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Silvagni v. Wal-Mart Stores, Inc.

United States District Court, D. Nevada

October 30, 2017

WAL-MART STORES, INC., Defendants.

          ORDER (DOCKET NOS. 41, 43)

         Pending before the Court are two motions to exclude damages pursuant to Rule 37(c)(1) of the Federal Rules of Civil Procedure. First, Defendant filed a motion to exclude Plaintiff's damages for loss of earning capacity. Docket No. 41. Plaintiff filed a response in opposition, and Defendant filed a reply. Docket Nos. 47, 50. Second, Defendant filed a motion to exclude Plaintiff's damages for hip surgery. Docket No. 43. Plaintiff filed a response in opposition, and Defendant filed a reply. Docket Nos. 49, 51. The Court finds the motions properly resolved without a hearing. Local Rule 78-1. For the reasons discussed more fully below, the motions are both hereby DENIED.


         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.

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

         Defendant thereafter filed an omnibus motion to exclude damages evidence based on its contention that various disclosures of supplemental damages computations were untimely. Docket No. 32. After that motion was fully briefed, the Court addressed the significantly different presentation of the law by the parties and outlined the standards that apply. Silvagni v. Wal-Mart Stores, Inc., 320 F.R.D. 237 (D. Nev. 2017). The omnibus motion was denied without prejudice, and the pending motions to exclude ensued.

         II. STANDARDS

         A plaintiff is required to provide a damages computation with her initial disclosures. Fed.R.Civ.P. 26(a)(1)(A)(iii). A plaintiff is also required to supplement her disclosures in a timely manner if she learns that the response is incomplete or incorrect. Fed.R.Civ.P. 26(e)(1)(A). The level of specificity required for a plaintiff's damages computation depends 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.” Silvagni, 320 F.R.D. at 240. Instead, “the initial damages computation is generally viewed as merely a preliminary assessment that is subject to revision.” Id. at 240-41 (citing City & County of San Francisco v. Tutor-Saliba, 218 F.R.D. 219, 222 (N.D. Cal. 2003)). “While a party may not have all of the information necessary to provide a computation of damages early in the case, it has a duty to diligently obtain the necessary information and prepare and provide its damages computation within the discovery period.” Jackson v. United Artists Theatre Circuit, Inc., 278 F.R.D. 586, 593 (D. Nev. 2011). In short, a plaintiff must provide an initial disclosure based on the information then reasonably available to her, and must provide timely supplements thereto when additional information later becomes reasonably available. Silvagni, 320 F.R.D. at 241 & n.2. Judging the timeliness of disclosures is a case-by-case inquiry, and there are no “bright line” deadlines. Id. at 241.

         When a plaintiff fails to comply with the requirements for disclosing a damages computation, sanctions may be imposed. Fed.R.Civ.P. 37(c). “The party requesting sanctions bears the initial burden of establishing that the opposing party failed to comply with the disclosure requirements established in Rule 26.” Silvagni, 320 F.R.D. at 241-42 (citing Lodge v. United Homes, LLC, 787 F.Supp.2d 247, 258 (E.D.N.Y. 2011)). If a movant satisfies that burden, courts have “particularly wide latitude” in exercising their discretion to impose sanctions. See, e.g., Yeti by Molly, Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 1106 (9th Cir. 2001). In exercising that discretion, courts determine initially whether the failure to comply with the disclosure requirements was either substantially justified or harmless. Fed.R.Civ.P. 37(c)(1). The party facing sanctions bears the burden of establishing substantial justification or harmlessness. See, e.g., Yeti by Molly, 259 F.3d at 1107. Several factors guide the determination of substantial justification and harmlessness, 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., Woodworker's Supply, Inc. v. Principal Mut. Life Ins. Co., 170 F.3d 985, 993 (10th Cir. 1999); Lanard Toys Ltd. v. Novelty, Inc., 375 Fed.Appx. 705, 713 (9th Cir. 2010) (citing David v. Caterpillar, Inc., 324 F.3d 851, 857 (7th Cir. 2003)). If either exception is established, the imposition of exclusion sanctions is not proper. See Fed. R. Civ. P. 37(c)(1).

         “Exclusion sanctions are not a foregone conclusion if substantial justification or harmlessness have not been established, however.” Silvagni, 320 F.R.D. at 242; see also Jackson, 278 F.R.D. at 594. The text of Rule 37(c) provides that, “[i]n addition to or instead of” exclusion sanctions, courts may impose other sanctions, such as payment of reasonable expenses (including attorneys' fees), informing the jury of the party's failure, and any other appropriate sanction. Fed.R.Civ.P. 37(c)(1)(A)-(C). Several factors guide the determination of whether to impose exclusion sanctions, including: (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 other parties; (4) the public policy favoring disposition of cases on their merits; and (5) the availability of less drastic sanctions. See, e.g., Jackson, 278 F.R.D. at 594 (citing Wendt v. Host Int'l, Inc., 125 F.3d 806, 814 (9th Cir. 1997)).[2] Additionally, when an exclusion sanction is tantamount to dismissal of a claim, the court must also consider whether the non-compliance involved willfulness, fault, or bad faith. R&R Sails, Inc. v. Insurance Co. of Penn., 673 F.3d 1240, 1247 (9th Cir. 2012). Although a finding of willfulness or bad faith is not otherwise required, willfulness or bad faith is a factor in deciding the appropriate level of sanctions to impose. Jackson, 278 F.R.D. at 594 (collecting cases).

         In practice, exclusion sanctions are generally limited to “extreme situations.” See, e.g., Tutor-Saliba, 218 F.R.D. at 220-21. Courts do not indulge gamesmanship and will not hesitate to impose exclusion sanctions when there has been misconduct, but courts are otherwise leery of imposing the harsh sanction of exclusion absent a significant possibility of prejudice due to the untimeliness of the disclosure. Silvagni, 320 F.R.D. at 243 & n.6. Hence, “[c]ourts are more likely to exclude damages evidence when a party first discloses its computation of damages shortly before trial or substantially after discovery has closed.” Jackson, 278 F.R.D. at 594. “Lesser sanctions and other measures are generally more appropriate than evidence preclusion when the disclosure is provided during the discovery period and the delay can be remedied during the existing discovery period or with a limited and brief extension of discovery.” Silvagni, 320 F.R.D. at 243 (quoting Jones v. Wal-Mart Stores, Inc., Case No. 2:15-cv-1454-LDG-GWF, 2016 WL 1248707, at *7 (D. Nev. Mar. 28, 2016)). Moreover, courts are unlikely to exclude damages when any harm could have been minimized through the movant's cooperation with opposing counsel or through promptly seeking judicial relief. Id. at 243 & n. 7 (citing, inter alia, Roe v. Nevada, 621 F.Supp.2d 1039, 1060 (D. Nev. 2007) and Jones, 2016 WL 1248707, at *7).

         III. ...

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