Wilson v. Wal-Mart Stores, Inc.

Filing 87

ORDER granting Defendant's 48 Motion to Exclude Untimely Damages Claims; granting Plaintiff's 61 Motion to Strike Rebuttal Expert. Signed by Magistrate Judge Cam Ferenbach on 3/21/2016. (Copies have been distributed pursuant to the NEF - KR)

UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA
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KATIE F. WILSON,
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Case No. 2:15–cv–1791–RCJ–VCF

Plaintiff,
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vs.

ORDER

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WAL-MART STORES, INC., et.al.,

MOTION TO EXCLUDE UNTIMELY DAMAGES
CLAIMS (DOC. #48); MOTION TO STRIKE
REBUTTAL EXPERT (DOC. #61)

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Defendant.

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This matter involves Plaintiff Katie F. Wilson’s civil action against Defendant Wal-Mart Store,
Inc. Before the court are Wal-Mart’s motion to exclude untimely damages claims (Doc. #48), Wilson’s
response (Doc. #65), and Wal-Mart’s reply (Doc. #78). Also before the court is Wilson’s motion to

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strike Wal-Mart’s rebuttal expert (Doc. #61), Wal-Mart’s response (Doc. #77), and Wilson’s reply (Doc.
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#85). For the reasons stated below, Wal-Mart’s motion to exclude untimely damages claims (Doc. #48)
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is granted. Wilson’s motion to strike Wal-Mart’s rebuttal expert is also granted.
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I. Background

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The instant motions arise from the parties’ allegedly untimely disclosures. On November 5,

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2015, the court set the following discovery deadlines: (1) initial disclosures under Federal Rule of Civil

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Procedure 26(a)(1) were due on November 3, 2015, (2) expert witnesses disclosures were due on

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January 15, 2016, (3) rebuttal expert witness disclosures were due on February 14, 2016, and (4)

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discovery would close on March 15, 2016. (Doc. #9). The court granted a limited extension of

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discovery so that the parties would be able to depose certain witnesses. (Doc. #67). The discovery

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deadline, the expert witness disclosure deadline, and the rebuttal expert witness disclosure deadline were
not extended.

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On October 20, 2015, as part of her initial disclosures, Wilson claimed $86,743.05 in past
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medical expenses. (Doc. #48-2 at 10). Wilson did not claim any future medical expenses or lost

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income. On December 18, 2015, Wilson served her second supplement to her initial disclosures, in

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which her past medical expenses increased from $86, 743.05 to $248,541.03. (Doc. #48-6 at 11).

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Wilson’s second supplement to her initial disclosures did not claim any future medical expenses or lost

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income. On January 20, 2016, Wilson served her fifth supplement to her initial disclosures, in which her

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past medical expenses increased from $248,541.03 to $337,446.86. Wilson also claimed $657,254.80 in

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future medical care and $117,972.00 - $295,505.00 in “los[t] household services.” Wilson’s special

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damages now total $1,112,673.66 - $1,290,206.66. Wal-Mart now moves to exclude Wilson’s damages
claims over $86,743.05 as Wal-Mart alleges that Wilson’s additional damages were untimely disclosed.

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On January 15, 2016, Wal-Mart disclosed Dr. Steven McIntire as its expert witness. (Doc. #61-2
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at 2). On February 16, 2016, Wal-Mart disclosed Dr. Arthur Dublin as its rebuttal expert witness. (Doc.
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#61-4 at 2). Wilson now moves to strike Dr. Dublin’s opinion as Wilson alleges that he is not a proper
rebuttal witness, thus Wal-Mart did not timely disclose him as an initial expert witness on January 15,
2016.
II. Legal Standard
“[A] party must, without awaiting a discovery request, provide to the other parties … a

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computation of each category of damages claimed by the disclosing party.” FED. R. CIV. P. 26(a)(1)(iii).

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“In addition to the disclosures required by Rule 26(a)(1), a party must disclose to the other

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parties the identity of any witness it may use at trial to present evidence under Federal Rule of Evidence
702, 703, or 705.” FED. R. CIV. P. 26(a)(2)(A).

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“If a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the
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party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at
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trial, unless the failure was substantially justified or is harmless.” FED. R. CIV. P. 37(c)(1). “In addition
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to or instead of this sanction, the court, on motion and after giving an opportunity to be heard: (A) may

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order payment of the reasonable expenses, including attorney’s fees, caused by the failure; (B) may

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inform the jury of the party’s failure; and (C) may impose other appropriate sanctions.” FED. R. CIV. P.

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37(c)(1)(A)-(C).

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III. Discussion

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The parties present three issues: (1) whether Wilson’s additional damages claims may be

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excluded due to their untimely disclosure, (2) whether Wal-Mart’s expert Dr. Arthur Dublin is a proper

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rebuttal expert, and (3) whether Dr. Dublin’s opinion may be excluded due to its untimely disclosure.
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Wilson’s Additional Damages Claims are Excluded

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“A party must make its initial disclosure based on the information then reasonably available to
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it.” FED. R. CIV. P. 26(a)(1)(E). “A party is not excused from making its disclosures because it has not
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fully investigated the case.” FED. R. CIV. P. 26(a)(1)(E).
Wilson’s claims for damages over $86,743.05 are excluded as untimely. On December 18, forty-

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five days after initial disclosures were due, Wilson increased her claimed past medical damages from

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$86,743.05 to $248,541.03. On January 20, seventy-eight days after initial disclosures were due,

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Wilson: (1) increased her past medical expenses $248,541.03 to $337,446.86, (2) claimed $657,254.80

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in future medical damages, and (3) $117,972.00 - $295,505.00 in “los[t] household services.” Wilson’s

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January 20 supplemental disclosure was the first time Wilson claimed future medical damages or

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damages for lost household services. Wilson’s disclosure of damages over $86,743.05 are untimely,
thus Wilson must show that her untimely disclosures were substantially justified or harmless.

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Wilson argues that Wal-Mart was not harmed by her untimely disclosures of additional damages
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as Wilson promptly informed Wal-Mart of her medical expenses as she incurred them. Wilson’s
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argument is unpersuasive. Federal Rule of Civil Procedure 26(a)(1) requires a party to give other parties
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an estimate of the damages he will claim at trial; assertions that a party is continuing to treat does not

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excuse the party from providing a reasonable estimate of her damages as part of her initial disclosures.

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Montilla v. Wal-Mart Stores, Inc., Case No. 2:13-cv-2348-GMN-VCF, 2015 WL 5458781 at* 3 (D.

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Nev. Sept. 16, 2015). Here, Wilson’s failure to disclose the full amount of past medical expenses, as

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well as her future medical damages and damages related to the loss of household services, prejudiced

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Wal-Mart. Wal-Mart likely would have had a different litigation strategy had it known Wilson was

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claiming over $1 million in damages versus only $86,743.05 in damages. Thus Wilson’s damages over

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$86,743.05 are excluded.
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Dr. Dublin is Not a Proper Rebuttal Witness

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Federal Rule of Civil Procedure 26(a)(2)(D)(ii) “permits the admission of rebuttal expert
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testimony that is ‘intended solely to contradict or rebut evidence on the same subject matter identified’
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by an initial expert witness.” R & O Const. Co. v. Rox Pro Intern. Group, Ltd., Case No. 2:09-cv-1749LRH-LRL, 2011 WL 2923703 at* 2 (D. Nev. July 18, 2011). “Rebuttal expert reports necessitate a

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showing of facts support the opposite conclusion of those at which the opposing party’s experts arrived

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in their respective reports.” Id. “Rebuttal expert reports are proper if they contradict or rebut the subject

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matter of the affirmative expert report.” Id. “They are not, however, the proper place for presenting

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new arguments.” Id. “Rather, rebuttal expert testimony is limited to new unforeseen facts brought out

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in the other side’s case.” Id.; see also Amos v. Makita U.S.A., Inc., Case No. 2:09-cv-1304-GMN-RJJ,

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2011 WL 43092 at* 2 (D. Nev. Jan 6, 2011) (finding that expert’s opinion that proffered an alternative
causation theory was not a proper rebuttal expert opinion).

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Dr. Dublin’s opinion is not a proper rebuttal expert opinion. Dr. Dublin reviewed portions of
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Wilson’s medical records and concluded that Wilson sustained no “active or recent trauma.” Dr.
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Dublin’s expert report also state that he “did not review the medical examinations.” Dr. Dublin’s expert
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report presents an alternative explanation for Wilson’s claimed injuries, namely that Wilson’s injuries
are the result of her pre-incident health problems.
Since Dr. Dublin’s expert report presents an alternative theory about the cause of Wilson’s

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complained of injuries, Dr. Dublin is not a proper rebuttal expert witness. In Amos, the defendant’s

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proposed rebuttal expert opined that faulty electrical wiring, and not the defendant’s power tool, was the

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cause of the fire that damaged the plaintiff’s home. 2011 WL 43092 at* 2. The Amos court held that the

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defendant’s expert was not a proper rebuttal expert as the defendant’s expert presented a new argument,

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an alternative theory of causation, instead of addressing unforeseen facts raised in the plaintiff’s experts’
reports. Id. Here, Dr. Dublin’s proposed testimony is similar; he proposes to testify about an alternative

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theory about Wilson’s injuries. The cause of Wilson’s injuries is a central issue in this action, thus
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injury causation cannot be the type of “unforeseen facts” that a rebuttal expert witness may properly
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address. Dr. Dublin is not a proper rebuttal expert witness, thus Wal-Mart’s disclosure of Dr. Dublin on
February 16 was untimely.
3.

Dr. Dublin’s Opinion is Excluded
“Among the factors that may properly guide a district court in determining whether a violation of

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a discovery deadline is justified or harmless are: (1) prejudice or surprise to the party against whom the

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evidence is offered; (2) the ability of that party to cure the prejudice; (3) the likelihood of disruption of

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the trial and (4) bad faith or willfulness involved in not timely disclosing the evidence.” Lanard Toys

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Ltd. v. Novelty, Inc., 375 Fed. Appx. 705, 713 (9th Cir. 2010). “The burden is on the party facing
exclusion of its expert’s testimony to prove the delay was justified or harmless.” Id.

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Here, Wal-Mart fails to meet its burden to show that Dr. Dublin’s untimely disclosure was
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justified or harmless. Wal-Mart’s argument, that Wilson’s use of a spinal cord stimulator is a novel
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issue that justifies Wal-Mart’s untimely disclosure of Dr. Dublin, is unpersuasive. In Lanard Toys, the
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plaintiff’s untimely disclosure of his expert witness was held justified and harmless as the plaintiff had

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served a “preliminary” expert declaration, that contained plaintiff’s expert’s background information,

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resume, and detailed information about how he had formed his opinion, before the initial expert witness

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disclosure deadline. Id. Here, Wal-Mart fails to show that its untimely disclosure of Dr. Dublin is

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justified or harmless. Wal-Mart likely knew from the outset of discovery that injury causation would be

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a central issue in this action, irrespective of the particular medical treatments Wilson was receiving at

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the time of the incident. Unlike Landard Toys, Wal-Mart failed to disclose any information about Dr.

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Dublin before the initial expert witness disclosure deadline. Further, the novelty of Wilson’s injury does
not justify Wal-Mart’s untimely disclosure of Dr. Dublin; Wal-Mart deposed Wilson on January 7, 2016

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and was then able to timely disclose Dr. McIntire as its expert witness. Wal-Mart fails to explain why it
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could not timely disclose Dr. Dublin, in light of the brevity of his report and the report’s failure to
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specifically address the spinal stimulator. (Doc. #77-9). Finally, the delay is not harmless; if Dr. Dublin
is permitted to testify, Wilson will likely need to depose him, then possibly retain her own rebuttal
expert witness.

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ACCORDINGLY, and for good cause shown,

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IT IS HEREBY ORDERED that Wal-Mart’s motion to exclude untimely damages claims (Doc.

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#48) is GRANTED. Wilson may not offer evidence to support any claim of damages over $86,743.05.

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IT IS FURTHER ORDERED that Wilson’s motion to strike Wal-Mart’s rebuttal expert is
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GRANTED. Wal-Mart may not use Dr. Dublin’s expert opinion for any purpose.

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IT IS SO ORDERED.

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DATED this 21st day of March, 2016.

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_________________________
CAM FERENBACH
UNITED STATES MAGISTRATE JUDGE

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