Zorn et al v. McNeil et al

Filing 45

ORDER granting in part and denying in part 37 Motion to Compel better Rule 26(a)(1)(A) disclosures. Signed by Magistrate Judge Thomas B. Smith on 6/2/2016. (Smith, Thomas)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
KATRINE ZORN, ERIN DALEY,
WALTER POOLEY, KAREN GILBERT,
JERRY JORDAN, MARK STEIN and
ROSELYN MARTINEZ-ECK,
Plaintiffs,
v.

Case No: 6:16-cv-1-Orl-41TBS

WILLIAM MCNEIL and CITY OF
CASSELBERRY,
Defendants.
ORDER
This case comes before the Court without oral argument on Defendant William
McNeil’s Motion to Compel Better Rule 26 Disclosures (Doc. 37), and Plaintiffs’ response
in opposition to the motion (Doc. 44).
Defendant William McNeil moves the Court to compel Plaintiffs to provide more
detailed damages information than is contained in their second amended initial FED. R.
CIV. P. 26(a)(1)(A) disclosures (Doc. 44-4). Subject to certain exceptions, none of which
apply here, “a party must, without awaiting a discovery request, provide to the other
parties … a computation of each category of damages claimed by the disclosing party-who must also make available for inspection and copying as under Rule 34 the
documents or other evidentiary material, unless privileged or protected from disclosure,
on which each computation is based, including materials bearing on the nature and extent
of injuries suffered.” FED. R. CIV. P. 26(a)(1)(A)(iii).

All of the Plaintiffs have listed compensatory damages in their disclosures, and six
of the seven have also included separate claims for back pay and front pay (Doc. 44-4 at
6-7). Defendant argues that Plaintiffs’ references to compensatory damages are “too
vague.” (Doc. 37 at 3-4). He also complains that the differentiation of back pay and
front pay from compensatory damages makes those disclosures confusing (Id.).
Plaintiffs say they have made every effort to satisfy Defendant and that they are at a loss
to understand what additional information he requires (Doc. 44 at 2). They also assert
that they gave Defendant more detailed information about their damages during their
depositions (Id., at 5-10).
It appears from Plaintiffs’ response to the motion that their compensatory damages
are for emotional and mental stress, mental health counseling, the cost of medication
and, in the case of Plaintiff Karen Gilbert, physical harm (Id.). Plaintiffs need to allocate
the compensatory damages they are claiming to these and any other applicable items of
damage. As one court has observed:
If Plaintiff is to be permitted to testify to his intangible
emotional harm, as he should be, he surely can place a dollar
value on that from his own perspective. He is in a better
position to do this than the jury. If estimates are made which
might be subject to revision with expert opinion, that is entirely
permissible, but the requirements of Fed. R. Civ. P.
26(a)(1)(C) cannot be avoided if the opposing party insists on
compliance.
Dixon v. Bankhead, No. 4:00-cv-344-WS, 2000 WL 33175440, at *1 (N.D. Fla. Dec. 20,
2000). “[T]he plaintiff should be able to estimate damages in good faith and articulate
the methods of calculations of his actual damages sought, which included ‘pain, suffering,
worry, fear, and embarrassment.’” Johnson v. R.J. Reynolds Tobacco Co., No. 2:12-cv618-FtM-29SPC, 2013 WL 1899737, at * 1 (M.D. Fla. May 7, 2013). Defendant is

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entitled to this information in order to prepare for settlement discussions, mediation, and
the trial.
The Court acknowledges decisions holding that compensatory damages for
emotional distress many not be susceptible to computation. Williams v. Trader
Publishing Co., 218 F.3d 481, 486 n. 3 (5th Cir. 2000) (“Since compensatory damages for
emotional distress are necessarily vague and are generally considered a fact issue for the
jury, they may not be amenable to the kind of calculation disclosure contemplated by Rule
26(a)(1)(C).”); Gray v. Fla. Dept. of Juvenile Justice, No. 3:06-cv-J-20MCR, 2007 WL
295514, at *2 (M.D. Fla. Jan. 30, 2007); Sandoval v. American Building Maintenance
Industries, Inc., 267 F.R.D. 257, 282 (D. Minn. 2007). But these are cases in which the
plaintiff did not intend to suggest a specific amount for damages for emotional distress to
the jury. Id.; Avrett v. Festival Fun Parks, LLC, No. 15-80526-CIVMIDDLEBROOKS/BRANNON, 2016 WL 193805, at *3 (S.D. Fla. Jan. 15, 2016). Here,
Plaintiffs have already quantified the total amount of their compensatory damages and
breaking them down into their respective components should not be difficult. It should
also not be difficult for Plaintiffs to explain how they arrived at these amounts, whether
objectively or subjectively.
Plaintiffs decision to separate their back pay and front pay claims from their
compensatory damages is appropriate. Claims for back and front pay are forms of
equitable relief. Brown v. Cunningham Lindsey U.S., Inc., No. 3:05-cv-141-J-32HTS,
2005 U.S. Dist. LEXIS 38862, at *15 (M.D. Fla. May 11, 2005); Robinson v. Jacksonville
Shipyards, Inc., No. 86-927-Civ-J-12, 118 F.R.D. 525, 531 (M.D. Fla. Jan. 19, 1988) (“A
backpay award is not compensatory damages for harm suffered; it is a ‘make whole’
equitable remedy for discriminatory practices.”).

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Now, Defendant’s motion is GRANTED to the extent that within 14 days from the
rendition of this Order, Plaintiffs shall provide their further amended Rule 26(a)(1)(A)(iii)
disclosures in which they shall allocate their compensatory damages by item or type of
damage, and furnish the rationale underlying their allocations. In all other respects, the
motion is DENIED.
DONE and ORDERED in Orlando, Florida on June 2, 2016.

Copies furnished to Counsel of Record

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