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Brumer v. Gray

United States District Court, D. Nevada

June 20, 2019


          ORDER RE: ECF NO. 39

          William G. Cobb United States Magistrate Judge.

         Before the court is defendant Laurie Ann Gray's Motion to Preclude Untimely Disclosed Damages. (ECF Nos. 39, 39-1 to 39-16.)[1] Plaintiffs Urszula Brumer and Malgorzata Kasprzak-Guzek filed a response. (ECF Nos. 43, 43-1 to 43-28.) Gray filed a reply. (ECF No. 48.) The court held a hearing on the motion on June 17, 2019 (see minutes at ECF No. 54), and issues the instant order granting the motion in part and denying it in part.

         I. BACKGROUND

         Plaintiffs are citizens of Poland and sued Gray, a resident of Nevada, for negligence and negligence per se related to a rear-end motor vehicle accident that occurred in Douglas County, Nevada, on September 19, 2017. They seek to recover property damage and damages for injuries including cervical/thoracic/lumbar injuries, medical bills, pain, suffering, worry, anxiety, depression, emotional distress and loss of enjoyment of life. (ECF No. 1.) On April 8, 2019, Gray filed a stipulation for liability, so damages are the only remaining issue. (ECF No. 41.)

         Plaintiffs received treatment related to this accident in the United States and in Poland, which has complicated the discovery process in this matter.

         Plaintiffs served their initial disclosures under Federal Rule of Civil Procedure 26(a)(1)(A) on November 21, 2017, and, among other things, identified various documents including medical records and bills, but stated the damages computation was unknown and discovery was continuing. (ECF Nos. 39-1, 43-2.)

         Gray served her First Set of Requests for Production of Documents (RFP) on Plaintiffs on December 7, 2018. Request 16 asked Plaintiffs to produce all invoices, bills, receipts or other documents that showed medical expenses incurred in the accident. (ECF No. 39-6, RFP No. 16 to Brumer; ECF No. 39-7 at 7, RFP No. 17 to Kasprzak.) Plaintiffs responded to those requests on February 6, 2018, by identifying certain documents including medical records and bills. (ECF No. 39-6 at 20, Brumer response to RFP No. 16); ECF No. 39-7 at 20, Kasprzak's response to RFP No. 16.)

         Gray's first set of RFPs also requested a damages computation under Federal Rule of Civil 26(a)(1)(A)(iii). (ECF Nos. 39-6 at 7, RFP No. 17 to Brumer; ECF No. 39-7 at RFP No. 17 to Kasprzak.) In response, Plaintiffs referred Gray to the response to RFP No. 16, which had identified certain documents, and said discovery was ongoing and Plaintiff reserved the right to amend or supplement the response. (ECF No. 39-6 at 20, Brumer response to RFP No. 17; ECF No. 39-7 at 20, Kasprzak's response to RFP No. 17.)

         Plaintiffs were also asked to itemize the expenses they claimed as damages in interrogatories. (ECF No. 39-4 at 23, Interrogatory No. 22 to Brumer; ECF No. 39-5 at 13, Interrogatory No. 22 to Kasprzak.) In responses served February 6, 2018, Plaintiffs again identified various documents that included medical records and bills. (ECF No. 39-4 at 24, Brumer response to Interrogatory No. 22; ECF No. 39-5 at 31, Kasprzak response to Interrogatory No. 22.)

         One month later, on March 8, 2018, Gray served a second set of RFPs on Plaintiffs. (ECF Nos. 39-13, 39-14.) There were only two requests: RFP No. 22 asked for a computation of damages under Federal Rule of Civil Procedure 26(a)(1)(A)(iii). RFP No. 23 asked for all invoices, receipts, bills or other documents that purported to show any damage they claimed to have sustained as a result of the accident. There is a dispute among counsel as to what transpired with respect to Plaintiffs' obligation to provide responses to these requests. Gray's counsel at the time, Scott L. Rogers, Esq., states that he spoke to Plaintiffs' counsel, Jakub Medrala, Esq., and Mr. Medrala requested an extension of time to respond until May 24, 2018, and attaches a copy of the email confirming the extension. (Rogers Decl., ECF No. 39-15 at 3 ¶ 6.) He asserts no responses were ever served. (Id. ¶ 7.)

         Mr. Medrala, on the other hand, acknowledges service of the requests on March 8, 2018, and the extension granted until April 24, 2018. (Medrala Decl., ECF No. 43-1 at ¶¶ 11-12.) He maintains, however, that he had a discussion with Mr. Rogers on April 24, 2018, concerning difficulties obtaining the Plaintiffs' medical records from Poland. (Id. ¶ 13.) He asserts that Mr. Rogers acknowledged Plaintiffs' difficulty in providing the damages calculation, and agreed that Plaintiffs would continue to attempt to obtain their complete medical records from Poland, and that the parties would work together to secure the cooperation of Plaintiffs' Polish medical providers. (Id. ¶ 14.) They did not set a new deadline for responses, but Mr. Medrala insists it was understood that Plaintiffs would not be obligated to respond until they secured the cooperation from the Polish medical providers and obtained complete medical records. (Id. ¶ 15.)

         Gray does not address Mr. Medrala's statements on this issue in her reply brief, but instead simply repeats the same argument that Plaintiffs did not respond to the second set of requests for production of documents. Mr. Loosvelt's second declaration states that Mr. Medrala never suggested an agreement "never to provide disclosures until international discovery was conducted," but does not indicate that he inquired of Mr. Rogers whether there was an agreement on this issue between counsel. (ECF No. 48 at 20 ¶ 6.)

         Brumer and Kasprzak were deposed on May 11, 2018. (ECF Nos. 43-3, 43-4.)

         Gray served her second supplemental disclosures under Rule 26(a)(1) on May 30, 2018, that disclosed, among other things: medical and billing records for Brumer from Integrated Pain Specialists for services on May 9, 2018 and September 24, 2015 (DEF 108-157, 158-162), and from Carson Valley Medical Center for service on September 19, 2015 (DEF 168-207); as well as medical and billing records from Kasprzak for service at Integrated Pain Specialists on September 24, 2015 (DEF 163-167). (ECF No. 43-6 at 8.)

         The parties agreed to participate in the process of obtaining letters rogatory from this court to conduct discovery with respect to Plaintiffs' medical providers in Poland. (Medrala Decl., ECF No. 43-1 ¶¶ 18, 20; ECF No. 43-18.) To that end, Mr. Medrala retained a law firm in Poland to assist in the process. (Medrala Decl., ECF No. 43-1 ¶ 19.)

         Plaintiffs served their first supplemental disclosures under Rule 26(a) on June 25, 2018, disclosing, among other things, additional medical records and bills for Brumer including Dr. Marta Wisniewka's medical opinion (BRUMER 250), Dr. Robert Gasik's medical opinion (BRUMER 251-252), Magdalena Leszczynska's opinion (BRUMER 253), and records from Carson Valley Medical Center from services on September 19, 2015 (BRUMER 254-64). (ECF No. 43-7 at 10.) They also disclosed additional medical records and bills for Kasprzak including: Dr. Andrew Cash (BRUMER 318-320, 340-343), and Dr. Charlie Y. Nahm (BRUMER 327-339). (ECF No. 43-7 at 10.)

         With respect to the damages information, they again stated that the damages computation was unknown and discovery was continuing. (ECF No. 43-7 at 11.)

         On July 3, 2018, Dr. Cash, a Board-Certified Orthopedic Surgeon and Fellowship Trained Spine Surgeon, authored a letter containing his future surgical recommendations and cost estimates for Kasprzak. (ECF No. 43-8 at 4-6.) Dr. Cash opined that Plaintiff will require cervical reconstruction at ¶ 5-6 and lumbar reconstruction at ¶ 5-S1 to ameliorate her symptoms. The cost estimate for the first surgery-the single level anterior cervical discectomy and fusion at ¶ 5-6- is $279, 735. The cost estimate of the second surgery-the single level anterior posterior lumbar reconstructive fusion with decompressive laminectomy at ¶ 5-S1-is $402, 701. The total cost estimate for both surgeries is $682, 436. Mr. Medrala sent this letter to Mr. Rogers that same day, and asked to touch base to talk about the Polish discovery issues. (ECF No. 43-8 at 2.)

         Dr. Cash was deposed on August 7, 2018, and was questioned about the July 3, 2018 surgical cost letter he authorized for Kasprzak by Gray's counsel. (ECF No. 43-10 at 16-17, depo. trans. pp. 55:6-25, 56:1, 59:6-20.) Mr. Medrala also questioned Dr. Cash about the cost letter, and asked whether he thought Kasprzak would need to undergo any additional surgeries in the future assuming she moved forward with the two initially recommended in his surgical cost letter. (ECF No. 43-10 at 17, depo. trans. p. 60:6-15.) Dr. Cash testified that if she underwent those two initial surgeries identified in the surgical cost estimate, for both surgeries, adjacent level breakdowns would probably occur and would more likely than not require adjacent level surgery fusion in the cervical and lumbar spine. (ECF No. 43-10 at 18, depo. trans. pp. 61:3-25, 62:1-20.)

         Dr. Cash apparently authored a second letter on August 22, 2018, where he stated his opinion that if Plaintiff had the first two surgeries, she would require additional surgeries of the cervical and lumbar spine at the adjacent levels. (See Plaintiffs' expert witness disclosure, ECF No. 43-11 at 3, identifying a report by Dr. Cash dated August 22, 2018.) Mr. Medrala clarified at the hearing that Dr. Cash never provided an estimate as to the cost of these additional surgeries, and that in the February 20, 2019 damages computation, Mr. Medrala just made what in his view was a "conservative estimate" by allotting the same amount that Dr. Cash estimated for the initial two future surgeries he recommended.

         On August 24, 2018, Plaintiffs served their expert disclosure, designating Dr. Cash as their expert, and produced, among other things, the July 3, 2018 surgical cost letter. (ECF No. 43-11.)

         Between the end of June and August of 2018, the parties were in the process of drafting a motion to be filed in this court requesting the issuances of letters rogatory so that they could pursue discovery from Plaintiffs' medical providers in Poland. (See ECF No. 43-18.)

         Plaintiffs served their second supplemental disclosures on November 7, 2018. (ECF No. 43-12.) It included the identification of additional medical and billing records for Kasprzak and Brumer from treatment in Poland and the United States. Under the damages information category, Plaintiffs again stated that the damages computation was unknown and discovery was continuing. (ECF No. 43-12 at 12.)

         The parties participated in a settlement conference before the Honorable Robert A. McQuaid, Jr., recalled United States Magistrate Judge, on November 15, 2018, but were unsuccessful in settling the case. (ECF No. 33.) The parties filed a joint status report the following day. (ECF No. 34.) In that status report, the parties jointly represented that they had agreed to finalize a joint motion for issuance of letters rogatory to seek the assistance of the Polish courts in verifying and obtaining additional medical records from Plaintiffs' Polish medical providers, and would file such motion by November 21, 2018. (Id. at 2.)

         Following the settlement conference, Mr. Medrala continued his efforts to work with Gray's counsel, now Ryan Loosvelt, Esq., to get the motion for issuance of letters rogatory filed. (ECF No. 43-19.) The parties participated in a status conference on November 21, 2018. (ECF No. 35.) The parties reiterated that they were in the process of finalizing the joint motion for issuance of letters rogatory. The court acknowledged expressed concern that the process the parties were pursuing with the motion for issuance of letters rogatory would continue to delay the case if the parties did not move expeditiously. The court acknowledged and advised counsel that these motions were cumbersome and time consuming. With that in mind, the court granted a 120-day extension of the discovery deadline, until February 20, 2019, and stated that barring unforeseen and extenuating circumstances, there would be no further extensions. (Id.)

         When Mr. Medrala initially communicated with Mr. Loosvelt following the status conference, all indications were that Gray was still interested in cooperating with Plaintiffs on obtaining discovery in Poland, with Mr. Loosvelt representing to Mr. Medrala on November 27, 2018, and December 4, 2018, that he would get final revisions to Mr. Medrala forthwith. (ECF No. 43-19 at 5-6; ECF No. 43-22 at 2.)

         Mr. Medrala subsequently extended multiple communications to Mr. Loosvelt, regarding the joint motion for issuance of letters rogatory, but they went unreturned. Mr. Medrala also circulated a draft of the motion to Mr. Loosvelt, but Mr. Loosvelt apparently never got back to him with final revisions. (Medrala Decl., ECF No. 43-1 ¶¶ 39, 40, 42, 44; ECF No. 43-20; ECF No. 43-23 (December 20, 2018 email asking Mr. Loosvelt to call him); ECF No. 43-24 (January 22, 2019, asking for any updates on the motion for letters rogatory).)

         In her reply brief, Gray states that she "elected not to proceed" with the motion because there was not sufficient time remaining to gain compliance of Plaintiffs' Polish medical providers through this procedure ECF No. 48: 9-12), but it does not appear that this was ever communicated to Mr. Medrala. Nevertheless, Mr. Medrala never moved forward with the motion for issuance of letters rogatory on his own.

         On February 1, 2019, Gray served her designation of rebuttal expert witness and documents, identifying Dr. James S. Forage as her rebuttal witness and producing his testimony and reports. (ECF No. 43-13.) His report indicates that he reviewed Dr. Cash's reports and stated his rebuttal opinions. (ECF No. 43-13 at 19.)

         On February 20, 2019, the last day of discovery, Plaintiffs served their third supplemental disclosures under Rule 26(a). The disclosures identified additional medical records and bills for Kasprzak and Brumer including those from DCP Holdings, LLC/West Surgery Center for Kasprzak, BRUMER 516-529[2].

         The third supplemental disclosures provided the following computation of damages:

1. Special Damages

a) Malgorzata Kasprzak-Guzek

US Treatment

$41, 807.50

Future U.S. Treatment

$682, 436.00 x 2[3]

Foreign Treatment

$3, 832.10 (U.S.)[4]


$1, 410, 511.60

b) Urszula Brumer

U.S. Treatment

$9, 803.94

Foreign Treatment

$5, 694.00 (U.S.)

Future Treatment

$50, 000.00

Property Loss

$1, 308.89 (U.S.)[5]


$66, 806.83

2. General Damages

a) Malgorzata Kasprzak-Guzek

$2, 821, 023.20

b) Urszula Brumer

$150, 000.00

(ECF No. 43-15 at 13-14.)

         Gray's rebuttal expert, Dr. Forage, was deposed (outside the discovery deadline, on the agreement of the parties) on February 26, 2019. (ECF No. 43-16.) Dr. Forage was questioned about Dr. Cash's surgical cost report and his estimate of the cost of the cervical and lumbar surgeries. (Id. at 12-13, depo. trans. pp. 34:21-25, 36-39:5.)

         Dr. Cash was deposed again on March 7, 2019 (again outside the discovery deadline, by agreement of the parties). (ECF No. 43-17.) He was questioned further about his surgical recommendations and surgical cost estimate letter. (Id. at 9-12.) He was also asked about Dr. Forage's opinions. (Id. at 12-16.) He was not asked by Gray's counsel or Mr. Medrala about additional surgeries recommended beyond the initial ...

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