Rabon et al v. Kimani et al
ORDER granting in part and denying in part 49 Motion to Limit Testimony re Plaintiffs' Evidence of Medical Expenses. Signed by Honorable Susan O. Hickey on September 11, 2017. (mll)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
TERRANCE RABON and
Case No. 4:16-cv-4007
JOHN K. KIMANI;
TOLYN EXPRESS, LLC; and
JOHN DOES 1-6
SENRTY SELECT INSURANCE
Before the Court is Defendants John K. Kimani and Tolyn Express, LLC’s Motion to Limit
Plaintiffs’ Evidence of Medical Expenses. (ECF No. 49). Plaintiffs Terrance Rabon and Kathleen
Rabon filed a response. (ECF No. 56). The Court finds the matter ripe for consideration.
This case arises from an automobile accident that occurred on October 26, 2013, at the Flying
J Truck Stop in Texarkana, Arkansas. Plaintiff Terrance Rabon (“Mr. Rabon”) alleges that he suffers
from ongoing pain because of the accident, for which he underwent and is undergoing various forms
of medical treatment, including an anterior cervical decompression and fusion surgery in April 2014.
Intervenor Sentry Select Insurance Company claims to have paid roughly $250,000.00 in personalinjury protection benefits to Mr. Rabon and intervened in this action seeking reimbursement and/or
subrogation under Section 500.3116 of Michigan’s Insurance Code of 1956.
On May 23, 2016, Plaintiffs provided to Defendants their initial Rule 26(f) disclosures, in
which they stated the types of damages sought, but did not provide a computation or itemization of
damages. Defendants subsequently propounded discovery requests on Plaintiffs, seeking inter alia,
the names of all physicians who treated Mr. Rabon in connection with the accident, a description of all
medical care provided, and the amounts charged for the care. On July 8, 2016, Plaintiffs responded to
the discovery request, providing an itemization of medical expenses totaling $93,231.23.
December 8, 2016, Plaintiffs disclosed an additional $2,006.50 in medical expenses. On May 19, 2017,
the discovery deadline in this matter passed. On September 1, 2017, Plaintiffs provided Defendants
an updated medical-expense summary, totaling $135,983.96.
On September 5, 2017, Defendants filed the instant motion, stating that Plaintiffs untimely
disclosed supplemental medical expenses that Plaintiffs claim as damages. Defendants state that
Plaintiffs disclosed the challenged medical expenses less than three weeks before the September 18,
2017 trial date of this matter and well past the discovery deadline in this case. Defendants argue that
the untimely disclosure leaves them without time to investigate the increased medical expenses, seek
the relevant bills and medical documents related to the expenses, and determine whether the associated
medical care was necessary and reasonably incurred as a proximate cause of the accident. Defendants
argue that Plaintiffs’ failure to timely disclose the challenged medical expenses is not substantially
justifiable or harmless, and move the Court under Federal Rule of Civil Procedure 37 for exclusion of
all evidence related to the challenged expenses.
Plaintiffs argue in response that any untimely disclosed information is substantially justifiable
or harmless. Plaintiffs state that Defendants’ defenses with respect to causation and damages remain
unchanged, and that Plaintiffs promptly disclosed certain medical expenses after becoming aware of
them. Plaintiffs argue that their answers to Defendants’ discovery requests named Mr. Rabon’s
medical providers, and Plaintiffs state that they provided Defendants with a medical release. Plaintiffs
argue that Defendants could have utilized the medical release to obtain the additional medical expenses.
Plaintiffs conclude that Defendants have not been prejudiced by the supplemental disclosures and that
Plaintiffs would be prejudiced if the additional medical expenses are excluded.
Parties must make initial disclosures, including a computation of damages and documents on
which the damage computations are based, and must supplement their initial disclosures when they
learn of new information. Fed. R. Civ. P. 26(a)(1)(A)(iii); Janvrin v. Cont’l Res., Inc., No. 4:14-cv-
4124, 2016 WL 4574665, at *1 (D.S.D. Sept. 1, 2016). Parties must also timely supplement their
responses to discovery requests. Fed. R. Civ. P. 26(e)(1)(A). Untimely, evasive, or incomplete
disclosures are considered nondisclosures. Fed. R. Civ. P. 37(a)(4); Trost v. Trek Bicycle Corp., 162
F.3d 1004, 1008 (8th Cir. 1998). If a party fails to disclose information as contemplated by Rules 26(a)
and (e), the court may exclude the untimely disclosed information unless the party’s failure to disclose
is substantially justified or harmless. Fed. R. Civ. P. 37(c)(1); Wegener v. Johnson, 527 F.3d 687, 692
(8th Cir. 2008). In determining whether to exclude untimely disclosed information, courts consider
“the reason for noncompliance, the surprise and prejudice to the opposing party, the extent to which
allowing the information or testimony would disrupt the order and efficiency of the trial, and the
importance of the information or testimony.” Wegener, 527 F.3d at 692.
Plaintiffs do not appear to argue that their revised medical-expenses summary was timely
disclosed, and the Court finds that it was untimely. Thus, the Court’s only consideration is whether
the disclosure was substantially justified or harmless. Plaintiffs state that they failed to timely disclose
certain medical expenses because Intervenor Sentry Select Insurance Company paid the expenses and
Plaintiffs simply were not aware of the expenses, but that they promptly disclosed them once they were
discovered. Plaintiffs offer no explanation for the untimely disclosure of the other additional medical
expenses. Thus, the Court finds that Plaintiffs’ untimely disclosure was not substantially justified. See
3M Innovative Properties Co. v. Dupont Dow Elastomers, LLC, No. CIV. 03-3364MJDJGL, 2005 WL
6007042, at *4 (D. Minn. Aug. 29, 2005) (“Rule 26 provides ‘no safe harbor’ for a party’s ‘lack of
Defendants are prejudiced by the untimely disclosure, as the additional medical expenses were
disclosed long after the close of discovery and less than three weeks before trial. If the additional
medical expenses are admitted, Defendants would be denied an opportunity to conduct discovery with
respect to the additional medical expenses. The Court is unpersuaded by Plaintiffs’ argument that
Defendants were not prejudiced because they could have utilized their medical authorization to obtain
Mr. Rabon’s additional medical expenses. See Curtis v. Daviess-Dekalb Reg’l Jail Dist., No. 08-6075CV-SJ-GAF, 2009 WL 3382930, at *1-2 (W.D. Mo. Oct. 19, 2009) (stating that a party cannot satisfy
its Rule 26 damage-computation requirements by merely providing the other party with a medicalrecord authorization). The Court does not see a way to cure the prejudice to Defendants, other than
continuing the trial and re-opening discovery, which would unnecessarily delay this case, burden the
Court’s docket, and tax judicial resources. Thus, the Court finds that Plaintiffs’ untimely disclosure is
In light of the Court’s finding that Plaintiffs’ failure to disclose was neither substantially
justifiable nor harmless, exclusion of the untimely disclosed medical expenses is proper in this
instance. See Stickney v. Pillsbury Co., No. 4:02-cv-3240, 2003 WL 26111555, at *10 (D. Neb. Apr.
25, 2003) (stating in dicta that exclusion of untimely disclosed additional medical expenses would be
proper if the case was at the trial stage). The additional medical expenses are of importance to the
amount of liability but exclusion of the evidence would not be fatal to the merits of Plaintiffs’ case.
Defendant’s motion will be granted to the extent that it seeks exclusion of the untimely disclosed
medical expenses. However, Defendants’ motion is denied to the extent that it seeks to exclude all
evidence related to the untimely disclosed medical expenses, as the Court is without sufficient
information at this stage to rule on the admissibility of this general category of evidence. Counsel may
approach the bench at trial if an issue of the admissibility of this evidence arises.
For the reasons discussed above, Defendants’ motion (ECF No. 49) is hereby GRANTED IN
PART AND DENIED IN PART. Plaintiffs may not seek medical expenses in excess of $95,237.73.
IT IS SO ORDERED, this 11th day of September, 2017.
/s/ Susan O. Hickey
Susan O. Hickey
United States District Judge
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