United States District Court, N.D. California
ORDER GRANTING MOTION TO EXCLUDE PLAINTIFF'S
EXPERT WITNESS RE: DKT. NOS. 44, 45
HAYWOOD S. GILLIAM, JR. UNITED STATES DISTRICT JUDGE
before the Court is Defendant Costco Wholesale
Corporation's Motion to Exclude Plaintiff Rania
Canavati's Expert Witness James B. Reynolds, M.D.
See Dkt. No. 44. The Court finds this matter
appropriate for disposition without oral argument and the
matter is deemed submitted. See Civil L.R. 7-1(b).
For the reasons detailed below, the Court
GRANTS the motion.
11, 2019, the Court issued a scheduling order setting the
expert disclosure deadline as August 2, 2019, and the
deadline for expert discovery and depositions as August 19,
2019. See Dkt. No. 24. Due to scheduling conflicts,
the parties stipulated to an extension of the expert
disclosure deadline from August 2 to September 1, 2019, and
of the expert discovery cutoff from August 12 to September
11, 2019. See Dkt. No. 31. The Court granted this
short extension. See Dkt. No. 32.
schedule has been set by a court, it may modify its schedule
for “good cause.” See Fed. R. Civ. P.
16(b)(4). The parties never sought an additional extension of
either the expert disclosure or expert discovery deadlines.
Instead, the parties took it upon themselves to extend the
expert disclosure deadline, without leave of the Court, to
September 6, 2019. See Dkt. No. 44-1 at ¶ 2,
& Ex. A; Dkt. No. 47-1, ¶ 5. Even given this
deadline, Plaintiff's counsel concedes that Dr.
did not examine Plaintiff until September 12, and Plaintiff
did not provide his written expert report to Defendant until
September 18. See Dkt. No. 47 at 3. Defendant then
filed the instant motion on October 31, asking the Court for
an expedited order in light of Dr. Reynolds' deposition,
noticed for December 3. See Dkt. Nos. 44, 45.
Rule of Civil Procedure 26 governs the disclosure of expert
testimony. Rule 26(a)(2) provides that a party must disclose
“the identity of all expert witnesses who may be used
at trial to present evidence . . . at the time and in the
sequence that the court orders.” See Fed. R.
Civ. P. 26(a)(2)(A), (D). Rule 26 adds: “Unless as
otherwise stipulated or ordered by the court, this disclosure
must be accompanied by a written report-prepared and signed
by the witness . . . The report must contain a complete
statement of all opinions the witness will express and the
basis and reasons for them.” Fed.R.Civ.P. 26(a)(2)(B).
A party who violates Rule 26 may face sanctions as specified
in Rule 37.
Rule 37, “[i]f a party fails to provide information or
identify a witness as required by Rule 26(a) or (e), the
party is not allowed to use that information or witness . . .
at a trial, unless the failure was substantially justified or
is harmless.” See Fed. R. Civ. P. 37(c)(1);
see also Yeti by Molly, Ltd. v. Deckers Outdoor
Corp., 259 F.3d 1101, 1106 (9th Cir. 2001) (explaining
that Rule 37(c)(1) “gives teeth” to Rule
26(a)'s expert disclosure rules “by forbidding the
use at trial of any information required to be disclosed by
Rule 26(a) that is not properly disclosed”). The Ninth
Circuit has enumerated several factors to guide district
courts in determining whether the failure was substantially
justified or harmless, including: “(1) 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.” See Lanard Toys Ltd. v. Novelty,
Inc., 375 Fed. App'x 705, 713 (9th Cir. 2010). The
burden is on the party facing exclusion of its expert's
testimony to prove the delay was justified or harmless.
Yeti by Molly, 259 F.3d at 1107. // //
case, both parties disregarded the Court's scheduling
order, imposing their own expert disclosure deadline of
September 6, 2019. The Court will credit this disclosure
deadline for purposes of this order, as the Court finds that
the parties were acting in good faith, however misguided, in
extending the deadline sua sponte. Nevertheless,
Plaintiff failed to meet this extended deadline, waiting
until almost two weeks later, until September 18, to provide
Dr. Reynolds' expert report. Rule 37 explicitly precludes
a party from relying on expert testimony that was not timely
disclosed “unless the failure was substantially
justified or is harmless.” Fed.R.Civ.P. 37(c)(1). The
Court finds that Plaintiff has not established that the
belated expert disclosure was either substantially justified
or is harmless under the circumstances.
proffers no reason for the delay in providing Dr.
Reynolds' expert report. To the contrary, Dr. Reynolds
did not even examine Plaintiff until almost a week after the
parties' September 6 disclosure deadline. In
correspondence to Defendant, and on the day of the
agreed-upon disclosure deadline, Plaintiff's counsel
explained that Dr. Reynolds would not examine Plaintiff until
September 12 and his report would be delayed. See
Dkt. No. 44-1, Exs. B-C. Plaintiff's counsel cited
“Dr. Reynolds['] availability and request for
plaintiff's medical exam.” Id., Ex. B at
2-3. Yet Plaintiff's counsel should have anticipated that
it would take time to secure an expert and that the doctor
would want to examine Plaintiff in this personal injury
action. Moreover, Plaintiff's fall occurred in September
2016, and this case was initially filed in August 2018.
See Dkt. No. 2, Ex. A. Plaintiff, therefore, had
years to retain Dr. Reynolds and schedule an exam.
than justify the delay, Plaintiff suggests that the delay is
harmless because “Plaintiff has always complained that
the slip and fall caused her aggravated low back pain”
as evidenced by a 2016 MRI. See Dkt. No. 47 at 4.
Plaintiff points to her June 2019 interrogatory responses, in
which she cites an “L4-5 disc protrusion causing lumbar
radiculopathy” as an injury she attributes to the slip
and fall at issue in this case. See Dkt. No. 47-1,
Ex. 1 at 4. When Defendant asked Plaintiff about her injuries
during her deposition, however, she testified that her pain
from the fall had resolved, and her lower back was
“better” and had healed over time. See
id., Ex. 44-1, Ex. 4 at 77:11-78:23. Plaintiff's
orthopedic surgeon further testified during his deposition
that he could not opine on whether Plaintiff would need
future surgery as that would be speculative. See
id., Ex. G at 20:4-25. Nevertheless, Dr. Reynolds
subsequently opined that Plaintiff's lower back pain
would persist and would “more likely than not”
require surgery in the next 10 to 20 years. See id.,
Ex. C. He also identified a previously-undisclosed injury to
her “right sacroiliac joint” from the fall.
should not have to predict that a later-retained expert would
find that Plaintiff's lower back injury persisted and
would require future treatment, and that she suffered
additional injuries from the fall. Rule 26 is designed to
prevent such guesswork. Based on the information available to
Defendant at the time, it did not seek to examine Plaintiff,
and did not retain an expert to opine on any alleged future
treatment. See Dkt. No. 44 at The Court finds that
Defendant would therefore be substantially prejudiced by Dr.
Reynolds' testimony. But the Court cannot ...