Castellanos v. Maya

          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 ...