Baldasano v. County of San Benito et al

Filing 98

ORDER DENYING PLAINTIFF'S MOTION FOR LEAVE TO AMEND EXPERT DISCLOSURES by Judge Jon S. Tigar denying 95 Ex Parte Application for Leave to Amend Expert Disclosure or OST to Hear Motion. (wsn, COURT STAFF) (Filed on 4/18/2018)

1
2
3
4

UNITED STATES DISTRICT COURT

5

NORTHERN DISTRICT OF CALIFORNIA

6
NANCY MARTINEZ,

7

Plaintiff,

8
v.

9

COUNTY OF SAN BENITO, et al.,

10

Defendants.

11

United States District Court
Northern District of California

Case No. 15-cv-00331-JST
ORDER DENYING PLAINTIFF’S
MOTION FOR LEAVE TO AMEND
EXPERT DISCLOSURES
Re: ECF No. 95

12
Before the Court is Plaintiff Nancy Martinez’s motion for leave to amend her expert

13
14

disclosures. ECF No. 95. Martinez seeks to disclose an expert, Dr. Lipton, who has not

15

previously been disclosed, to take the place of a previously disclosed expert, Dr. Stimac. The

16

Court also construes the motion as asking for leave to provide a late report from Dr. Greene, an

17

expert who was previously disclosed but who never produced an expert report. Martinez intends

18

to offer both experts’ testimony in opposing Defendants’ motion for summary judgment on her

19

wrongful death claim. The Court will deny the motion.

20

The wrongful death claim was included in Martinez’s first amended complaint. ECF No.

21

68 at 11-12. The deadline to disclose experts related to that claim was February 23, 2018.1 ECF

22

No. 71 at 1.
Martinez timely disclosed Dr. Greene on August 14, 2017. But the disclosure failed to

23
24

comply with Federal Rule of Civil Procedure 26(a)(2)(B), which requires that disclosures of

25

experts who are “retained or specially employed to provide expert testimony in the case” ‒ like

26

Dr. Greene ‒ must be “accompanied by a written report.” Martinez did not provide a report with

27
28

1

The Court set a later deadline for claims raised for the first time in the second amended
complaint. ECF No. 87 at 1.

1

her disclosure and instead stated that, “the report is not complete because of the untimely death of

2

Justin Baldasano [on April 29, 2017]; additional information is needed in order for Dr. Greene to

3

complete his report.” ECF No. 95 at 15. However, even if this explanation were sufficient to

4

allow a belated expert report ‒ a question this Court does not decide ‒ no report has ever been

5

produced in this case. Defense counsel’s declaration states that he has “never received a report

6

from Dr. Greene,” ECF No. 96 at 6, and Martinez has provided no contrary evidence.

7

As to Dr. Lipton, Martinez acknowledges that any disclosure would be untimely, and she

8

unsuccessfully sought a stipulation from Defendants for leave to amend her expert disclosures.

9

ECF No. 95 at 4. She contends that the late disclosure is warranted based on new information
obtained from the deposition of the coroner, Dr. O’Hara, which was originally noticed for

11

United States District Court
Northern District of California

10

January 22, 2018, but not completed until March 28, 2018. However, Martinez fails to mention

12

that Dr. O’Hara’s deposition was noticed by Defendants, not Martinez. ECF No. 92 at 2. In

13

addition, Martinez received the autopsy performed by Dr. O’Hara on July 13, 2017. ECF No.

14

96-1 at 2. Martinez contends that, “[t]he deposition of the medical examiner who performed the

15

autopsy was instrumental in understanding the mechanism and dynamics of the cause of death,”

16

ECF No. 95 at 6, but she does not explain why she did not notice Dr. O’Hara’s deposition or seek

17

other discovery on this issue, or why it would not have been sufficient for her own experts to

18

review the autopsy.

19

Federal Rule of Civil Procedure 37(c)(1) provides: “If a party fails to provide information

20

or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that

21

information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure

22

was substantially justified or is harmless.” In addition to, or instead of that sanction, the court

23

may also impose any of the other appropriate sanctions provided for in Rule 37. Fed. R. Civ. P.

24

37(c)(1)(A)-(C). “The party facing sanctions bears the burden of proving that its failure to

25

disclose the required information was substantially justified or is harmless.” R & R Sails, Inc. v.

26

Ins. Co. of Pennsylvania, 673 F.3d 1240, 1246 (9th Cir. 2012).

27
28

Rule 37(c)(1) “gives teeth” to Rule 26’s disclosure and supplementation requirements,
including the requirement that parties disclose experts and expert reports “at the times and in the
2

1

sequence that the court orders.” Yeti by Molly, Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101,

2

1106 (9th Cir. 2001); Fed. R. Civ. P. 26(a)(2)(D). The Advisory Committee Notes to the 1993

3

amendments to Rule 37 describe subsection (c)(1) as a “self-executing,” “automatic sanction [that]

4

provides a strong inducement for disclosure of material” that must be disclosed pursuant to

5

Rule 26. Rule 37(c)(1) sanctions based on failure to disclose evidence in a timely manner may be

6

appropriate “even when a litigant’s entire cause of action or defense” will be precluded. Yeti, 259

7

F.3d at 1106. The Ninth Circuit has recognized, however, that “evidence preclusion is, or at least

8

can be, a ‘harsh’ sanction,” and where a “sanction amount[s] to dismissal of a claim, the district

9

court [is] required to consider whether the claimed noncompliance involved willfulness, fault, or

10

bad faith.” R & R Sails, 673 F.3d at 1247 (quoting Yeti, 259 F.3d at 1106) (alteration omitted).

United States District Court
Northern District of California

11

Martinez has not provided substantial justification for her delay. Although she claims that

12

she only became aware of the need for an additional expert after the deposition of Dr. O’Hara, she

13

provides no justification for why she failed to notice that deposition earlier ‒ or at all ‒ following

14

receipt of the autopsy report in July 2017. Moreover, Martinez states that Dr. Stimac informed

15

counsel before March 9, 2018, “that because the diagnostic studies were inconclusive, he could

16

not be of assistance.” ECF No. 95 at 2. Thus, the need for a different medical expert was apparent

17

before the March 28 deposition of Dr. O’Hara, and Martinez presents no explanation for why it

18

could not have been discovered before the February 23 expert disclosure deadline. Nor does she

19

explain why, months after his initial disclosure, Dr. Greene has been unable to produce an expert

20

report.

21

In addition, Martinez’s untimely disclosures are not harmless. “Disruption to the schedule

22

of the court and other parties in that manner is not harmless. Courts set such schedules to permit

23

the court and the parties to deal with cases in a thorough and orderly manner, and they must be

24

allowed to enforce them, unless there are good reasons not to.” Wong v. Regents of Univ. of

25

California, 410 F.3d 1052, 1062 (9th Cir. 2005). Trial is scheduled to begin on July 9, 2018, with

26

a pretrial conference on June 15, 2018, and a pretrial conference statement due on June 5, 2018.

27

ECF No. 71 at 2. The parties have known about these dates since October 3, 2017. Id. Martinez

28

asserts on reply that any prejudice to Defendants can be cured by allowing Defendants’ experts an
3

1

opportunity to amend their reports, but this ignores the unavailability of one of Defendants’

2

experts, see ECF No. 96 at 6, as well as Defendants’ likely desire to depose Dr. Lipton and

3

perhaps conduct a further deposition of Dr. Greene. This would undoubtedly delay the briefing on

4

Defendants’ motion for summary judgment and impact the trial date.

5

Finally, Martinez’s conduct in this case was willful. “‘[D]isobedient conduct not shown to

6

be outside the control of the litigant’ is all that is required to demonstrate willfulness, bad faith, or

7

fault.” Henry v. Gill Indus., Inc., 983 F.2d 943, 948 (9th Cir. 1993) (quoting Fjelstad v. Am.

8

Honda Motor Co., 762 F.2d 1334, 1341 (9th Cir. 1985)). Martinez has not persuaded the Court

9

that the delays at issue were outside her control. To the contrary, Martinez’s inability to satisfy

10

the expert disclosure deadlines in this case appear to be entirely of her own making.
CONCLUSION

United States District Court
Northern District of California

11
12

Martinez’s motion to provide a late expert report from Dr. Greene and to amend her expert

13

disclosures to add Dr. Lipton is denied.

14

IT IS SO ORDERED.

15
16
17

Dated: April 17, 2018
______________________________________
JON S. TIGAR
United States District Judge

18
19
20
21
22
23
24
25
26
27
28
4