 9 (quoting Hernandez v. Garcetti, 80 Cal. Rptr. 2d 443, 446 (Ct. App. 1998)). A party 10 seeking sanctions for spoliation must establish that: “(1) the party having control 11 over the evidence had an obligation to preserve it at the time it was destroyed; (2) 12 the evidence was destroyed with a culpable state of mind; and (3) the evidence 13 was relevant to the party’s claim or defense such that a reasonable trier of fact 14 could find that it would support the claim or defense.” Golia-Huffman v. Smith’s 15 Food & Drug Centers, Inc., No. 2:21-CV-01260-APG-EJY, 2023 WL 6390525, at 16 *2 (D. Nev. Aug. 8, 2023). The threshold question is “whether or not evidence was 17 actually altered or destroyed,” which the moving party must prove by a 18 preponderance of the evidence. Id. at *5-6; U.S. E.E.O.C. v. Wedco, Inc., No. 3:12- 19 CV-00523-RCJ, 2014 WL 4635678, at *2 (D. Nev. Sept. 15, 2014). 20 B. Analysis 21 1. Timeliness 22 Defendant first argues that Plaintiff’s motion is untimely because it was 23 “delayed.” Motions for sanctions are untimely where they are filed with undue 24 delay. Lopez v. Cardenas Markets, LLC, No. 2:21-CV-01915-JCM-BNW, 2023 WL 25 3182658 at *3 (D. Nev. May 1, 2023) (citations omitted). “The outer limit for 26 seeking discovery sanctions that are dispositive in nature is the deadline for filing 27 dispositive motions.” Id. (citing Larios v. Lunardi, 442 F. Supp. 3d 1299, 1305 28 (E.D. Cal. 2020), aff'd, 856 F. App’x 704 (9th Cir. 2021)). 1 Plaintiff’s motion was filed on November 15, 2024, a few weeks after 2 discovery had closed and a few days before the dispositive motion deadline of 3 November 20, 2024. Defendant argues that Plaintiff was aware of the grounds for 4 spoliation after it received Hobby Lobby’s responses to its requests for production 5 of the items on June 21, 2024, and July 12, 2024, and that the motion filed in 6 November was therefore unduly delayed. 7 Defendant cites to several cases for the proposition that delayed motions 8 for sanctions may be denied as untimely. Many of the cases Defendant cites focus 9 on situations where there was a large gap between when the moving party learned 10 of the grounds for sanctions and when the motion was actually brought. See, e.g. 11 Olson v. Shawnee Cnty. Bd. of Comm’rs, 7 F. Supp. 3d 1162, 1200 (D. Kan. 2014) 12 (movant moved for sanctions more than a year after learning of grounds and 13 brought argument in response to summary judgment motion); Cottle-Banks v. 14 Cox Commc’ns, Inc., No. 10CV2133-GPC WVG, 2013 WL 2244333, at *16 (S.D. 15 Cal. May 21, 2013) (denying as untimely motion for spoliation sanctions filed nine 16 months after movant learned of grounds). 17 Plaintiff’s reply explains why the motion was filed after the close of 18 discovery. After the Court denied the parties’ stipulation for an extension of the 19 discovery period, the parties agreed—at Hobby Lobby’s suggestion—that Plaintiff 20 could depose Hobby Lobby’s 30(b)(6) deponent, Mr. James, a few days after the 21 discovery deadline set by the Court.1 (ECF No. 54-4.) Discovery ended on October 22 23, 2024, and the deposition took place on October 28, 2024. (ECF No. 54-1.) 23 The Court agrees with Plaintiff that Mr. James’s deposition was necessary to filing 24 this motion because Mr. James provided key testimony as to spoliation, 25 1 Judge Baldwin appropriately denied the parties’ seventh motion for extension 26 of time to complete discovery (after informing the parties there would be no 27 further extensions three times). (ECF Nos. 29, 36, 38, 40.) It would be unjust for Defendant to suggest and participate in discovery after the cutoff deadline, and 28 then attempt to bar Plaintiff’s motion as untimely. 1 discussed below. Plaintiff ultimately filed its motion on November 15, 2 approximately two weeks after it received the transcript of Mr. James’s 3 deposition. (Id.) The Court finds that this was not an undue delay. 4 The cases from this District that Defendant cites are also not persuasive. 5 In both, the court denied the motions for sanctions on other grounds, while also 6 noting that discovery would have been the appropriate time to raise the issue. 7 See Meza-Perez v. Sbarro LLC, No. 2:19-CV-00373-APG-EJY, 2023 WL 2842747, 8 at *10 (D. Nev. Apr. 6, 2023), aff'd, No. 23-15702, 2024 WL 4532903 (9th Cir. 9 Oct. 21, 2024) (denying motion where there was no evidence to support 10 allegations that photos were deleted, and noting that the plaintiff “does not 11 explain why, if she knew about this during discovery, she raises it now for the 12 first time”); Badger v. Wal-Mart Stores, Inc., No. 2:11-CV-1609-KJD-CWH, 2013 13 WL 3297084, at *8 (D. Nev. June 28, 2013) (denying motion where it was unclear 14 whether evidence ever existed, and noting that “it is also unclear why this matter 15 was not resolved during discovery”). Neither of those cases supports a conclusion 16 that the fact that a motion for sanctions for spoliation was filed after discovery 17 closed alone warrants a finding that it is untimely. See also Larios, 442 F. Supp. 18 3d at 1305 (noting that federal courts have allowed parties to raise spoliation 19 claims after the close of discovery). 20 The Court finds that Plaintiff did not unreasonably delay in bringing her 21 motion, which was filed before the dispositive motion deadline. Plaintiff’s motion 22 is therefore timely. See Lopez, No. 2023 WL 3182658, at *3 (motion for sanctions 23 brought after discovery closed but before dispositive motion deadline was timely 24 because movant received responses regarding lost evidence only a few weeks 25 before discovery closed). 26 2. Threshold Inquiry: Altered or Destroyed 27 Plaintiff has shown by a preponderance of the evidence that the items at 28 issue were destroyed. Hobby Lobby’s 30(b)(6) expert has admitted that the antlers 1 “are gone” and that “someone at Hobby Lobby must have” disposed of them. (ECF 2 No. 44-11 at 22.) Hobby Lobby’s response to requests by Plaintiff for the items 3 that fell on her was that they do not have them in their possession, and Hobby 4 Lobby’s briefing does not contend otherwise. 5 3. Control 6 Defendant first argues that Plaintiff has failed to show that it was in 7 possession of the items when its duty to preserve began. Hobby Lobby’s 30(b)(6) 8 deponent admitted that the antlers were in Hobby Lobby’s control.2 (ECF No. 44- 9 11 at 22.) The other items were in Hobby Lobby’s control at the time of the 10 incident as merchandise. As discussed below, the Court finds that Hobby Lobby 11 had a duty to preserve the items that fell beginning on the date of the incident— 12 a time at which Hobby Lobby undisputedly had control over the items. Hobby 13 Lobby therefore had possession of the items for the purposes of the duty to 14 preserve. 15 4. Duty to Preserve 16 Plaintiff argues that Hobby Lobby had a duty to preserve evidence as soon 17 as her daughter completed an incident report form at the store after the incident 18 on June 5, 2021, as well as when Plaintiff contacted Hobby Lobby in August 2021 19 about dental surgery she alleges was required because of the accident. Hobby 20 Lobby argues that the duty to preserve did not start until it received a Notice of 21 Representation and Request to Preserve from Plaintiff in November 2021. 22 Whether an incident report triggers a duty to preserve evidence must be 23 assessed in light of the factual circumstances. Several courts in this District have 24 found that completion of an incident report, combined with other factual 25 circumstances, is sufficient to trigger a duty to preserve. See Alvarez v. Walmart, 26 Inc., No. 2:19-CV-02189-GMN-DJA, 2021 WL 7758614, at *2-3 (D. Nev. June 11, 27 2 While both parties’ briefing did focus on the antlers, Plaintiff’s motion is as to 28 all the items that fell during the incident. 1 2021) (Defendant was on notice when Plaintiff returned to store two days later to 2 speak with a manager and complete and incident report); Roberts v. Smith’s Food 3 & Drug Centers, Inc., No. 2:11-CV-01917-JCM, 2014 WL 2123213, at *4-5 (D. 4 Nev. May 21, 2014) (completion of accident report, combined with visible injury, 5 triggered duty to preserve); Aiello v. Kroger Co., No. 2:08-CV-01729-HDM, 2010 6 WL 3522259, at *3 (D. Nev. Sept. 1, 2010) (completion of incident report and 7 sending video footage to Risk Management department triggered duty to 8 preserve); Demena v. Smith’s Food & Drug Centers, Inc., No. 2:12-CV-00626- 9 MMD, 2012 WL 3962381, at *2 (D. Nev. Sept. 10, 2012) (incident report form and 10 fact that plaintiff was carried out of store on gurney triggered duty to preserve). 11 Here, it is undisputed that Plaintiff’s daughter filled out an incident report 12 form the day the incident occurred. (ECF No. 53-3.) Her daughter wrote on the 13 form “upper body cut and bleeding and caused swelling to her head and a 14 headache.” (Id. at 5.) What appears to be the manager’s description states that 15 there was “bleeding on right arm and customer said she had a headache.” (Id. at 16 4.) Plaintiff’s daughter also took several photos of the scene in front of employees, 17 asked them for a copy of the incident report, and when the employee declined, 18 took a picture of the report. (ECF Nos. 44-9 at 23; 44-18.) The store manager, 19 Ms. MacKinnon, testified that she sent to Risk Management the incident report 20 form and photos of the shelves, display, and merchandise which had fallen off 21 the shelf. (ECF No. 44-12 at 5-6.) 22 The circumstances here are similar to those in Roberts, Demena, and Aeillo. 23 Like in Roberts and Demena, Plaintiff both completed an accident form and was 24 visibly injured. See 2014 WL 2123213, at *4-5; 2012 WL 3962381, at *2. Like in 25 Aeillo, the store manager also sent the incident report as well as images— 26 including images taken of the items at issue—to Risk Management. See 2010 WL 27 3522259, at *3. While Plaintiff was not carried out of the store by medical 28 personnel, as in Demena, the Court agrees with the decision in Roberts, which 1 stated that visible injury and complaints of pain after an incident were sufficient 2 to put the defendant on notice of potential litigation, and that the more extreme 3 circumstances in Demena—being transported out of the premises into an 4 ambulance—are not required. Roberts, 2014 WL 2123213, at *4-5. Here the Court 5 finds that here the facts show that Defendant was on notice of potential litigation 6 on the date of the incident. Plaintiff’s daughter completed an incident report form; 7 Plaintiff was visibly injured and bleeding and complained of head pain; Plaintiff’s 8 daughter took several steps to document the incident in front of employees; and 9 the store manager sent a report as well as images of the items at issue to Risk 10 Management. Defendant had a duty to preserve evidence beginning on the date 11 of the incident. 12 The Court rejects Defendant’s argument that it somehow did not have 13 notice of the need to preserve the antlers specifically. In the case Defendant cites 14 in support of its argument, the court denied a motion for spoliation for failure to 15 preserve video evidence. Shakespear v. Wal-Mart Stores, Inc., No. 2:12-CV-01064- 16 MMD, 2013 WL 3270545, at *2-3 (D. Nev. June 26, 2013). The plaintiff demanded 17 that Wal–Mart ensure that the “surveillance video in question remains completely 18 undisturbed,” however, the court found that Wal-Mart did not spoliate when it 19 failed to preserve video of the entire store for the entire date of the incident, as 20 there was no evidence that any cameras captured anything related to the 21 incident. Id. Here, in contrast, the Court has found that Defendant spoliated the 22 items at issue. The items at issue were also obviously related to the incident. Nor 23 is Defendant’s citation to Morford v. Wal-Mart Stores, Inc., No. 2:09-CV-02251- 24 RLH, 2011 WL 635220 (D. Nev. Feb. 11, 2011) convincing. There, the evidence in 25 question, a floor mat, was removed from the store by a contractor before the 26 defendant was on notice of potential litigation regarding the actual floor mat, and 27 therefore before it had a duty to preserve. Id. at *4. Here, the incident report form 28 states that “the above shelf fell with many items falling on my mothers head, 1 upper body . . .” (ECF No. 53-3 at 5.) Photos of those items were sent to Risk 2 Management. (ECF No. 44-12 at 5-6.) Hobby Lobby was unquestionably on notice 3 that the items were potential evidence related to the incident. See Banks ex rel. 4 Banks v. Sunrise Hosp., 102 P.3d 52, 58 (Nev. 2004) (hospital had duty to 5 preserve equipment involved in incident). 6 5. Culpable State of Mind 7 “A party’s destruction of evidence need not be in ‘bad faith’ to warrant a 8 court’s imposition of sanctions. District courts may impose sanctions against a 9 party that merely had notice that the destroyed evidence was potentially relevant 10 to litigation.” In re Napster, Inc. Copyright Litig., 462 F. Supp. 2d 1060, 1066 (N.D. 11 Cal. 2006) (cleaned up). The degree of fault in destruction of evidence is relevant 12 to the consideration of what sanction to impose. Id. Here, the Court has found 13 that Defendant destroyed the items that fell from the shelf after having notice 14 that they were potentially relevant to litigation. This is sufficient to satisfy this 15 element of spoliation. 16 6. Prejudice 17 “The prejudice inquiry ‘looks to whether the [spoiling party’s] actions 18 impaired [the non-spoiling party’s] ability to go to trial or threatened to interfere 19 with the rightful decision of the case.’” Leon, 464 F.3d at 959 (internal citation 20 omitted). “To satisfy this burden, the party asserting prejudice must only come 21 forward with plausible, concrete suggestions” about what the spoliated evidence 22 “might have been.” Brown v. Albertsons, LLC, No. 2:16-CV-01991-JAD-PAL, 2017 23 WL 1957571, at *9 (D. Nev. May 11, 2017) (citing Micron Tech., Inc. v. Rambus 24 Inc., 645 F.3d 1311, 1328 (Fed. Cir. 2011)); see also Mizzoni v. Allison, No. 3:15- 25 CV-00313-MMD-VPC, 2018 WL 3203623 (D. Nev. Apr. 4, 2018), report and 26 recommendation adopted, 2018 WL 2197957, at *6 (D. Nev. May 14, 2018). 27 Plaintiff argues that she is prejudiced by the destruction of the items that 28 allegedly fell on her because the crucial issue at trial in this case will be 1 causation. Because it is disputed whether the items that fell on Plaintiff’s head 2 caused her medical issues, the inability to “determine definitely the composition 3 and precise weight and measurements off all the items that struck her” has 4 prejudiced her ability to put forth her case. (ECF No. 44 at 12.) 5 Defendant argues that Plaintiff has not demonstrated prejudice because 6 Defendant’s 30(b)(6) witness offered the weight and measurement of the antlers 7 in his deposition, and because Defendant offered Plaintiff the opportunity to 8 inspect the same antler product, but she declined. Plaintiff counters this by 9 noting that Defendant did not offer the exemplar antlers until October 23, 2024, 10 the date discovery closed. (ECF No. 51-2 at 6.) It appears that the 30(b)(6) 11 deponent offered the dimensions and weight of the exemplar at his deposition on 12 October 28, 2024. (ECF No. 51-3 at 3-4). All of this, Plaintiff points out, occurred 13 after expert disclosures were due. Additionally, Plaintiff notes that Defendant has 14 not provided information or exemplars for the remaining items that fell during 15 the incident. 16 The Court finds that Plaintiff has met her burden to bring forth “plausible, 17 concrete suggestions about what the spoliated evidence might have been.” See 18 Brown, 2017 WL 1957571, at *9. Plaintiff suggests that with the opportunity to 19 examine the items, she could have determined the composition, weight, and 20 measurements of the items that allegedly hit her during the incident, which are 21 critical to her argument that the items hitting her caused her head and neck 22 injuries. While Defendant appears to have offered Plaintiff the ability to examine 23 an exemplar of the antlers, doing so the day discovery closed and after expert 24 disclosures were due did not provide time for Plaintiff’s expert to examine them. 25 Thus, the prejudice was not cured. Additionally, Defendant offered no information 26 or exemplars as to the other items. 27 C. Appropriate Sanction 28 Once it has been determined that spoliation has occurred, the district court 1 may sanction in various ways. Courts have broad discretion in selecting the 2 appropriate sanction but should “should choose the least onerous sanction 3 corresponding to the willfulness of the destructive act and the prejudice suffered 4 by the other party.” Alvarez, 2021 WL 7758614, at *4 (D. Nev. June 11, 2021) 5 (citing In re Napster, 462 F. Supp. 2d at 1066). Here, Plaintiff seeks sanctions in 6 the form of (1) an order striking Hobby Lobby’s answer and (2) an adverse 7 inference jury instruction. 8 Courts apply three tiers of sanctions for spoliation with corresponding 9 levels of culpability. In severe cases of bad faith spoliation, a court may strike a 10 spoliating defendant’s answer or enter default judgment on specific issues. See 11 In re Napster, 462 F. Supp. 2d at 1060; see also Peschel v. City Of Missoula, 664 12 F. Supp. 2d 1137, 1146 (D. Mont. 2009). In the middle tier of culpability, a court 13 may impose a mandatory, rebuttable presumption “when a spoliating party has 14 acted willfully or recklessly.” Apple, 881 F. Supp. 2d 1132, 1150 (N.D. Cal. 2012). 15 Spoliation is willful when “the party has ‘some notice that [evidence was] 16 potentially relevant to the litigation before [it was] destroyed.’” Scalia v. Cnty. of 17 Kern, 658 F. Supp. 3d 809, 815 (E.D. Cal. 2023) (citing Leon, 464 F.3d at 959). 18 When the spoliating party has acted only negligently, the least harsh instruction 19 permits, but does not require, the jury to believe “that the lost evidence is both 20 relevant and favorable to the innocent party.” Id. (quoting Apple, 881 F. Supp. 2d 21 at 1150); Reinsdorf v. Skechers U.S.A., Inc., 296 F.R.D. 604, 628 (C.D. Cal. 2013) 22 (noting that courts in this circuit have found adverse instructions warranted 23 where destruction was grossly negligent). 24 Striking Defendant’s answer is not an appropriate sanction in this case. 25 Dispositive sanctions such as this are appropriate only in “extreme 26 circumstances” and require a finding of “willfulness, fault, or bad faith.” Mizzoni, 27 2018 WL 3203623, at *7 (citing Fjelstad v. Am. Honda Motor Co., 762 F.2d 1334, 28 1337 (9th Cir. 1985)); Leon, 464 F.3d at 958. “The most severe sanction is to 1 strike a defendant’s answer and enter a default. Such a dispositive sanction 2 ‘should not be imposed unless there is clear and convincing evidence of both bad- 3 faith spoliation and prejudice to the opposing party.’” Soule v. P.F. Chang's China 4 Bistro, Inc., No. 2:18-CV-02239-GMN-EJY, 2020 WL 959245, at *4 (D. Nev. Feb. 5 26, 2020) (quoting Micron Tech., 645 F.3d at 1328-29). 6 Plaintiff has not put forth clear and convincing evidence that Hobby Lobby 7 acted intentionally or in bad faith when it failed to preserve the items involved in 8 the incident. The Court therefore declines to issue a sanction striking Defendant’s 9 answer. See id. (declining to strike answer and issuing jury instruction sanction 10 where conduct was grossly negligent); White v. TK Elevator Corp., No. 2:21-CV- 11 01696-ART-MDC, 2024 WL 4487188, at *4 (D. Nev. June 18, 2024), report and 12 recommendation adopted, No. 2:21-CV-01696-ART-MDC, 2024 WL 4346348 (D. 13 Nev. Sept. 28, 2024) (sanction striking answer not appropriate where conduct 14 was reckless but there was no evidence that actions were intentional or in bad 15 faith); Anderson v. Wal-Mart Stores, Inc., No. 2:10-CV-02235-GMN, 2011 WL 16 4621286, at *6 (D. Nev. Oct. 3, 2011) (sanction of striking answer not justified 17 where evidence did not support finding of intentional or reckless conduct). 18 The Court finds that Plaintiff’s other requested sanction, an adverse 19 inference instruction, is appropriate. While Defendant argues that even this 20 sanction is not warranted because its conduct was merely negligent, Defendant 21 relies primarily on out-of-circuit case law for this argument, ignoring the fact that 22 courts in the Ninth Circuit issue spoliation sanctions based on negligence. See 23 Reinsdorf v. Skechers U.S.A., Inc., 296 F.R.D. 604 (C.D. Cal. 2013) (collecting 24 cases). The Court finds that Defendant’s conduct in failing to preserve the items 25 when it had a duty to do so was at the very least negligent. In re Napster, 462 F. 26 Supp. 2d at 1070 (quoting Zubulake v. UBS Warburg LLC, 220 F.R.D. 212, 220 27 (S.D.N.Y. 2003) (“Once the duty to preserve attaches, any destruction of 28 documents is, at a minimum, negligent.”)). The Court will accordingly grant 1 || Plaintiffs motion for sanctions, in the form of an adverse inference jury 2 || instruction. 3 || IV. Conclusion 4 It is therefore ordered that Plaintiffs motion to strike (ECF No. 46) is 5 || GRANTED. 6 It is further ordered that Defendant’s motion for summary judgment (ECF 7 || No. 47) is DENIED. 8 It is further ordered that Plaintiffs motion for sanctions (ECF No. 44) is 9 || GRANTED IN PART. Sanctions will issue in the form of an adverse inference jury 10 || instruction. 11 Dated this 15 day of July 2025. 12 1 fun. Rawsad Tem 14 ANNE R. TRAUM 15 UNITED STATES DISTRICT JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28