United States District Court, D. Nevada
ORDER MOTION FOR SANCTIONS [ECF NO. 39] AND MOTION TO
STRIKE [ECF NO. 48]
FERENBACH, UNITED STATES MAGISTRATE JUDGE
the Court is Defendant The Vons Companies' Motion for
Rule 37 Sanctions (ECF No. 39) and Motion to Strike the
Supplemental Report of Plaintiff's Expert, Michael
Schneier, M.D. (ECF No. 48). For the reasons discussed below,
Defendant's motions are granted.
Francine Scolaro is seeking damages associated with a slip
and fall incident. (ECF No. 39-1 at 3, 9). In her initial
disclosures, Plaintiff gave a breakdown of costs totaling
$780, 000, which has since been amended to $450, 000, in
future medical expenses based on “the potential need to
have additional surgery on her lower back.” (ECF No.
39-3 at 6; ECF No. 39-6 at 8). The initial disclosures give
no basis or supporting documentation for the amount of future
initial expert disclosure states that Dr. Schneier is one of
Plaintiff's treating physicians. (ECF No. 51-4 at 3).
“Dr. Schneier is expected to provide testimony and
opinions formed during treatment of the Plaintiff, as well as
his expert opinions within a reasonable degree of medical
probability as to the…future damages and
prognosis…with regard to the incident in this
case.” (Id.). During the discovery period, Dr.
Schneier provided an expert report. (ECF No. 51-2). The
report discusses “the pro[b]ability of the eventual
need for Lumbar 3/4/5 reconstruction, ” but does not
contain any opinions or statements regarding the potential
expenses associated with future medical care. (Id.).
Discovery in this case closed on February 22, 2019. (ECF No.
moved to preclude Plaintiff from presenting her asserted
future medical care costs at trial. (ECF No. 39). Defendant
argued that Plaintiff “failed to provide documents or
other evidentiary material to support her computation.”
(Id. at 6). In response, Plaintiff asserted that
“Defendant is now seeking sanctions for their own
failure to request some sort of documentation during
discovery” and their failure to ask Dr. Schneier about
future costs during his deposition. (ECF No. 42 at 4-5).
a hearing on April 24, 2019. (ECF No. 45). The parties
confirmed that Plaintiff never provided Defendant with any
documents to support her future medical expenses.
(Id.). Plaintiff's Counsel stated he was not
aware of any documents to support the amount, and Plaintiff
would only rely on Dr. Schneier's testimony at trial.
(Id.). I stated that Dr. Schneier would have to give
expert testimony, rather than testimony as a treating
physician, as to Plaintiff's future costs.
(Id.). Plaintiff's Counsel agreed that an
opinion as to future costs would not be reached by a treating
physician during the course of treatment. (Id.). I
stated that an expert opinion regarding future cost should
have been included in Dr. Schneier's report, but no
future cost opinion appeared to be included. (Id.).
I gave Plaintiff one week to file supplemental briefing
addressing whether an expert report existed that gave some
basis for Plaintiff's future medical expense amount.
week after the hearing, Plaintiff filed a supplemental brief.
(ECF No. 46). Plaintiff argued that the breakdown of future
medical expenses provided in her initial disclosures taken in
conjunction with the statements regarding future treatment in
Dr. Schneier's expert report provided sufficient notice
to Defendant. (Id. at 4). “Notwithstanding the
foregoing arguments, ” Plaintiff also provided a
supplemental report by Dr. Schneier outlining the costs
associated with “the recommended treatment of an
Extreme Lateral Lumber Interbody Fusion of Lumbar One
Level.” (Id. at 4, 8).
moved to strike Dr. Schneier's supplemental report. (ECF
No. 48). Defendant argued the supplement “is untimely
disclosed more than 2 months after the close of discovery and
after Vons filed its motion seeking exclusionary
sanctions.” (Id. at 2). In response, Plaintiff
argued the supplement is timely because it was provided prior
to when the parties' pretrial disclosures are due. (ECF
No. 50 at 3).
initial matter, the Court grants Defendant's motion to
strike Dr. Schneier's supplemental report. (ECF No. 48).
I made it clear at the April 24, 2019 hearing that my main
concern was preventing either party from surprising the
opposing side with new documents that had not been produced
during the discovery period. (ECF No. 45). That is exactly
what Dr. Schneier's supplemental report does. Discovery
in this case closed on February 22, 2019 (ECF No. 29), and
the report is not a timely supplement under Federal Rule of
Procedure 26(e). It was not based on Plaintiff learning that
the report was incomplete or incorrect-it was an attempt by
Plaintiff to add to Dr. Schneier's opinion. “Rule
26(e) does not create a ‘loophole' for a party who
wishes to revise its initial disclosure to its advantage
after the deadline has passed.” Calvert v.
Ellis, No. 2:13-cv-00464-APG-NJK, 2015 WL 631284, at *3
(D. Nev. Feb. 12, 2015). Therefore, Dr. Schneier's
supplemental report (ECF No. 46 at 8) is stricken and cannot
be used by Plaintiff in this case.
the supplemental report stricken, Plaintiff must rely on Dr.
Schneier's initial expert report to support her claim for
future medical expenses. As discussed at the April 24, 2019
hearing (ECF No. 45), an opinion regarding future medical
costs constitutes expert testimony, as it is not formed as a
part of a treating physician's course of
treatment. See also McPeek v. Harrah's
Imperial Palace Corp., No. 2:13-cv-01371-JAD, 2015 WL
5286794, at *5 (D. Nev. Sept. 9, 2015) (holding that a party
“cannot prove future damages through her treatment
providers”). An expert's report must contain
“a complete statement of all opinions the witness will
express and the basis and reasons for them.”
Schneier's initial expert report says nothing about
Plaintiff's future medical expenses. The report only
discusses “the pro[b]ability of the eventual need for
Lumbar 3/4/5 reconstruction.” (ECF No. 51-2). As stated
by Plaintiff, “care and medical care has nothing to do
with the cost of the care and medical care.” (ECF No.
50 at 4).
a party fails to provide information or identify a witness as
required by Rule 26(a)…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.” Fed.R.Civ.P.
37(c)(1). The Court finds that Dr. Schneier's failure to
include an opinion regarding future medical expenses was not
substantially justified or harmless. Plaintiff argues that
Defendant was put on notice of Dr. Schneier's opinion
regarding future medical expenses by taking four different
documents in conjunction: (1) Plaintiff's initial
disclosure giving a breakdown of future medical expenses, (2)
Plaintiff's initial expert disclosure stating that Dr.
Schneier would give an opinion regarding future costs, (3)
Dr. Schneier initial report discussing future surgery, and
(4) Dr. Schneier deposition testimony regarding future
surgery. (ECF No. 46 at 4). It is not Defendant's burden
to piece together Plaintiff's various disclosures to
determine what testimony may be ...