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Silvagni v. Wal-Mart Stores, Inc.

United States District Court, D. Nevada

March 28, 2017

WAL-MART STORES, INC., Defendants.

          ORDER (DOCKET NO. 32)

          NANCY J. KOPPE United States Magistrate Judge

         Defendant's motion to exclude damages evidence presents a scenario all too familiar in this District. Plaintiff alleges that she was injured in an incident occurring on Defendant's premises. Plaintiff seeks damages based on her medical expenses, both past and future, and economic damages. Plaintiff provided a partial damages computation with her initial disclosures, and has since supplemented the initial disclosures several times to identify additional damages. Plaintiff contends that she diligently obtained the information necessary to compute her damages claims, and that she disclosed that information as soon as reasonably possible. Defendant contends that Plaintiff should have disclosed all of the pertinent information with her initial disclosure, and that resorting to serving supplemental disclosures of damages computations prevented Defendant from proceeding effectively with its case through discovery. As a result, Defendant contends that its ability to defend the case has been prejudiced, and that certain damages disclosures must be excluded under Rule 37(c)(1) of the Federal Rules of Civil Procedure.

         While the above scenario is frequently presented to the magistrate judges in this District, the decisions resolving such motions are not entirely congruous. Indeed, this difference in interpreting the requirements for initial disclosure damages computations, and the appropriate penalties for not complying therewith, has already been memorialized elsewhere. See Jones v. Wal-Mart Stores, Inc., Case No. 2:15-cv-1454-LDG-GWF, 2016 WL 1248707, at *5, 7 (D. Nev. Mar. 28, 2016) (listing cases cited by Wal-Mart and recognizing that some of them were not consistent with the decision being issued). Not surprisingly given this disparity, the parties present drastically different views of the pertinent legal landscape. As a result, the Court finds it appropriate to discuss at some length what the Rules require for initial disclosures and what inquiry guides the determination of an appropriate remedy for the failure to comply with those Rules.


         Plaintiff alleges that she slipped on a gel-like substance in the bath aisle of one of Defendant Wal-Mart's stores. See, e.g., Docket No. 31 at 2. Plaintiff filed suit in state court, alleging a cause of action for negligence. Id. Defendant removed the case to this Court on the basis of diversity jurisdiction. See Docket No. 1.

         On February 11, 2016, the parties filed a joint proposed discovery plan, which the Court approved the same day. Docket Nos. 8-9. That discovery plan and subsequent scheduling order reflected a stipulation between the parties to exchange initial disclosures by February 5, 2016. Docket No. 9 at 1. The Court also set an expert disclosure deadline of May 9, 2016, a rebuttal expert disclosure deadline of June 6, 2016, and a discovery cutoff of July 6, 2016. Docket No. 9 at 2-3.

         On April 19, 2016, Plaintiff moved to extend these deadlines. Docket No. 10. The Court granted that motion in part and extended the expert disclosure deadline to June 23, 2016, the rebuttal expert disclosure deadline to July 22, 2016, and the discovery cutoff to August 22, 2016. Docket No. 18 at 3. At the same time, Plaintiff sought an order for leave to supplement the damages computation provided with her initial disclosures. Docket No. 10 at 3. Noting the early stage of the litigation, the Court declined to foreclose Plaintiff from pursuing the supplemental damages claims she had identified. Docket No. 18 at 2.

         On September 8, 2016, Plaintiff filed a motion to reopen the discovery period. Docket No. 21.[1]The Court granted that motion and the discovery cutoff was reset to October 6, 2016. Docket Nos. 26, 28.

         Especially pertinent to this motion, Plaintiff served her initial disclosures, with a damages computation, on February 22, 2016. Docket No. 34-1. Through the date of Defendant's motion, Plaintiff supplemented her initial disclosures 19 times. See, e.g., Docket No. 34-12 at 46 (Plaintiff's nineteenth supplemental initial disclosure). Plaintiff also served expert disclosures and eight supplements thereto. See, e.g., Docket No. 34-17 at 10 (eighth supplement to designation of expert witnesses).

         On December 14, 2016, Defendant filed the instant motion to exclude damages evidence. Docket No. 32. Plaintiff filed a response, and Defendant filed a reply. Docket Nos. 34, 35.

         II. STANDARDS

         A. Initial Disclosure Requirements

         Rule 26(a)(1)(A) requires parties to provide initial disclosures to the opposing parties without awaiting a discovery request. The disclosures must include a computation of each category of damages claimed by the disclosing party. Fed.R.Civ.P. 26(a)(1)(A)(iii). The purposes of the initial disclosure requirements are important and clear. Parties should be put on notice of the factual and legal contentions of the opposing party, and the initial disclosure requirements eliminate surprise and trial by ambush. See, e.g., Ollier v. Sweetwater Union High School Dist., 768 F.3d 843, 862-63 (9th Cir. 2014). The initial disclosure requirements “accelerate the exchange of basic information about the case and eliminate the paper work involved in requesting such information.” R&R Sails, Inc. v. Insurance Co. of Penn., 673 F.3d 1240, 1246 (9th Cir. 2012) (quoting Fed.R.Civ.P. 26, advisory committee notes). “Moreover, early disclosure also functions to assist the parties in focusing and prioritizing their organization of discovery.” City & County of San Francisco v. Tutor-Saliba Corp., 218 F.R.D. 219, 221 (N.D. Cal. 2003). The damages computation in particular further enables the defendant to understand the contours of its liability exposure and, by extension, to make informed decisions regarding settlement. Frontline Med. Assocs., Inc. v. Coventry Health Care, 263 F.R.D. 567, 569 (C.D. Cal. 2009).

         The benefits of initial disclosures are significant and courts have a duty to enforce the initial disclosure requirements; however, courts must apply the Rules with an eye toward “common sense, ” keeping in mind the purposes that the Rules are intended to accomplish. See, e.g., Jackson v. United Artists Theatre Circuit, Inc., 278 F.R.D. 586, 592 (D. Nev. 2011). “Rule 26 does not elaborate on the level of specificity required in the initial damages disclosure.” Tutor-Saliba, 218 F.R.D. at 220. The level of specificity for the damages computation varies depending on the stage of the litigation and the claims at issue. “A party must make its initial disclosures based on the information then reasonably available to it.” Fed.R.Civ.P. 26(a)(1)(E). “A computation of damages may not need to be detailed early in the case before all relevant documents or evidence has been obtained by the plaintiff.” Cardoza v. Bloomin' Brands, Inc., Case No. 2:13-cv-1820-JAD-NJK, 2015 WL 3875916, at *2 (D. Nev. June 22, 2015) (quoting LT Game Int'l Ltd. v. Shuffle Master, Inc., Case No. 2:12-cv-01216-GMN-GWF, 2013 WL 321659, at *6 (D. Nev. Jan. 28, 2013)). Just as courts eschew broad contention interrogatories at the outset of a case as premature, the initial damages computation is generally viewed as merely ...

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