Carver et al v. Petry et al

Filing 30

MEMORANDUM OPINION AND ORDER: 1) Pla's 20 First Motion in Limine to Exclude Evidence Related to Plas' Damages is GRANTED IN PART and DENIED IN PART. 2) W/in 10 days from date of entry of this Order, Plas SHALL supplement their Rule 26 dis closures to provide an amt for each category of damages they seek. Plas are advised that failure to provide such amts will result in exclusion of evidence of such damages at trial. In particular, if Plas do not comply, the Court will bar Plas from referencing any figures and articulating any basis for awards in the non-economic categories of damages at trial. Signed by Judge Joseph M. Hood on 1/15/2013. (SCD)cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION at LEXINGTON
JEREMY CARVER, et al.,

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)
)
)
)
)
)
)
)

Plaintiffs,
v.
JOSH PETRY,
Defendant.

Civil Case No.
12-cv-131-JMH

MEMORANDUM OPINION AND ORDER

***
This matter is before the Court on Defendant’s First Motion
in Limine to Exclude Evidence Related to Plaintiffs’ Damages [DE
20].
has

Plaintiffs have filed a Response [DE 22], and Defendant
filed

a

Reply

[DE

24].

This

motion

is

now

ripe

for

consideration.
I.
In their Complaint, Plaintiffs demand a judgment against
the defendant “in sum in excess of $5,000.00, which will fairly
and accurately compensate them for their injuries to include
specifically emotional injuries, damage to reputation, pain and
suffering (past, present and future), medical expenses, costs
and attorney fees.”

In their Rule 26 Disclosure made on July 2,

2012, section C, the Plaintiffs stated that “[t]he damages will
not

exceed

arrest,

$75,000.00,

exclusive

incarceration,

embarrassment,

humiliation

illegal
and

of

search

mental

1

costs,

for
of

anguish

the

illegal

the

house,

and

pain

and

suffering,

as

charges.”

well

Reading

as

the

these

cost

for

defense

documents

on

together,

the

criminal

Plaintiffs

have

stated that they seek damages for their damages somewhere in a
range of $5,000-$75,000.
II.
Defendant

asks

the

Court

to

exclude

all

evidence

of

Plaintiffs’ non-economic damages from the trial of this matter
because,

in

their

Rule

26

disclosures

made

to

Defendant,

Plaintiffs did not specify that they sought an amount certain in
damages.

Plaintiffs object, taking the position that they have

said all that it is necessary on the matter.
Defendant’s

request

and

the

parties’

Having considered

arguments,

the

Court

declines to grant such draconian relief in this instance but
concludes that it is appropriate to compel Plaintiffs to make a
specific disclosure of the damages sought.
Effectively,

the

26(a)(1)(A)(iii),

which

computation

of

each

parties
requires
category

dispute
the

of

parties
damages

whether
to

Rule

disclose

claimed

by

“a
the

disclosing party” along with supporting evidentiary material,
applies

to

non-economic

damages.

“Rule

26(a)(1)(A)(iii)

is

unambiguous — it applies to each category of damages claimed; it
is not limited to economic damages.”

See Lucas v. Transamerica

Life Ins. Co., No. 5:10-cv-750-KKC, 2011 WL 5148883, *1 (E.D.
Ky. Oct. 21, 2011).

The undersigned agrees and elects to follow
2

the

course

Lucas.
unable

set

Rule
to

plaintiff

forth

26

in

requires

“precisely
is

Magistrate
that,

Judge

although

explain

his

to

provide

required

Wier’s
a

opinion

plaintiff

quantification
specific

may

...

amounts

in
be
the
of

compensatory and punitive damages he seeks.” Id. at *1 (citing
Richardson v. Rock City Mechanical Co., No. 3–09–0092, 2010 WL
711830, *3 (M.D. Tenn. Feb. 24, 2010)).
Here, Plaintiffs should have identified an amount—either a
specific sum or something substantially more precise than the
$70,000 range of potential recovery to be gleaned from their
Complaint and disclosures—to be sought as to each non-economic
category

of

damages

sought.

These

legitimate topics of discovery.

figures

are

clearly

Of course, the final award may

be relegated to the jury, but the parties and Court should know
the range sought and basis for it because, “[i]n general, the
economic scope of a case informs decisions about resource use,
burdensomeness, settlement, and potentially insurance issues. .
. . In short, Plaintiffs must be in a position to forecast what
they seek in terms of each damage category.”

Id. at *2.

Rule 37(c)(1) provides that “[i]f a party fails to provide
information . . . as required by Rule 26(a). . . , the party is
not

allowed

to

use

that

information

or

witness

to

supply

evidence . . . at a trial, unless the failure was substantially
justified

or

is

harmless.”

That
3

said,

the

Court

is

not

persuaded that – in this instance – an outright prohibition on
producing evidence of damages is the proper sanction.1

Rather,

“instead of this sanction, the court, on motion and after giving
an opportunity to be heard . . . may impose other appropriate
sanctions

including

37(b)(2)(A)(i)-(vi).”

any

of

Fed.

the

R.

Civ.

orders
P.

listed

37(c)(1)(A)

in

Rule

and

(C).

Other appropriate sanctions include “staying further proceedings
until [an] order is obeyed.”

Fed. R. Civ. P. 37(b)(2)(A)(iii).

In this instance, the Court concludes that the appropriate cure
for this failure is to require Plaintiffs to supplement their
Rule 26 disclosures and to provide a specified amount for each
category of damages that they seek, including all non-economic
categories of recovery sought.
Accordingly, IT IS ORDERED:

1

In reality, the present issue is a dispute which would have
been better presented during the period of discovery as either a
motion to compel or a motion for a protective order. While, as
Defendant points out, the burden of establishing substantial
justification and harmlessness falls on the disclosing party
where there is a failure of disclosure, see Roberts ex rel.
Johnson v. Galen of Virginia, Inc., 325 F.3d 776, 782 (6th Cir.
2003), the Court wonders at Defendant’s failure to file a motion
to compel during the period of discovery assigned in this case.
While the Court is not concluding that the issue was waived,
Defendant’s failure to raise it earlier during the course of
this litigation is nearly as notable as Plaintiffs’ failure to
supplement – leaving the Court to wonder if Defendant ever
conferred about this discovery issue with Plaintiffs which is
necessary before seeking relief from the Court.
See Fed. R.
Civ. P. 37(a)(1).
4

(1)

That Plaintiff’s First Motion in Limine is GRANTED IN

PART and DENIED IN PART.
(2)

That, within 10 days from the date of entry of this

Order, Plaintiffs SHALL supplement their Rule 26 disclosures to
provide

an

amount

for

each

category

of

damages

they

seek,

specifically including but not limited to damages claimed for
“illegal

arrest,

embarrassment,

incarceration,

humiliation
well

as

the

and

illegal
mental

cost

for

search

of

anguish

defense

on

the

and
the

house,

pain

and

suffering,

as

criminal

charges.”

Plaintiffs are advised that failure to provide such

amounts will result in exclusion of evidence of such damages at
trial,

pursuant

to

Rules

37(b)(2)(ii)

and

37(c)(1).

In

particular, if Plaintiffs do not comply, the Court will bar
Plaintiffs

from

referencing

any

figures

and

articulating

any

basis for awards in the non-economic categories of damages at
trial.
This the 15th day of January, 2013.

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