United States District Court, N.D. California
EDIN S. CASTELLANOS, Plaintiff,
v.
JEREMY J. MAYA, Defendant.
ORDER GRANTING, IN PART, AND DENYING, IN PART,
DEFENDANT'S MOTION IN LIMINE ONE AND INSTRUCTIONS TO
PLAINTIFF RE DR. ELAINE CHIU RE: DKT. NO. 64
JEFFREY S. WHITE United States District Judge
Now
before the Court is Defendant's Motion in Limine Number
One. The Court has considered the parties' papers,
including the supplemental submissions filed after the
pre-trial conference, relevant legal authority, and has had
the benefit of oral argument. For the reasons set forth in
the remainder of this Order, the Court GRANTS, IN PART, AND
DENIES, IN PART Defendant's motion. Because this ruling
does not render Defendant's motion in limine number three
moot, the Court will resolve that motion in a separate order.
Plaintiff
seeks compensatory damages in the form of medical expenses
incurred to treat the injuries he claims he suffered as a
result of the incident that gives rise to this lawsuit
("the incident"). Plaintiff also seeks emotional
distress damages, and the parties have agreed that
"Plaintiff is not claiming any mental or emotional
injury beyond the normal pain and suffering arising from his
neck injury." (Docket No. 74, Proposed Joint Pretrial
Conference Order at 2:17-18.)
Defendant
now moves to preclude Plaintiff from presenting any evidence
or argument relating to damages, including testimony from
Agnes Grogan, R.N. Defendant moves to exclude evidence or
argument on damages, based on Plaintiff's failure to
comply with Federal Rule of Civil Procedure 26. That rule,
provides, in relevant part:
Except as exempted by Rule 26(a)(1)(B) or as otherwise
stipulated or ordered by the court, a party must, without
awaiting a discovery request, provide to the other parties:
… a computation of each category of damages claimed by
the disclosing party--who must also make available for
inspection and copying as under Rule 34 the documents or
other evidentiary material, unless privileged or protected
from disclosure, on which each computation is based,
including materials bearing on the nature and extent of
injuries suffered[.]
Fed. R. Civ. P. 26(a)(1)(A)(iii).
"Rule
37(c)(1) gives teeth" to the requirements of Rule 26,
"by forbidding the use at trial of any information
required to be disclosed by Rule 26(a) that is not properly
disclosed." Yeti by Molly, Ltd. v. Deckers Outdoor
Corp., 259 F.3d 1101, 1106 (9th Cir. 2001). "The
party facing sanctions bears the burden of proving that its
failure to disclose the required information was
substantially justified or is harmless." R&R Sails,
Inc. v. Insurance Co. of Pennsylvania, 673 F.3d 1240,
1246 (9th Cir. 2011); accord Baca v. State of
California, 13-cv-02968-SBA, 2016 WL 234399, at 3 (N.D.
Cal. Jan. 20, 2016) (citing Yeti by Molly, 295 F.3d
at 1107).
As a
preliminary matter, Plaintiff argues that a ruling on this
motion in Defendant's favor would be tantamount to
dismissal and argues that the Court should apply the factors
set forth in Wanderer v. Johnston to determine
whether exclusion of this evidence is an appropriate
sanction. 910 F.2d 662, 656 (9th Cir. 1990). In contrast to
this case, however, in Wanderer, the district court
entered a default judgment as a sanction for "flagrant
discovery violations" by the defendants. Id. at
653. The Ninth Circuit stated that it had "fashioned a
set for factors for the district court to apply in
considering whether a dismissal of default is appropriate as
a Rule 37 sanction." Id. at 656. In this case,
damages are not an element of Plaintiff's claim. If the
Court precludes Plaintiff from introducing evidence of
damages, that ruling would not impact Plaintiff's ability
to show the Defendant is liable. Thus, on the facts of this
case, the Court concludes that the Wanderer factors
are not the appropriate factors to consider. Cf. United
States v. North East Medical Servs., No. 10-cv-01904-CW
(JCS), 2014 WL 7208627, at *8 (declining to apply
Wanderer test to preclusion of evidence).
Rather,
the Court shall consider the following factors: "the
prejudice or surprise to the party against whom the evidence
is offered; (2) the ability of that party to cure the
prejudice; (3) the likelihood of disruption of the trial; and
(4) bad faith or willfulness involved in not timely
disclosing the evidence." Lanyard Toys, Ltd. v.
Novelty, Inc., 375 F.App'x 705, 713 (9th Cir. 2010);
accord San Francisco Baykeeper v. West Bay Sanitary
District, 791 F.Supp.2d 719, 733 (N.D. Cal. 2011)
(setting forth factors as: "(1) the surprise to the
party against whom the evidence would be offered; (2) the
ability of that party to cure the surprise; (3) the extent to
which allowing the evidence would disrupt the trial; (4) the
importance of the evidence; and (5) the nondisclosing
party's explanation for [his] failure to disclose the
evidence").
The
Court begins with Plaintiff's explanation for his failure
to disclose this evidence. Rule 26 provides that "[a]
party must make its initial disclosures based on the
information then reasonably available to it. A party is not
excused from making its disclosures because it has not fully
investigated the case…." Fed.R.Civ.P.
26(a)(1)(E). According to the record, Plaintiff had several
pre-existing conditions, and he states that he is not
attempting to recover damages relating to those conditions.
Plaintiff argues that he could not properly calculate damages
at the time initial disclosures were due, or before the close
of discovery, because "could not know or reasonably
determine without the input of a physician which of
[Plaintiff's] head and neck symptoms following the
incident were due to the incident." (Opp. to MIL no. 1
at 2:11-14.) Plaintiff states that he was concerned that
providing a calculation without that information would
violate his obligations under Federal Rule of Civil Procedure
Rule 11.
Plaintiff
has documented some of his efforts to obtain that information
during the discovery period. (Id. at 2:15-3:17.)
Although the Court concludes that Plaintiff did not act in
bad faith or willfully, the Court finds that Plaintiff was
not diligent at pursuing those efforts. In addition, the
Court is not persuaded that Plaintiff could not have made a
good faith effort to calculate the compensatory damages
suffered as a result of the incident without violating Rule
11. If Plaintiff later determined that initial calculation
was inaccurate, Rule 26 expressly provides that
A party who has made a disclosure under Rule 26 … must
supplement or correct its disclosure …:
(A) in a timely manner if the party learns that in some
material respect the disclosure or response is incomplete or
incorrect, and if the additional or corrective information
has not otherwise been made known to the other parties during
the discovery process or in writing[.]
Fed. R. Civ. P. 26(e)(1)(A). The Court finds that the fifth
factor weighs against permitting Plaintiff to ...