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Jorge Pineda, An Individual, Tita Guzman, An Individual v. City and County of San Francisco

March 9, 2012


The opinion of the court was delivered by: Saundra Brown Armstrong United States District Judge


The parties are presently before the Court on Defendant City and County of San Francisco's ("Defendant") motion to exclude Plaintiffs' experts from testifying at trial. Dkt. 26. Plaintiffs 15 Jorge Pineda ("Pineda") and Tita Guzman ("Guzman") (collectively, "Plaintiffs") oppose the 16 motion. Dkt. 30. Having read and considered the papers filed in connection with this matter and 17 being fully informed, the Court hereby GRANTS IN PART AND DENIES IN PART the motion to 18 exclude, for the reasons stated below. Plaintiffs may provide Defendant with amended expert 19 disclosures as allowed by this Order no later than seven (7) days from the date of this Order. 20

Failure to timely comply with this deadline or Order will result in the exclusion of Plaintiffs' 21 experts. Defendant's request to extend the expert discovery deadline is DENIED without prejudice 22 to its renewal, if appropriate. The Court, in its discretion, finds this matter suitable for resolution 23 without oral argument. See Fed.R.Civ.P. 78(b); N.D. Cal. Civ. L.R. 7-1(b).


On January 31, 2011, Plaintiffs filed the instant action against Defendant alleging nine claims for relief. Compl., Dkt. 1. The complaint alleges federal claims for violations of 42 U.S.C. 27 § 1983 and state law claims for assault, battery, civil conspiracy to commit assault and battery, 28 negligence, false arrest/false imprisonment, intentional infliction of emotional distress, and 2 negligent infliction of emotional distress. See id. 3

On May 26, 2011, this Court issued a Case Management Scheduling Order, stating that:

"Plaintiff shall designate any experts by 12/30/11; defendant by 12/30/11; rebuttal disclosure by 5 1/31/12. Any expert not so named may be disallowed as a witness. No expert will be permitted to 6 testify to any opinion, or basis or support for an opinion, that has not been disclosed in response to 7 an appropriate question or interrogatory from the opposing party. Expert discovery shall be 8 completed by 2/24/12." Dkt. 20. 9 required by the Scheduling Order, listing two retained experts and thirteen non-retained experts. 11

On December 30, 2011, Plaintiffs disclosed the identity of their expert witnesses as

Pls.' Opp., Exh. A. In a letter dated January 6, 2012, Defendant informed Plaintiffs that it objects 12 to John Casaus and Dr. Gary Belaga*fn1 as designated experts in this case on the grounds that 13

Plaintiffs' expert disclosure failed to include an expert report and other necessary materials as 14 required for a retained expert under Rule 26(a)(2)(B) of the Federal Rules of Civil Procedure. 15

Hannawalt Decl., Exh. B, Dkt. 27. Defendant requested that Plaintiffs withdraw the retained 16 experts based on the failure to comply with Rule 26(a)(2)(B). Id. In addition, the letter stated that 17

Defendant objects to Plaintiffs' disclosure of non-retained experts on the ground that the disclosure 18 contains inadequate summaries of the "facts and opinions to which the witness is expected to 19 testify" as required by Rule 26(a)(2)(C). Id. Due to the inadequate summaries,*fn2 Defendant 20 requested a supplemental disclosure with details regarding the fact and opinion testimony expected 21 to be given by Plaintiffs' designated non-retained experts by no later than January 13, 2012. Id. 22

On January 10, 2012, Plaintiffs disclosed the written expert reports of Mr. Casaus and Dr. Belaga. Pls.' Opp, Exh. G. On January 13, 2012, Plaintiffs served a supplemental Rule 26 expert 24 disclosure declaration. Hannawalt Decl. ¶ 6, Exh. E. According to Defendant, this disclosure is 2 also deficient under Rule 26. Def.'s Mtn. at 3-4. 3

4 at trial. Dkt. 26. Also on January 25, 2012, Defendant filed an administrative motion to shorten 5 time, requesting that a hearing on its motion to exclude be set for February 7, 2012 or February 14, 6

2012. Dkt. 24. On February 2, 2011, this Court granted the motion to shorten time. Dkt. 29. In 7 that Order, the Court directed Plaintiffs to file an opposition to Defendant's motion to exclude by 8 no later than February 8, 2012, and Defendant to file a reply by no later than February 10, 2012. 9

On January 25, 2012, Defendant filed a motion to exclude Plaintiffs' experts from testifying Id.

on February 9, 2012. Dkt. 32. 12 Plaintiffs filed an opposition on February 8, 2012. Dkt. 30. A reply was filed by Defendant


A. Exclusion of Plaintiffs' Retained Experts

Defendant contends that Plaintiffs' retained experts, Mr. Casaus and Dr. Belaga, should be excluded from testifying at trial because their expert reports were untimely disclosed and because 16 both reports are deficient in that they do not include the list of cases in which the expert has 17 testified as an expert at trial or by deposition within the preceding four years as required by Rule 18 26(a)(2)(B). In addition, Defendant contends that Dr. Belaga should be excluded from testifying at 19 trial because his expert report fails to provide the data or other information upon which his 20 opinions are based or any opinion as to a causal relationship between Pineda's detention and his 21 current complaints of headache, neck pain, and extremity pain. Defendant maintains that exclusion 22 of these experts is warranted under Rule 37(c)(1) because Plaintiffs failed to offer a substantial 23 justification for the untimely and deficient written expert reports. 24

26 expert testimony. It states that each party must disclose to the opposition the identity of any expert 27 witness. Fed.R.Civ.P. 26(a)(2)(A). That disclosure must be accompanied by a written report 28 containing: (1) a complete statement of all opinions the witness will express and the basis and

1. Rule 26

Rule 26 governs discovery and the duty to disclose. Subsection (a)(2) governs disclosure of reasons for them; (2) the facts or data considered by the witness in forming them; (3) any exhibits 2 that will be used to summarize or support them; (4) the witness's qualifications, including a list of 3 all publications authored in the previous 10 years; (5) a list of all other cases in which, during the 4 previous 4 years, the witness testified as an expert at trial or by deposition; and (6) a statement of 5 the compensation to be paid for the study and testimony in the case. Fed.R.Civ.P. 26(a)(2)(B). A 6 party must provide its expert witness disclosures "at the times and in the sequence that the court 7 orders." Fed.R.Civ.P. 26(a)(2)(D). Rule 37(c)(1) gives teeth to these requirements by 8 automatically excluding any evidence not properly disclosed under Rule 26(a), irrespective of the 9 party's bad faith or willfullness. Yeti by Molly Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 10 1106 (9th Cir. 2001). 11

12 disclosed and are deficient under Rule 26(a)(2)(B). The deadline to disclose the reports was 13 Here, the Court finds that the expert reports of ...

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