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Igartua v. Mid-Century Insurance Co.

United States District Court, D. Nevada

March 14, 2017



          C. W. Hoffman, Jr. United States Magistrate Judge

         Presently before the Court is Defendant Mid-Century Insurance Company’s motion to preclude damages (ECF No. 42), filed on January 4, 2017. Plaintiff Richard Iguarta filed a response (ECF No. 46) on January 18, 2017, and Defendant filed a reply (ECF No. 48) on January 25, 2017.

         Also before the Court is Defendant’s motion to strike (ECF No. 50), filed on January 26, 2017. Plaintiff filed a response (ECF No. 54) on February 9, 2017, and Defendant filed a reply (ECF No. 55) on February 23, 2017.

         I. Introduction

         At issue in both motions are Plaintiff’s supplementary disclosures, made after the close of discovery. Plaintiff made his initial disclosures in this case on May 23, 2016, including an itemized list of medical treatment received and costs totaling $574,024.60, but did not include a computation for lost wages, lost earning capacity, general damages, punitive damages, or attorney fees. Resp. at p. 2. Plaintiff did not supplement these disclosures during the discovery period, despite a number of Defendant’s requests for a computation of all damages sought. On October 24, 2016, five days after the close of discovery, Plaintiff made his first supplemental disclosure, which includes a computation of $572,362.68 for total past medical costs, with future medical costs and general damages to be determined at trial. Also in his supplemental disclosure, Plaintiff sought to designate his treating physicians as expert witnesses. Plaintiff then brought a motion to reopen discovery on November 1, 2016. Defendant objected to the supplemental disclosure, and opposed the motion to reopen discovery. On December 13, 2016, the Court held a hearing on these matters. (ECF No. 33). At the hearing, the Court found Plaintiff’s late supplementary disclosures were not substantially justified or harmless, and ordered that Plaintiff’s treating physicians could not testify as experts, but only as to their treatment. The Court also found that Plaintiff had not been diligent in conducting discovery and denied the motion to reopen discovery.

         Subsequently, Plaintiff served a second supplemental disclosure on Defendant on January 12, 2017, which provided new treatment records, a revised computation of $589,825.05 in past medical costs, and notice of unspecified future medical costs and general damages to be determined at trial. The second disclosure again designated Plaintiff’s treating physicians as expert witnesses. On January 12, 2016, Plaintiff filed a motion for reconsideration (ECF No. 44) of the Court’s decision at the December 13, 2016 hearing. The Court denied the motion on March 7, 2017. (ECF No. 56). Defendant now brings the following motions.


         A. Defendant’s Motion to Preclude Plaintiff’s First Supplementary Disclosure

         Defendant argues that Plaintiff failed to timely disclose a computation of each category of damages he would seek, as required by Fed. R. Civ. P. 26(a)(1)(A)(iii). Defendant notes that under Fed. R. Civ. P. 37(c)(1), a party is not allowed to use evidence that it fails to properly disclose unless the failure was substantially justified or is harmless. As a preliminary matter, the Court notes that at the hearing on December 13, 2016, it found that Plaintiff’s failure to make proper and timely disclosures was neither substantially justified nor harmless. The Court will make its determination on the instant matter with that finding in mind.

         Defendant requests that the Court preclude Plaintiff from offering evidence in support of the following categories of damages he failed to properly disclose: lost wages, loss of earning capacity, damages from emotional injuries, general damages, future medical damages, and attorney fees. Defendant also argues that some of Plaintiff’s past medical damages were not properly disclosed, and seeks to exclude the inadequate disclosures.

         1. Lost wages and loss of earning capacity

         Plaintiff concedes that he did not make any disclosure of damages relating to past or future lost wages or loss of earning capacity, and does not oppose that aspect of Defendant’s motion except to reserve the right to submit computations of such damages should the Court allow for the reopening of discovery. The Court will grant Defendant’s motion with respect to lost wages and loss of earning capacity, subject to the possibility of a future Court order reopening discovery.

         2. Emotional damages, general damages

         Plaintiff also concedes that he did not provide a computation of damages from emotional injuries or general damages, but argues that since these categories of damages are not easily or meaningfully estimated, they need not be computed under Rule 26(a). In a tort context, general damages refer to compensation for pain, suffering, or loss of previous abilities for which no precise dollar value can be calculated. See Vance v. Am. Hawaii Cruises, Inc., 789 F.2d 790, 794 (9th Cir. 1986). Emotional distress damages are merely a subset of general damages, and so are also difficult to estimate. Plaintiff points out that in his interrogatory responses to Defendant, he made clear that he sought both these categories of damages. Defendant argues that mere disclosure does not excuse him from his rule 26(a) responsibilities, and cites a number of cases in which Courts have excluded evidence based on inadequate Rule 26(a) disclosures. See e.g., Clasberry v. Albertson’s LLC, 2015 WL 9093692 (D. Nev. December 16, 2015). It is true that courts in this district have frequently found that exclusion was proper for failure to make Rule 26(a) disclosures. Courts have found exclusion appropriate when plaintiffs fail to disclose computations of easily quantifiable damages, such as past and future medical expenses, or lost wages, and instead attempt to rely only on ...

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