Sankaranarayanan v. Sashidhar

Opinion

HONORABLE RICHARD A. JONES 1

10 UNITED STATES DISTRICT COURT AT SEATTLE 12 PRASANNA SANKARANARAYANAN, 13 Petitioner, 14 vs. Case No. 24-cv-01745-RAJ 15 DHIVYA SASHIDHAR, ORDER 16 Respondent. 17 18 19 21 THIS MATTER is before the Court on Respondent’s Motion in Limine to Exclude 22 Testimony and Report of Petitioner’s Expert, Dr. Peter Favaro (“Motion to Exclude” or 23 “Respondent’s Motion”). Dkt. # 29. Petitioner opposes the Motion to Exclude. Dkt. # 32. 24 The Court has considered the parties’ briefing, the applicable law, and the balance of the 25 record. For the reasons below, the Court GRANTS in part and denies in part Respondent’s 26 Motion. 27 II. BACKGROUND 1 On October 25, 2024, Petitioner Prasana Sankaranarayanan, initiated this action, by 2 filing a Petition for Return of Child to the State of Habitual Residence. Dkt. # 1. On 3 November 1, 2024, Respondent, Dhivya Sashidhar, was served with summons and 4 complaint in Redmond, Washington. Dkt. # 8. Petitioner alleges that Ms. Sashidhar 5 unlawfully removed the parties’ minor son, S.A. (“the child” or “S.A.”), from Singapore 6 to the United States on October 14, 2024. Dkt. # 1 ¶¶ 1, 23. 7 Hague Convention cases are generally expedited in nature—with six weeks 8 recommended for resolution. See Hague Convention, arts. 2, 11; see also Chafin v. Chafin, 9 568 U.S. 165, 179–80 (2013) (urging district courts to expedite Hague cases). The Court 10 held a telephone conference with the parties on November 22, 2024, where it set an 11 evidentiary hearing in this matter for January 6, 2025. Dkt. # 19. 12 Following the conference, the Court signed a scheduling order, containing language 13 and dates proposed by the parties, which set deadlines for filings and disclosures before 14 the hearing. Dkt. # 25. The parties dispute whether the deadlines applied to both parties, 15 which the Court discusses in more detail in Section IV.B.1 infra. On December 27, 2024, 16 Respondent filed a Motion to Exclude, asking the Court to exclude Petitioner’s expert 17 witness, Dr. Favaro. Dkt. # 29. Respondent argues that Petitioner failed to comply with 18 the scheduling order in violation of Fed. R. Civ. P. 26(a)(2)(B) and 37(c)(1). Respondent 19 asserts Petitioner untimely disclosed an affirmative expert witness after the deadlines for 20 disclosure and reports had passed. See id. 21 22 23 24 25 26 27 III. LEGAL STANDARD 1 Rule 26(a)(2)(B) requires the parties to disclose the identity of each expert witness 2 accompanied by a written report prepared and signed by the witness. Fed. R. Civ. P. 3 26(a)(2)(B). Rule 37 “gives teeth” to Rule 26’s disclosure requirements. Yeti by Molly, 4 Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 1106 (9th Cir. 2001). Rule 37(c)(1) states 5 that “[i]f a party fails to provide information or identify a witness as required by Rule 26(a) 6 or (e), the party is not allowed to use that information or witness to supply evidence on a 7 motion, at a hearing, or at a trial, unless the failure was substantially justified or is 8 harmless.” See also Karpenski v. Am. Gen. Life Ins. Cos., LLC, 999 F. Supp. 2d 1235, 9 1241 (W.D. Wash. 2014) (citing Yeti, 259 F.3d at 1106) (“District courts have wide latitude 10 to impose discovery sanctions pursuant to Rule 37(c)(1).”). Litigants can escape the 11 “harshness” of exclusion only if they prove that the discovery violations were substantially 12 justified or harmless. Yeti by Molly Ltd., 259 F.3d at 1106 (citing Fed. R. Civ. P. 37(c)(1)). 13 IV. DISCUSSION 14 A. The Parties’ Arguments 15 1. Respondent’s Position 16 Respondent’s Motion asks the Court to exclude the testimony and report of one of 17 Petitioner’s experts, Dr. Peter Favaro. Dkt. # 29. According to Respondent, on December 18 10, 2024, Respondent’s counsel received an email from Petitioner’s counsel, indicating 19 that Petitioner had retained expert witness Dr. Favaro, to serve as a rebuttal expert. See id. 20 at 2. Dr. Favaro was not disclosed as an expert witness or a witness in Petitioner’s initial 21 disclosures. See id. Respondent then brought the child to meet with Dr. Favaro on three 22 consecutive days so that he could conduct an evaluation. See id. 23 Respondent asserts that Dr. Favaro is an affirmative expert, despite Petitioner’s 24 contention that Dr. Favaro is merely a rebuttal expert. See id. at 2–3. Respondent asserts 25 that Dr. Favaro “was clearly retained . . . to provide an initial expert opinion[]” because: 26 1) the report’s title does not indicate is a rebuttal report; 2) the substance of the report 27 1 contains definitive conclusions; and 3) the opinions and conclusions in the report exceed 2 rebutting Respondent’s expert reports. See id. Notably, according to Respondent, Dr. 3 Favaro’s report concludes that Respondent “exerts undue influence on the child and may 4 even be maltreating the child.” Id. at 3. 5 Respondent asserts that Petitioner’s disclosure of the report on December 23, 2024 6 was untimely and has caused undue prejudice to Respondent. Dkt. # 29 at 4. First, 7 Respondent is left with no time to retain a rebuttal expert for Dr. Favaro’s opinions and 8 conclusions. See id. at 3. Second, due to the timing of the report’s disclosure, Respondent 9 could not depose Dr. Favaro prior to the Court’s deposition deadline. See id. 10 2. Petitioner’s Position 11 Petitioner’s Opposition states that Petitioner complied with the Court’s scheduling 12 order because the dates and language in the order indicate they were dates for Respondent 13 to disclose experts and serve expert reports. Dkt. # 32 at 2. Petitioner opposes exclusion, 14 arguing that the dates in the scheduling order do not set dates for Petitioner’s affirmative 15 or rebuttal experts, thus Petitioner did not miss any deadline. Dkt. # 32. Further, Petitioner 16 asserts that Dr. Favaro is only a rebuttal expert witness, a child forensic psychologist, 17 retained to address Respondent’s grave risk and mature child affirmative defenses. See id. 18 at 3. Petitioner maintains that Dr. Favaro’s report was properly disclosed on December 23, 19 2024. See id at 2. 20 B. Analysis 21 1. The Scheduling Order 22 A threshold question that the Court must address is whether the Court’s deadline for 23 experts applied to both parties. Here, the parties interpret the scheduling order differently. 24 The body of the scheduling order required “Respondent” to serve expert disclosures by 25 December 2, 2024. Dkt. # 25. The scheduling order also required “Respondent” to serve 26 initial expert reports by December 9, 2024. Id. The text of the scheduling order is silent 27 1 as to the timing for Petitioner’s disclosures for affirmative expert witnesses, and it only 2 indicates that the parties were to serve rebuttal expert reports by December 20, 2024.1 See 3 generally id. The minute entry text reads: 4 The Court sets forth a schedule and modifies the Proposed Scheduling order as described herein. Expert Disclosures to be served no later than 12/2/2024, Initial Disclosure to be 5 served by 12/5/2024, Expert Reports under FRCP 26(a)(2) due by 12/9/2024, Rebuttal Expert Reports due by 12/20/2024, Motions in Limine due by 12/20/2024, Pretrial Briefs 6 due by 12/27/2024, Proposed Exhibits, Exhibit List and Witness list due by 12/30/2024, Evidentiary Hearing set for 1/6/2025 at 9:00 AM. Signed by Judge Richard A. Jones. 7 See id. The scheduling order and the accompanying minute entry are both silent as 8 to rebuttal expert disclosure. 9 Petitioner’s attempt to distinguish the text of the scheduling order from the minute 10 entry accompanying the order signals gamesmanship that the Court will not tolerate. The 11 minute entry is part and parcel of the Court’s order. To the extent Petitioner believed these 12 to be conflicting or unclear, Petitioner could have sought clarity instead of trying to use the 13 discrepancy to a tactical advantage. The text of the order on the docket entry is abundantly 14 clear that these deadlines applied to both parties. 15 Petitioner’s contention about the need for experts arising after December 2, 2024 is 16 similarly disingenuous. In the Opposition, Petitioner claims: “Petitioner did not even know 17 if he needed experts on December 2, 2024 before Respondent disclosed that she would in 18 fact be utilizing an expert.” Dkt. # 36 at 2. First, Petitioner’s counsel repeatedly discussed 19 experts during the November telephone conference. See e.g., Dkt. # 24 at 5:9–12; 6:18– 20 23; 7:5–13,7:24–25, 8:8–11, 15:5–14, 17:8–16. Second, during the telephone conference, 21 Respondent’s counsel clearly indicated that Respondent had retained an expert witness and 22 stated: “I would have no problem disclosing our expert’s name at this point, but we do have 23 at least one lined up.” Id. at 13:3–5. 24 25

26 1 On agreement by the parties and approval of the Court, the date for rebuttal reports was later changed to December 24, 2024. See Dkt. # 28. However, the Court will refer to the original scheduling order because that is the order at 27 issue here. 1 The Court’s concludes that the deadline for expert disclosure applied to both parties 2 with equal force. Petitioner knew of Respondent’s expert well before the disclosure date 3 during the telephone conference. The Court considers the disclosure for affirmative and 4 rebuttal experts below. 5 1. Affirmative Expert Testimony 6 Although Petitioner claims that all of the testimony is merely rebuttal testimony, the 7 Court is not completely persuaded that is correct. The 20-page expert report is extensive 8 and appears to offer opinions and conclusions beyond those that would be relevant to 9 rebutting the affirmative defenses. See generally Dkt. # 36-1. For example, Dr. Favaro’s 10 opinion that that Respondent’s “parental gatekeeping” amounts to maltreatment of the child 11 does not address the grave risk or mature child affirmative defenses. See id. at 17. 12 Accordingly, the Court concludes the scope of the Dr. Favaro’s report exceeds rebuttal 13 testimony. Therefore, Petitioner untimely disclosed Dr. Favaro as an affirmative expert 14 witness. 15 2. Rebuttal Expert Testimony 16 As the scheduling order did not set forth deadlines for disclosing rebuttal experts, 17 the Court considers the timeframes ordinarily imposed under the Federal Rules of Civil 18 Procedure. A rebuttal expert may be disclosed within 30 days after the other party’s expert 19 disclosure “if the evidence is intended solely to contradict or rebut evidence on the same 20 subject matter identified by another party.” Fed R. Civ. P. 26(a)(2)(D)(ii) (emphasis 21 added). This is not very instructive in this matter given the extremely tight deadlines in 22 expedited Hague Petition cases. Given the silence in the scheduling order and the 23 inappropriateness of using the Federal Rules to supply the rebuttal expert deadline, the 24 Court must look to other authority to resolve this issue. 25 Persuasive authority from this District and elsewhere advises that the party with the 26 burden of proof on an issue, here the party asserting an affirmative defense, should disclose 27 1 its expert testimony before the other party is required to disclose an expert to rebut that 2 opinion testimony. See, e.g., Leeper v. City of Tacoma, No. 20-cv-5467, 2024 WL 3 5108476, at *2 (W.D. Wash. Dec. 13, 2024); U.S. Bank, N.A. v. Glogowski L. Firm, PLLC, 4 339 F.R.D. 579, 580 (W.D. Wash. 2021); Theoharis v. Rongen, No. 13-cv-1345, 2014 WL 5 3563386, at *4 (W.D. Wash. July 18, 2014) (declining to adopt the rule that expert 6 testimony on an anticipated portion of an opposing party’s case cannot be rebuttal expert 7 testimony”); see also Advisory Comm. Notes to 1993 Amendments to Fed. R. Civ. P. 26. 8 With this authority in mind and given the silence of the scheduling order, it appears 9 that Petitioner’s disclosure of Dr. Favaro on December 10, 2024, shortly after Respondent 10 served affirmative expert reports is appropriate. Accordingly, the Court finds that 11 Petitioner timely disclosed Dr. Favaro as a rebuttal expert. 12 3. Sanctions 13 As discussed in Section III supra, Rule 37(c)(1) is an “automatic” sanction that 14 prohibits the use of improperly disclosed evidence. Yeti by Molly, 259 F.3d 1101, 1106 15 (9th Cir. 2001). Litigants can escape exclusion only if they prove that the discovery 16 violations were substantially justified or harmless. Id. (citing Fed. R. Civ. P. 37(c)(1)). 17 “The automatic nature of the rule’s application does not mean that a district court must 18 exclude evidence that runs afoul of Rule 26(a) or (e)—Rule 37(c)(1) authorizes appropriate 19 sanctions ‘[i]n addition to or instead of [exclusion].’” Merchant v. Corizon Health, Inc., 20 993 F.3d 733, 740 (9th Cir. 2021) (quoting Fed. R. Civ. P. 37(c)(1)). “Rather, the rule is 21 automatic in the sense that a district court may properly impose an exclusion sanction 22 where a noncompliant party has failed to show that the discovery violation was either 23 substantially justified or harmless.” Id. 24 Petitioner has failed to demonstrate that disclosure for any affirmative testimony 25 was substantially justified or harmless. To the extent Dr. Favaro’s opinions exceed the 26 scope of Respondent’s affirmative defenses, the late disclosure is harmful to Respondent’s 27 1 ability to prepare for the evidentiary hearing. The Court will not infer that the violation is 2 harmless from Respondent not deposing one expert to be definitive that Respondent would 3 not have deposed Dr. Favaro if properly disclosed as an affirmative expert witness. 4 Similarly, in light of the lengthy discussions about experts during the telephone conference, 5 Petitioner cannot reasonably maintain that the knowledge about experts did not arise until 6 December 2, 2024. See Dkt. # 36 at 2. Therefore, the Court concludes that sanctions are 7 warranted because Petitioner has not shown that the discovery violation was substantially 8 justified or harmless. 9 The Court observes that Dr. Favaro’s testimony is important to resolving this matter 10 on the merits, but the Court still finds that sanctions are warranted in this matter. 11 Accordingly, the Court will limit Dr. Favaro’s testimony and opinions in the report solely 12 to rebuttal opinions. “[A] rebuttal expert cannot offer evidence that does not contradict or 13 rebut another expert’s disclosure merely because [the expert] also has also offered some 14 proper rebuttal [evidence].” Theoharis, 2014 WL 3563386, at *3. 15 In accordance with this decision, the Court directs Petitioner to articulate what 16 Petitioner believes is true rebuttal testimony. Petitioner will provide this statement to 17 Respondent by no later than January 4, 2024 at 12:00 pm (PST). 18 19 20 21 22 23 24 25 26 27 V. CONCLUSION 1 For the reasons stated above, the Court GRANTS in part and denies in part 2 Respondent’s Motion to Exclude. Dkt. # 29. The Court excludes any of Dr. Favaro’s 3 testimony or portions of the report from that exceed the scope of rebuttal testimony for 4 Respondent’s affirmative defense. The Court directs Petitioner to provide Respondent 5 an articulation of Dr. Favaro’s rebuttal testimony by January 4, 2025 at 12:00 pm 6 (PST). The Court will address Petitioner’s objections to proposed exhibits in a forthcoming 7 order. 8 9 Dated this 3rd day of January, 2025. A 10

11 The Honorable Richard A. Jones 12 United States District Judge 13

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