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Felix v. CSAA General Insurance Co.

United States District Court, D. Nevada

March 28, 2017

BLANCA FELIX, Plaintiff(s),
v.
CSAA GENERAL INSURANCE COMPANY, Defendant(s).

          ORDER (DOCKET NO. 16)

          NANCY J. KOPPE United States Magistrate Judge.

         Pending before the Court is Defendant's motion for sanctions. Docket No. 16. Plaintiff filed a response in opposition, and Defendant filed a reply. Docket Nos. 18, 19. The Court finds the motion properly resolved without a hearing. See Local Rule 78-1. For the reasons discussed more fully below, Defendant's motion for sanctions is GRANTED in part and DENIED in part.

         I. BACKGROUND

         This is an insurance dispute removed from state court. In general terms, Plaintiff alleges that Defendant failed to honor her uninsured/underinsured insurance policy following a car accident involving a third-party driver. Docket No. 1 at 11-13. Plaintiff brings causes of action for breach of contract, bad faith and unfair claims practices, and breach of the covenant of good faith and fair dealing. Id. at 13-16.

         On February 3, 2016, the Court entered a scheduling order based on the parties' proposed discovery plan. Docket No. 11. Through stipulation of the parties, on April 20, 2016, the Court extended some of the deadlines in the scheduling order. Docket No. 15. Pertinent to the pending motion, the extended deadlines included the following:

• Expert disclosures: June 2, 2016
• Rebuttal experts: July 2, 2016
• Discovery cutoff: August 1, 2016

Id. at 5.

         On June 2, 2016, Defendant served the expert report of Howard Passin. Docket No. 18 at 35-54. Mr. Passin opined on whether Defendant engaged in bad faith or unfair claims practices. See Id. at 47-54. Plaintiff did not designate an expert at that time. See Docket No. 16-1 at 3. On June 29, 2016, Plaintiff designated Jeffrey Thomas as an expert witness and served his report. See Docket No. 18 at 22-33. Mr. Thomas opined on whether Defendant engaged in bad faith or unfair claims practices. See Id. Plaintiff identified Mr. Thomas as a rebuttal expert. Id. at 12. Through the pending motion, the parties dispute Mr. Thomas' moniker as a “rebuttal” expert and the consequences that should flow from a decision on that issue.

         II. STANDARDS

         A party must disclose the identity of any expert witness it intends to use at trial. Fed.R.Civ.P. 26(a)(2)(A). The party must also provide a written report of the expert. Fed.R.Civ.P. 26(a)(2)(B). Parties must disclose their experts at the times and in the sequence that the Court orders. Fed.R.Civ.P. 26(a)(2)(D).

         When a party fails to meet its expert disclosure obligations, the Court turns to Rule 37(c) to determine the appropriate consequences. Rule 37(c)(1) provides that a non-compliant party is “not allowed to use the information or witness to supply evidence . . . at trial, unless the failure was substantially justified or harmless.” The party facing the sanction has the burden of showing substantial justification or harmlessness. See Yeti by Molly, Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 1106-07 (9th Cir. 2001). Courts have outlined several factors in determining whether substantial justification and harmlessness exist, including (1) prejudice or surprise to the party against whom the evidence is offered; (2) the ability of that party to cure the prejudice; (3) the likelihood of disruption of trial; and (4) bad faith or willfulness in not timely disclosing the evidence. See, e.g., David v. Caterpillar, Inc., 324 F.3d 851, 857 (7th Cir. 2003); Lanard Toys Ltd. v. Novelty, Inc., 375 Fed.Appx. 705, 713 (9th Cir. Apr. 13, 2010) (unpublished decision). It is well-settled that “[h]armlessness may be established if [an expert] disclosure is made sufficiently before the discovery cutoff to enable the movant to depose the expert and challenge his expert report.” Pacific Indem. Co. v. Nidec Motor Corp., 203 F.Supp.3d 1092, 1097 (D. Nev. 2016) (Gordon, J.) (collecting cases).

         Even where non-disclosure is neither harmless nor justified, however, courts are not required in all instances to impose an exclusion sanction. Jackson v. United Artists Theatre Circuit, Inc., 278 F.R.D. 586, 594 (D. Nev. 2011). Courts have wide discretion in determining the appropriate sanction. See Yeti, 259 F.3d at 1106. In determining the appropriate sanction, courts look to five factors: (1) the public's interest in expeditious resolution of litigation; (2) the court's need to manage its docket; (3) the risk of prejudice to the party seeking sanctions; (4) the public policy favoring ...


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