United States District Court, D. Nevada
ORDER (DOCKET NO. 16)
J. KOPPE United States Magistrate Judge.
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.
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.
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.
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.
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.
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).
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 ...