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Silvagni v. Wal-Mart Stores, Inc.

United States District Court, D. Nevada

November 2, 2017

WAL-MART STORES, INC., Defendants.

          ORDER (Docket No. 42)

          NANCY J. KOPPE United States Magistrate Judge

         Pending 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.[1]


         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. “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)).

         In this 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.[2] 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.


         When a 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. P. 37(c)(1).

         Plaintiff 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 claim.


         “Exclusion 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)).[3] “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 594.

         The Court finds exclusion of the damages claim for $213, 000 for future lumbar surgery to be appropriate here.[4] 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.[5] 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.


         For the reasons discussed above, the motion to exclude damages for future ...

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