Alsadi v. Intel Corporation et al

Filing 279

ORDER - IT IS ORDERED: 1. Plaintiffs' motion for negative inference (Doc. 207 ) is denied. 2. Plaintiffs' MIL regarding the 11.7 ppm measurement of H2S (Doc. 241 ) is denied. 3. Plaintiffs' MIL to preclude evidence or argument chall enging causation and the permanence of Alsadi's symptoms (Doc. 208 ) is denied. 4. Plaintiffs' MIL to exclude evidence of Alsadi's misdemeanor convictions (Doc. 240 ) is granted. 5. Plaintiffs' MIL to exclude untimely disclose d testimony and documents (Doc. 242 ) is granted. 6. Plaintiffs' MIL regarding the cause of the off-gassing incident (Doc. 243 ) is denied. 7. Intel's MIL regarding health effects not at issue (Doc. 231 ) is denied in part and granted in part. The motion is denied with respect to the purported inflammatory language and potential health effects caused by H2S exposure, and granted with respect to Gerganoff's causation opinions. 8. Intel's MIL regarding causation and Als adi's symptoms (Doc. 232 ) is denied. 9. Intel's MIL regarding new and worsening symptoms (Doc. 233 ) is denied. 10. Intel's MIL regarding trial testimony of Michael Torbert (Doc. 234 ) is denied. 11. Intel's MIL regarding tes timony of gases other than H2S (Doc. 235 ) is granted in part and in denied part. The motion is granted with respect to Dr. Johnson-Arbor's SO2 exposure opinion and Gerganoff's opinion that there was a release of SO2, and denied with re spect to Denis's opinion that SO2 may have been present and Dr. Abia's testimony as a fact witness. 12. Intel's MIL regarding certain OSHA regulations (Doc. 236 ) is denied. 13. Intel's MIL regarding expert testimony from certa in medical professionals (Doc. 237 ) is granted. Drs. Vu, Spangenberg, Shobe, and Kamarinos are precluded from offering expert opinions at trial, and Plaintiffs may not call Drs. Leff and Schwartzberg as expert witnesses. 14. Intel's MIL reg arding Gerganoff's opinions and the CH-8 building (Doc. 238 ) is denied. 15. Intel's MIL regarding Bakkenson's opinions (Doc. 239 ) is denied. 16. The parties' motion to file exhibits one and three to Plaintiffs' reply br ief under seal (Doc. 213 ) is granted. The Clerk is directed to file the lodged exhibits (Docs. 214 -1, 214 -2) under seal. The parties shall file redacted public versions of the exhibits on the docket by July 24, 2020. 17. The Court will schedu le the bench trial in this case, and set a final pretrial conference, once it is clear that the trial can be held without jeopardizing the health of all participants. (See document for complete details). Signed by Senior Judge David G Campbell on 7/17/20. (SLQ)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Ahmad Alsadi and Youssra Lahlou,
husband and wife,

No. CV-16-03738-PHX-DGC
ORDER

Plaintiffs,

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vs.

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Intel Corporation, a Delaware corporation,

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Defendant.

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The trial in this tort action was set for May 2020, but was postponed because of the

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COVID-19 pandemic. The Court plans to reset the trial at the earliest opportunity. The

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parties have filed 14 motions in limine (“MILs”) and Plaintiffs have filed a motion for

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negative inference. Docs. 207-08, 231-43. The Court heard oral argument on July 17,

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2020. This order resolves each motion.

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I.

Background.

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Intel owns an industrial wastewater system (“IWS”) housed in the CH-8 building of

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its technology development campus in Chandler, Arizona. Technicians at Jones Lange

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LaSalle (“JLL”) operate the IWS. Plaintiff Ahmad Alsadi worked for JLL as a HVAC

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technician at Intel’s Chandler campus.

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On February 28, 2016, an overdose of the chemical Thio-Red caused the IWS to

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emit hydrogen sulfide (“H2S”) and possibly other toxic gases. CH-8 and the nearby CN-3

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building, where Alsadi was working at the time, were evacuated. Alsadi and other JLL

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employees were assembled near CH-8. Alsadi began experiencing a tingly throat, cough,

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headache, and watery eyes. He was evaluated by a nurse and then taken to an urgent care

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facility for treatment.

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Plaintiffs filed suit against Intel in September 2016. Doc. 1-2 at 5-8. The second

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amended complaint asserts negligence and loss of consortium claims. Doc. 20. Plaintiffs

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allege that as a result of Alsadi’s exposure to toxic gases, he has experienced coughing,

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pulmonary and respiratory distress, and other injuries requiring medical care. Id. ¶ 21.

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Alsadi seeks damages for his alleged injuries and future medical care. Id. ¶ 26. He claims

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that he is permanently disabled. See Docs. 161 at 5, 195 at 3.

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The Court denied Intel’s motion for summary judgment on Alsadi’s negligence

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claim. Doc. 204 at 26-30. The Court granted Intel’s motions to preclude Plaintiffs’ experts

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from offering causation opinions in Plaintiffs’ case-in-chief (see id. at 2-19, 22-25), but

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denied summary judgment on the issue of causation because a jury reasonably could find,

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without the benefit of expert medical testimony, that Alsadi was exposed to H2S and the

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exposure caused an immediate toxic inhalation injury (see id. at 30-33).

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supplemental briefing, the Court granted summary judgment in Intel’s favor on whether

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Alsadi’s exposure to H2S caused reactive airways dysfunction syndrome (“RADS”), but

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denied summary judgment on the extent and duration of his symptoms. Doc. 216 at 2-7.

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II.

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Plaintiffs’ Motion for Negative Inference (Doc. 207).

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John MacDonald, Intel’s emergency response team (“ERT”) leader, responded to

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the chemical release at CH-8. Doc. 197-1 ¶ 39. MacDonald and Michael Torbert, a JLL

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employee, obtained an H2S reading of 11.7 parts per million (“ppm’) inside CH-8 using a

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digital Altair 5X Gas Detector (“Altair detector”). Id. ¶ 43. The 11.7 ppm measurement

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is reflected as the “highest level detected” in an ERT report MacDonald prepared after the

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incident. Doc. 196-10 at 5. The ERT report is the only record of H2S measurements taken

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during the incident. Doc. 207 at 2, 7. Intel contends that an H2S level of 11.7 ppm could

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not have caused the permanent symptoms claimed by Alsadi, and that there is no evidence

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that Alsadi was exposed to even that level. Doc. 210 at 4.

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Plaintiffs contend that to accurately assess the highest level of Alsadi’s actual

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exposure, “adequate data would be required – measurements of ambient gas levels over

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numerous points in time from the locations where [Alsadi] was working throughout the

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day.” Doc. 207 at 3. Plaintiffs assert that no such data exist because Intel failed to preserve

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data recorded by the Altair detector and did not collect other data of H2S levels. Id.

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Plaintiffs request that a negative inference be applied in light of Intel’s alleged failure to

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collect and preserve data showing actual levels of hazardous emissions, and that an

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appropriate jury instruction be given at trial. Id. at 2-3; Doc. 207-1 at 1. Since the briefing

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of this motion, the parties have agreed to a bench trial. Doc. 276 at 2. The issue presented

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by the motion, therefore, is whether the Court should apply a negative inference when

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deciding this case.1

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Intel argues that it had no duty to preserve evidence before it received notice that

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litigation was probable, that it had no duty to create evidence of hazardous emission levels,

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and that Plaintiffs ignore Federal Rule of Civil Procedure 37(e), which governs negative

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inference sanctions for the loss of electronically stored information (“ESI”). Doc. 210

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at 2-3.

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A.

Sanctions for Spoliation of Evidence.

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“It is well established that [a] ‘duty to preserve arises when a party knows or should

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know that certain evidence is relevant to pending or future litigation.’” Surowiec v. Capital

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Title Agency, Inc., 790 F. Supp. 2d 997, 1005 (D. Ariz. 2011) (quoting Ashton v. Knight

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Transp., Inc., 772 F. Supp. 2d 772, 800 (N.D. Tex. 2011)). The failure to preserve relevant

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evidence, “once the duty to do so has been triggered, raises the issue of spoliation of

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evidence and its consequences.” Id. (quoting Thompson v. U.S. Dep’t of Hous. & Urban

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The parties’ agreement to a bench trial was confirmed during the hearing on
July 17, 2020.
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Dev., 219 F.R.D. 93, 100 (D. Md. 2003)). “Spoliation is the destruction or material

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alteration of evidence, or the failure to otherwise preserve evidence, for another’s use in

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litigation.” Id. (citing Ashton, 772 F. Supp. 2d at 799-800); see Pettit v. Smith, 45 F. Supp.

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3d 1099, 1104 (D. Ariz. 2014) (same).

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Rule 37(b)(2) permits a court to sanction a party for disobeying a discovery order,

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and Rule 37(e) permits a court to sanction a party for losing or destroying ESI it had a duty

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to preserve. Plaintiffs do not contend that Intel violated a discovery order or that a negative

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inference otherwise is warranted under Rule 37(b)(2). Nor do Plaintiffs address Rule 37(e)

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in their motion. See Doc. 207. Plaintiffs instead seek a negative inference based on the

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Court’s inherent authority to make appropriate rulings in response to the spoliation of non-

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ESI evidence. Id. at 3 (citing Glover v. Bic Corp., 6 F.3d 1318, 1329 (9th Cir. 1993)).

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The evidence Intel allegedly failed to preserve – electronic data recorded by the

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Altair detector (see id. at 2) – clearly constitutes ESI. Plaintiffs note in their motion that

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the Altair detector “has the ability to store data readings.” Doc. 207 at 5. They noted in

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their reply brief that Altair detectors “have the capability to log their data, and this data can

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be uploaded to a computer.” Doc. 215-1 at 8.2

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Plaintiffs argued during the July 17 hearing that the data recorded on the Altair

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detector is not ESI within the meaning of Rule 37(e) because it was not stored on a

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computer system, but this is too narrow a reading of the phrase “electronically stored

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information.” That phrase was first added to the Federal Rules of Civil Procedure in 2006

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and is used in a number of rules. See, e.g., Fed. R. Civ. P. 16, 26, 34, 37. Rule 34 states

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that ESI includes “writings, drawings, graphs, charts, photographs, sound recordings,

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images, and other data or data compilations – stored in any medium from which information

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can be obtained either directly or, if necessary, after translation by the responding party

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into a reasonably usable form.” Fed. R. Civ. P. 34(a)(1)(A) (emphasis added). The 2006

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See also MSA, The Safety Company, Home/Portable Gas Detection/Multi-Gas/
ALTAIR® 5X Multigas Detector, available at https://us.msasafety.com/c/ALTAIR
%C2%AE-5X-Multigas-Detector/p/000080001600001023 (last visited July 9, 2020).

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advisory committee note to Rule 34 explains that the meaning of ESI “is expansive and

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includes any type of information that is stored electronically.” Fed. R. Civ. P. 34(a)(1)

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advisory committee note to 2006 amendment. Although Rule 37(e) was not amended to

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its current form until 2015, the advisory committee note for the 2015 amendment makes

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clear that it was intended to apply to ESI as defined broadly in 2006: “The new rule applies

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only to electronically stored information, also the focus of the 2006 rule.” Fed. R. Civ. P.

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37(e) advisory committee note to 2015 amendment. That the 2015 rule was not limited to

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data stored on a computer system – as Plaintiffs argued at the hearing – is also made clear

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by the advisory committee’s observation that the amendment to Rule 37(e) was warranted

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by “the ever-increasing volume of electronically stored information and the multitude of

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devices that generate such information[.]” Id. (emphasis added). The Altair detector is

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one of those devices, and data recorded electronically on it clearly constitute ESI within

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the meaning of Rule 37(e).

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Plaintiffs’ citation to Glover and their reliance on the Court’s inherent authority to

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sanction a party for spoliating evidence is not persuasive. “The 2015 amendment to

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Rule 37(e) now ‘forecloses reliance on inherent authority’ to determine whether and what

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sanctions are appropriate for a party’s loss of discoverable ESI.” Small v. Univ. Med. Ctr.,

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No. 2:13-CV-0298-APG-PAL, 2018 WL 3795238, at *66 (D. Nev. Aug. 9, 2018) (quoting

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Rule 37(e) advisory committee’s note to 2015 amendment); see Sherwood v. BNSF Ry.

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Co., No. 2:16-CV-00008-BLW, 2019 WL 1413747, at *1 (D. Idaho Mar. 28, 2019) (noting

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that Glover may be revisited given the 2015 amendment to Rule 37(e)).

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The drafters of Rule 37(e) specifically “intended to preempt use of other sources of

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sanctions – such state law or the long-established ‘inherent power’ doctrine – and require

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findings consistent with Rule 37(e) as the only path to remedying the loss of [ESI].”

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Stevens v. Brigham Young University-Idaho, No. 4:16-CV-530-BLW, 2019 WL 6499098,

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at *3 (D. Idaho Dec. 3, 2019). They did so because they were seeking to bring uniformity

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to an area of the law that had been badly splintered by various courts’ reliance on inherent

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authority. See Rule 37(e) advisory committee note to 2015 amendment (“Federal circuits

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have established significantly different standards for imposing sanctions or curative

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measures on parties who fail to preserve [ESI]. . . . Rule 37(e) . . . authorizes and specifies

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measures a court may employ if information that should have been preserved is lost, and

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specifies the findings necessary to justify these measures. It therefore forecloses reliance

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on inherent authority or state law to determine when certain measures should be used.”).

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Once adopted through the procedures of the Rules Enabling Act, Rule 37(e) became

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the controlling authority for sanctions that can be imposed for the loss of ESI. See 28

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U.S.C. § 2072 (“All laws in conflict with such rules shall be of no further force or effect

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after such rules have taken effect.”). The exclusive nature of Rule 37(e) sanctions for the

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loss of ESI has been widely recognized. See, e.g., Mannion v. Ameri-Can Freight Sys. Inc.,

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No. CV-17-03262-PHX-DWL, 2020 WL 417492, at *5 (D. Ariz. Jan. 27, 2020) (“[A] court

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cannot rely on its inherent authority or state law when deciding whether sanctions based

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on the loss of ESI are appropriate – the standards supplied by Rule 37(e) are exclusive.”)

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(citing S. Gensler, 1 Federal Rules of Civil Procedure, Rules and Commentary, Rule 37,

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at 1073 (2018)); Nguyen v. Lotus by Johnny Dung, Inc., No. SACV 17-1317 JVS (JDEx),

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2019 WL 1950294, at *4 (C.D. Cal. Mar. 14, 2019) (“Rule 37(e) . . . was amended to

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establish the findings necessary to support certain curative measures for failure to preserve

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[ESI]. This amendment ‘forecloses reliance on inherent authority . . . to determine when

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certain measures should be used’ to address spoliation of [ESI].”) (emphasis in original);

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Waymo LLC v. Uber Techs., Inc., No. C 17-00939 WHA, 2018 WL 646701, at *14 (N.D.

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Cal. Jan. 30, 2018) (“Because the evidence in question consists of [ESI], [Rule] 37(e),

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not inherent authority, supplies the controlling legal standard.”); Tipp v. Adeptus Health

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Inc., No. CV-16-02317-PHX-DGC, 2018 WL 447256, at *3 (D. Ariz. Jan. 17, 2018)

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(“A party seeking sanctions for spoliation of [ESI] must address the factors set forth in

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Rule 37(e) . . . . That rule, which was amended on December 1, 2015, identifies the

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circumstances under which various kinds of sanctions can be imposed for the loss of ESI.”).

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Plaintiffs’ reliance on State v. Willits, 393 P.2d 274 (Ariz. 1964), is unhelpful for the same

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reason. See Doc. 207 at 6.

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Plaintiffs do not address the requirements of Rule 37(e) in their motion. See

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Doc. 210 at 3. Intel’s response argues that a negative inference is not appropriate under

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Rule 37(e) because Plaintiffs do not contend that Intel acted with intent to deprive Plaintiffs

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of ESI. Id. at 11-14. Plaintiffs counter in their reply that a negative inference is warranted

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under Rule 37(e). Doc. 215-1 at 10-12.

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B.

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Under Rule 37(e), if ESI that “should have been preserved in the anticipation or

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conduct of litigation is lost because a party failed to take reasonable steps to preserve it,

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and it cannot be restored or replaced through additional discovery, the court:

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Negative Inferences Under Rule 37(e).

(1) upon finding prejudice to another party from loss of the information,
may order measures no greater than necessary to cure the prejudice; or
(2) only upon finding that the party acted with the intent to deprive
another party of the information’s use in the litigation may:

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(A) presume that the lost information was unfavorable to the party;

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(B) instruct the jury that it may or must presume the information was
unfavorable to the party; or

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(C) dismiss the action or enter a default judgment.
There are two levels of sanctions under Rule 37(e). Rule 37(e)(1) permits a court,
upon finding prejudice to another party from loss of ESI, to order measures no greater than
necessary to cure the prejudice. Rule 37(e)(2) permits a court to impose more severe

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sanctions – including a negative inference – only if it finds that the spoliating party “acted

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with the intent to deprive another party of the information’s use in the litigation.” Fed. R.

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Civ. P. 37(e)(2); see Miller v. Thompson-Walk, No. CV 15-1605, 2019 WL 2150660, at *10
(W.D. Pa. May 17, 2019); Sherwood, 2019 WL 1413747, at *1; Mfg. Automation &
Software Sys., Inc. v. Hughes, No. CV 16-8962-CAS (KSX), 2018 WL 5914238, at *6
(C.D. Cal. Aug. 20, 2018); Leidig v. Buzzfeed, Inc., No. 16-CV-542, 2017 WL 6512353,
at *7 (S.D.N.Y. Dec. 19, 2017).

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“Rule 37(e)(2)’s drafters included its intent standard with a specific purpose: to

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reject cases that had authorized an adverse-inference instruction ‘on a finding of negligence

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or gross negligence.’” EPAC Techs., Inc. v. HarperCollins Christian Publ’g, Inc., No.

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3:12-CV-00463, 2018 WL 1542040, at *18 (M.D. Tenn. Mar. 29, 2018) (quoting

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Rule 37(e)(2) advisory committee’s note to 2015 amendment). The reason was explained

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by the Advisory Committee:

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Adverse-inference instructions were developed on the premise that a party’s
intentional loss or destruction of evidence to prevent its use in litigation gives
rise to a reasonable inference that the evidence was unfavorable to the party
responsible for loss or destruction of the evidence. Negligent or even grossly
negligent behavior does not logically support that inference. Information lost
through negligence may have been favorable to either party, including the
party that lost it, and inferring that it was unfavorable to that party may tip
the balance at trial in ways the lost information never would have.
Fed. R. Civ. P. 37(e) advisory committee note to 2015 amendment.

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Plaintiffs do not contend that Intel intentionally lost or destroyed data of H2S levels

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to preclude Plaintiffs from using the data in litigation. Plaintiffs instead assert that the

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Altair detector “MacDonald used on the night of the incident to check H2S emission levels

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has the ability to store data readings, but for whatever reason Intel did not preserve the data

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collected that night.” Doc. 207 at 5 (emphasis added). “Whatever reason” is not sufficient

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to support an adverse inference under Rule 37(e)(2). Without evidence that Intel’s reason

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was to deprive Plaintiffs of the collected data, a negative inference is not available. See

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Wolff v. United Airlines, Inc., No. 1:18-CV-00591-RM-SKC, 2019 WL 4450255, at *4 (D.

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Colo. Sept. 17, 2019) (declining to impose a severe sanction under Rule 37(e)(2) where

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Plaintiff “produced no evidence to suggest that Defendant, when failing to suspend its

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automatic deletion of emails, acted with the intent to deprive Plaintiff of that evidence”);

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Robinson v. Renown Reg’l Med. Ctr., No. 3:16-CV-00372-MMD-WGC, 2017 WL

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2294085, at *3 (D. Nev. May 24, 2017) (denying motion for spoliation sanctions where the

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Plaintiff presented “no credible evidence of any intent by Renown to deprive Plaintiff of

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the telephonic data, an indispensable element of the criteria for imposition of [an] adverse

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jury instruction”); Porter v. City & Cty. of S.F., No. 16-CV-03771-CW(DMR), 2018 WL

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4215602, at *4 (N.D. Cal. Sept. 5, 2018) (finding an adverse inference instruction

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unwarranted where there was no evidence that the defendant intentionally spoliated a

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phone call record). The Court will deny Plaintiffs’ motion for a negative inference to the

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extent it is based on Intel’s alleged failure to preserve electronic data the Altair detector

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collected on the night of the incident.3

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Plaintiffs contend that the factfinder must be fully informed of the reasons behind

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Intel’s single H2S measurement of 11.7 ppm so that it may evaluate that evidence in the

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appropriate context. Doc. 215-1 at 12. The Court agrees. Plaintiffs will be free at trial to

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present admissible evidence about the measurement and other relevant facts, and to argue

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that the measurement is not a reliable indicator of Alsadi’s H2S exposure.

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C.

Evidence Intel Did Not Collect.

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Plaintiffs assert that Intel was required to have early warning detection systems in

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place for hazardous emissions, including a “fixed 24/7 monitoring system” and “personal

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monitoring devices[.]” Doc. 207 at 5-6. Plaintiffs claim that Intel is to blame for the lack

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of adequate data because it had no such systems in place at the time of the incident. Id. at 3.

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But spoliation sanctions apply when a party has lost or destroyed evidence, not when

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it has failed to create evidence. See Mizzoni v. Allison, No. 3:15-cv-00313-MMD-VPC,

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2018 WL 3203623, at *4 (D. Nev. Apr. 4, 2018). “When determining whether to impose

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discovery sanctions for spoliation, the threshold question that the court must decide is

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whether relevant evidence existed. If no relevant evidence existed, then the motion for

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spoliation is moot.” Burton v. Walgreen Co., No. 2:14-CV-84 JCM VCF, 2015 WL

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4228854, at *2 (D. Nev. July 10, 2015)); see Garcia-Garrido v. Outback Steakhouse of

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Fla., LLC, No. 2:16-CV-01294-CWH, 2018 WL 2434062, at *4 (D. Nev. May 30, 2018)

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Given this ruling, the Court need not decide whether Intel had a duty to preserve
ESI or when the duty was triggered. See Docs. 207 at 3-4, 210 at 6-9.

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(“[B]efore a court will sanction a party for spoliation of relevant evidence, the moving

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party must demonstrate that the relevant evidence existed.”); Lakes v. Bath & Body Works,

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LLC, No. 2:16-CV-02989 MCE AC, 2019 WL 2124523, at *4 (E.D. Cal. May 15, 2019)

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(“The court will not order an adverse inference instruction with respect to documents

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related to the possible chemical analysis or the alleged recall of the Pina Colada candle

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because there is an insufficient basis to conclude that such documents actually exist.”).

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The Court will deny Plaintiffs’ motion for a negative inference. This ruling does

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not preclude Plaintiffs from presenting admissible evidence concerning Intel’s alleged

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failure to collect data of hazardous emission levels.

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III.

Plaintiffs’ MIL Regarding the 11.7 ppm Measurement of H2S (Doc. 241).

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Plaintiffs move to preclude Intel from presenting evidence or argument

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that 11.7 ppm was the maximum level of H2S that Alsadi inhaled during the incident

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because any such suggestion has no evidentiary basis. Doc. 241. Intel notes that 11.7 ppm

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was the highest measured level of H2S in the vicinity of Alsadi’s alleged injury. Doc. 254

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at 2; see Doc. 196-10 at 5. Intel contends that it is Plaintiffs, not Intel, who would confuse

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the factfinder about the amount of H2S to which Alsadi was exposed. Doc. 254 at 3.

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Alsadi’s level of H2S exposure will be for the factfinder to decide on the basis of

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available evidence. That evidence includes the 11.7 ppm reading by the Altair detector.

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The factfinder will be free to determine the significance, if any, of Intel’s failure to take

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additional measurements of H2S levels. See E.E.O.C. v. GLC Restaurants, Inc., No. CV05-

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618 PCT-DGC, 2007 WL 30269, at *8 (D. Ariz. Jan. 4, 2007) (denying motion in limine

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where the significance of a personnel file’s absence was for the jury to decide). The Court

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does not agree that Defendants should be precluded from presenting available evidence on

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H2S concentration levels and making arguments about the findings that should be made

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from that evidence. Plaintiffs may do the same. Now that this is a bench trial, the Court

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finds no risk of unfair prejudice or confusion and will deny Plaintiffs’ MIL. Doc. 241.

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IV.

Plaintiffs’ MIL on Causation and Permanence of Symptoms (Doc. 208).

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Alsadi filed a workers’ compensation claim with the Industrial Commission of

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Arizona (“ICA”) several months before bringing this tort action in September 2016.

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Alsadi, JLL, and Hartford Accident & Indemnity Company (“Hartford”) – JLL’s workers’

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compensation insurer – were parties to the ICA proceeding. In October 2017, and pursuant

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to a stipulation of the parties, the ICA issued a decision awarding Alsadi permanent partial

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disability. See Doc. 208-6. Plaintiffs now invoke the doctrine of offensive collateral

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estoppel and contend that the ICA’s decision bars Intel from disputing causation and the

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permanence of Alsadi’s injury in this case. Doc. 208 at 2-5. The Court does not agree.

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A.

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Federal courts apply the collateral estoppel doctrine of the state where the prior

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decision was rendered. Migra v. Warren City Sch. Dist. Bd. of Educ., 465 U.S. 75, 81

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(1984); see Pardo v. Olson & Sons, Inc., 40 F.3d 1063, 1066 (9th Cir. 1994). Under

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Arizona law, offensive collateral estoppel applies where (1) the issue was actually litigated

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in the prior proceeding, (2) there was a full and fair opportunity to litigate the issue,

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(3) resolution of the issue was essential to the decision, (4) a valid and final decision on the

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merits was entered, and (5) there is common identity of the parties. Hullett v. Cousin, 63

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P.3d 1029, 1034 (Ariz. 2003); see also Garcia v. Gen. Motors Corp., 990 P.2d 1069, 1073

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(Ariz. Ct. App. 1999); N. Improvement Co. v. United States, 398 F. Supp. 3d 509, 527 (D.

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Ariz. 2019). As the parties asserting collateral estoppel, Plaintiffs bear the burden of

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establishing each of the five elements. Bayless v. ICA, 880 P.2d 654, 659 (Ariz. Ct. App.

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1993). Plaintiffs have failed to establish the first, second, and fifth elements.

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Collateral Estoppel.

1.

The Issues Were Not Actually Litigated.

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“An issue is ‘actually litigated’ when it ‘is properly raised by the pleadings or

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otherwise, and is submitted for determination, and is determined.’” Faulkner v. Wausau

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Bus. Ins. Co., No. CV-10-1064-PHX-ROS, 2011 WL 13092025, at *3 (D. Ariz. June 1,

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2011) (quoting Chaney Bldg. Co. v. City of Tucson, 716 P.2d 28, 30 (Ariz. 1986)). Where

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a decision is entered by stipulation, consent, or default, “none of the issues is actually

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litigated.” Id. And “[i]f the issue was not actually litigated, that issue simply cannot be

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given issue preclusive effect.” Id.; see 4501 Northpoint LP v. Maricopa Cty., 128 P.3d

3

215, 219-20 (Ariz. 2006) (“Issue preclusion . . . applies only as to issues that have in fact

4

been litigated and were essential to a prior judgment.”).

5

Plaintiffs assert that “[i]n determining the amount of benefits to which Alsadi was

6

entitled, the ICA necessarily had to determine whether his medical limitations were caused

7

by the [i]ncident and whether they were permanent[.]” Doc. 208 at 6. But Plaintiffs admit

8

that the ICA’s decision was based in part on a stipulation between the parties. Id. at 4, 9;

9

see also Doc. 208-6 at 2 (ICA decision explaining that Hartford, “[t]he defendant insurance

10

carrier[,] notified the [ICA] that a permanent partial disability pursuant to A.R.S. § 23-1047

11

exists”). “The Arizona Supreme Court does not apply issue preclusion when the issue was

12

resolved by way of stipulation.” Faulkner, 2011 WL 13092025, at *3; see Chaney Bldg.,

13

716 P.2d at 30.

14

Plaintiffs argue that the ICA considered a great deal of evidence before determining

15

the amount of Alsadi’s benefits, but have not shown that the issues of causation and

16

permanence were “actually litigated” in the ICA proceedings. Hullett, 63 P.3d at 1034.

17

Because the issues Plaintiffs “asks the Court to give preclusive effect to were not ‘actually

18

litigated’ before the ICA [they] are not binding on [Intel] in this case.” Faulkner, 2011

19

WL 13092025, at *3; see Kloberdanz v. Pellino, No. 2:13-CV-2182 JWS, 2017 WL 20253,

20

at *2 (D. Ariz. 2017) (“The party asserting issue preclusion bears the burden of proof as to

21

all elements and must introduce a sufficient record to reveal the controlling facts and the

22

exact issues litigated.”) (citation omitted).

23

2.

Intel Had No Full and Fair Opportunity to Litigate the Issues.

24

Plaintiffs assert that “JLL had a full and fair opportunity to litigate this matter and

25

did so.” Doc. 7 at 13. But JLL’s litigation of issues in the ICA proceeding is irrelevant.

26

Plaintiffs seek to bind Intel, which had no opportunity to participate in the ICA proceedings

27

between Alsadi, JLL, and Hartford. See A.R.S. § 23-901(10) (defining an “[i]nterested

28

party” for purposes of Arizona’s workers’ compensation statute as “the employer, the

12

1

employee, . . . the commission, [and] the insurance carrier”); see also Smith v. CIGNA

2

HealthPlan of Ariz., 52 P.3d 205, 212 (Ariz. Ct. App. 2002) (finding that the plaintiff “was

3

never afforded a ‘full and fair opportunity’ to litigate the issues that were before the NLRB”

4

where she “was ‘not allowed to examine or cross-examine witnesses, lodge objections,’ or

5

otherwise litigate her claim”) (citations omitted).

6

3.

There Is No Common Identity of the Parties.

7

“Although the doctrine of collateral estoppel precludes parties and their privies from

8

relitigating issues, it is axiomatic that a stranger to a litigation may not be bound by a

9

determination made therein for purposes of subsequent litigation.” Fremont Indem. Co. v.

10

ICA, 697 P.2d 1089, 1092 (Ariz. 1985) (citing Blonder-Tongue Labs., Inc. v. Univ. of Ill.

11

Found., 402 U.S. 313, 329 (1971)). “This rule is premised upon preventing the inherent

12

unfairness of binding a party to an issue determination he had no opportunity to contest.”

13

Id. at 1092-93.

14
15

Plaintiffs make several arguments in an attempt to show that Intel was not a stranger
to the ICA proceedings. Doc. 208 at 5, 7-9. None has merit.

16

Plaintiffs contend that JLL is the “real party in interest” in this case because JLL

17

accepted Intel’s tender of defense and will be responsible for paying any judgment or

18

settlement amount. Doc. 208 at 5. Plaintiffs argue that collateral estoppel “applies to

19

prevent JLL, Alsadi’s employer standing in Intel’s shoes, from relitigating issues it has

20

already conceded and that were properly decided by the ICA.” Id. at 8 (citing Fremont,

21

697 P.2d at 1095; Pollard v. ICA, 767 P.2d 22, 23-24 (Ariz. Ct. App. 1988)).

22

It must be remembered, however, that Intel, not JLL, is the defendant in this case.

23

Plaintiffs must establish Intel’s liability if they are to recover anything in this litigation.

24

The fact that JLL has agreed to defend and indemnify Intel does not change this fact; it

25

merely means that Intel, if held liable, can turn to JLL for indemnification. The question

26
27
28

13

1

to be litigated remains Intel’s liability, and Intel took no part in the previous ICA

2

proceeding.4

3

Plaintiffs’ reliance on Fremont is not persuasive. The Arizona Supreme Court made

4

clear in Freemont that the “common identity of the parties” element “applies in

5

compensation-related applications of the [collateral estoppel] doctrine.” 697 P.2d at 1093.

6

Fremont involved separate work-related injuries sustained by the claimant in New Jersey

7

and Arizona. In deciding whether to treat the New Jersey disability judgment as dispositive

8

on the issue of earning capacity, the Arizona Supreme Court held that the parties were not

9

bound under principles of collateral estoppel: “[B]ecause neither the employer nor the

10

carrier were parties to the New Jersey disability judgment, neither could be collaterally

11

estopped . . . from contesting that judgment’s validity.” Id. at 1094.

12

Plaintiffs cite no Arizona case holding that one who was not a party to ICA

13

proceedings can be bound by ICA findings in a subsequent civil action for tort damages.

14

Plaintiffs’ citation to Pollard is inapposite. Doc. 208 at 8. Pollard held that “where the

15

employer is the same for two industrial injuries, and the first injury is determined to be

16

scheduled, a subsequent carrier may not challenge that characterization[.]” 767 P.2d at 24.

17

This case does not involve separate injuries involving the same employer, and it is Intel –

18

not JLL’s carrier – that seeks to challenge causation and the permanence of symptoms in

19

this tort action.

20

Plaintiffs’ citation to Special Fund Division/No Insurance Section v. ICA, 891 P.2d

21

854 (Ariz. Ct. App. 1994), fares no better. Doc. 208 at 7, 9. In that case, the Special Fund

22

Division of the ICA brought a special action challenging a disability classification of a

23

successive claim because it was not a party to the underlying proceedings. 891 P.2d

24

at 858-59. The court of appeals “concluded that notice and an opportunity to be heard are

25
26
27
28

4

Intel notes that if JLL is in fact the real party in interest, this tort action must be
dismissed based on the exclusivity provisions of the workers’ compensation statute.
Doc. 211 at 9; see A.R.S. § 23-1022(A) (“The right to recover compensation pursuant to
this chapter for injuries sustained by an employee . . . is the exclusive remedy against the
employer[.]”). Plaintiffs’ briefing is silent on this point.

14

1

not required to bind a party such as the Special Fund Division[.]” Id. at 859 (emphasis

2

added). Plaintiffs cite no case extending this rule to a private-party defendant in a tort

3

action.

4

Plaintiffs further contend that “based on the nature of the relationship between Intel

5

and JLL in this litigation, they clearly stand in privity with each other.” Doc. 208 at 8. But

6

“privity between a party and a non-party requires both a substantial identity of interests

7

and a working or functional relationship in which the interests of the non-party are

8

presented and protected by the party in the litigation.” Hall v. Lalli, 977 P.2d 776, 779

9

(Ariz. 1999) (internal quotations and citation omitted). The protection must have occurred

10

in the prior litigation – the one argued to have preclusive effect. Id. (“the determinative

11

question was whether mother and child had been in privity at the time of the previous

12

paternity claim”) (emphasis added). Plaintiffs have not shown that JLL and Intel had a

13

working or functional relationship in the ICA proceedings, or that JLL protected Intel’s

14

interests in that proceeding. JLL clearly did not protect Intel’s interests by stipulating to

15

causation and permanency, issues that are hotly contested in this case and which affect the

16

amount of tort damages that could be awarded. In short, there is no “substantial identity

17

of interests” between Intel and JLL or Hartford. Hall, 977 P.2d at 779.

18

Plaintiffs cite French v. Rishell, 254 P.2d 26 (Cal. 1953), for the proposition that

19

JLL was acting as Intel’s agent in the ICA proceedings and Intel therefore is bound by the

20

ICA’s decision. Doc. 208 at 9. In French, a fire department’s pension board claimed that

21

it was not bound by a decision of California’s industrial accident commission where the

22

city, but not the pension board, was a party to the proceedings. But under the city charter,

23

the pension board and the city had an agency relationship. French, 254 P.2d at 29.

24

Plaintiffs present no similar evidence to support their agency theory, and Intel notes that

25

the Facilities Management Services Agreement between Intel and JLL makes clear that

26

JLL is not Intel’s agent. Doc. 211 at 11-12; see Doc. 211-3 at 4 (“No contract of agency

27

. . . [is] intended hereby. [JLL] is not an agent of Intel and has no authority to represent

28

Intel as to any matters[.]”).

15

4.

1

Collateral Estoppel Conclusion.

2

Plaintiffs have not shown that the issues of causation and permanence were actually

3

litigated in the ICA proceedings, that Intel had a full and fair opportunity to litigate those

4

issues, or that there is common identity of the parties. See Hullett, 63 P.3d at 1034.

5

Collateral estoppel therefore does not apply and Intel is not barred from challenging

6

causation and the permanence of Alsadi’s symptoms.

7

B.

8

Alternatively, Plaintiffs argue that the ICA’s decision is entitled to “presumptive

9

Presumptive Validity.

validity.” Doc. 208 at 10-12. The Court does not agree.

10

“Because we live in a society with a highly mobile workforce, to require that an

11

injured employee prove again the fact and degree of a prior disability, remote in place and

12

time, would place an impractical burden upon him.” Fremont, 697 P.2d at 1095. Arizona

13

courts thus have discretion to apply a presumptive validity rule in the workers’

14

compensation context, which allows workers to continue receiving benefits awarded in one

15

state when they move to another state. See id. (“[B]y reasons of comity, we recognize that

16

the claimant suffered an industrial injury in New Jersey.”). In this case, Plaintiffs seek tort

17

damages allegedly caused by negligent conduct in Arizona, not workers’ compensation

18

benefits awarded in another state.

19

Citing Gnatkiv v. Machkur, 372 P.3d 1010, 1015 (Ariz. Ct. App. 2016), Plaintiffs

20

also contend that “‘no compelling reason exists not to defer to the’ ICA’s findings.”

21

Doc. 208 at 11. But as explained above, the ICA’s decision was based in large part on a

22

stipulation that a permanent disability exists. See Doc. 208-6 at 2. Neither the permanence

23

of Alsadi’s symptoms nor the issue of causation was actually litigated before the ICA. The

24

Court, in its discretion, declines to accord presumptive validity to the ICA’s decision. See

25

Fremont, 697 P.2d at 1095 (“[T]he principle of ‘comity’ is that the courts of one state or

26

jurisdiction will give effect to the laws and judicial decisions of another state or

27

jurisdiction, not as a matter of obligation, but out of deference and mutual respect.”);

28

16

1

Gnatkiv, 372 P.3d at 1014 (“The scope and applicability of comity rest within the court’s

2

discretion.”).
The Court will deny Plaintiffs’ motion to exclude evidence and argument

3
4

challenging causation and the permanence of Alsadi’s symptoms. Doc. 208.

5

V.

Plaintiffs’ MIL to Exclude Evidence of Alsadi’s Convictions (Doc. 240).

6

On September 30, 2010, Alsadi was sentenced to probation after pleading guilty to

7

misdemeanor simple assault and disorderly conduct in Pennsylvania. Doc. 258-1 at 3.

8

Plaintiffs move to exclude evidence of the convictions under Federal Rules of Evidence

9

609 and 403 because the convictions do not involve dishonesty and their probative value,

10

if any, is substantially outweighed by the danger of unfair prejudice, confusing the issues,

11

misleading the jury, and wasting time. Doc. 240 at 1-2.

12

During oral argument, the parties agreed that the COVID-delayed trial in this case

13

will now occur more than 10 years after Alsadi’s conviction. As a result, the conviction is

14

admissible only if “its probative value, supported by specific facts and circumstances,

15

substantially outweighs its prejudicial effect.” Fed. R. Evid. 609(b). This standard is not

16

met. The conviction has little or no probative value – it bears no relationship to the facts

17

of this case, and would have little impeachment effect. See 4 Weinstein’s Federal Evidence

18

§ 609.05 (2020) (“crimes of violence generally have limited probative value concerning

19

the witness’s character for truthfulness”). The Court will grant Plaintiffs’ motion to

20

exclude evidence of Alsadi’s convictions for assault and disorderly conduct. Doc. 240.5

21

VI.

Plaintiffs’ MIL to Exclude Untimely Disclosed Evidence (Doc. 242).

22

Plaintiffs move to exclude testimony from Intel employee Nathan Anders and four

23

documents Intel disclosed in its sixth supplemental disclosure statement on April 19, 2019.

24
25
26
27
28

5

Intel asserts that Plaintiffs waived their objection by not raising it in the meet and
confer process (see LRCiv 7.2(l)), but doing so clearly would not have changed the briefing
as shown by Intel’s opposition to the motion. See GEICO Indem. Co. v. Smith, No. 3:12CV-08127 JWS, 2017 WL 1282789, at *1 n.1 (D. Ariz. Apr. 5, 2017) (electing to waive
the meet and confer requirement in light of the parties’ briefing).

17

1

Doc. 242; see Doc. 242-1 at 3-4. Intel does not oppose the motion with respect to the four

2

documents at issue. The Court will grant the MIL in this regard.6

3

On May 16, 2018, Plaintiffs’ served a Rule 30(b)(6) deposition notice on Intel.

4

Doc. 242 at 2. Topic 9 of the notice sought a knowledgeable deponent to explain the

5

“meaning and significance of . . . alarm messages, event titles, and report details contained

6

in the Alarm Logs dated 2/26/16, and the ERT Event Details Report dated 1/26/18[.]” Id.

7

Intel designated witness Robbie McGill.

8

September 14, 2018 – the discovery cutoff date – and testified that she was not able to

9

address Topic 9. Id. More than four months later, on February 4, 2019, Intel disclosed

10

Id.

She appeared for her deposition on

Nathan Anders as its Rule 30(b)(6) witness for Topic 9. Doc. 255-1 at 2.

11

Citing Rule 37(c)(1), Plaintiffs argue that Intel should be precluded from calling

12

Anders as a witness at trial due to the late disclosure. Doc. 242 at 2-3. Rule 37(c)(1)

13

provides that a party that fails to disclose information required by Rule 26(a) “is not

14

allowed to use that information . . . at a trial, unless the failure was substantially justified

15

or harmless.” Intel asserts that any prejudice is of Plaintiffs’ own making because Intel

16

offered to make Anders available for a deposition. Doc. 255 at 3. But Intel’s offer was

17

made months after the close of fact discovery, and the Court had made clear before that

18

time that “no further extensions of deadlines shall be granted absent extraordinary

19

circumstances.” Doc. 98 at 1 (emphasis in original). Intel notes that it had asked Plaintiffs

20

about the relevance of Topic 9, but Intel never sought a court order precluding testimony

21

by a Rule 30(b)(6) witness on the topic.

22

During the July 17 hearing, Intel argued that its delay in identifying Anders was

23

substantially justified because Plaintiffs worked cooperatively with Intel in awaiting the

24

identification of a Topic 9 witness. But “the burden is on the party facing the sanction to

25

demonstrate that the failure to comply . . . is substantially justified or harmless.”

26
27
28

6

Two of the documents are job descriptions dated September 2015 and July 2016,
the third document is a JLL organizational chart dated December 2015, and the fourth is
an “Events Log” detailing the dosing of Thio-Red. Doc. 242 at 3.

18

1

Transoceanic Cable Ship, 2018 WL 3521174, at *2-3 (quoting Torres v. City of L.A., 548

2

F.3d 1197, 1213 (9th Cir. 2008)); see Yeti by Molly, 259 F.3d at 1107 (“Implicit in

3

Rule 37(c)(1) is that the burden is on the party facing sanctions to prove harmlessness.”).

4

And Intel makes no showing that plaintiffs acquiesced in the four-month delay. The only

5

communication attached to Intel’s response is an email identifying Anders four months

6

after the close of discovery. Doc. 255-1 at 2.

7

Absent a showing of substantial justification or harmlessness, the exclusion of

8

untimely disclosed witnesses under Rule 37(c)(1) “has been described by courts as a ‘self-

9

executing, automatic sanction to provide a strong inducement for disclosure of material.’”

10

West v. City of Mesa, 128 F. Supp. 3d 1233, 1247 (D. Ariz. 2015) (quoting Yeti by Molly,

11

259 F.3d at 1106); see Fed. R. Civ. P. 37 advisory committee’s note to 1994 amendment.

12

Indeed, “Rule 37(c)(1) gives teeth to [disclosure] requirements by forbidding the use at

13

trial of any information required to be disclosed by Rule 26(a) that is not properly

14

disclosed.” Yeti by Molly, 259 F.3d at 1106. Because Intel has not shown that its failure

15

to timely disclose Anders as a witness is substantially justified or harmless, the Court will

16

grant Plaintiffs’ motion and preclude Anders from testifying at trial. See Nunes v. Cty. of

17

Stanislaus, No. 1:17-cv-00633-DAD-SAB, 2020 WL 1324808, at *1 (E.D. Cal. Mar. 20,

18

2020) (“Where a party does not provide a sufficient explanation for its late disclosure,

19

preclusion of the witness and/or evidence is appropriate.”); Wong v. Regents of Univ. of

20

Cal., 410 F.3d 1052, 1061-62 (9th Cir. 2005) (upholding preclusion where party did not

21

provide adequate explanation for late disclosure); Quevedo v. Trans-Pacific Shipping, Inc.,

22

143 F.3d 1255, 1258 (9th Cir. 1998) (affirming preclusion of witness due to the plaintiff’s

23

failure to justify his disregard for court’s discovery deadline); Carpenter v. Universal Star

24

Shipping, S.A., 924 F.2d 1539, 1547 (9th Cir. 1991) (upholding decision to disregard

25

evidence based on “tardy submission of the evidence without explanation”).

26

VII.

Plaintiffs’ MIL Regarding the Cause of the Off-Gassing Incident (Doc. 243).

27

Plaintiffs move to preclude Intel from presenting evidence or argument that it did

28

not cause the IWS “off-gassing” incident because this would confuse and mislead the jury

19

1

regarding the concept of negligence and would invite the jury to assign fault to JLL.

2

Doc. 243 at 1. Plaintiffs contend that because Intel retained affirmative duties with respect

3

to the safety of the IWS, “it retained sufficient control to be liable for negligently exercising

4

its safety responsibilities.” Id. at 2 (citing Rause v. Paperchine, Inc., 743 F. Supp. 2d 1114,

5

1122 (D. Ariz. 2010)).

6

Intel notes, correctly, that Plaintiffs essentially seek a summary judgment ruling on

7

the issues of duty and causation. Doc. 256 at 1. A “motion in limine is not the proper

8

vehicle for seeking a dispositive ruling on a claim, particularly after the deadline for filing

9

such motions has passed.” Hana Fin., Inc. v. Hana Bank, 735 F.3d 1158, 1162 (9th Cir.

10

2013) (citing Dubner v. City & Cty. of S.F., 266 F.3d 959, 968 (9th Cir. 2001)). Moreover,

11

the issue of retained control is “a question of fact which ordinarily should be left to the fact

12

finder.” Doc. 204 at 29 (quoting Lewis v. N.J. Riebe Enters., Inc., 825 P.2d 5, 11 (Ariz.

13

1992) (emphasis in Lewis); see also Lee v. M & H Enters., Inc., 347 P.3d 1153, 1159 (Ariz.

14

Ct. App. 2015) (the issue of retained control generally is for the jury to decide “[b]ecause

15

the issue of a breach of duty is inextricably linked with the scope of retained control”)

16

(citing Lewis).

17

The Court will deny Plaintiffs’ motion to exclude evidence that Intel did not cause

18

the off-gassing incident. Doc. 243.

19

VIII. Intel’s MIL Regarding Health Effects Not at Issue (Doc. 231).

20

Intel moves to exclude (1) the use of “inflammatory language” to describe H2S, such

21

as the terms “toxic,” “hazardous,” and “poisonous”; (2) evidence and argument regarding

22

health effects that H2S exposure can cause but that were not suffered by Alsadi; and

23

(3) testimony from Plaintiffs’ standard of care expert, Greg Gerganoff, about the dangerous

24

nature of H2S and health effects caused by exposure to the gas. Doc. 231.

25

A.

The Purported Inflammatory Language.

26

The Environmental Protection Agency classifies H2S as an “extremely hazardous

27

substance.”

40 C.F.R. pt. 355, App. B.

28

Administration (“OSHA”) describes H2S as “a highly flammable, explosive gas” that

20

The Occupational Safety and Health

1

“produces other toxic vapors and gases, such as sulfur dioxide.” U.S. Dep’t of Labor,

2

OSHA, https://www.osha.gov/SLTC/hydrogensulfide/hazards.html (last visited July 9,

3

2020). The OSHA fact sheet for H2S explains that it is an “extremely hazardous gas” and

4

“both an irritant and a chemical asphyxiant[.]” OSHA Fact Sheet, https://www.osha.gov/

5

OshDoc/data_Hurricane_Facts/hydrogen_sulfide_fact.pdf (last visited July 9, 2020). The

6

Centers for Disease Control describes H2S as a “flammable, highly toxic gas,” noting that

7

“[t]here is no proven antidote for [H2S] poisoning.” CDC, Agency for Toxic Substances

8

and Disease Registry, https://www.atsdr.cdc.gov/mmg/mmg.asp?id=385&tid=67# (last

9

visited July 9, 2020). Thus, referring to H2S as toxic, hazardous, and poisonous is not

10

inflammatory; it is a technically-correct description of the gas. The Court will deny Intel’s

11

motion in this regard.

12

B.

Potential Health Effects Caused by H2S Exposure.

13

Intel contends that reference to health effects caused by H2S that Alsadi did not

14

experience would serve only to confuse and mislead the jury. Doc. 231 at 2. Because this

15

will now be a bench trial, that risk is reduced significantly. In addition, the potential

16

dangers posed by exposure to H2S are relevant to the standard of care. See Doc. 262 at 4.

17

The Court does not find that the probative value of potential health effects caused by H2S

18

exposure is substantially outweighed by the danger of confusing the issues or misleading

19

the factfinder. See Fed. R. Evid. 403; see also Benson Tower Condo. Owners Ass’n v.

20

Victaulic Co., 702 F. App’x 537, 541 (9th Cir. 2017) (“Given the relevance of the health-

21

related evidence, the district court did not abuse its discretion in finding that its probative

22

value was not substantially outweighed by the danger of unfair prejudice.”). The Court

23

will deny Intel’s motion in this regard.
Gerganoff’s Proposed Testimony.

24

C.

25

Gerganoff is a work-place safety expert whose opinions are based on his technical

26

knowledge, training, and experience. See Doc. 164-3. He opines that Intel failed to

27

reasonably safeguard workers from a known hazardous condition and the failure caused

28

21

1

Alsadi’s injuries. See Doc. 180 at 13. The Court denied Intel’s motion to exclude

2

Gerganoff’s safety-related opinions. Doc. 204 at 19-22.

3

Intel now moves to preclude Gerganoff from (1) describing H2S as “an extremely

4

flammable gas, inhalation hazard, and deadly poison,” and (2) opining that H2S “causes

5

damage to the cardiovascular, central nervous, and respiratory systems” and is “known to

6

cause apnea, coma, convulsions, dizziness, headache, weakness, irritability, insomnia, and

7

stomach upset.” Doc. 231 at 3 (quoting Doc. 164-4 at 4-5). For reasons stated above, the

8

Court will not preclude Gerganoff from describing H2S as an extremely flammable gas,

9

inhalation hazard, or deadly poison, or from describing the health effects it is known to

10

cause.

11

Gerganoff is not a medical causation exert – he expressly states that his “role in this

12

matter was not to make determinations of medical causation[.]” Doc. 181 at 5. Instead,

13

his “role is to address how Intel’s knowledge of hazardous conditions associated with its

14

wastewater treatment system should have steered its safety practices and procedures, and

15

how Intel fell woefully short.” Id. Gerganoff may described the hazardous nature of H2S

16

in opining on the adequacy of Intel’s safety practices, but he may not give medical

17

causation opinions – he may not opine that H2S caused any particular illness or symptoms

18

in Alsadi. See Doc. 262 at 4. The Court will grant Intel’s motion with respect to such

19

causation opinions.

20

IX.

Intel’s MIL Regarding Causation and Alsadi’s Symptoms (Doc. 232).

21

Three of Plaintiffs’ experts opined that Alsadi’s alleged symptoms were caused by

22

H2S exposure: treating physician Dr. Anselmo Garcia and rebuttal experts Drs. Kelly

23

Johnson-Arbor and Charles Landers. Applying Rule 702, the Court ruled that Dr. Garcia’s

24

causation opinions are not admissible and Dr. Landers’s and Dr. Johnson-Arbor’s opinions

25

that exposure to H2S caused Alsadi to develop RADS are not admissible. Doc. 204 at 3-13,

26

18-19.

27

concerning RADS is not relevant given the grant of summary judgment on Plaintiffs’ claim

28

that Alsadi’s exposure to H2S caused RADS. Doc. 216 at 8. The Court made clear,

The Court further held that Dr. Johnson-Arbor’s general causation opinion

22

1

however, that it has made no ruling on the admissibility of any opinion of Dr. Johnson-

2

Arbor that H2S can cause some of the symptoms Alsadi has experienced since the exposure.

3

Id.

4

Intel now contends that Plaintiffs’ experts “should be precluded from offering any

5

opinions on causation of any of Alsadi’s claimed symptoms or diseases, whatever

6

Plaintiffs’ experts choose to call such outcomes.” Doc. 232 at 3 (emphasis in original).

7

Plaintiffs concede that the Court has excluded all three experts from testifying to specific

8

causation – that Alsadi’s exposure caused his symptoms – and vow to abide by the Court’s

9

rulings. Doc. 266 at 2-3.7

10

A.

Dr. Garcia.

11

Plaintiffs assert that Dr. Garcia’s testimony will not stray beyond the observations

12

and opinions he formed as part of Alsadi’s treatment. Doc 266 at 3. They argue that such

13

observations and opinions are “percipient witness” testimony, not expert testimony, and

14

therefore are not subject to Rule 702 of the Federal Rules of Evidence. Id. 1-2. In support,

15

Plaintiffs rely on two unpublished decision of the Ninth Circuit – Hoffman v. Lee, 474 F.

16

App’x 503, 505 (9th Cir. 2012), and Oakberg v. Zimmer, Inc., 211 F. App’x 578, 580 (9th

17

Cir. 2006) – and one published decision – Goodman v. Staples The Office Superstore, LLC,

18

644 F.3d 817 (9th Cir. 2011). Id. The Court does not agree with Plaintiffs’ arguments.

19

The unpublished Ninth Circuit decision are not binding on the Court, and the published

20

decision does not support their argument.

21

The published decision, Goodman, concerned the disclosure requirements of

22

Rule 26 of the Federal Rules of Civil Procedure, not the admissibility of expert opinions

23

under Rule 702 of the Federal Rules of Evidence. Whether a treating physician’s testimony

24

is expert testimony subject to Rule 702 or non-expert fact testimony (including non-expert

25

opinions subject to Rule 701) must be determined by looking at the Federal Rules of

26
27
28

7

The Court also found inadmissible Dr. Johnson-Arbor’s opinions that Alsadi likely
was exposed to concentrations of H2S higher than 11.7 ppm and that he likely has RADS.
Doc. 204 at 16-18. Plaintiffs shall abide by these rulings as well.

23

1

Evidence. What is more, Rule 26 was amended in 2010, after the decision in Goodman, to

2

clarify the disclosure requirements for treating physicians like Dr. Garcia. 8 A brief review

3

of the rule’s history is relevant to Plaintiffs’ claim that Dr. Garcia can testify about his

4

treatment of Alsadi without regard to Rule 702.

5

Before the 2010 amendments, Rule 26 required detailed expert reports from

6

witnesses who were “retained or specially employed to provide expert testimony in the

7

case or one whose duties as the party’s employee regularly involve giving expert

8

testimony.” Fed. R. Civ. P. 26(a)(2)(B). Because treating physicians generally were not

9

retained or specially employed to provide expert opinions in a case, but instead were asked

10

to testify and express opinions on the basis of their treatment of the plaintiff, they were not

11

required to prepare expert reports. See Fed. R. Civ. P. 26(a)(2)(B) advisory committee note

12

to 1993 amendment (“A treating physician, for example, can be deposed or called to testify

13

at trial without any requirement for a written report.”). This is not because the physicians

14

were not giving expert opinions, but because they were not “retained or specially

15

employed” as required by Rule 26(a)(2)(B).

16

The Ninth Circuit drew a sensible line in Goodman: physicians can testify about

17

conclusions and opinions formed during the course of their treatment of the plaintiff

18

without having to provide a Rule 26(a)(2)(B) expert report, but they cannot express new

19

opinions formed for purposes of the litigation without disclosing them in such a report. In

20

effect, physicians were deemed to be “retained or specially employed,” and therefore

21

subject to the report requirement, if they develop opinions for purposes of the litigation.

22

Goodman, 644 F.3d at 826 (“Today we join those circuits that have addressed the issue and

23

hold that a treating physician is only exempt from Rule 26(a)(2)(B)’s written report

24

requirement to the extent that his opinions were formed during the course of treatment.”).

25
26
27
28

8

Goodman was issued in 2011, but it concerned events that occurred before
December 1, 2010, the effective date of the Rule 26 amendments.

24

1

The expert disclosures rules were amended in 2010 to close the discovery gap

2

between retained experts who were required to provide a detailed report and non-retained

3

experts who could provide expert testimony without a report. Rule 26(a)(2)(C) was added

4

to require that any party who planned to call a non-retained expert to express expert

5

opinions must disclose the “subject matter on which the witness is expected to present

6

evidence under Federal Rule of Evidence 702” and “a summary of the facts and opinions

7

to which the witness is expected to testify.” Fed. R. Civ P. 26(a)(2)(C). The advisory

8

committee note provided this explanation:

9
10
11
12

A witness who is not required to provide a report under Rule 26(a)(2)(B) may
both testify as a fact witness and also provide expert testimony under
Evidence Rule 702, 703, or 705. Frequent examples include physicians or
other health care professionals and employees of a party who do not regularly
provide expert testimony. Parties must identify such witnesses under Rule
26(a)(2)(A) and provide the disclosure required under Rule 26(a)(2)(C).

13
14

Fed. R. Civ. P. 26(a)(2)(C) advisory committee note to 2010 amendment.

15

These rules make clear, contrary to Plaintiffs’ suggestion, that treating physicians

16

can provide expert testimony subject to Rule 702 even when they are not required to

17

provide an expert report. For disclosure purposes, the line drawn in Goodman continues

18

to make sense even after the 2010 amendments – treating physicians who will testify only

19

to conclusions and opinions formed in the course of treating the plaintiff need only be

20

disclosed in the party’s Rule 26(a)(2)(C) summary of the testimony, but treating physicians

21

who will express opinions developed outside of their treatment must provide a Rule

22

26(a)(2)(B) report for those opinions. Both categories of physicians, however, are subject

23

to challenges under Rule 702 because both can present expert opinions. True, some of a

24

treating physician’s testimony may be purely factual (“I provided plaintiff with a breathing

25

treatment on June 1, 2017”), but some may be expert opinion under Rule 702 even though

26

the opinion was developed in the course of treatment (“I provided the June 1, 2017

27

breathing treatment because I had concluded that the plaintiff suffered from chemically-

28

induced asthma due to his exposure on March 1, 2017.”).

25

1

In summary, Plaintiffs are incorrect in their claim that Dr. Garcia can testify about

2

his treatment of Plaintiff without regard to Rule 702. If he expresses opinions formed

3

during the course of treatment, those opinions likely will be based on based on Dr. Garcia’s

4

scientific, technical, or other specialized knowledge and therefore will be subject to the

5

requirements of Rule 702. See Fed. R. Evid. 701(c), 702. As the Court stated in a previous

6

order, “any testimony Dr. Garcia might give about the cause of Alsadi’s injuries would be

7

expert opinion under Rule 702.” Doc. 204 at 7 (citing cases).

8

The Court held in its previous order that Plaintiffs had not shown by a

9

preponderance of the evidence that Dr. Garcia’s causation opinions are based on sufficient

10

facts or data to which reliable principles and methods had been applied reliably. Id. at 10.

11

The Court therefore concluded that his causation opinions are not admissible under

12

Rule 702. Id.

13

Plaintiffs now suggest that Dr. Garcia may testify about “the opinions, actions, and

14

observations formed during and relating to Alsadi’s treatment.” Doc. 266 at 3 (emphasis

15

added). But the Court clearly has ruled that he cannot state causation opinions, and this

16

ruling applies to opinions that identify the cause of Alsadi’s injuries even if they are

17

couched in language other than causation. Intel may object if it thinks Dr. Garcia is

18

expressing a causation opinion. Further, any other opinions he states likely will be based

19

on his scientific, technical, or other specialized knowledge and therefore will be subject to

20

the requirements of Rule 702, even if the opinions were formed during the course of his

21

treatment of Alsadi. Intel may object if it believes any such opinion is not admissible under

22

Rule 702.

23

B.

24

Intel contends that Dr. Landers should be precluded from providing any causation

25

testimony at trial with respect to any of Alsadi’s symptoms. Doc. 232 at 4. The Court

26

agrees. The Court previously held that Plaintiffs have not shown by a preponderance of

27

the evidence that Dr. Landers’ causation opinion is based on reliable principles and

28

methods applied reliably to the facts of this case. Doc. 204 at 13. The Court therefore held

Drs. Landers and Johnson-Arbor.

26

1

that his causation opinion is not admissible under Rule 702. Id. As with Dr. Garcia, this

2

ruling applies to any opinion that identifies the cause of Alsadi’s injuries even if it is

3

couched in language other than causation. Intel may object if it thinks Dr. Landers is

4

expressing a causation opinion.9

5

Intel contends that Dr. Johnson-Arbor should not be permitted to provide any

6

causation testimony at trial with respect to any of Alsadi’s symptoms. Doc. 232 at 4. The

7

Court agrees as to specific causation. The Court previously held that Plaintiffs have not

8

shown by a preponderance of the evidence that Dr. Johnson-Arbor is qualified to render a

9

specific causation opinion in this case or that her causation opinion is reliable. Doc. 204

10

at 19. The Court therefore held that her causation opinion is not admissible under Rule 702.

11

Id. As with Drs. Garcia and Landers, this ruling applies to any opinion that identifies the

12

cause of Alsadi’s injuries even if it is couched in language other than causation. Intel may

13

object if it thinks Dr. Landers is expressing a causation opinion.

14

Plaintiffs suggest, however, that Dr. Johnson-Arbor may provide general causation

15

opinions with respect to Alsadi’s non-RADs symptoms. Doc. 266 at 4. The Court agrees.

16

The Court previously clarified that it “has made no ruling on the admissibility of any

17

opinion of Dr. Johnson-Arbor that H2S can cause some of the symptoms Alsadi has

18

experienced since the exposure event.

19

Doc. 216 at 8. Thus, the Court has not precluded Dr. Johnson-Arbor from giving a general

20

causation opinion that H2S can cause symptoms of the kind Alsadi is experiencing. But

Intel has not challenged any such opinion.”

21
22
23
24
25
26
27
28

9

With respect to Dr. Landers, Plaintiffs note, correctly, that the Court found his
diagnosis of RADS sufficiently reliable to be admissible under Rule 702. Id. (citing
Doc. 204 at 15). But the Court made this finding before granting summary judgment to
Intel on whether Alsadi’s alleged exposure to H2S caused RADS. Doc. 216 at 5. Because
Plaintiffs are now “precluded from seeking to recover for RADS” (id.), Dr. Landers’
diagnosis of RADS is irrelevant. See id. at 16 (“The Court will enter summary judgment
on Plaintiffs’ claim that Alsadi’s exposure caused RADS, and with no such claim in the
case, Dr. Johnson-Arbor’s general causation opinion is not relevant.”) (citing Fed. Rs.
Evid. 401-02). Intel, however, did not challenge Dr. Landers’s RADS diagnosis as
irrelevant in its MIL. See Doc. 266 at 3. Intel may object at trial.

27

1

she cannot testify to specific causation – that the exposure in fact caused those symptoms.

2

That finding, if made in this case, must be based on Plaintiff’s non-expert evidence.

3

X.

Intel’s MIL Regarding New and Worsening Symptoms (Doc. 233).

4

The Court denied summary judgment on the issue of causation because a jury

5

reasonably could find, without the benefit of expert medical testimony, that Alsadi was

6

exposed to H2S and the exposure caused a toxic inhalation injury on the night in question

7

and immediately thereafter. Doc. 204 at 30-33. After receiving supplemental briefing, the

8

Court granted summary judgment on the issue of whether Alsadi’s exposure to H2S caused

9

RADS and denied summary judgment on the extent and duration of Plaintiffs’ injuries.

10

Doc. 216 at 9 (“[A]lthough Plaintiff now lacks evidence to show that he suffers from

11

RADs, he is not precluded under Arizona law from presenting evidence that he suffered an

12

inhalation injury on the night in question, that has persisted.”) (citations omitted).

13

Intel now moves to exclude evidence and argument of new and worsening

14

symptoms. Doc. 233. Intel claims that Plaintiffs intend to present evidence that Alsadi’s

15

initial symptoms “somehow ‘triggered’ the development of new and different symptoms,

16

such as wheezing, coughing fits, ‘electric shock’ type chest pain, shortness of breath,

17

vomiting, and incontinence.” Id. at 3. Intel contends that proving such new and different

18

symptoms requires admissible expert testimony that Plaintiffs cannot offer, and that such

19

evidence is also necessary to show that “Alsadi’s immediate symptoms grew substantially

20

worse over the months and years following the alleged exposure.” Id. at 3-4.

21

As previously explained, the Court intends “to permit Plaintiffs to present evidence,

22

if offered in admissible form, that Alsadi’s symptoms which developed immediately upon

23

exposure (and which the jury therefore could properly conclude were caused by the

24

exposure) have continued and likely will continue into the future, but not to permit them

25

to present evidence of new or different symptoms that were not immediately apparent upon

26

exposure.” Doc. 216 at 7. The Court maintains its view that this is the correct approach

27

given Plaintiffs’ lack of expert causation evidence, but the Court must “engage in this line-

28

drawing as the evidence is presented at trial.” Id. The Court’s task will be to determine

28

1

from the evidence whether Alsadi’s claimed injuries are new and different symptoms or a

2

continuation of the symptoms he experienced at the time of exposure. The parties will be

3

permitted to present evidence and arguments on this issue, and the Court will make its

4

findings based on what the evidence proves, not on speculation. Intel’s motion (Doc. 233)

5

will be denied.10

6

XI.

Intel’s MIL Regarding Michael Torbert’s Trial Testimony (Doc. 234).

7

Torbert worked for JLL at Intel’s Chandler campus when the off-gassing incident

8

occurred. Intel asserts that Torbert offers three categories of inadmissible testimony in his

9

deposition – expert opinions, hearsay, and “additional objectionable testimony.” Doc. 234

10

at 2. Intel provides various examples of the purported inadmissible testimony, but “has

11

not attempted to list every instance of inadmissible testimony in [Torbert’s] deposition.”

12

Id.

13

Intel’s motion “sweeps too broadly and is an improper attempt to pre-try the case.”

14

Smilovits v. First Solar, Inc., No. CV12-0555-PHX-DGC, 2019 WL 6698199, at *4 (D.

15

Ariz. Dec. 9, 2019); see PCT Int’l Inc. v. Holland Elecs. LLC, No. CV-12-01797-PHX-

16

JAT, 2015 WL 875200, at *14 (D. Ariz. Mar. 2, 2015) (“motions in limine are not an

17

opportunity to pre-try the case”); Universal Engraving Inc. v. Metal Magic Inc., No. CV

18

08-1944 PHX RJB, 2011 WL 13070114, at *1 (D. Ariz. July 12, 2011) (same). Intel may

19

object at trial to testimony it believes is expert opinion, hearsay, or inadmissible under

20

Rule 403. The Court will be far better equipped to rule on specific testimony at that time.
The Court will deny Intel’s motion regarding Torbert’s trial testimony. Doc. 234.

21
22

XII.

Intel’s MIL Regarding Testimony of Gases Other than H2S (Doc. 235).

23

Intel moves to preclude Dr. Thomas Abia, an Intel chemical engineer, and three of

24

Plaintiffs’ experts, from testifying about sulfur dioxide or gases other than H2S. Doc. 235.

25
26
27
28

10

Intel asserts in a footnote that Plaintiffs did not timely disclose Dr. Gerald
Schwartzberg to offer expert opinions as required by Rule 26(b)(2). Doc. 233 at 3, n.3.
Plaintiffs address this argument in their response to Intel’s motion in limine regarding
expert testimony of certain medical professionals (Docs. 237, 267).

29

1

A.

2

The rebuttal expert disclosure deadline in this case was January 11, 2019. Doc. 142

3

at 1. On March 29, 2019 – more than two months after the deadline – Plaintiffs filed a new

4

declaration from Dr. Johnson-Arbor in which she opines, among other things, that Alsadi

5

inhaled sulfur dioxide (“SO2”) and possibly other hazardous gases and the exposure caused

6

various symptoms and RADS. Doc. 159-2. Intel moved to strike the declaration as

7

untimely and because Johnson-Arbor’s new SO₂ opinions are inadmissible speculation.

8

Doc. 167. The Court denied the motion as moot given its ruling that Dr. Johnson-Arbor is

9

not qualified to render a causation opinion in this case and her causation opinions are not

10

Dr. Johnson-Arbor.

reliable. Doc. 204 at 19 & n.13.

11

Intel contends that if Dr. Johnson-Arbor’s belated SO2 exposure opinion survived

12

the Court’s exclusion of her causation opinions and H2S exposure opinion (see Doc. 204

13

at 16-19), her SO2 opinion should be precluded for reasons stated in Intel’s motion to strike

14

and Daubert motion (see Docs. 147, 167). Doc. 235 at 2-3. In response to this argument,

15

Plaintiffs do not explain their failure to comply with the January 11, 2019 rebuttal expert

16

disclosure deadline. Doc. 142 at 1. The Court cannot conclude that Plaintiffs’ failure was

17

“substantially justified or harmless,” Fed. R. Civ. P. 37(c)(1), and will grant Intel’s motion

18

to exclude Dr. Johnson-Arbor’s SO2 exposure opinion set forth in her March 29, 2019

19

declaration (Doc. 159-2). See Nunes, 2020 WL 1324808, at *1; Food Servs. of Am., Inc.

20

v. Carrington, No. CV-12-00175-PHX-GMS, 2013 WL 4507593, at *17 (D. Ariz. Aug. 23,

21

2013) (striking untimely expert disclosures).

22

B.

Greg Gerganoff.

23

Intel asserts that Gerganoff’s expert reports and declarations “are littered with

24

unsupported speculation that SO2 and other unknown ‘hazardous gases’ might have

25

been released during the incident at issue.” Doc. 235 at 3 (citing Docs. 164-4 at 3-5,

26

181 ¶¶ 12, 22). Intel argues that because Gerganoff provides opinions from a safety

27

standpoint, and not from a scientific perspective, he should be precluded from speculating

28

that SO2 and other toxic gases may have been released. Id. (citing Doc. 204 at 20-21).

30

1

Plaintiffs assert that they do not seek to introduce evidence of a specific amount of

2

SO2 or any other gas in the ambient air on the night in question, but only the likelihood that

3

SO2 was present based on the known fact that SO2 is a by-product of the IWS System and

4

Intel’s own testimony. Doc. 261 at 2. But Plaintiffs do not explain why expert testimony

5

is necessary for this purported “known fact.” Nor have Plaintiffs shown that Gerganoff is

6

qualified to offer a scientific opinion that there was a significant release of SO2 from the

7

overdosing of the chemical Thio-Red. See, e.g., Doc. 181 ¶ 22.

8

Plaintiffs note that Gerganoff formed his opinion about the potential for SO2

9

exposure from data provided by Intel and the testimony of Dr. Abia and Jennifer Francis,

10

an Intel industrial hygienist. Doc. 261 at 2. Gerganoff may rely on that testimony and

11

Intel’s data in offering standard of care opinions, but he may not opine from a scientific

12

perspective that SO2 and toxic gasses other than H2S may have been released. The Court

13

will grant Intel’s motion in this regard.

14

C.

Derrick Denis.

15

Intel moves to preclude Derrick Denis, an indoor environmental quality expert, from

16

opining that SO2 may have been present because H2S can be involved in certain chemical

17

reactions that produce SO2. Doc. 235 at 4. But Intel provides only four pages of Denis’

18

25-page declaration in support of its motion. The Court cannot conclude on the present

19

record that Denis is not qualified to offer the challenged opinion. The Court will rule at

20

trial on any objection to Denis’ testimony. Intel’s motion will be denied in this regard.

21

D.

Dr. Abia.

22

Dr. Abia is an Intel chemical engineer and the “system owner” of Intel’s IWS. See

23

Doc. 261 at 3. Intel moves to preclude Dr. Abia from testifying that SO2 likely was released

24

because Plaintiffs “completely mischaracterize Dr. Abia’s testimony.” Doc. 235 at 4. But

25

Intel presents no argument or legal authority for excluding “mischaracterized” testimony.

26

See id.; Doc. 190 at 10.

27

Intel contends that any such testimony from Dr. Abia would constitute expert

28

opinion that was not properly disclosed. Doc. 235 at 4-5. But Dr. Abia is a fact witness

31

1

whom Intel designated as its Rule 30(b)(6) deponent on “what other hazardous gases,

2

fumes or substances could have potentially been released on the date of the subject incident

3

as a result of the IWS processes.” Id. (quoting Doc. 261-6 at 3). “Courts routinely permit

4

witnesses to offer lay opinion testimony concerning matters they learn or experience they

5

gain as a result of their employment.” Vasserman v. Henry Mayo Newhall Mem’l Hosp.,

6

65 F. Supp. 3d 932, 946-47 (C.D. Cal. 2014) (citing cases). The Court will not preclude

7

Dr. Abia from testifying as a fact witness about the possible release of SO2. If Plaintiffs

8

seek to elicit inappropriate expert opinions from Dr. Abia, Intel may object. See Wilson v.

9

Maricopa Cty., No. CV-04-2873-PHX-DGC, 2007 WL 686726, at *16 (D. Ariz. Mar. 2,

10

2007) (allowing the defendants’ consultant on the issue of inmate safety in Tent City to

11

testify as a fact witness at trial, but noting that defendants could object to any inadmissible

12

expert opinions). Intel’s motion will be denied with respect to Dr. Abia’s testimony as a

13

fact witness.

14

XIII. Intel’s MIL Regarding Certain OSHA Regulations (Doc. 236).

15

The Ninth Circuit has recognized that “safety standards such as those contained in

16

OSHA assist ‘a jury’s determination of negligence because they represent the community’s

17

judgment as to what conduct is reasonable and what conduct is not.’” Cooper v. Firestone

18

Tire & Rubber Co., 945 F.2d 1103, 1107 (9th Cir. 1991) (citations omitted). Consistent

19

with this authority, the Arizona Court of Appeals has held that “an OSHA standard may be

20

considered as some evidence of the standard of care even when OSHA requirements are

21

not binding on the defendant, so long as there is sufficient foundation (1) establishing that

22

the standard at issue is directly related to the exercise of reasonable care and (2) a

23

reasonable nexus exists between the proffered standard and the circumstances of the

24

injury.” Wendland v. AdobeAir, Inc., 21 P.3d 390, 396 (Ariz. Ct. App. 2009).

25

Intel contends that certain OSHA-based opinions Gerganoff sets forth in his report

26

(Doc. 164-4) are inadmissible under Wendland because the OSHA rules do not set a

27

standard of care and otherwise are irrelevant. Doc. 236 at 3-4. As the Court previously

28

explained, Gerganoff is not required to accept Intel’s interpretation of OSHA standards.

32

1

Doc. 204 at 21. The Court cannot conclude on the present record that Gerganoff’s

2

OSHA-based opinions are inadmissible. Intel will be free to cross-examine Gerganoff at

3

trial and to object on the basis of foundation, relevancy, Rule 403, or other grounds. The

4

Court will rule on objections as they are made. See id. Intel’s motion regarding certain

5

OSHA regulations will be denied.

6

XIV. Intel’s MIL Regarding Certain Medical Professionals (Doc. 237).

7

A.

Drs. Vu, Spangenberg, Shobe, and Kamarinos.

8

Plaintiffs disclosed various treating physicians who may testify about their

9

evaluations and treatment of Alsadi’s injuries, the extent of those injuries, and treatment

10

costs.

Docs. 237-2, 267-1, 267-2.

Intel moves to preclude Drs. Le Vu, Bethanie

11

Spangenberg, Darren Shobe, and Syros Kamarinos from offering expert opinions of any

12

kind, including on causation, diagnosis, and prognosis, because they were not properly

13

identified as expert witnesses under Rule 26(a)(2). Doc. 237 at 2-3. Plaintiffs vow that

14

the doctors will not testify to causation, but assert that as properly disclosed percipient fact

15

witnesses, they “may testify to and opine on what they saw and did[.]” Doc. 267 at 2

16

(quoting Goodman, 644 F.3d at 819).

17

As explained above, however, treating physicians are not exempt from the

18

requirements of Rule 702 simply because they formed their opinions in the course of

19

treatment, and therefore are not exempt from the disclosure requirements of Rule

20

26(a)(2)(C). As other courts have recognized, treating physicians “are often considered

21

‘hybrid experts’ because they can provide both fact testimony (as percipient witnesses to

22

the services rendered to the patient) and expert testimony (based on their specialized

23

knowledge).”

24

7284738, at *3 (D. Nev. Dec. 27, 2019) (citing Goodman, 644 F.3d at 819; Fed. R. Civ. P.

25

26, advisory committee’s note to 2010 amendment). If Plaintiffs intended to call treating

26

physicians to opine about the treatment of Alsadi, they were required by Rule 26(a)(2)(C)

27

to disclose “the subject matter on which the witness is expected to present evidence under

28

Rule 702” and “a summary of the facts and opinions to which the witness is expected to

Scolaro v. Vons Cos., Inc., No. 2:17-cv-01979-JAD-VCF, 2019 WL

33

1

testify.” Alsadi, 2019 WL 4849482, at *3; see Transoceanic Cable Ship Co. LLC v.

2

Bautista, No. CV 17-00209 ACK-KSC, 2018 WL 3521174, at *2 (D. Haw. July 20, 2018)

3

(“Treating physicians testifying as to opinions formed during the course of treatment are

4

‘experts’ regarding whose testimony the Rule 26(a)(2)(C) disclosures are required.”)

5

(citing Republic of Ecuador v. Mackay, 742 F.3d 860, 865 n.1 (9th Cir. 2014)). The

6

Rule 26(a)(2)(C) “summary, although clearly not as detailed as a Rule 26(a)(2)(B) report,

7

must be sufficiently detailed to provide fair notice of what the expert will say at trial.”

8

Leland v. Cty. of Yavapai, No. CV-17-8159-PCT-SPL (DMF), 2019 WL 1547016, at *6

9

(D. Ariz. Mar. 18, 2019); see Flonnes v. Prop. & Cas. Ins. Co., No. 2:12-cv-01065-APG,

10

2013 WL 2285224, at *5 (D. Nev. May 22, 2013) (“[I]dentification of the subject matter

11

on which the witness is expected to testify is insufficient to comply with the summary of

12

facts and opinions requirement of Rule 26(a)(2)(C).”).

13

Plaintiffs’ disclosures identify the subjects on which the treating physicians may

14

opine under Rule 702 – the treatment of Alsadi’s injuries, the extent of those injuries, and

15

the cost of treatment – but come “nowhere close to providing a summary of the facts and

16

opinions of any single physician[,] as required by Rule 26(a)(2)(C).”

17

Frederick, No. CV-17-00368-PHX-JJT, 2018 WL 3738199, at *1 (D. Ariz. Aug. 7, 2018);

18

see Meza v. Wacker Neuson Sales Ams. LLC, No. 2:18-CV-0574-HRH, 2019 WL 2417396,

19

at *5 (D. Ariz. June 10, 2019) (“While plaintiffs’ disclosure as to Dr. Foltz arguably

20

identifies the subject matter on which he will testify, it does not contain a summary of

21

Dr. Foltz’s facts and opinions. Plaintiffs have not complied with Rule 26(a)(2)(C).”);

22

Garrett v. Woodle, No. CV-17-08085-PCT-BSB, 2018 WL 6110924, at *4 (D. Ariz.

23

Nov. 21, 2018) (plaintiff’s disclosures failed to comply with Rule 26(a)(2)(C) where they

24

indicated that “the healthcare providers will have opinions in certain areas, including

25

[p]laintiff’s injuries and the causation of those injuries, but do not state what the opinions

26

are, and do not identify the factual basis for those opinions”); Deguzman v. United States,

27

No. 2:12-CV-0338 KJM AC, 2013 WL 3149323, at *4 (E.D. Cal. June 19, 2013)

28

(“Plaintiff’s disclosure of Dr. Anderson was accompanied by a statement that fails to meet

34

Frederick v.

1

even the most liberal interpretation of Rule 26(a)(2)(C). That Dr. Anderson intended to

2

testify to ‘the nature and extent of plaintiff’s injuries, cause of those injuries, diagnosis,

3

prognosis, reasonableness of medical expenses and necessity of treatment’ is obvious

4

and hardly promotes the goal of increasing efficiency and reducing unfair surprise.”);

5

Pineda v. Cty. of S.F., 280 F.R.D. 517, 523 (N.D. Cal. 2012) (merely stating that the

6

treating physician “will present fact and opinion testimony on causation, diagnosis,

7

prognosis, and extent of injury” based on medical records was an inadequate disclosure

8

under Rule 26(a)(2)(C)).

9

A party that fails to disclose information required by Rule 26(a) is not allowed to

10

use that information at a trial unless the failure was substantially justified or harmless. Fed.

11

R. Civ. P. 37(c)(1). Plaintiffs do not contend that their failure to comply with the disclosure

12

requirements of Rule 26(a)(2)(C) was substantially justified or harmless. The Court will

13

grant Intel’s motion to preclude Drs. Vu, Spangenberg, Shobe, and Kamarinos from

14

offering expert opinions at trial.11

15

B.

Drs. Leff and Schwartzberg.

16

Plaintiffs disclosed Drs. Ben Leff and Gerald Schwartzberg as persons who may

17

have knowledge regarding their findings and independent medical examinations of Alsadi

18

in his worker’s compensation matter. Docs. 237-2 at 4, 267-2 at 4. Intel moves to preclude

19

the doctors from offering expert opinions because Plaintiffs failed to comply with the

20

Rule 26 expert disclosure requirements. Docs. 233 at 3 n.3, 237 at 4.

21

Plaintiffs do not contend that they disclosed Drs. Leff and Schwartzberg as expert

22

witnesses under Rule 26(a)(2). See Doc. 161-1. Instead, Plaintiffs state that they have “no

23

interest in any opinions these doctors formed outside of their examinations of Alsadi,” and

24
25
26
27
28

11

The doctors may testify as percipient fact witnesses because Plaintiffs properly
disclosed them under Rule 26(a)(1)(A)(i). See Doc. 267-2; Transoceanic Cable Ship, 2018
WL 3521174, at *6 (“Dr. Joaquin may testify at trial in the limited capacity of a fact
witness, but . . . he may not give any testimony that draws on his medical expertise. Said
another way, Dr. Joaquin may testify regarding what he perceived and did during his visits
with Bautista, the timing and frequency of such visits, and other matters to which he is
competent to testify by way of personal – but not specialized – knowledge.”).

35

1

that the doctors’ “opinions and reports are [to be] treated as would be those of a treating

2

doctor and percipient witnesses.” Doc. 267 at 2. Again, however, if Plaintiffs intend to

3

call the physicians to offer opinions under Rule 702 about their evaluation or treatment of

4

Alsadi, they must make Rule 26(a)(2)(C) disclosures.

5

information required by this rule in their disclosures about Drs. Leff and Schwartzberg.

Plaintiffs did not provide the

6

Plaintiffs contend that the Court should allow Dr. Leff to testify consistent with his

7

reports because their failure to properly disclose him as an expert witness was substantially

8

justified and harmless. Doc. 267 at 3-4 (citing Fed. R. Civ. P. 37(c)(1)). The Court does

9

not agree.

10

Dr. Leff examined Alsadi and prepared a report of his findings on January 18, 2017.

11

Doc. 161-12.12 But Plaintiffs did not disclose him as a potential witness until May 2018,

12

and have never disclosed him as an expert witness. See Docs. 237 at 4, 267 at 3. The fact

13

that the Court has excluded certain opinions of Plaintiffs’ designated experts does justify

14

the failure to properly disclose Dr. Leff as an expert witness. See Doc. 267 at 4 n.3; Mettias

15

v. United States, No. CIV. 12-00527 ACK-KS, 2015 WL 998706, at *5 (D. Haw. Mar. 6,

16

2015) (failure to disclose medical providers as experts was not substantially justified where

17

their identities were known to the government when the action was commenced and it had

18

more than a year to provide expert disclosures); see also Bauer Bros., LLC v. Nike, Inc.,

19

No. 09-CV-0500-WQH BGS, 2011 WL 12828588, at *3-4 (S.D. Cal. Oct. 19, 2011)

20

(finding that the plaintiff’s failure to provide an expert report more than two months after

21

the court clarified the role of “hybrid experts” in light of Goodman was not substantially

22

justified).

23

Plaintiffs contend that so long as an expert’s opinions at trial do not differ

24

substantially from opinions offered in the expert report, they are not late for purposes of

25

Rule 26(a) and therefore are not subject to Rule 37 preclusion. Id. at 4 (citing Godinez v.

26
27
28

Dr. Leff corrected a mistake he made concerning Alsadi’s weight in a subsequent
addendum. See Doc. 267 at 4.
12

36

1

Huerta, No. 16-CV-0236-BAS-NLS, 2018 WL 2018048, at *8 (S.D. Cal. May 1, 2018)).

2

But Plaintiffs never disclosed Dr. Leff as an expert witness. Plaintiffs’ citation to Godinez

3

is misplaced because the plaintiff in that case properly disclosed its expert witness and his

4

report under Rule 26(a)(2). 2018 WL 2018048, at *8.

5

The fact that Intel has been aware of Dr. Leff’s examination of Alsadi for workers’

6

compensation purposes does not render harmless Plaintiffs’ failure to affirmatively

7

disclose him as an expert witness in this case. The issue is not whether Intel knew of the

8

existence and work of Dr. Leff, but whether they knew Plaintiffs intended to call him as a

9

Rule 702 witness at trial. Only the latter knowledge would enable Intel to prepare to meet

10

his opinions at trial. See Doc. 267 at 3; Pac. Indem. Co. v. Nidec Motor Corp., 203 F.

11

Supp. 3d 1092, 1097 (D. Nev. 2016) (“Harmlessness may be established if a disclosure is

12

made sufficiently before the discovery cutoff to enable the movant to depose the expert

13

and challenge his expert report.”) (citations omitted). “This is not a case where Plaintiffs

14

have substantially complied with the rule but a minor, technical failing . . . is at issue.

15

Plaintiffs have clearly failed to comply with the basics of the rule, and their attempt to

16

downplay the significance of this failure to comply by speculating as to [Intel’s] prejudice

17

(or lack thereof) is unavailing.” Montalvo v. Am. Family Mut. Ins., No. CV-12-02297-

18

PHX-JAT, 2014 WL 2986678, at *7 (D. Ariz. July 2, 2014).

19

Plaintiffs assert that they should be allowed to call Dr. Schwartzberg to offer

20

opinions about his examination of Alsadi because he “was retained and properly disclosed

21

by Intel” and Plaintiffs disclosed “any witnesses listed by [Intel], whether or not withdrawn

22

prior to trial.” Doc. 267 at 3. This tactic, if accepted, would defeat the purpose of Rule 26

23

disclosures, which are meant “to give each side clear notice of who will be giving opinion

24

testimony . . . so that each side can prepare to respond, including taking depositions. A

25

vague cross-reference to the other side’s witnesses does not provide that notice.” Castillo

26

v. City & Cty. of S.F., No. C 05-00284 WHA, 2006 WL 618589, at *2 (N.D. Cal. Mar. 9,

27

2006) (holding that the defense disclosure did not adequately put plaintiff on notice that it

28

intended to call a doctor and ask him Rule 702 opinion questions).

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The Court will grant Intel’s motion to preclude Plaintiffs from calling Drs. Leff and

1
2

Schwartzberg as expert witnesses. Docs. 233 at 3 n.3, 237 at 4-5.13

3

XV.

Intel’s MIL Regarding Gerganoff’s Opinions and Building CH-8 (Doc. 238).

4

The Court denied Intel’s motion for summary judgment on the duty element of

5

Alsadi’s negligence claim because a jury reasonably could find that Intel retained some

6

control over the work that allegedly caused Alsadi’s injuries. Doc. 204 at 26-30. The

7

Court also denied Intel’s motion to exclude Gerganoff’s opinions that Intel failed to

8

reasonably safeguard workers from a known hazardous condition. Id. at 19-22.

9

Intel now claims that the issue of duty at trial should focus not on what could have

10

been done to prevent an H₂S release inside the CH-8 building, but rather the duty of care

11

applicable to Alsadi outside of CH-8 once Intel recognized there was an off-gassing

12

occurrence. Doc. 238 at 2. Intel essentially seeks a summary judgment ruling on the scope

13

of its duty in this case. A “motion in limine is not the proper vehicle for seeking a

14

dispositive ruling on a claim[.]” Hana Fin, 735 F.3d at 1162.

15

Moreover, Intel’s argument that what happened inside CH-8 is irrelevant to Alsadi’s

16

negligence claim is not convincing. See Docs. 238 at 2-3, 259 at 1. Intel does not dispute

17

that it owns the entire Chandler campus, including the CH-8 building and the evacuation

18

area where Alsadi allegedly was injured. Doc. 196-3 at 6; see Doc. 204 at 27. Scott

19

Graunke, Intel’s environmental health and safety manager, testified that Intel controls both

20

the mixture of chemicals used in the IWS and the amount of H2S in the ambient air.

21

Doc. 196-3 at 3-4, 14-15. From this evidence, a jury reasonably could find that Intel

22

retained at least some measure of control over JLL’s operation of the IWS and H2S

23

emissions inside CH-8. See Doc. 204 at 28.
The Court will deny Intel’s motion to exclude Gerganoff’s opinions regarding what

24
25

occurred in CH-8 and Intel’s IWS operations. Doc. 238.

26

///

27
28

Given this ruling, the Court need not decide whether Dr. Leff’s causation opinion
is sufficiently reliable. See Doc. 237 at 4.
13

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1

XVI. Intel’s MIL Regarding Bakkenson’s Opinions (Doc. 239).

2

Intel moves to exclude the opinions of Gretchen Bakkenson, Plaintiffs’ vocational

3

expert, because some of her opinions are based in part on the now-inadmissible opinions

4

of Drs. Garcia and Landers regarding causation and RADS. Doc. 239.

5

Plaintiffs note, correctly, that although they lack evidence to show that Alsadi

6

suffers from RADS, they are not precluded from presenting evidence that Alsadi suffered

7

an immediate inhalation injury that has persisted, or from seeking future damages for his

8

symptoms, provided Plaintiffs can present evidence that the symptoms are likely to

9

continue into the future. Doc. 264 at 2 (citing Doc. 216 at 6). Plaintiffs make clear that

10

Bakkenson will offer no opinion regarding the cause of Alsadi’s injuries, that she will not

11

vouch for the assumed facts on which her vocational opinions are based, and that her

12

opinions will be based on assumed facts that comport with evidence presented at trial. Id.

13

at 2-3. Whether such facts have been proved will be for the factfinder to decide at trial,

14

absent a contrary ruling after Plaintiffs have presented their case in chief. See Fed. R. Civ.

15

P. 50(a); see also Bustamante v. Graco, Inc., No. CV03-182 TUC JMR, 2006 WL 5156868,

16

at *2 (D. Ariz. Mar. 9, 2006) (holding that whether the vocational expert’s reliance on wage

17

rates was reasonable was “an issue that goes to the weight of the evidence and should be

18

left to the jury to decide” where the expert’s opinions were “not wholly unsupported

19

speculation or based only on subjective beliefs”).

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21

The Court will deny Intel’s motion regarding the expert opinions of Bakkenson.
XVII. The Parties’ Motion to Seal (Doc. 213).

22

The parties move to seal exhibits one and three to Plaintiffs’ reply in support of their

23

motion for negative inference. Doc. 213. Plaintiffs’ have lodged the proposed unredacted

24

sealed versions of the exhibits with the Court. Docs. 214-1, 214-2.

25

Sealing the exhibits will have no effect on the public’s ability to understand the

26

issues in this case because lightly redacted copies will be filed in the public docket. The

27

Court finds compelling reasons to seal and will grant the parties’ motion. See Kamakana

28

v. City & Cty. of Honolulu, 447 F.3d 1172, 1179 (9th Cir. 2006).

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1

IT IS ORDERED:

2

1.

Plaintiffs’ motion for negative inference (Doc. 207) is denied.

3

2.

Plaintiffs’ MIL regarding the 11.7 ppm measurement of H2S (Doc. 241) is

4
5
6
7
8
9
10
11
12
13

denied.
3.

Plaintiffs’ MIL to preclude evidence or argument challenging causation and

the permanence of Alsadi’s symptoms (Doc. 208) is denied.
4.

Plaintiffs’ MIL to exclude evidence of Alsadi’s misdemeanor convictions

(Doc. 240) is granted.
5.

Plaintiffs’ MIL to exclude untimely disclosed testimony and documents

(Doc. 242) is granted.
6.

Plaintiffs’ MIL regarding the cause of the off-gassing incident (Doc. 243) is

denied.
7.

Intel’s MIL regarding health effects not at issue (Doc. 231) is denied in part

14

and granted in part. The motion is denied with respect to the purported inflammatory

15

language and potential health effects caused by H2S exposure, and granted with respect to

16

Gerganoff’s causation opinions.

17
18

8.

Intel’s MIL regarding causation and Alsadi’s symptoms (Doc. 232) is

denied.

19

9.

Intel’s MIL regarding new and worsening symptoms (Doc. 233) is denied.

20

10.

Intel’s MIL regarding trial testimony of Michael Torbert (Doc. 234) is

21
22

denied.
11.

Intel’s MIL regarding testimony of gases other than H2S (Doc. 235) is

23

granted in part and in denied part. The motion is granted with respect to Dr. Johnson-

24

Arbor’s SO2 exposure opinion and Gerganoff’s opinion that there was a release of SO2,

25

and denied with respect to Denis’s opinion that SO2 may have been present and Dr. Abia’s

26

testimony as a fact witness.

27

12.

Intel’s MIL regarding certain OSHA regulations (Doc. 236) is denied.

28

40

1

13.

Intel’s MIL regarding expert testimony from certain medical professionals

2

(Doc. 237) is granted. Drs. Vu, Spangenberg, Shobe, and Kamarinos are precluded from

3

offering expert opinions at trial, and Plaintiffs may not call Drs. Leff and Schwartzberg as

4

expert witnesses.

5

14.

6

Intel’s MIL regarding Gerganoff’s opinions and the CH-8 building

(Doc. 238) is denied.

7

15.

Intel’s MIL regarding Bakkenson’s opinions (Doc. 239) is denied.

8

16.

The parties’ motion to file exhibits one and three to Plaintiffs’ reply brief

9

under seal (Doc. 213) is granted. The Clerk is directed to file the lodged exhibits

10

(Docs. 214-1, 214-2) under seal. The parties shall file redacted public versions of the

11

exhibits on the docket by July 24, 2020.

12

17.

The Court will schedule the bench trial in this case, and set a final pretrial

13

conference, once it is clear that the trial can be held without jeopardizing the health of all

14

participants.

15

Dated this 17th day of July, 2020.

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