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Rios v. Wal-Mart Stores, Inc.

United States District Court, D. Nevada

April 11, 2014

ABBY RIOS, Plaintiff,


GEORGE FOLEY, Jr., Magistrate Judge.

This matter is before the Court on Plaintiff's Emergency Motion to Reopen Discovery and Extend Trial Date (#88), filed on January 29, 2014. Defendant filed its Response to Plaintiff's Motion (#93) on February 8, 2014. Plaintiff filed her Reply (#100) on February 18, 2014.[1] Plaintiff also filed a Motion to Reconsider Future Damages and any Limitations of Treating Physicians' Testimony at Trial (#83) on January 24, 2014. The court addresses that motion herein as it relates to Plaintiff's motion to reopen discovery.


Plaintiff Abby Rios alleges that on August 14, 2009 she slipped on spilled yogurt in Defendant's Wal-Mart store which caused her to fall and injure her back. Plaintiff filed suit against Wal-Mart in the District Court, Clark County, Nevada on July 15, 2011. Defendant removed the action to this court on September 30, 2011. On November 14, 2011, the Court entered a scheduling order which set a discovery cut-off date of March 28, 2012. Scheduling Order (#10). Plaintiff served her initial disclosures pursuant to Fed.R.Civ.Pro. 26(a) on November 18, 2011. Plaintiff's Initial Disclosures included a computation of past damages for medical expenses in the amount of $149, 740.00. See Defendant's Motion in Limine (#60), Exhibit A, Plaintiff's Initial Disclosures Pursuant to FRCP 26(a). The computation did not include any estimate of future medical expenses or other future special damages. Id. On April 11, 2012, the Court approved the parties' stipulation to conduct certain depositions outside the close of discovery. This included the depositions of Dr. Grover, Dr. Ghuman, Dr. Johnson, an FRCP 30(b)(6) deposition of Nevada Spine Clinic, and Defendant's employees. Order (#21).

On April 27, 2012, Wal-Mart filed a motion for summary judgment asserting that there was no evidence that it had actual or constructive notice of the yogurt spill prior to Plaintiff's accident and was therefore not liable for the accident. Motion for Summary Judgment (#23). The district judge denied Defendant's motion on October 5, 2012, noting that "[t]he evidence of constructive notice provided by Rios is not strong, but it is enough to establish a genuine dispute for trial." Order (#38), pg. 4.

The parties did not file the joint pretrial order within 30 days after the decision on the motion for summary judgment as required by the scheduling order. Pursuant to Local Rule (LR) 16-3(c), counsel for the plaintiff is responsible for initiating the preparation of the joint pretrial order. On April 3, 2013, the district judge ordered that the joint pretrial order be filed within 30 days. Minute Order (#40). The parties filed a proposed joint pretrial order on May 23, 2013. They subsequently filed a proposed amended joint pretrial order on June 20, 2013 which the court approved on July 5, 2013. See Docket Nos. 42, 48, and 52. The court scheduled jury trial for October 21, 2013. Amended Pretrial Order (#52).

In advance of the October 21, 2013 trial date, Defendant filed a Motion in Limine to Exclude from Trial any Evidence Pertaining to Damages Not Timely Disclosed Per FRCP 26(a)(1)(A)(iii) (#60).[2] The motion sought to preclude Plaintiff from presenting testimony regarding the cost of future lumber spine surgery that she will allegedly need at some point in her lifetime as a result of her accident injuries. The motion was prompted by Plaintiff's counsel's statement during a settlement conference on September 9, 2013 that Ms. Rios intended to pursue recovery for the cost of future lumbar spine surgery based on Dr. Jaswinder Grover's December 15, 2011 letter to Plaintiff's counsel.

Dr. Grover's December 15, 2011 letter summarized Plaintiff's alleged back injury resulting from the accident in August 2009. He stated that Plaintiff suffered a disc herniation at L5-S1 which was initially treated with physical therapy and injections.[3] The Plaintiff thereafter underwent lumbar surgery in March 2011. Dr. Grover reported that:

Since surgery, she has appreciated significant improvement in her radiculopathy and her back pain but still suffers from residual symptomatology. Subsequent MRI imaging of the lumbar spine has demonstrated some residual and/or recurrent disc herniation at L5-S1 and some premature degeneration of the L5-S1 disc facet zone.
Given her relative youth and given my review of the imaging studies and the pathology at the L5-S1 level whereby she has already demonstrated premature degeneration at that level, I believe that within a reasonable degree of medical probability that at some point over the course of her lifetime she will succumb to further surgical care and treatment, in all likelihood, in the form of an interbody fusion and stabilization at the L5-S1 level.

Plaintiff's Response to Defendant's Motion in Limine (#71), Exhibit 3.

Dr. Grover estimated that the cost of such surgery, including surgeon fees, anesthesia fees, hospitalization, surgery center and equipment fees, and post-operative physical therapy and rehabilitation, would be $171, 500.00. Id.

Defendant's counsel had previously deposed Ms. Rios on December 6, 2011. Ms. Rios was asked if Dr. Grover had told her she would need any further treatment. Ms. Rios testified that Dr. Grover told her that she would probably need another surgery in the future to replace her disc, but he did not state when such surgery would be needed. Plaintiff's ...

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