Sagdai v. Travelers Home and Marine Insurance Company

Opinion

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5 UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 8 IVAN SAGDAI, 9 Plaintiff, CASE NO. C21-182-LK 10 v. ORDER GRANTING DEFENDANT’S MOTION TO 11 TRAVELERS HOME MARINE STRIKE EXPERT WITNESSES INSURANCE COMPANY, 12 Defendant. 13 Defendant Travelers Home and Marine Insurance Company moves to strike any 14 testimony by plaintiff’s expert witnesses Dr. Silver and Dr. Adler based on plaintiff’s refusal to 15 comply with Federal Rule of Civil Procedure 26(a)(2)(B) by the discovery deadline of July 22, 16 2022, and plaintiff’s failure to make his expert witnesses available for depositions before the 17 expert discovery deadline of August 8, 2022. Dkt. 39; see also Dkts. 35, 38. In response, plaintiff 18 has stated no substantially justifiable basis for, or the harmless of, failing to provide the expert 19 reports by the discovery deadline, failing to make his experts available for depositions by the 20 expert discovery deadline, and failing to seek relief from those deadlines in accordance with 21 Local Civil Rule 7(j).1 The Court therefore GRANTS Travelers’s motion to strike plaintiff’s 22

23 1 To this date, there is still no indication that written expert reports by Dr. Silver and Dr. Adler have been prepared. 1 expert witnesses Dr. Silver and Dr. Adler, prohibiting plaintiff from using these witnesses or 2 information from these witnesses to supply evidence on a motion, at a hearing, or at trial. Dkt. 3 39; see FED. R. CIV. P. 26(a)(2)(B), 37(c)(1). 4 Rule 26 of the Federal Rules of Civil Procedure requires the disclosure of retained

5 experts’ written reports. Fed. R. Civ. P. 26(a)(2)(B). 6 Parties must make these expert disclosures at the times and in the sequence that the court orders. Rule 37 “gives teeth” to Rule 26's 7 disclosure requirements by forbidding the use at trial of any information that is not properly disclosed. Rule 37(c)(1) is a “self- 8 executing,” “automatic” sanction designed to provide a strong inducement for disclosure. The only exceptions to Rule 37(c)(1)'s 9 exclusion sanction apply if the failure to disclose is substantially justified or harmless. 10 Goodman v. Staples the Office Superstore, LLC, 644 F.3d 817, 827 (9th Cir. 2011) (citations 11 omitted). Plaintiff has not justified failing to comply with the expert disclosure requirements of 12 Federal Rule 26(a)(2)(B) by the court-ordered deadlines, and this violation of the Civil Rules is 13 not harmless. 14 Plaintiff cannot reasonably accuse Travelers of having disclosed its own experts late by 15 having disclosed them on the discovery deadline, or reasonably accuse Travelers of attempting to 16 force Dr. Silver and Dr. Adler into a deposition too quickly when plaintiff failed to provide 17 medical records from Dr. Silver and Dr. Adler until after receiving the notices of deposition. See 18 Dkt. 47, at 5–6; Dkt. 49, at 5; compare Dkt. 40-5, at 2–3, with Dkt. 40-12, at 4–5. Plaintiff had 19 fair notice that the discovery deadline would not be moved after the district court denied the 20 parties’ joint stipulated motion to extend the discovery deadlines in May 2022. Dkt. 35. 21 Plaintiff’s exhibits demonstrate that counsel first consulted with Dr. Adler in mid-June 2022, Dr. 22 Adler was informed that “Discovery cut-off is not yet certain,” that testing results from Dr. 23 Adler’s office would take six to eight weeks, and that Dr. Silver would not be available until 1 September 2022. Dkt. 48-11 at 2; 48-12, at 2. Nonetheless, plaintiff never sought relief from the 2 relevant discovery deadlines for disclosures of written expert reports. Moreover, though plaintiff 3 remarks he received the CR 35 examination report 68 days after the examination instead of the 4 ordered 45 days after the examination, he fails to note that Travelers itself did not receive the

5 report until Friday, April 28, 2022, and provided it to plaintiff two business days later on May 3, 6 2022. Dkt. 48-6, at 2; Dkt. 50-1, at 2–3. To the extent plaintiff implies that he lost 23 days of 7 time to procure expert reports due to this delay in receiving the CR 35 examination report, the 8 Court notes that plaintiff received the CR 35 examination report 83 days prior to the expert 9 disclosure deadline and, regardless, had not offered expert reports from Dr. Silver and Dr. Adler 10 more than a month after the discovery deadline had already passed. 11 Plaintiffs’ violation of Federal Rule 26(a)(2)(B) is not harmless. Travelers has been 12 prejudiced because the exchange of written expert reports is no longer simultaneous, if allowed 13 plaintiff’s expert opinions could be crafted to refute Travelers’s experts, and plaintiff has 14 received Travelers’ expert reports while failing to provide his own. In addition, plaintiff’s

15 deliberate disregard of court-ordered deadlines wastes court resources. 16 The Court GRANTS Travelers’s motion to strike plaintiff’s expert witnesses Dr. Silver 17 and Dr. Adler and any use of their testimony in these proceedings because plaintiff’s failure to 18 comply with the expert disclosure requirements was harmful and substantially unjustified. Dkt. 19 39; see FED. R. CIV. P. 26(a)(2)(B), 37(c)(1). 20 DATED this 3rd day of October, 2022. 21 A 22 BRIAN A. TSUCHIDA United States Magistrate Judge 23