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Nitta v. United States

United States District Court, D. Nevada

June 28, 2019

KAYSEE NITTA, Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant.

          ORDER

          C.W. HOFFMAN, JR. UNITED STATES MAGISTRATE JUDGE.

         Presently 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, 2018.

         Also 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.

         On June 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 accordingly.

         I. BACKGROUND

         This is 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.)

         Plaintiff 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 prescription profile.

         This 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. (Id.)

         On the 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.)

         The 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).)

         Defendant 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).)

         II. MOTION TO STRIKE

         Defendant 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

         Defendant 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 ...


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