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Calvert v. Ellis

United States District Court, D. Nevada

February 12, 2015

LAUREN CALVERT, Plaintiff(s),
v.
MICHAEL WAYNE ELLIS, et al., Defendant(s)

ORDER GRANTING MOTION TO EXCLUDE (Docket No. 76)

NANCY J. KOPPE, Magistrate Judge.

Pending before the Court is Defendants' motion to exclude all evidence regarding Plaintiff's future surgeries pursuant to Fed.R.Civ.P. 37(c)(1). Docket No. 76. The Court has reviewed Defendants' motion, Plaintiff's response[1], and Defendants' reply. Docket Nos. 76, 135, 89. The Court held a hearing on Defendants' motion on February 9, 2015.[2] See Docket No. 142. For the reasons discussed below, the Court hereby GRANTS Defendants' motion to exclude all evidence regarding Plaintiff's future surgeries pursuant to Fed.R.Civ.P. 37(c)(1).

I. BACKGROUND

This is a personal injury action arising out of a motor vehicle accident that occurred on May 6, 2011. Docket No. 49, at 4. As a result of the accident, Plaintiff alleges that she sustained injuries to her neck, back, legs, arms, organs, and systems. Id., at 5. Defendants have admitted liability in this case. Docket No. 52, at 2-3. On March 1, 2013, Plaintiff filed the instant action in the District Court for Clark County, Nevada. Docket No. 1, at 2. Thereafter, Defendants removed the case to this Court. Id. Plaintiff amended her Complaint on March 20, 2013, and subsequently filed a Second Amended Complaint on February 6, 2014. Docket Nos. 7, 49.

On April 18, 2013, the Court approved the parties' Discovery Plan and Scheduling Order. Docket No. 21. Notably, the parties requested, and the Court approved, a 270-day discovery period because the "Plaintiff is still treating" and the parties anticipated discovery would take longer than normal. Id., at 2. The Court subsequently granted four extensions of discovery deadlines. Docket Nos. 38, 51, 69, 97.

On April 15, 2013, Plaintiff provided her initial disclosure. Docket No. 135, Exhibit 2. This disclosure did not include a computation, or even a mention of, future medical expenses. Id. On December 31, 2013, Plaintiff supplemented her initial disclosure. Docket No. 135, Exhibit 3. Again, Plaintiff failed to include a computation for future medical expenses. Id. On April 10, 2014, Plaintiff provided her second supplement to her initial disclosure. Docket No. 135, Exhibit 11. In this second supplement, she disclosed, for the first time, a computation for future medical expenses, in the amount of $478, 450. Id. On April 14, 2014, Plaintiff disclosed an additional expert report setting forth the present value of future medical expenses quantified in the amount of $416, 400 to $507, 200. Id., Exhibit 14. Discovery closed in this case on July 11, 2014. Docket No. 69, at 2. The case is currently scheduled on the stacked calendar of September 28, 2015. Docket No. 125.

On July 24, 2014, Defendants filed the pending motion to exclude all evidence regarding Plaintiff's future surgeries. Docket No. 76. Defendants argue that if Plaintiff's future medical expenses regarding future surgeries are excluded, the Court should also exclude any testimony regarding the need for future surgery based on relevance.[3] Hearing Tr. 10:06 a.m.; See Fed.R.Evid. 401 (evidence is relevant if "the fact is of consequence in determining the action" and "it has the tendency to make a fact more or less probable"). On the other hand, Plaintiff asserts that "there is no basis to exclude Plaintiff's expert opinions that she will need future spinal surgeries." Docket No. 135, at 10. In fact, Plaintiff seems to be under the misconception that timely complying with expert disclosure requirements relieves her of her duty to provide initial disclosures.[4] The Court disagrees with Plaintiff's unsupported statement, as it belies both the Federal Rules of Civil Procedure and the case law of this Court analyzing the applicable rules, as discussed below.

II. DISCUSSION

A. Rule 26(a)

Rule 26(a)[5] requires parties to provide initial disclosures to the opposing parties without awaiting a discovery request. Fed.R.Civ.P. 26(a)(1)(A). The initial disclosure must include a computation of each category of damages claimed by the disclosing party. Fed.R.Civ.P. 26(a)(1)(A)(iii). The computation of each category of damages requires more than the listing of the broad types of damages so as to "enable the defendants to understand the contours of their potential exposure and make informed decisions regarding settlement and discovery. CCR/AG Showcase Phase I Owner, L.L.C. v. United Artists Theatre Circuit, Inc., 2010 WL 1947016, at *5 (D. Nev. May 13, 2010) (citing City and Cnty. of S.F. v. Tutor-Saliba Corp., 218 F.R.D. 219 (N.D. Cal. 2003)). "As this language indicates, for disclosures purposes damages are determined, not by actual cost, but by what the party claims." Smith v. Wal-Mart Stores, Inc., 2014 WL 3548206, at *4 (D. Nev. July 16, 2014) (citing Sylla-Sawdon, 47 F.3d 277, 284 (8th Cir. 1995) (stating that the purpose of Rule 26(a) is to enable parties to prepare for trial, not calculate liability). Thus, Plaintiff does not have to know at the time of disclosure if the future surgery is a "surety."[6] This computation is due within 14 days of the Rule 26(f) conference unless a different time is set by stipulation or court order. Fed.R.Civ.P. 26(a)(1)(c).

On April 15, 2013, Plaintiff provided her initial Rule 26(a) disclosure to Defendants. Docket No. 135, Exhibit 2. In her initial disclosure, Plaintiff made no reference to any claims for future medical expenses. See id. Not only did Plaintiff fail to provide a computation of future medical expenses as required under Rule 26(a), but she did not even provide a placeholder for a future damages category. Id., at 6. It was not until April 10, 2014, that Plaintiff first provided a computation of her future medical expenses. Docket No. 135, Exhibit 11. This was approximately three months after the initial expert disclosure deadline and approximately three months before discovery closed.[7] Plaintiff contends that she was not required to disclose a more detailed damages computation until receiving expert input from Plaintiff's treating physicians. Hearing Tr. 10:30 a.m. However, "future expert analysis does not relieve [Plaintiff] of the obligation to provide information reasonably available." Olaya v. Wal-Mart Stores, Inc., 2012 WL 3262875, at *2 (D. Nev. Aug. 7, 2012). Consequently, the Court finds that Plaintiff did not comply with her disclosure obligation under Rule 26(a).

B. Rule 26(e)

Rule 26(e) creates a duty to supplement, not a right. See Luke v. Family Care & Urgent Med. Clinics, 323 F.Appx. 496, 500 (9th Cir. 2009). Pursuant to Rule 26(e)(1)(A):

A party who has made a disclosure under Rule 26(a)... must supplement or correct its disclosure or response... in a timely manner if the party learns that in some material respect the disclosure or response is incomplete or incorrect, and if the additional or corrective information has not otherwise ...

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