United States District Court, D. Nevada
HOFFMAN, JR. UNITED STATES MAGISTRATE JUDGE.
before the court is defendant United States of America's
motion to strike (ECF No. 21), filed on September 6, 2018.
Plaintiff filed a response (ECF No. 24) on September 20,
2018. Defendant filed a reply (ECF No. 26) on September 27,
before the court is defendant's motion to stay
defendant's disclosure of damage experts (ECF No. 22),
filed on September 14, 2018. Plaintiff Kaysee Nitta filed a
response (ECF No. 27) on September 28, 2018. Defendant filed
a reply (ECF No. 28) on October 5, 2018.
18, 2019, the court held a hearing on defendant's motions
and took the matters under advisement. (Mins. of Proceedings
(ECF No. 48).) The court now resolves the motions
a personal injury action stemming from an explosion that
occurred on property allegedly owned and maintained by the
United States Department of the Interior, Bureau of Land
Management. (Compl. (ECF No. 1).) The explosion occurred on
June 9, 2014, after one of the attendees threw a barrel drum
containing a flammable liquid into a bonfire. (Id.)
Plaintiff Kaysee Nitta was one of the teenagers in
attendance, and she suffered burns from the explosion.
(Id.) Nitta alleges that the United States failed in
its duty to ensure that the premises were free from any
hazardous conditions. (Id.)
served defendant with her initial disclosure, dated September
21, 2017, containing a computation of her damages. (Pl.'s
Initial Disclosures (ECF No. 21-2) at 12.) The disclosure
provided $524, 208.54 for past medical expenses.
(Id.) The future damages category provided listed
future medical damages and pain and suffering but stated only
“to be determined” in lieu of an amount.
(Id.) Plaintiff then supplemented her disclosure on
February 14, 2018, March 6, 2018, March 9, 2018, and March
18, 2018. (ECF Nos. 21-3, 21-4, 21-5, 21-6.) The supplements
contained additional documents related to the investigation
of the fire, federal statutes and regulations, various mine
reports, photographs, medical bills, and plaintiff's
court filed its scheduling order on August 28, 2017,
providing April 19, 2018 as the discovery deadline.
(Scheduling Order (ECF No. 12).) The court then extended
discovery deadlines, with November 16, 2018 as the close of
discovery. (Order (ECF No. 20).) Plaintiff's expert
disclosure deadline was August 20, 2018, and defendant's
expert disclosure deadline was September 19, 2018.
date of plaintiff's expert disclosure deadline, defendant
first received plaintiff's expert disclosures claiming
future damages. (Pl.'s Expert Disclosure (ECF No. 21-8)
at 4-5.) Plaintiff's damages are derived from three
damages experts, asserting a diminished future earning
capacity of $557, 037-$920, 462, and future medical expenses
of $230, 013 from one expert and $181, 847- $278, 179
projected by another. (ECF Nos. 21-9, 21-10, 21-11.)
Plaintiff's expert disclosure also lists a number of
treating physicians as witnesses and a cumulative summary of
the information to which all the witnesses will testify.
(Pl.'s Expert Disclosure (ECF No. 21-8) at 5-10.)
government now moves to strike plaintiff's damages
experts and future damages experts under Rule 37(c)(1),
arguing that plaintiff failed timely to provide an estimate
of her damages, and failed to provide a complete summary of
the treating physicians' opinions. (Mot. to Strike (ECF
No. 21).) Plaintiff responds that she promptly provided to
defendant the damages report. (Resp. (ECF No. 24).) Plaintiff
also asserts that defendants were aware that plaintiff was
receiving ongoing medical treatment and that damages would
likely evolve. (Id.) Plaintiff concedes that her
expert summaries were incomplete, but argues that any
violation was harmless. (Id.) Defendant replies that
plaintiff failed to comply and that the court should exercise
its discretion in striking the damages experts and future
damages. (Reply (ECF No. 26).)
also moves to stay the expert disclosure deadline pending the
resolution of the motion to strike. (Mot. to Stay (ECF No.
22).) Plaintiff opposes the stay, arguing that the motion to
stay does not comply with the Local Rules. (Resp. (ECF No.
27).) Defendant replies that the Local Rules are inapplicable
to their motion to stay. (Reply (ECF No. 28).)
MOTION TO STRIKE
moves to strike plaintiff's future earnings, future
medical expenses, and plaintiff's non-retained expert
witnesses under Rule 37 of the Federal Rules of Civil
Procedure. Under Rule 37(c)(1), a party that fails to comply
with Rule 26(a) is not permitted to use the information at
trial unless the failure to comply was harmless. See
Fed. R. Civ. P. 37(c)(1). The court may also impose other
appropriate sanctions in addition to, or instead of,
excluding the information. See Fed. R. Civ. P.
37(c)(1)(A)-(C). The party facing sanctions bears the burden
of demonstrating harmlessness under Rule 37. See Yeti by
Molly. Ltd v. Deckers Outdoor Corp., 259 F.3d 1101,
1106-07 (9th Cir. 2001). The district court has wide
discretion in imposing discovery sanctions. Id. at
1106. In determining whether the violation is substantially
justified or harmless, the court considers (1) the prejudice
to the opposing party, (2) the ability to cure the prejudice,
(3) the likelihood of disruption at trial, and (4) bad faith
or willfulness. See Moshi v. State Farm Mut. Auto. Ins.
Co., No. 2:12-CV-01018-PMP, 2013 WL 9600669, at *4 (D.
Nev. May 30, 2013), A. Future Damages
claims that plaintiff violated Rule 26(a) by failing to
provide a computation of her future earnings and by failing
to provide a computation of her future medical damages. Rule
26(a)(1)(A)(iii) requires a ...