Torres v. Sugar-Salem School District #322 et al

Filing 111

MEMORANDUM DECISION AND ORDER. The Districts First Motion in Limine (Dkt. 68 ) is DENIED. The Districts Second Motion in Limine (Dkt. 84 ) is GRANTED in PART andDENIED in PART. The Districts Third Motion in Limine (Dkt. 93 ) is GRANTED in PART andDENIED in PART. The Districts Fourth Motion in Limine (Dkt. 97 ) is GRANTED in PART andDENIED in PART. Torress Motion to Seal (Dkt. 103 ) is GRANTED. Signed by Judge David C. Nye. ((alw)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
MIRIAM TORRES, fka MIRIAM
SEVY,
Plaintiff,

Case No. 4:17-cv-00178-DCN
MEMORANDUM DECISION AND
ORDER

SUGAR-SALEM SCHOOL DISTRICT
#322, a political subdivision of the State
of Idaho, and BRYCE OWEN,
individually and in his capacity as a
former employee of Sugar-Salem
District,
Defendants.
I. INTRODUCTION
Pending before the Court are four of Defendant Sugar-Salem School District #322’s
(“the District”) Motions in Limine. Dkts. 68, 84, 93, 97. In them, the District seeks the
exclusion of certain evidence and testimony at trial.1 Having reviewed the record and
briefs, the Court finds that the facts and legal arguments are adequately presented.
Accordingly, in the interest of avoiding further delay, and because the Court finds that the
decisional process would not be significantly aided by oral argument, the Court will decide
the motions without oral argument. Dist. Idaho Loc. Civ. R. 7.1(d)(1)(B).
Upon review, and for the reasons set forth below, the Court DENIES the first

1

Additionally, Plaintiff Miriam Torres’s unopposed Motion to Seal is before the Court. Dkt. 103. In
accordance with Fed. R. Civ. P. 5.2(d), Dist. Idaho Loc. Civ. R. 5.3, and good cause appearing, Plaintiffs’
Motion to Seal is GRANTED. See also Kamakana v. City & Cty of Honolulu, 447 F.3d 1173, 1186 (9th
Cir. 2006) (affirming the sealing of medical records).

MEMORANDUM DECISION AND ORDER - 1

motion, and GRANTS in PART and DENIES in PART the other three motions.
II. BACKGROUND
The general factual background of this case is set forth in the Court’s previous Order
(Dkt. 71, at 2–6), which is incorporated here by reference. As a brief summary, Torres
alleges that her high school counselor, an employee of the District Defendant Bryce Owen,
began to engage in inappropriate counseling and grooming of her to have sex with him
when she was fifteen years old. Owen allegedly held counseling sessions frequently and
began texting Torres in violation of the District’s policy. Eventually, Torres’s mother,
Bernadine McCandless, discovered the messages and reported them to the District’s
superintendent, the school’s principal, and another counselor at the high school. Contact
between Owen and Torres continued, and McCandless requested the District to stop the
interactions. As the conversations progressed, they became more sexual in nature. After
Torres turned eighteen, Owen and Torres began to have sex. Torres graduated and moved
to Utah with the relationship ending thereafter. Later on, Torres discussed what had
occurred with McCandless, realized that she believed what had happened was unlawful,
and reported it to the District, the police, and filed this lawsuit.
Torres’ Amended Complaint includes nine counts. Count One (Violation of Title
IX), Count Two (Sex Discrimination in violation of 42 U.S.C. § 1983), and Count Nine
(Negligent Supervision) she brought only against the District. She brough the remaining
claims against both the District and Owen. These claims include: Count Three (Negligence
per se), Count Four (Tort of Child Abuse), Count Five (Negligence), Count Six (Negligent
Infliction of Emotional Distress), Count Seven (Intentional Infliction of Emotional
MEMORANDUM DECISION AND ORDER - 2

Distress), and Count Eight (Assault and Battery). Dkt. 22.
Later in this case, the District and Owen filed their respective Motions for Summary
Judgment. Dkts. 46, 47. Torres voluntarily dismissed Count Four (Tort of Child Abuse).
Dkt. 53, at 30. She maintained, however, that the rest of her claims should survive summary
judgment. The Court ultimately ruled that all Torres’s claims survived summary judgment
except Count Three (Negligence per se) and Count Eight (Assault and Battery) against the
District. See generally Dkt. 71.
The District thereafter filed a bevy of motions. It filed its two Motions to Reconsider
(Dkts. 72, 80), which the Court denied (Dkt. 105). The District also filed the instant four
Motions in Limine. The Court will address the content of each motion in turn below.
III. LEGAL STANDARD
“Motions in limine are well-established devices that streamline trials and settle
evidentiary disputes in advance, so that trials are not interrupted mid-course for the
consideration of lengthy and complex evidentiary issues.” Miller v. Lemhi Cty., No. 4:15cv-00156-DCN, 2018 WL 1144970, at *1 (D. Idaho Mar. 2, 2018) (cleaned up); see also
Hana Fin., Inc. v. Hana Bank, 735 F.3d 1158, 1162 n.4 (9th Cir. 2013). “The term ‘in
limine’ means ‘at the outset.’ A motion in limine is a procedural mechanism to limit in
advance testimony or evidence in a particular area.” United States v. Heller, 551 F.3d 1108,
1111 (9th Cir. 2009) (quoting In Limine, Black’s Law Dictionary 803 (8th ed. 2004)).
Because “[a]n in limine order precluding the admission of evidence or testimony is
an evidentiary ruling,” United States v. Komisaruk, 885 F.2d 490, 493 (9th Cir. 1989)
(citation omitted), “a district court has discretion in ruling on a motion in limine,” United
MEMORANDUM DECISION AND ORDER - 3

States v. Ravel, 930 F.2d 721, 726 (9th Cir. 1991). Further, in limine rulings are preliminary
and, therefore, “are not binding on the trial judge [who] may always change his mind during
the course of a trial.” Ohler v. United States, 529 U.S. 753, 758 n.3 (2000).
IV. DISCUSSION
A. First Motion in Limine (Dkt. 68)
During discovery, Torres disclosed a retained expert witness, Thomas Tueller, who
has prepared a report on his opinions regarding the alleged sexual grooming that took place
in this case. Specifically, Tueller intends to testify as to “the seven steps of grooming”
generally and how they relate to Owen’s actions in this case. See Dkt. 53-18. In its First
Motion in Limine, the District very broadly seeks exclusion of Tueller’s testimony “in any
fashion that pertains to any issue related to the District.” Dkt. 68-1, at 2. Torres contends
that Tueller’s testimony is appropriate. The Court agrees with Torres for the reasons
below.2
1. Content of the Report
The District first asserts that Tueller’s report must comply with Federal Rule of Civil
Procedure 26 and Local Civil Rule 26.2. The District highlights language from the local
rule that “the scope of subsequent testimony by an expert witness must be limited to those
subject areas identified in the disclosure report or through other discovery such as a
deposition.” Dist. Idaho Loc. Civ. R. 26.2. Other than in one paragraph of Tueller’s written

2

Although the Court denies the District’s request, the District is correct to limit its request to the exclusion
of testimony regarding its liability because the grooming testimony indisputably relates to the issues of
Owen’s liability.

MEMORANDUM DECISION AND ORDER - 4

report, which states that Owen used his position as a school counselor to gain trust and
access to Torres, Tueller does not comment on the District’s involvement, knowledge,
actions, assistance, standard of care, liability, or any other fault it had related to Owen’s
conduct. The entire report focuses on Owen’s actions. Due to the absence of testimony
related to the District, the District elected not to depose Tueller. Now, the District asks the
Court to limit Tueller’s testimony “to the disclosed analysis and opinions set out in his
report, which do not include any opinions or allegations against the District.” Dkt. 68-1,
at 6.
Torres responds that the District fails to appreciate the legal significance of Owen’s
actions to its liability, as Owen is its employee. She states that legal theories under the
common law, Title IX, the Fourteenth Amendment, and the Idaho Tort Claims Act supply
the link from Owen’s conduct to the District’s liability through the doctrine of respondeat
superior. Therefore, testimony about Owen’s actions may serve to establish the District’s
liability by operation of law.
Both parties make astute points; both points are reconcilable. Tueller must indeed
constrain his testimony to the disclosed analysis and opinions set out in his report. Dist.
Idaho Loc. Civ. R. 26.2. However, Tueller may testify as to Owen’s conduct, which could
establish the District’s liability. Ultimately, the testimony and evidence presented at trial
will determine that issue. That said, because the District’s request is so broad and Owen’s
conduct could relate to the District, the Court will not grant the District’s request.3

3

Although the Court already ruled “as a matter of law that Owen’s tortious conduct was outside the scope
of his employment,” (Dkt 71, at 17–18), Owen’s conduct in many ways may still be relevant to the District.

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2. Foundation
The District then argues that Tueller’s opinions do not meet the foundational
requirements of being helpful or reliable under Federal Rule of Evidence 702 and Daubert
v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). In particular, the District cites
State v. Henley, in which the Oregon Supreme Court held that, under Oregon law, a
witness’s grooming testimony should have been scientifically validated before it was
admitted. 422 P.3d 217, 304 (Or. 2018). The District suggests that Tueller’s testimony (1)
is devoid of a basis to show that his opinions are derived from an accepted scientific
methodology, (2) is not based on sufficient data or proper principles as it comes from only
his experience, and (3) is therefore unreliable and will not assist the trier of fact. The Court
disagrees with the District.
Federal Rule of Evidence 702 allows a qualified expert to testify “in the form of an
opinion or otherwise” where:
(a) the expert’s scientific, technical, or other specialized knowledge will help
the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of
the case.
Fed. R. Evid. 702. The inquiry into the admissibility of expert testimony is “a flexible one”
where “[s]haky but admissible evidence is to be attacked by cross examination, contrary
evidence, and attention to the burden of proof, not exclusion.” Primiano v. Cook, 598 F.3d
558, 564 (9th Cir. 2010). “When evaluating specialized or technical expert opinion

MEMORANDUM DECISION AND ORDER - 6

testimony, the relevant reliability concerns may focus upon personal knowledge or
experience.” United States v. Sandoval-Mendoza, 472 F.3d 645, 655 (9th Cir. 2006).
To begin, Henley is not merely non-binding authority, it is unpersuasive as well.
There, an Oregon rule of evidence, as opposed to Federal Rule of Evidence 702 that of
course applies here, was at issue. Id. at 227. Although the Oregon state evidentiary rule and
the federal body of law have some overlap, they are not the same. The rules have received
decades of interpretative gloss from different courts: Oregon courts have developed the
Oregon rule, whereas the federal rule has been developed by federal courts.
Henley marks a divergence in the two bodies of law. Indeed, federal courts have
admitted grooming testimony without requiring it to pass a scientific validation test. For
instance, in United States v. Hitt, the Fifth Circuit directly rejected the party’s argument
that there was not an adequate scientific basis for the expert witness’s grooming testimony,
given the flexibility and discretion allowed in the district court’s gatekeeping role. 473 F.3d
146, 159 (5th Cir. 2006). Similarly, in Light v. Martel, the court determined that an expert
witness’s testimony on grooming was admissible without passing a scientific validation.
No. 09-00177 JSW, 2009 WL 4456385, at * 7–10 (N.D. Cal. Nov. 30, 2009) (collecting
cases).
The District’s focus on scientific validation is misplaced. The United States
Supreme Court has explained that a district court’s role is not to distinguish between
“scientific” knowledge and “technical” or “other specialized” knowledge because “[t]here
is no clear line that divides the one from the others” and “conceptual efforts to distinguish
the two are unlikely to produce clear legal lines capable of application in particular cases.”
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Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 148 (1999). Instead, what is required
is that the trial judge determine whether the testimony has a reliable basis—not necessarily
scientific validation. See id. at 149–50 (“[R]elevant reliability concerns may focus upon
personal knowledge or experience.”). Therefore, the District’s argument that Tueller’s
testimony needs a basis in scientific validation is unavailing.
Next, the District’s assertion that Tueller relies only on his experience is inaccurate.
It is true that Tueller relies on his extensive experience of being involved in the treatment
of over 10,000 victims of child sexual abuse, which in itself assuages many concerns about
reliability. However, Tueller also relies on his bachelor’s degree in psychology, master’s
degree in clinical social work, and hours of training on how to treat children who have
experienced traumatic effects of abuse. He has also presented on the seven steps of
grooming at various conferences. In short, Tueller’s proposed testimony appears to have a
reliable basis in experience and knowledge on the topic.
Lastly, Tueller provided his methodology of identifying and assessing the seven
steps of grooming and applied it to the facts of this case in his written report. Tueller’s
methodology may assist the jury to understand Owen’s actions, and it is open to the
District’s attack on cross-examination.
In conclusion, the Court, in its role as gatekeeper, is not persuaded that Tueller’s
methodology and opinions are unreliable or unhelpful. Tueller’s testimony need not have
a scientifically validated basis under federal law. Based on Tueller’s education, extensive
training and experience, and methodological application of the seven-step theory of
grooming to the facts of this case, the Court determines that his proposed testimony is
MEMORANDUM DECISION AND ORDER - 8

reliable and may assist the jury in better understanding this case. Stated differently, the
requirements of Rule 702 are satisfied. Experience alone, or in conjunction with other
knowledge, skill, training, or education, may very well provide a sufficient foundation for
expert testimony. See Fed. R. Evid. 702; Kumho Tire Co., Ltd., 526 U.S. at 148–50. The
Court holds that such is the case here: Tueller’s expert testimony will not be excluded.
3. Conclusion
For the foregoing reasons, Tueller’s testimony will not be excluded in the broad
manner that the District requests. Accordingly, the District’s first Motion in Limine is
DENIED.
B. Second Motion in Limine (Dkt. 84)4
During discovery, Torres disclosed several other expert witnesses whose testimony
the District also moves the Court to exclude. The first is a Licensed Clinical Professional
Counselor, DaLynn Moore, who provided counseling to Torres from October 12, 2016, to
September 14, 2017. The second is a Nurse Practitioner, Tauni Rowberry, who treated
Torres for anxiety and panic attacks on February 24, 2018. The third group of experts
includes Nathan E. Bradfield, PHHNP-BC; Robert Meredith, DO; and Nicholas Parker,
MD. All three are health care providers at Seasons Medical. Together, they treated Torres
from November 2015 to November 2017. All these witnesses were timely disclosed as
experts on August 27, 2018. The expert discovery deadline was October 26, 2018.
Due to perceived deficiencies in the descriptions of the disclosures of these

4

Due to a formatting issue in the original motion (Dkt. 84), the District filed an errata motion (Dkt. 95).
Any citation to Dkt. 95, therefore, relates to the District’s Second Motion in Limine.

MEMORANDUM DECISION AND ORDER - 9

witnesses, the District seeks sanctions to the tune of either outright exclusion of these
witnesses from trial or a limitation of their testimony to the information in the medical
records provided. Torres resists these sanctions on several grounds. The Court will address
the issues the parties raise in turn. Before diving into the witness-specific arguments,
however, the Court will address several preliminary issues.
1. Preliminary Issues
Torres’s preliminary response is that the District could have asked her to cure the
alleged deficiency or sought a motion to compel to that same end. Torres then asserts that
the District essentially “laid in wait, hoping [Torres’s] non-compliance would doom her
ability to offer any expert testimony.” Dkt. 94, at 5. At bottom, she suggests that the District
“should not be allowed to complain now after making no objection.” Dkt. 94, at 6.
For its part, the District states that there is no duty to move to compel under Federal
Rule of Civil Procedure 37, and Torres’s argument oddly shifts the burden of properly
disclosing her witnesses from herself to the District. The District states that Torres’s “claim
stands the entire discovery and notice process on its head. The District is not under any
obligation to identify and point out to [Torres] her failures.” Dkt. 98, at 7.
The District is correct. Motions to compel are permissive, and no rule requires
parties to file them prior to seeking Rule 37(c) sanctions, which of course include exclusion
of a witness’s testimony. See Fed. R. Civ. P. 37(a)(1) (“[A] party may move for an order
compelling disclosure or discovery.” (emphasis added)); Fed. R. Civ. P. 37(c)(1).
Moreover, the non-binding cases Torres cites do not support her suggested brightline rule. Rather, those cases stand for the proposition that not filing a motion to compel
MEMORANDUM DECISION AND ORDER - 10

may go to one aspect of a harmlessness analysis or whether a district court abuses its
discretion. In Carrico v. Lewis Tree Service, Inc., the court did point out that the defendant
appeared to have laid in wait, hoping that the plaintiff’s non-compliance would lead to
exclusion of his expert witness. No. 2:15-CV-25-FL, 2016 WL 6459599, at *3–4 (E.D.N.C.
Oct. 31, 2016). But that was in the context of whether the deficiency was harmless and was
merely one of several reasons for the court’s finding of harmlessness. Id. Similarly, in
Kondragunta v. Ace Doran Hauling & Rigging Co., not filing a motion to compel was only
one aspect of the court’s harmlessness analysis. No. 1:11-cv-01094-JEC, 2013 WL
1189493, at *8 (N.D. Ga. Mar. 21, 2013). Lastly, in Griffith v. General Motors Corp., not
seeking an order to compel a more detailed disclosure was only one reason the Eleventh
Circuit held that the district court did not abuse its discretion in denying a motion for
sanctions. 303 F.3d 1276, 1282–83 (11th Cir. 2002). In short, the rulings in these cases do
not establish a rule disallowing parties from seeking Rule 37(c) sanctions when they have
not filed a prior motion to compel.
The duty to ensure proper disclosures is on the disclosing party, not the receiving
one. Fed. R. Civ. P. 26(a). Accordingly, the Court rejects Torres’s preliminary contention.
After making this preliminary argument, Torres maintains that her disclosure for
Moore “fully meets the requirement of Rule 26(a)(2)(C)”; however, she concedes that her
disclosures for Rowberry, Bradfield, Meredith, and Parker “likely should have described
the testimony in more detail.” Dkt. 94, at 9.
Federal Rule of Civil Procedure 26(a)(2)(A) states that “a party must disclose to the
other parties the identity of any witness it may use at trial to present evidence under Federal
MEMORANDUM DECISION AND ORDER - 11

Rule of Evidence 702, 703, or 705.” If an expert is not retained, as is the case with the
witnesses here, the disclosure must convey “the subject matter” and “summary of the facts
and opinions to which the witness is expected to testify.” Fed. R. Civ. P. 26(a)(2)(C)(i)–
(ii). The purpose of these disclosure requirements is to “prevent surprise testimony by
ensuring that opposing parties are aware of the nature of the expert opinions prior to trial.”
DR Sys., Inc. v. Eastman Kodak Co., No. 09cv1625-H (BLM), 2009 WL 2982821, at *3 n.
2 (S.D. Cal. Sept. 14, 2009) (cleaned up).
If a party fails to provide information or identify a witness as required by the rule,
the party is not allowed to use that information or witness to supply evidence at trial, unless
the failure was substantially justified or is harmless. Fed. R. Civ. P. Rule 37(c)(1). Rule
37(c)(1) “gives teeth to [the Rule 26(a) disclosure] requirements by forbidding the use at
trial any information not properly disclosed under Rule 26(a).” Yeti by Molly, Ltd. v.
Deckers Outdoor Corp., 259 F.3d 1101, 1106 (9th Cir. 2001). Rule 37(c)(1) is recognized
as a broadening of a court’s sanctioning power and is “self-executing” and “automatic.” Id.
Moreover, because of the automatic nature of this sanction, courts are not required to make
a finding of willfulness or bad faith prior to excluding expert testimony at trial. See
Hoffman v. Constr. Protective Servs., Inc., 541 F.3d 1175, 1180 (9th Cir. 2008).
The trial court has wide latitude in using its discretion to issue sanctions under Rule
37(c)(1). See Yeti by Molly, 259 F.3d at 1106. The burden is on the disclosing party to show
that the deficiency in properly disclosing an expert witness was substantially justified or
harmless. See id. at 1106–07 (explaining that it is implicit in Rule 37(c)(1) that burden is
on party facing sanctions to prove harmlessness).
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Here, the language of the disclosures confirms the wisdom of Torres’s concession.
Those disclosures merely state Rowberry, Bradfield, Meredith, and Packer will testify as
to their treatment of Torres consistent with the information contained in their medical
records. This is far from “a summary of the facts and opinions to which the witness is
expected to testify,” Fed. R. Civ. P. 26(a)(2)(C), and is plainly insufficient. Gleed v. AT&T
Servs., Inc., No. 13-12479, 2016 WL 1451532, at *5 (E.D. Mich. Apr. 12, 2016) (“[T]he
mere production of medical records does not satisfy subsection (C) disclosure
requirements.”); Carillo v. B & J Andrews Enters., LLC, No. 2:11-cv-01450-RCJ-CWH,
2013 WL 394207, at *5–6 (D. Nev. Jan. 29, 2013) (collecting cases). Thus, for Moore, the
Court will assess whether the disclosure was sufficient, whereas the Court will limit its
analysis to whether the conceded deficiency was justified or harmless as to the other expert
witnesses.
2. Moore—Licensed Clinical Professional Counselor
The District propounds various arguments that Moore’s testimony should be
excluded. The Court will address them in turn.
First, the District asserts that Torres did not disclose a summary of facts and
opinions to which Moore is expected to testify. Specifically, the District argues that stating
testimony will be consistent with counseling does not satisfy Federal Rule of Civil
Procedure 26(a)(2)(C). But the District’s factual premise that the Moore disclosure was so
limited is unfounded.
Torres included Moore in her initial disclosures, produced Moore’s counseling
records in April 2018, again disclosed Moore as a non-retained expert on August 27, 2018,
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and supplemented a few inadvertently missing records on January 4, 2019. See Dkt. 94, at
5. The disclosure at issue for Moore stated:
Ms. Moore provided counseling to Plaintiff to address her Post Traumatic
Stress Disorder, Generalized Anxiety Disorder, and Major Depressive
Disorder both at Integrated Counseling and Wellness and Mental Wellness
Centers. A copy of her counseling records has been produced in discovery
(PL00001-PL000036). Ms. Moore will provide testimony and opinions,
consistent with her counseling with Plaintiff, including but not limited to, the
impact of Bryce Owen’s action on Plaintiff’s mental health, the grooming
process used by Mr. Owen that precipitated the sexual exploitation of
Plaintiff, and Plaintiff’s feelings of guilt in spite of being a victim.
Dkt. 94, at 2.5 The disclosure conveys sufficient information to apprise Defendants of what
Moore’s testimony will be. Thus, the District’s first argument is unpersuasive.
In the alternative, the District argues, even if the Court determines the disclosure
was sufficient, Moore’s testimony should be limited to information contained in her
provided medical records, which does not include District’s liability, grooming, causation
as to PTSD, or depression. However, because Torres’s disclosure complied with Rule
26(a)(2)(C), the Court sees no good cause to prospectively issue such a ruling. If the
District has an objection to specific testimony that is ultimately presented at trial, the
District may lodge its objection at that time.6 However, prospectively limiting Moore’s
testimony does not appear to be a sound use of the Court’s discretion.
5

Additionally, Torres was questioned during her deposition about her counseling with Moore. Although
such questioning is not determinative of whether the disclosure was sufficiently informative, it assuages
concerns about whether the District will endure surprise testimony, which is the purpose of the required
disclosures.

6

Citing Thompson v. United States, No. 4:17-cv-63, 2019 WL 149553 (S.D. Ga. 2019), the District argues
that Moore should not be able to testify regarding the cause of Torres’s Post Traumatic Stress Disorder,
(Continued)

MEMORANDUM DECISION AND ORDER - 14

Lastly, the District argues that Moore should not be allowed to testify that Torres
was abused because Moore did not come to that conclusion on her own; rather, Torres told
her of the abuse from the beginning. This argument is uncompelling. It is tantamount to
saying that a doctor cannot testify that a patient had an ear infection if the patient happened
to enter the doctor’s office saying he or she had an ear infection. The Court rejects this
argument and finds no basis to exclude a timely and properly disclosed treating physician’s
professional opinions simply because the patient stated a self-diagnosis. Moreover, nothing
suggests that Moore is incapable of forming her own professional opinions irrespective of
what her patients tell her. The District may employ a line of questions on cross-examination
on this issue, but Moore will be allowed to testify.
In sum, the disclosure for Moore complied with the requirements of Federal Rule of
Civil Procedure 26(a)(2)(C), and the District’s arguments are unavailing.
3. Rowberry, Bradfield, Meredith, and Packer
The District next contends that Rowberry, Bradfield, Meredith, and Packer should
be disallowed from testifying for some of the same reasons given above. Because Torres
concedes the corresponding disclosure were deficient—and the Court agrees—the Court
need only determine whether the shortcomings were justified or harmless. The issue

depression, or anxiety “as there is no mention of causation in Ms. Moore’s medical records” and because
she “did not provide a written report with her disclosure, which is required if she wants to testify as to
causation.” Dkt. 95, at 5. The Court disagrees. Although the summary disclosure is not exemplary of clarity,
it does contain the issue of causation when read fairly. And, unlike the doctor in Thompson who should
have disclosed a Rule 26(a)(2)(B) report because he wasn’t the treating physician and instead relied on
others’ opinions to prepare his testimony for trial, Moore directly treated Torres and has relied exclusively
on her own professional observations in forming her testimony. See id. at *10; Goodman v. Staples the
Office Superstore, LLC, 644 F.3d 817, 826 (9th Cir. 2011).

MEMORANDUM DECISION AND ORDER - 15

narrows even further because Torres’s arguments focus solely on harmlessness.
“The party facing sanctions bears the burden of proving that its failure to disclose
the required information was substantially justified or is harmless.” R & R Sails, Inc. v. Ins.
Co. of Pennsylvania, 673 F.3d 1240, 1246 (9th Cir. 2012) (citing Torres v. City of L.A.,
548 F.3d 1197, 1213 (9th Cir. 2008)). Factors that may assist the court in determining
whether “a violation of a discovery deadline is justified or harmless are: (1) prejudice or
surprise to the party against whom the evidence is offered; (2) the ability of that party to
cure the prejudice; (3) the likelihood of disruption of the trial; and (4) bad faith or
willfulness involved in not timely disclosing the evidence.” Lanard Toys Ltd. v. Novelty,
Inc., 375 F. App’x 705, 713 (9th Cir. 2010) (citation omitted).
Here, the District did not depose these witnesses due to the vague nature of the
disclosures and, more importantly, due to the lack of facts or opinions that clearly related
to the District’s alleged liability. At this juncture in this case, mere months before trial and
with discovery and dispositive briefing closed, there is little that can be done to cure the
prejudice caused by the missed opportunity to depose the witnesses. However, the District
has had the disclosures for several years. The attendant medical records are electronically
searchable and not overly extensive. Indeed, Rowberry’s medical records are only 110
pages, of which Torres has directed the District’s attention to 7 specific pages; Bradfield,
Meredith, and Packer’s combined records are only 67 pages, with the focus being on 22
identified pages. Thus, although the Court does not find the deficient disclosures harmless,
the harm is not significant.

MEMORANDUM DECISION AND ORDER - 16

For this reason, the Court will impose a lesser sanction than outright exclusion of
the witnesses—one which both sides proposed: that is, limiting these witnesses’ testimony
to the information contained in their respective medical records. Under the circumstances
of this case, the Court finds this to be an appropriate sanction.
4. Conclusion
For the foregoing reasons, the District’s second Motion in Limine is GRANTED in
PART and DENIED in PART. The Court will not prospectively limit Moore’s testimony,
but Rowberry’s, Bradfield’s, Meredith’s, and Packer’s respective testimonies must be
limited to the information included in their corresponding disclosed medical records.
C. Third Motion in Limine (Dkt. 93)
In its next motion, the District seeks to exclude testimony regarding seven specific
topics, which the Court will address in turn. As a threshold matter, the District repeatedly
contends that a limiting instruction will not be effective as to evidence that is admissible
against Owen, but arguably is not admissible against the District. The District’s contentions
are unpersuasive. As explained below, some of the testimony will be admitted against the
District, so it does not necessitate or call for a limiting instruction in any event. And some
of the inadmissible testimony against the District is either duplicative as to the points being
made by the admissible evidence, therefore carrying little danger of unfair prejudice, or
does not present such a danger of unfair prejudice that a limiting instruction would be
ineffective.
Under Federal Rule of Evidence 105, “[i]f the court admits evidence that is
admissible against a party or for a purpose—but not against another party or for another
MEMORANDUM DECISION AND ORDER - 17

purpose—the court, on timely request, must restrict the evidence to its proper scope and
instruct the jury accordingly.” In Bruton v. United States, the Supreme Court ruled that a
limiting instruction did not effectively protect the criminally accused against the prejudicial
effect of admitting in evidence the confession of a codefendant which implicated him and
violated his constitutional right to confrontation. 391 U.S. 123, 136–37 (1968). The Bruton
“decision does not, however, bar the use of limited admissibility with an instruction where
the risk of prejudice is less serious.” Fed. R. Evid. 105 advisory committee’s note. Indeed,
while there are some limited “contexts in which the risk that the jury will not, or cannot,
follow instructions is so great, and the consequences of failure so vital to the defendant,
that the practical and human limitations of the jury system cannot be ignored,” in the vast
majority of circumstances “the jury can reasonably be expected to follow” limiting
instructions. Id. at 135 (“A defendant is entitled to a fair trial but not a perfect one. It is not
unreasonable to conclude that in many such cases the jury can and will follow the trial
judge’s instructions to disregard [inadmissible] information.” (cleaned up)).
Here, the District’s constitutional rights are not in jeopardy of being violated, and
the Court does not deem this a scenario in which the jury cannot, or will not, follow the
Court’s instruction. Moreover, the Court will not exclude highly probative and admissible
evidence against Owen merely because the District has little confidence in the jury. In this
case, an instruction to the jury of what evidence cannot be used against the District is the
proper course.
1. McCandless’s Testimony Regarding the Text Messages
The District anticipates that McCandless will testify about ostensibly “flirtatious”
MEMORANDUM DECISION AND ORDER - 18

text messages that Owen sent to Torres, which McCandless claims to have in turn reported
to the District. The District contends that testimony regarding the text messages should be
excluded because it is hearsay, unable to be properly authenticated, and unfairly
prejudicial. None of these arguments lead the Court to prospectively exclude the testimony.
First, the anticipated testimony would not be hearsay. An out-of-court statement
offered for the truth of the matter asserted in the statement, commonly known as hearsay,
is generally inadmissible in court. Fed. R. Evid. 801(c), 802. The flip side is that a statement
is “not hearsay if offered for any purpose other than the truth of whatever the statement
asserts.” United States v. Lopez, 913 F.3d 807, 826 (9th Cir. 2019). A paradigmatic
example of this other-purpose category is a statement that is “introduced to prove that the
person to whom the statement was communicated had notice of something.” United States
v. Lane, No. CR-12-01419-PHX-DGC, 2013 WL 3716601, at *2 (D. Ariz. July 13, 2013)
(first citing Kunz v. Utah Power & Light Co., 913 F.2d 599, 605 (9th Cir.1990); and then
citing Gibbs v. State Farm Mut. Ins. Co., 544 F.2d 423, 428 (9th Cir.1976)). Here,
testimony about the text messages, their nature, and reporting them to the District is not
hearsay because it is being offered to prove the notice that McCandless gave the District
as opposed to the truth of what was in fact typed in those messages.7 Moreover, the texts
are not hearsay against Owen because, with proper foundation, they are statements against
a party opponent. Fed. R. Evid. 802(d)(2)(A).
7

In its reply brief, the District conditionally concedes that this conclusion is correct: If “McCandless can
lay the necessary foundation that text message was sent by Defendant Owen to [Torres], and that she saw
the text message, she may be able to testify that she told the District that Defendant Owen texted [Torres]
and she wanted it to stop. That arguably falls within the notice exception to the exclusion of hearsay
evidence.”

MEMORANDUM DECISION AND ORDER - 19

Second, whether a proper foundation will be laid for such testimony is an issue the
Court will leave until trial. That said, the Court is skeptical about whether authentication
is even an issue. If the text messages themselves are introduced, they will of course need
to be authenticated. Fed. R. Evid. 901(a). However, if McCandless testifies merely about
her perception of the text messages, then authentication will not be necessary because there
will be nothing to authenticate. Torres explains, “McCandless is not seeking to assert word
for word what was stated in the text messages, but the general character of the text
messages that caused her serious concern and led her to report to the District.” Dkt. 99, at
5. Thus, in this latter scenario, the District’s arguments regarding authentication are wholly
unnecessary.
Lastly, the Court will not exclude the testimony under Federal Rule of Evidence
403, which allows the Court to “exclude relevant evidence if its probative value is
substantially outweighed by a danger of one or more of the following: unfair prejudice,
confusing the issues, misleading the jury, undue delay, wasting time, or needlessly
presenting cumulative evidence.” Fed. R. Evid. 403. The probative value of the testimony
regarding whether the District was on notice of the inappropriate text messages between
Torres and Owen is extremely significant. It relates to essential aspects of many of Torres’s
claims against the District: notice and, in turn, deliberate indifference.8 Moreover, the

8

Later in its brief, the District concedes this point. See Dkt. 93-1, at 9 (describing the relevant issue as
“whether or not the District had the requisite knowledge of the relationship before it happened” and
explaining that it “must be judged solely on its acts, which requires [Torres] to establish notice to the District
of the relationship”). Additionally, Owen cannot make the prejudice argument under Rule 403 because the
(Continued)

MEMORANDUM DECISION AND ORDER - 20

District’s arguments regarding unfair prejudice expressly presuppose that the testimony is
hearsay and that effective cross-examination will not be available. Both premises are
inaccurate. The testimony is not hearsay, and the District will have ample opportunity to
cross-examine McCandless.
In conclusion, some of the District’s other arguments, which did not win the day in
briefing and which the Court will not reiterate here, are potentially great points for crossexamination. Nevertheless, the Court sees no basis to prospectively exclude McCandless’s
disputed testimony. See Vasquez v. City of Idaho Falls, No. 4:16-cv-00184-DCN, 2020
WL 1860394, at *3 (D. Idaho Apr. 13, 2020) (explaining that rulings are often best
“deferred until trial so that questions of foundation, relevancy, and potential prejudice[,
among others,] may be resolved in proper context” (cleaned up)).
2. Torres’s Testimony Regarding the Alteration of Her Attendance Records
Next, the District anticipates that Torres will testify that she saw Owen, and heard
statements from him on the topic of, altering her attendance records during the course of
their interactions. The District contends that such testimony is inadmissible hearsay against
it. The District also suggests that the testimony will be so unfairly prejudicial that a limiting
instruction simply will not do. The District points out a key distinction: the evidence may
be admissible as to Owen’s liability while inadmissible as to the District’s. To an extent,
the Court agrees.

texts weigh heavily on the grooming issue and his inappropriate conduct. So, Rule 403 does not prevent the
texts from coming in as against Owens. The real issue then is not whether Rule 403 should bar the evidence;
rather, the question is whether the texts should be limitedly admitted only as against Owen. Because the
evidence is relevant to the issue of notice, the answer to that question is in the negative

MEMORANDUM DECISION AND ORDER - 21

The statements and actions are not hearsay as they relate to Owen. In that context,
they have a purpose other than to prove the truth of the matter asserted (i.e., Owen’s state
of mind, intent, or plan) and they are offered against him as a party opponent. Lopez, 913
F.3d at 826 (Statements are “not hearsay if offered for any purpose other than the truth of
whatever the statement asserts.”); Fed. R. Evid. 801(d)(2) (statements against a party
opponent are not hearsay). Thus, they are admissible to prove his liability.
However, those points do not apply to the District. Against the District, Owen’s
statements that he altered the records would be offered to prove the truth of that matter
asserted. And they do not fit the opposing-party-statement exemption because Owen was
not acting within the scope of his employment or in a representative capacity in the
moments of his misconduct. See id.; Dkt. 71, at 17–18 (ruling “as a matter of law that
Owen’s tortious conduct was outside the scope of his employment”). Thus, Owen’s
statements are inadmissible hearsay as to the District.9
What is left to decide then is whether Owen’s conduct in altering Torres’s
attendance records was hearsay. It is important to note first that assertive nonverbal
conduct, such as pointing at someone, constitutes a “statement” for hearsay purposes. Fed.
R. Evid. 801(a); 2 McCormick on Evidence § 250 (8th ed.). On the other hand, nonassertive
nonverbal conduct is not a “statement” and is categorically not hearsay. For example, a
person raising an umbrella is not intending to assert that “it is raining,” nor is a motorist

9

There is one caveat to this ruling. It assumes there is not testimony that Owen made those statements in
the presence of another District employee such as the attendance registrar. If that assumption is incorrect,
then the ruling will be reversed at trial.

MEMORANDUM DECISION AND ORDER - 22

who drives forward at a green light intending to assert that “the light is green.” “The
conduct offered in the one instance to prove it was raining and in the other that the light
was green involves no intent to communicate the fact sought to be proved . . . .” Id.
Here, Owen’s actions are not hearsay for the purpose of proving he altered Torres’s
attendance records. Owen’s conduct was not intended to assert, “I am altering Torres’s
attendance records.” Instead, his actions of altering Torres’s attendance records were, quite
to the contrary, intended to surreptitiously and deceptively assert that Torres was in class
when she in fact wasn’t, while not being discovered that he altered her records.
Consequently, any testimony from Torres regarding Owen’s actions to alter her attendance
records is admissible against both Owen and the District.
3. Torres’s and Others’ Testimony About Owen’s Grooming and Sex Statements
The District also expects Torres, and unnamed other witnesses, to testify as to
Owen’s actions and statements through the course of his relationship with Torres and
alleged grooming. The District requests the Court to exclude all this testimony or instruct
the jury of its limits against the District. Beyond the uncompellingly broad scope of this
request, many of the District’s arguments neglect the fact that Owen is a defendant in this
case as well. The testimony is highly probative as to his intent and otherwise against him
and cannot be excluded. It may be relevant against the District as well. The specifics and
context of the evidence will tell. Thus, although much of the language in the District’s brief
is potentially useful for a proposed limiting instruction, such as that Owen’s actions cannot
lead to the District’s negligence per se, it does not persuade the Court to prospectively
exclude evidence of Owen’s relevant actions and statements under Federal Rules of
MEMORANDUM DECISION AND ORDER - 23

Evidence 402, 403, or otherwise.
4. Any Testimony Regarding Torres’s Alleged Injuries As Caused By Any Action
or Inaction of the District
The District’s next argument is wholly uncompelling. The District argues that no
person should be allowed to testify that its action or inaction led to Torres’s alleged injuries
because those injuries are solely Owen’s fault and such testimony would be too prejudicial
against the District. But, of course, if the District was on notice of the relationship, failed
to take appropriate action, was deliberately indifferent to Owen’s actions, or somehow else
violated the law, as alleged, then the District can be held liable for Torres’s injuries under
Title IX, § 1983, and Idaho law. Indeed, that is what the law demands and what this case
is about. The Court agrees with Torres that this argument is merely another unmeritorious
attempt for the District to secure summary judgment on the causes of action against it. The
Court has denied the District’s repeated attempts to do so, and the Court denies the
District’s request yet again.
5. Any Testimony About Owen’s Failure to Report 2012 Student Abuse
The District additionally expects testimony to be given that Owen failed to report a
student-on-student incident of sexual abuse in 2012. The District claims that, because the
Court already rejected Torres’s argument that the failure provided notice to the District,
any testimony on the topic is irrelevant. The District quotes the following from the Court’s
previous Order:
Here, Torres points to two facts in support of a finding of actual notice. First,
she claims the District had actual notice because it was aware that “Owen
had previously failed to report to authorities sex abuse of a 13 year-old by a
MEMORANDUM DECISION AND ORDER - 24

17 year-old, and instead of reporting, had the parties keep the abuse quiet and
had the 17 year-old do nothing more than write a letter of apology.” Dkt. 53,
at 16. However, the Court finds this incident did not alert the District to a
substantial risk that Owen would abuse Torres or any other student. While it
may show some propensity to disregard reporting requirements, or even a
lack of concern for sexual abuse, it does not show that Owen himself posed
a substantial risk of abuse.
Dkt. 93-1, at 11 (quoting Dkt. 71, at 33). Torres argues that Owen’s 2012 failure to report
is significantly probative as to the material facts of the District’s deliberate indifference,
negligence, negligent supervision, and so on. Samuelson v. Or. State Univ., 725 F. App’x
598, 598 (9th Cir. 2018) (“To be liable for harassment under Title IX, the recipient of
federal funds . . . must have actual notice of, and be deliberately indifferent to, the
harassment.” (citing Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 277 (1998)));
Dkt. 71, at 47 (“Based on the evidence in the record, a reasonable jury could find that the
District owed a duty to Torres, that duty was breached, the breach was the proximate cause
of Torres’ injury because it was foreseeable to the District that some harm could happen,
and that Torres suffered damages.”); Brooks v. Logan, 903 P.2d 73, 79 (Idaho 1995)
(“[T]he duty a school district owes to its pupils is to anticipate reasonably foreseeable
dangers and to take precautions protecting the children in its custody from such dangers.”)
The Court agrees with Torres. First, in its quoted Order, the Court merely rejected
the argument that the District’s knowledge of Owen’s failure to report the 2012 incident
put the District on notice of Owen’s actions with regard to Torres. Critically, the Court did
not state that such testimony would be irrelevant to these other issues. Additionally, Torres
is correct that evidence regarding the District’s knowledge of Owen’s failure has a
tendency to make those issues more probable—issues which are of paramount consequence
MEMORANDUM DECISION AND ORDER - 25

in this case. Fed. R. Evid. 401. In short, the District’s request is denied because the evidence
is relevant.
6. Torres’s and Others’ Testimony of Sexual Abuse
The District also prognosticates certain testimony from Torres, McCandless, and
Moore regarding Owen’s sexual abuse of Torres and what was discussed among them.
From Torres’s brief, it does not appear entirely certain that the testimony the District
predicts will in fact be given at trial. For example, Torres points out that her expert
witnesses will discuss their opinions, whereas Torres and McCandless intend to testify as
to their experiences and beliefs. Because the specific testimony that will be given is
uncertain, the Court exercises its discretion to withhold a ruling on these issues.
7. Torres’s Testimony That She Was Coerced or Manipulated to Have Sex
The District lastly seeks to have Torres’s testimony that she was coerced or
manipulated to have sex with Owen excluded. The Court denies the District’s request. To
begin, the District’s arguments are procedurally improper. To have a court reconsider its
ruling, “a party must first establish that they have the right to ask for reconsideration; that
is to say, they must establish that one or more of the limited grounds for reconsideration
are present. If that is the case, the moving party must then convince the court that their
purported reasons rise to the level of reversal.” Dkt. 105, at 2–3 (citing United States ex.
rel. Rafter H Constr., LLC v. Big-D Constr. Corp., 358 F. Supp. 3d 1096, 1098 (D. Idaho
2019)). As has been explained, the Court allows only one motion for summary judgment
per party. Dkt. 17, at 1 n.1. The District has already filed its Motion for Summary Judgment
(Dkt. 47) and two Motions to Reconsider (Dkts. 72, 80), all three of which the Court in
MEMORANDUM DECISION AND ORDER - 26

pertinent part has denied (Dkts. 71, 105). The District’s arguments are essentially just
another motion to reconsider disguised in the clothing of a motion in limine without any
change in facts, intervening law, or other extraordinary circumstance to justify
reconsideration of the Court’s prior rulings.10 For this reason alone, the District’s
arguments here are rejected.
Additionally, the merits of the District’s arguments are entirely baseless. The
District cherry-picks a quote from an Idaho Supreme Court opinion to support its request
to exclude Torres from testifying that she was coerced or manipulated into having sexual
intercourse with Owen after her eighteenth birthday: “We do not find that the act of sexual
intercourse between consenting adults is enough to create a constitutional right for a high
school student involved in a sexual relationship with a teacher.” Hei v. Holzer, 73 P.3d 94,
99 (Idaho 2003) (emphasis added). The Court has already ruled that this aspect of Hei was
not binding on the Court, as the § 1983 claim is a federal one, and that Torres’s federal
claim survived summary judgment due to the federal cases on point and analogous Ninth
Circuit cases. Dkt. 71, at 39–43. The District acknowledges this ruling but argues that Hei’s
holding “negates any general duty that is the basis of [Torres’s] state claims sounding in
negligence.” Dkt. 93-1, at 15. Therefore, the District reasons, any evidence of coercion or
manipulation is irrelevant.
The Court has already dealt with this argument as well, ruling that whether the
District had a general duty of care depends on the foreseeability of a risk of harm, which

10

Indeed, as discussed below, the impetus for the District’s arguments is a holding in Hei v. Holzer, 73 P.3d
94, 99 (Idaho 2003)—a case and holding which the Court has already explicitly addressed.

MEMORANDUM DECISION AND ORDER - 27

is a question of fact for the jury. Dkt. 71, at 45–46. Moreover, Hei does not even come
close to supporting the District’s argument. There, an adult high school student and her
teacher became sexually involved. Several times throughout their relationship different
individuals informed the school district of their suspicions of the sexual activities.
Ultimately, Hei sued the school district on numerous grounds. Hei, 73 P.3d at 97. While
the Idaho Supreme Court affirmed the dismissal of Hei’s § 1983 claim, it reversed the
dismissal of her Title IX and negligent supervision claims. Id. at 100–01. On the issue of a
duty of care, the court stated, “It is material that the School District may have known one
of its teachers was having sexual relations with a student, yet failed to take action to
supervise or protect the student. The School District owed some type of care to Hei.” Id. at
101. The language and holdings in Hei cut against the District, and even in their absence,
a comment on a constitutional right does not say anything about a common law tort.
In short, the conclusion of an argument is only as good as its premises. The District’s
conclusion is uncompelling because its premises are inaccurate and they misstate the law
in Idaho and impact of Hei on the case at hand. Stated differently, the District’s argument
presents an unsound logical leap from no constitutional right to no duty of care. Therefore,
the Court rejects the District’s request to exclude the evidence.
8. Conclusion
In conclusion, the evidence that is inadmissible against the District but admissible
against Owen will come in with a limiting instruction. McCandless’s testimony about the
texts is not hearsay and not unduly prejudicial, but its foundation will be determined at
trial. Testimony from Torres regarding Owen’s statements that he altered Torres’s
MEMORANDUM DECISION AND ORDER - 28

attendance records is not hearsay against Owen as a party opponent but is hearsay against
the District. Testimony of Owen’s conduct altering the attendance records, on the other
hand, is not hearsay against either Owen or the District. Testimony regarding Owen’s
grooming and actions through the course of his relationship with Torres are not irrelevant
or unduly prejudicial. Testimony about action or inaction on the part of the District leading
to Torres’s injuries is admissible. Testimony about Owen’s failure to report the 2012
student sexual abuse incident may be relevant to the District’s liability. The Court will rule
on whether testimony of sexual abuse from particular witnesses is admissible when it arises
at trial. Torres’s testimony that she was coerced or manipulated to have sex with Owen is
relevant as the District may have had a general negligence duty. Consequently, the
District’s third Motion in Limine is GRANTED in PART and DENIED in PART.
D. Fourth Motion in Limine (Dkt. 97)
In its fourth and final Motion in Limine, the District requests the Court “to exclude
damages and witnesses not properly disclosed in compliance” with Federal Rule of Civil
Procedure 26(a)(1)(A)(iii). The District claims that Torres failed to properly identify her
damage claims in her initial disclosures, failed to answer properly its interrogatories
relating to her damage claims, and has taken no steps to supplement either. Dkt. 97-1, at 2.
The District principally complains that Torres lumps her damage estimates together,
making it impossible to differentiate between what Torres intends to prove are the damages
it caused versus those that Owen caused. The District requests that the Court deny Torres
“the opportunity to present any evidence on the issue of damages against” it. Id. at 10.
Alternatively, the District requests a “sanction that only the evidence related to damages
MEMORANDUM DECISION AND ORDER - 29

that is contained in the Amended Complaint be used at trial.” Id. at 8.
Torres responds with several arguments. First, much like her argument involved in
the second Motion in Limine, Torres’s threshold argument is that the District was under
some sort of obligation or legal requirement to bring a motion to compel. Again, this
misstates the applicable rules of procedure. See infra Section B.1. To reiterate, motions to
compel are permissive, and no rule requires parties to file them prior to seeking Rule 37(c)
sanctions. See Fed. R. Civ. P. 37(a)(1) (“[A] party may move for an order compelling
disclosure or discovery.” (emphasis added)); Fed. R. Civ. P. 37(c)(1). The duty to ensure
proper disclosures and their supplementation is on the disclosing party, not the receiving
one. Fed. R. Civ. P. 26(a); Dist. Idaho Loc. Civ. R. 26.2. Thus, this initial argument is
unavailing.
Second, Torres argues that she in fact complied with her disclosure duties regarding
damages. She initially asserts that a computation of damages is unnecessary for damages
in categories such as emotional distress and punitive damages. She then highlights her
estimated computations as to each category of damages in her initial disclosures; the
produced documents supporting her damages, including counseling records and billing
records; and her treating physicians, counselors, and a retained expert with a disclosed
expert report for purposes of supporting her emotional distress damages. Dkt. 100, at 11.
Lastly, Torres argues that any deficiency in her disclosures is justified, harmless, or both,
given her disclosures, the nature of the damages to be proven in this case, and the District’s
lack of a motion to compel.

MEMORANDUM DECISION AND ORDER - 30

The District resists these contentions. It also specifically counters that Torres has
not properly disclosed the computation and basis for specific damage figures any expert
may suggest to the jury, which is required for it to properly defend itself, discussing various
federal district court cases. Both parties are correct to some extent.
Routine discovery rules dictate parties’ discovery efforts in civil litigation. Federal
Rule of Civil Procedure 26(a)(1) requires parties to provide certain disclosures without
awaiting a discovery request. The parties have an ongoing duty to supplement these
disclosures as they learn of any incompleteness or incorrectness of them. Fed. R. Civ. P.
26(e). One area of required disclosure is “a computation of each category of damages
claimed by the disclosing party” and “the documents or other evidentiary material . . . on
which each computation is based.” Fed. R. Civ. P. 26(a)(1)(A)(iii). In general, the
computation required “contemplates some analysis beyond merely setting forth a lump sum
amount for a claimed element of damages.” E.g., Jones v. Wal-Mart Stores, Inc., 2:15-cv1454-LDG-GWF, 2016 WL 1248707, at * (D. Nev. Mar. 28, 2016) (citing City & Cty. of
S.F. v. Tutor-Saliba Corp., 218 F.R.D. 219, 221 (N.D. Cal. 2003)). However, under some
circumstances, emotional injuries and punitive damages need not be computed “because
they are difficult to quantify and are typically considered a fact issue for the jury.” E.g.,
E.E.O.C. v. Wal-Mart Stores, Inc., 276 F.R.D. 637, 639–40 (E.D. Wash. 2011) (collecting
cases). However, if a plaintiff “intends to suggest a specific amount to the jury” for such
damages, yet fails to supplement appropriately its Rule 26 disclosures with a computation
of damages and the evidence and basis for it, a plaintiff “may be foreclosed from
suggesting” a specific amount of damages to the jury at trial. Id. (collecting cases); Lewis
MEMORANDUM DECISION AND ORDER - 31

v. City of Burnsville, No. 19-1117 (ECT/BRT), 2020 WL 3496990, at *4 (D. Minn. June
29, 2020).
Here, the damages Torres alleges fall under the exception, thereby removing the
duty to offer a specific computation. However, other than the amounts that are in the billing
records provided, it appears that Torres has neglected to supplement her disclosures with
any specific amounts that an expert may provide to compute a specific dollar figure for
emotional damages. Additionally, it is undisputed that Torres has not updated her lump
sum damages from her initial disclosures despite the Court’s dismissal of some of her
claims. See generally Dkt. 71. These shortcomings on Torres’s part are not justified or
harmless because the District has been unable, and will be unable, to prepare to depose or
rebut Torres’s experts or improperly disclosed amounts with their own discovery or
experts. Moreover, the District propounded several interrogatories to this very end, which
Torres inaccurately claimed she would supplement. Nevertheless, the District’s
lamentation that the disclosed damage estimates do not differentiate between Owen’s
liability and the District’s is not availing because those damages are not easily quantified
and are a fact issue for the jury to decide.
Therefore, the Court will allow Torres to offer the evidence of her damages in the
disclosed medical and billing records and other general testimony and evidence that she
was harmed by Owen’s and the District’s actions and omissions, but Torres will not be
allowed either to elicit testimony as to specific general damage amounts or to suggest to
the jury a specific amount of damages for her emotional and punitive damages. The
District’s fourth Motion in Limine is GRANTED in PART and DENIED in PART.
MEMORANDUM DECISION AND ORDER - 32

III. ORDER
The Court HEREBY ORDERS:
1. The District’s First Motion in Limine (Dkt. 68) is DENIED.
2. The District’s Second Motion in Limine (Dkt. 84) is GRANTED in PART and
DENIED in PART.
3. The District’s Third Motion in Limine (Dkt. 93) is GRANTED in PART and
DENIED in PART.
4. The District’s Fourth Motion in Limine (Dkt. 97) is GRANTED in PART and
DENIED in PART.
5. Torres’s Motion to Seal (Dkt. 103) is GRANTED.

DATED: April 20, 2021
_________________________
David C. Nye
Chief U.S. District Court Judge

MEMORANDUM DECISION AND ORDER - 33