Stovall v. Brooklyn Barbeque Corporation et al
Filing
84
ORDER denying 73 Motion for Sanctions. Signed by Magistrate Judge James P. O'Hara on 03/04/2019. (jc)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
GLADYS M. STOVALL,
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Plaintiff,
v.
BRYKAN LEGENDS, LLC,
Defendant.
Case No. 17-2412-JWL
ORDER
Defendant has filed a motion for sanctions based on plaintiff’s failure to timely serve
disclosures, specifically, her computation of damages, under Fed. R. Civ. P.
26(a)(1)(A)(iii) (ECF No. 73). Plaintiff itemized her claimed damages in supplemental
disclosures on January 25, 2019. Defendant argues this disclosure is prejudicial because it
is unable to retake depositions in light of the disclosed information, as discovery is closed
and cannot be reopened without disrupting the trial setting of this case.
Defendant moves this court to preclude plaintiff from entering any damages
evidence at trial. Defendant also asks the court to award attorneys’ fees, strike plaintiff’s
third amended complaint, and inform the jury of plaintiff’s failure to abide by Rule 26.
Although plaintiff did violate Rule 26 with her late disclosure of damages, the court finds
the violation was harmless to defendant. The court therefore denies defendant’s motion
and declines to award any sanctions.
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I.
Background
Plaintiff’s complaint alleges that while she was employed at defendant’s restaurant,
her direct supervisor made ongoing sexually harassing comments and advances to her.
Plaintiff’s third amended complaint pleads damages for loss of wages; future medical
expenses and benefits; and damages for mental anguish, emotional distress, physical
injuries, and humiliation.1 Plaintiff served her Rule 26(a)(1)(A) initial disclosures on
January 3, 2018 (ECF No. 14, 73-1). These disclosures, however, did not include a
computation of damages. The court entered a scheduling order on January 10, 2018 (ECF
No. 17). Later, upon plaintiff’s motion, the court extended the discovery period, which
extended plaintiff’s Rule 26 disclosure deadline until September 28, 2018. Plaintiff
untimely disclosed her witnesses on October 8, 2018, designating Dr. Donald Peghee as an
expert witness.
On October 12, 2018 plaintiff served supplemental Rule 26(e)(1)
disclosures but again did not include any computation of damages (ECF Nos. 45, 73-2).2
The court held a pretrial conference on January 18, 2019 and indicated that, given
the state of the record, defendant might later file a motion under Fed. R. Civ. P. 37(c)(1) to
prevent plaintiff from introducing any evidence of the dollar amounts of lost wages and
1
ECF No. 22-1.
2
Defendant then filed a motion to strike the disclosure of Dr. Peghee as an expert
witness due to his late inclusion on the disclosure. The court allowed the disclosure of Dr.
Peghee as a possible lay witness and included him in the list of witnesses for whom the
discovery deadline was extended until December 31, 2018 (ECF No. 50).
2
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medical expenses and benefits (see ECF No. 69 at 13-15). On January 25, 2019, plaintiff
served her second supplemental Rule 26(a)(1) disclosures (ECF Nos. 67, 73-3). Those
disclosures finally did include computations for (1) lost wages; (2) medical bills; (3)
attorneys’ fees, costs, and expenses; and (4) emotional distress, pain and suffering, and
humiliation.
Defendant argues that the late damages disclosure gave defendant “no chance to
make informed discovery decisions to address these now and new claims directed against
[it].”3 Defendant also objects to the lack of supporting documentation for the supplemental
disclosures, including a lack of medical bills and medical records; the inclusion of Dr.
Peghee in the computation of medical bills; and plaintiff’s statement of time offered as
computation of damages for attorneys’ fees, costs, and expenses.
II.
Analysis
a. Rule 26 Requirements
Under Fed. R. Civ. P. 26(a)(1)(A)(iii), the parties are required to disclose their
claimed damages:
A party must, without awaiting a discovery request, provide to
other parties a computation of any category of damages
claimed by the disclosing party, making available for
inspection and copying as under Rule 34 the documents or
other evidentiary, not privileged or protected from disclosure,
on which such computation is based, including materials
bearing on the nature and extent of injuries suffered.
3
ECF No. 73 at 5.
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Fed. R. Civ. P. 26(e) requires supplemental or corrected disclosures “if the party
learns that in some material respect the disclosure or response is incomplete or incorrect,
and if the additional or corrective information has not otherwise been made known to the
other parties during the discovery process or in writing; or as ordered by the court.”
The court must first determine if plaintiff’s disclosures were untimely. Plaintiff
concedes that her disclosure was delayed.4 Plaintiff’s supplemental disclosures were
served on October 12, 2018, and as earlier indicated they did not include the computation
of damages. Presumably in response to the court’s comments at the January 18, 2019
pretrial conference, plaintiff served second supplemental disclosures on January 25, 2019,
nearly a month after the close of discovery.
The mandatory and supplemental disclosure requirements exist to allow the parties
to make “informed decisions about the discovery necessary to address the specific claims
directed against that party, and to prepare for trial.”5 Accordingly, the parties should not
take the disclosure deadlines lightly and they should not wait for the court to direct
compliance with deadlines. The court finds that plaintiff violated Rule 26(a)(A)(1)(iii) by
failing to disclose the computation of damages until the court directed her to do so at the
pre-trial conference.
4
ECF No. 78 at 6.
5
Blair v. TransAm Trucking, Inc., No. 09-2443-EFM-KGG, 2017 WL 2684296, at
*2 (D. Kan. June 21, 2017).
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b. Harmlessness Analysis
If a party fails in its duty to disclose under Rule 26, Rule 37(c)(1) instructs that the
party “is not allowed to use that information or witness to supply evidence on a motion, at
hearing, or at a trial, unless the failure was substantially justified or is harmless.” The court
has broad discretion to determine whether the violation is justified or harmless.6 Although
the court “need not make explicit findings concerning the existence of a substantial
justification or the harmlessness of a failure to disclose,”7 the court should be guided by
the following factors: (1) the prejudice or surprise to the party against whom the testimony
is offered; (2) the ability to cure any prejudice; (3) the potential for trial disruption if the
testimony is allowed; and (4) the erring party’s bad faith or willfulness.8 The alleged Rule
26 violator bears the burden to demonstrate “substantial justification or the lack of harm.”9
Woodworker’s Supply, Inc. v. Principal Mut. Life Ins. Co., 170 F.3d 985, 993 (10th
Cir. 1999) (quoting Mid-America Tablewares, Inc. v. Mogi Trading Co., 100 F.3d 1353,
1363 (7th Cir. 1996)); see also Chambers v. Fike, No. 13-1410, 2014 WL 3565481, at *4
(D. Kan. July 18, 2014).
6
7
Woodworker’s Supply, 170 F.3d at 993.
8
Id.; Gutierrez v. Hackett, 131 Fed.Appx. 621, 625–26 (10th Cir. 2005) (applying
the Woodworker’s Supply factors); Scottsdale Ins. Co. v. Deere & Co., 115 F.Supp.3d
1298, 1305 (D. Kan. 2015); Hayes v. Am. Credit Acceptance, LLC, No. 13-2413, 2014 WL
3927277, at *4 (D. Kan. Aug. 12, 2014).
9
Estate of McDermed v. Ford Motor Co., No. 14-CV-2430-CM-TJJ, 2016 WL
1298096, at *3 (D. Kan. Apr. 1, 2016); Byrne v. Gainey Transp. Servs., Inc., No. 04-2220KHV, 2005 WL 1799213, at *2 (D. Kan. July 11, 2005).
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If the court finds that the violation is not justified or harmless, the court may also impose
additional sanctions; it “(A) may order payment of the reasonable expenses, including
attorney’s fees, caused by the failure; (B) may inform the jury of the party’s failure; and
(C) may impose other appropriate sanctions, including any of the orders listed in Fed. R.
Civ. P. 37(b)(2)(A)(i)-(vi).”10
Prejudice or Surprise
Defendant claims it was surprised by plaintiff’s supplemental disclosure and left
unable to conduct discovery on the issues of damages calculations because discovery is
closed.11 Defendant argues that it is necessary to retake the depositions of both plaintiff
and Dr. Peghee to question them about compensatory damages. 12 Defendant cites Estate
of McDermed v. Ford Motor Company, a product liability case arising from a motor vehicle
accident, where the court struck portions of an untimely disclosure because of prejudice to
the defendant. At issue there were dozens of newly disclosed fact witnesses; treating
physicians; scholarly articles and treatises, and documents and videos related to the product
at issue.13 The court, citing the number, nature, and potential significance of the witnesses
10
Fed. R. Civ. P. 37(c)(1).
11
ECF No. 73 at 7.
12
Id.
13
Estate of McDermed, 2016 WL 1298096, at *10.
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and evidence, struck a number of them from the plaintiff’s disclosure and allowed
additional discovery to be taken.14
The instant dispute is distinguishable in the scope and significance of the late
disclosures. During the period of time allowed for discovery under the scheduling order,
plaintiff provided information about her job salaries and periods of unemployment during
her deposition.15 Defendant had possession of most of the medical records and bills
through both the discovery process, as well as plaintiff’s prior workers’ compensation
filing.16 And the court notes that while defendant claims to be prejudiced by the lack of
medical bills, defendant also asserts that because the bills were settled through the workers’
compensation settlement, they will all be “irrelevant at trial.”17
That said, plaintiff
represented she would produce supplemental medical bills from Dr. Peghee, as the bills are
ongoing.18 Defendant has not received those bills.19 The court orders plaintiff to produce
those to defendant.
14
Id. at 14-15.
15
ECF No. 78-1.
16
ECF No. 78 at 9.
17
ECF No. 73 at 8.
18
ECF No. 73-3 at 2.
19
ECF No. 79 at 3.
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Defendant had the opportunity to depose Dr. Peghee about his knowledge of the
events at issue and his treatment of plaintiff.20 Defendant had the opportunity to depose
plaintiff, and indeed, plaintiff did testify about her recollection of her damages, though
perhaps not with the specificity defendant would have preferred.21 Plaintiff’s counsel also
offered to allow defense counsel the opportunity to re-depose plaintiff.22 Taken in whole,
the court finds that, while plaintiff should have timely disclosed the damages calculations
as required by Rule 26, the calculations “are not rocket science” and are based on “figures
to which defendant had access throughout discovery.”23
Ability to Cure
Defendant asserts that the only way to cure the prejudice would be to “reopen
discovery, reschedule the dispositive-motion deadline, and possibly reschedule the trial
date,” yet defendant specifically confirms it is not moving the court to do so. 24 Its choice
illustrates the significance (or lack thereof) of any potential additional discovery. Plaintiff
20
ECF No. 78-2.
21
ECF No. 78-1.
22
ECF No. 78 at 9.
23
See Byrne v. Gainey Transp. Servs., Inc., No. 04-2220-KHV, 2005 WL 1799213,
at *3 (D. Kan. July 11, 2005) (finding the plaintiff’s untimely disclosure to be harmless by
weighing the Woodworker’s factors).
24
ECF No. 73.
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represents that defendant did not make any formal or informal attempts to obtain this
information after the insufficient supplemental disclosure and before the close of
discovery.25 Defendant asserts that it does not have an obligation to “chase plaintiff using
discovery, motions to compel, and other means to receive a computation of plaintiff’s
damages.”26 The court agrees defendant did not have an obligation to do so. But defendant
chose not to move the court to compel plaintiff to disclose her precise figures during
discovery and chose not to seek leave to reopen discovery on the issue of damages. While
the court agrees that it is plaintiff’s burden to prove her Rule 26 violation was harmless, 27
the factual record is probative of the harmlessness of the violation.
Potential for Trial Disruption
Defendant argues that the use of any medical bills on cross-examination at trial will
disrupt the trial and confuse the jury, because some of plaintiff’s claimed damages were
settled in her previous workers’ compensation claim. The court leaves it to the parties to
determine how they will try their cases, should this matter go to trial. The argument that
plaintiff should be sanctioned at this juncture because the bills will be difficult to explain
to a jury is unavailing.
25
ECF No. 78 at 12.
26
ECF No. 79 at 2-3.
27
Byrne, No. 04-2220-KHV, 2005 WL 1799213, at *2 (burden to show substantial
justification or harmlessness on party who failed to make required disclosure).
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Trial in this matter is currently set for October 7, 2019, more than seven months
from now. The disclosures at issue have been supplemented and shall have no effect on
the dispositive motions due to be filed on March 1, 2019. Because the parties are not asking
to reopen discovery or modify deadlines, there will be no effect on the trial date.
Bad Faith or Willfulness
Finally, the court finds that plaintiff did not act in bad faith. While plaintiff could
and should have complied with the disclosure requirements earlier, she did comply once
the court pointed out the problem. Defendant argues that plaintiff had all the relevant
damages computation at the time of filing her complaint because of the prior workers’
compensation claim.
Although it does not excuse plaintiff from supplementing her
disclosures, she has proffered enough accounting of her damages from various sources to
convince the court that her delay in including the calculations in the disclosure was not in
bad faith.
Plaintiff had a duty to supplement discovery. Her efforts to comply with the
discovery requirements were imperfect.
Nevertheless, the court does not find that
plaintiff’s actions caused harm. Therefore, it is not appropriate to preclude plaintiff from
introducing this evidence at trial. On the record presented, plaintiff’s late disclosure does
not warrant any sanctions under Rule 37(c)(1).
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IT IS THEREFORE ORDERED that defendant’s motion for sanctions is denied.
Dated March 4, 2019, at Kansas City, Kansas.
s/ James P. O’Hara
James P. O=Hara
U.S. Magistrate Judge
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