United States District Court, D. Nevada
before the court is plaintiff Michael Traynor's
objections to Magistrate Judge Leen's granting defendant
United Financial Casualty Company's
(“United”) motions to strike. (ECF No. 54, 55).
United has filed corresponding responses. (ECF No. 58, 59).
helpful here to review the objections in the opposite order
than they were filed due to the first objection's logical
relationship to the second. The second objection is based
upon the magistrate judge's alleged error of striking Dr.
Jeffery Gross's Medical Life Care Plan and
plaintiff's fourth supplemental disclosure. (ECF No. 55).
Plaintiff argues that “Mr. Traynor's need for
future medical treatment could only be ascertained after his
recovery from the March 1, 2016, cervical surgery, ” so
“Dr. Gross's October 24, 2016, Report is a proper
supplemental report under [Federal Rule of Civil Procedure]
26(e) as it is based on information that was not available to
Dr. Gross at the time of any prior Report or Opinion.”
(Id. at 3).
also objects to the magistrate judge striking plaintiff's
fifth supplemental disclosure and Dr. Terrence
Clauretie's report calculating a present value of
plaintiff's future medical costs because plaintiff did
not anticipate a need for Dr. Clauretie's report until
Dr. Gross submitted his October 26, 2016, medical life care
plan. (ECF No. 54). In particular, plaintiff argues that this
delayed submission was “substantially justified and
harmless” because the timing of Dr. Clauretie's
report depended on Dr. Gross's late submission.
(Id.). Thus, if Dr. Gross's report was
inexcusably tardy, then Dr. Clauretie's report likely is
responds, inter alia, that rule 26(e) does not
simply permit disobedience towards scheduling orders and that
plaintiff has submitted no authority indicating that a doctor
requires a six-month post-surgery period to discern whether
additional medical treatment is needed. (ECF No. 59).
court reviews a motion to reconsider a magistrate judge's
ruling under the “clearly erroneous or contrary to
law” standard set forth in 28 U.S.C. §
636(b)(1)(A) and Fed.R.Civ.P. 72(a). “A finding is
‘clearly erroneous' when, although there is
evidence to support it, the reviewing court on the entire
evidence is left with the definite and firm conviction that a
mistake has been committed.” United States v. U.S.
Gypsum Co., 333 U.S. 364, 395 (1948); see also
Anderson v. Equifax Info. Services LLC, 2007 WL 2412249,
at *1 (D. Or. 2007) (“Though Section 636(b)(1)(A) has
been interpreted to permit de novo review of the
legal findings of a magistrate judge, magistrate judges are
given broad discretion on discovery matters and should not be
overruled absent a showing of clear abuse of
discretion.” (citation omitted)).
Rule of Civil Procedure 37 governs a court's ability to
impose sanctions for a party's failure to make
disclosures or cooperate during the discovery process.
Specifically, rule 37(c)(1) provides:
If a party fails to provide information or identify a witness
as required by Rule 26(a) or (e), the party is not allowed to
use that information or witness to supply evidence on a
motion, at a hearing, or at a trial, unless the failure was
substantially justified or is harmless.
Dr. Gross's report
court agrees with United's reasoning regarding Dr.
Gross's report. See (ECF No. 59); see also
Allstate Ins. Co. v. Balle, No. 2:10-CV-02205-APG, 2013
WL 5797848, at *2 (D. Nev. Oct. 28, 2013). As United points
out, “[i]nitial expert disclosures in this case were
due August 8, 2016.” (ECF No. 58). However, plaintiff
disclosed Dr. Gross's Medical Life Care Plan on October
26, 2016. (Id.). Plaintiff offers that
“[w]ithin the medical community, six (6) months after
surgery is generally considered the reasonable time at which
to assess the ‘permanent' status of a surgical
patient.” (ECF No. 55 at 8). However, plaintiff makes
this statement without a citation to, or declaration from,
any medical authority. (Id.).
plaintiff asserts that United has not suffered prejudice both
because the stricken report provides a valuation for future
medical needs that plaintiff asserts it is permitted to
discuss anyways and because defendant had opportunities to
question Dr. Gross about the new report. (ECF No. 55).
contests this assertion, referencing the need to not only
re-interview Dr. Gross but also “retain new experts,
including economists.” (ECF No. 59 at 3). United
suggests that these services would not be performed
gratis. (Id.). Therefore, even without
considering the additional impact of an extended pretrial
schedule, defendant persuasively indicates that reversing the
magistrate's decision would cause prejudice.
(Id.). Continuance would not alleviate this harm,
and United would incur these expert ...