United States District Court, D. Nevada
ORDER (Docket No. 42)
J. KOPPE United States Magistrate Judge
before the Court is Defendant's motion to exclude
Plaintiff's damages for a future lumbar spine surgery
pursuant to Rule 37(c)(1) of the Federal Rules of Civil
Procedure. Docket No. 42. Plaintiff filed a response in
opposition, and Defendant filed a reply. Docket Nos. 48, 52.
The Court finds the motion properly resolved without a
hearing, see Local Rule 78-1, and
VACATES the hearing set for November 6,
2017. For the reasons discussed more fully below, the motion
to exclude is GRANTED.
I. PLAINTIFF'S NON-COMPLIANCE WITH HER RULE 26
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. “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). As the word “computation”
contemplates, a proper damages disclosure must provide
“some analysis beyond merely setting forth a lump sum
amount for a claimed element of damages.” Allstate
Ins. Co. v. Nassiri, Case No. 2:08-cv-00369-JCM-GWF,
2011 WL 2977127, at *4 (D. Nev. July 21, 2011) (citing
City & County of San Francisco v. Tutor-Saliba
Corp., 218 F.R.D. 219, 221 (N.D. Cal. 2003)). The party
seeking exclusion sanctions bears the burden of showing 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 Home, LLC,
787 F.Supp.2d 247, 258 (E.D.N.Y. 2011)).
case, Plaintiff has disclosed a claim for future lumbar
surgery in the amount of $213, 000. See, e.g.,
Docket No. 42-7 at 10. Discovery closed on October 6, 2016.
Docket No. 28. As of the filing of Defendant's motion
months later, however, Plaintiff never disclosed how she
arrived at that figure and is merely relying on that lump sum
as her disclosure. That lump sum is not a computation, as
required by Rule 26. As a result, Defendant has shown that
Plaintiff failed to comply with her disclosure obligations
with respect to her damages claim for future lumbar surgery.
SUBSTANTIAL JUSTIFICATION OR HARMLESSNESS
plaintiff fails to comply with the requirements for
disclosing a damages computation, sanctions may be imposed.
Fed.R.Civ.P. 37(c). 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.
has not established either exception here. To the contrary,
Plaintiff chose to forego meaningful discussion of these
exceptions and to instead argue that they are moot given her
contention that Defendant failed to show a violation of Rule
26. See Docket No. 48 at 11-12. At any rate, it is
clear that the failure was neither substantially justified
nor harmless because, inter alia, a Rule-compliant
computation has still not been provided long after the close
of discovery and Defendant has been prejudiced thereby in its
ability to prepare its challenge to this particular damages
sanctions are not a foregone conclusion if substantial
justification or harmlessness have not been
established.” 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)). “Courts 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
Court finds exclusion of the damages claim for $213, 000 for
future lumbar surgery to be appropriate here. Discovery closed
in October 2016, Docket No. 28, and Defendant's motion
for summary judgment has been resolved, Docket No. 40. Other
than very limited discovery ordered elsewhere, Docket No. 61,
this case is ready to be set for trial. Nonetheless,
Plaintiff has still to this day not disclosed a damages
computation with respect to this claim, which is prejudicial
to Defendant and risks further delay of this case.
Considering the applicable factors, the Court concludes that
exclusion is the most appropriate remedy.
reasons discussed above, the motion to exclude damages for