Moore v. United States of America
Filing
105
ORDER Granting Defendant's 100 Motion in Limine to Exclude Undisclosed Exhibits and Witnesses. Signed by Magistrate Judge David H. Bartick on 3/14/2016. (knb)
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UNITED STATES DISTRICT COURT
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SOUTHERN DISTRICT OF CALIFORNIA
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RAQUEL SABRINA MOORE,
Case No.: 13cv931-DHB
Plaintiff,
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ORDER GRANTING DEFENDANT’S
MOTION IN LIMINE TO EXCLUDE
UNDISCLOSED EXHIBITS AND
WITNESSES
v.
UNITED STATES OF AMERICA,
Defendant.
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[ECF No. 100]
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On March 1, 2016, Defendant United States of America filed a motion in limine to
exclude from trial exhibits and a witness that Plaintiff Raquel Sabrina Moore failed to
timely disclose. (ECF No. 100.) Pursuant to this Court’s Amended Order re: Trial, dated
February 18, 2016, Plaintiff had until March 8, 2016 to file an opposition to Defendant’s
motion. (See ECF No. 94 at 4:21-22.) To date, Plaintiff has not filed any response to
Defendant’s motion.
Defendant seeks to exclude the following exhibits: (1) photos from Plaintiff expert
Carl Beels’ site inspection (Plaintiff’s Exhibits Nos. 9-81); (2) video from Mr. Beels’ site
inspection (Plaintiff’s Exhibit No. 82); (3) exemplar model of wrist (Plaintiff’s Exhibit No.
113); (4) demonstrative timeline of medical treatment (Plaintiff’s Exhibit No. 114); and
(5) exemplar of Isagel bottle (Plaintiff’s Exhibit No. 115). Defendant also seeks to exclude
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the testimony of Plaintiff’s witness, Karen Long, who will purportedly testify about
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Plaintiff’s alleged wage loss.
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1.
Exhibits 9-82
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Federal Rule of Civil Procedure 26 “requires the parties to disclose the identity of
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each expert witness ‘accompanied by a written report prepared and signed by the witness.’”
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Yeti by Molly Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 1106 (9th Cir. 2001) (quoting
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FED. R. CIV. P. 26(a)(2)(B)). Expert disclosures must be made “at the times and in the
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sequence that the court orders.” FED. R. CIV. P. 26(a)(2)(D). “Rule 37 ‘gives teeth’ to Rule
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26’s disclosure requirements by forbidding the use at trial of any information that is not
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properly disclosed.” Goodman v. Staples The Office Superstore, LLC, 644 F.3d 817, 827
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(9th Cir. 2011) (quoting Yeti by Molly, 259 F.3d at 1106). “Rule 37(c)(1) is a ‘self-
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executing,’ ‘automatic’ sanction designed to provide a strong inducement for disclosure.”
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Id. (quoting FED. R. CIV. P. 37 advisory committee’s note (1993)). Moreover, because of
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the automatic nature of this sanction, courts are not required to make a finding of
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willfulness or bad faith prior to excluding expert testimony at trial. See Hoffman v. Constr.
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Protective Servs., Inc., 541 F.3d 1175, 1180 (9th Cir. 2008).
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“When a party fails to make the disclosures required by Rule 26(a), the party is not
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allowed to use the . . . evidence at trial unless it establishes that the failure was substantially
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justified or is harmless.” Goodman, 644 F.3d at 826 (citing FED. R. CIV. P. 37(c)(1); Torres
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v. City of Los Angeles, 548 F.3d 1197, 1212-13 (9th Cir. 2008)). “The burden to prove
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harmlessness is on the party seeking to avoid Rule 37’s exclusionary sanction.” Goodman,
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644 F.3d at 827 (citing Yeti by Molly, 259 F.3d at 1107).
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“[P]articularly wide latitude [is given] to the district court’s discretion to issue
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sanctions under Rule 37(c)(1).” Yeti by Molly, 259 F.3d at 1106 (citing Ortiz-Lopez v.
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Sociedad Espanola de Auxilio Mutuo y Beneficiencia de Puerto Rico, 248 F.3d 29, 34 (1st
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Cir. 2001)). Despite the severity of this exclusionary sanction, it may be appropriate “even
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when a litigant’s entire cause of action or defense has been precluded.” Id. (citing Ortiz-
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Lopez, 248 F.3d at 35).
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Here, as Defendant’s motion plainly demonstrates, Plaintiff failed to produce the
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challenged photographs and video taken during Mr. Beels’ February 20, 2015 site
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inspection. Although Plaintiff timely produced Mr. Beels’ expert report on March 9, 2015,
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and his rebuttal expert report on March 20, 2015, neither report included the photographs
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and video that Defendant now seeks to exclude. Rule 26(a)(2)(B)(iii) requires that expert
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reports must contain “any exhibits that will be used to summarize or support them.”
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Plaintiff did not disclose the existence of these exhibits until December 18, 2015. As a
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result, they are untimely and are automatically excluded unless Plaintiff can demonstrate
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that her failure was substantially justified or harmless. Plaintiff, who does not oppose
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Defendant’s motion, fails to make such a showing. Accordingly, Exhibits 9-82 are
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excluded from trial.
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2.
Exhibits 113-115
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Plaintiff also failed to timely disclose Exhibits 113-115. In fact, not only did
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Plaintiff wait to identify them until her December 18, 2015 trial exhibit list, well after the
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close of fact and expert discovery, which closed on August 22, 2014 and April 24, 2015,
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respectively, but Plaintiff has still, as of the filing of Defendant’s motion, failed to produce
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these exhibits to Defendant. Rule 26(a)(1)(A)(ii) requires, as part of a party’s initial
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disclosures, disclosure of all documents that the party “may use to support its claims or
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defenses, unless the use would be solely for impeachment.” Rule 26(e)(1) further requires
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that initial disclosures be supplemented “in a timely manner if the party learns that in some
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material respect the disclosure . . . is incomplete or incorrect, and if the additional or
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corrective information has not otherwise been made known to the other parties during the
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discovery process or in writing.”
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Plaintiff’s failure to disclose the existence of Exhibits 113-115 until December 18,
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2015, and her ongoing failure to produce them, is untimely. Based on the authorities
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discussed above, this evidence is automatically excluded unless Plaintiff can demonstrate
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that her failure was substantially justified or harmless. As noted, Plaintiff does not oppose
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Defendant’s motion and, as a result, she fails to make such a showing.
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Local Civil Rule 16.1.f.4.d, which provides that “[f]ailure to display and/or exchange
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exhibits to or with opposing counsel will permit the court to decline admission of same
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into evidence,” provides an additional basis to exclude Exhibits 113-115.
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Based on the foregoing, Exhibits 113-115 are excluded from trial.1
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3.
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Karen Long
Finally, Plaintiff failed to timely disclose a witness, Karen Long.
Rule
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26(a)(1)(A)(1) requires, as part of a party’s initial disclosures, disclosure of “each
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individual likely to have discoverable information—along with the subjects of that
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information—that the disclosing party may use to support its claims or defenses, unless the
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use would be solely for impeachment.” And as noted, Rule 26(e)(1) requires timely
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supplementation of initial disclosures.
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Here, Plaintiff did not disclose the existence of Karen Long as a potential wage loss
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witness until December 18, 2015, well after the close of discovery, despite having asserted
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a wage loss claim since the outset of this case. Based on the authorities discussed above,
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Karen Long’s testimony is automatically excluded unless Plaintiff can demonstrate that her
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failure was substantially justified or harmless.
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Defendant’s motion and, as a result, she fails to make such a showing.
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Accordingly, Karen Long is excluded as a trial witness.2
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IT IS SO ORDERED.
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As noted, Plaintiff does not oppose
Dated: March 14, 2016
DAVID H. BARTICK
United States Magistrate Judge
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Because Rule 26(a)(1)(A)(ii) does not require disclosure of documents intended
solely for impeachment, Plaintiff shall not be precluded from introducing Exhibits 113-115
for impeachment purposes only.
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Because Rule 26(a)(1)(A)(i) does not require disclosure of witnesses intended solely
for impeachment, Plaintiff shall not be precluded from calling Karen Long for
impeachment purposes only.
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