United States District Court, D. Nevada
ORDER (DOCKET NOS. 41, 43)
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.
BRIEF FACTUAL OVERVIEW
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.
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.
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.
September 8, 2016, Plaintiff filed a motion to reopen the
discovery period. Docket No. 21.The Court granted that motion
and the discovery cutoff was reset to October 6, 2016. Docket
Nos. 26, 28.
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).
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.
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.
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.
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)). 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).
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).