McCrary et al v. Country Mutual Insurance Company
Filing
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OPINION AND ORDER by Magistrate Judge Paul J Cleary ; granting in part and denying in part 13 Motion to Compel (kjp, Dpty Clk)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
WILLIE McCRARY and
CHARLENE McCRARY,
Plaintiffs,
v.
COUNTRY MUTUAL
INSURANCE COMPANY,
d/b/a COUNTRY FINANCIAL,
Defendant.
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Case No. 13-CV-507-JED-PJC
OPINION AND ORDER
Before the Court is the Defendant’s Motion to Compel Disclosure [Dkt.
No. 13] in which Defendant asks the Court to require Plaintiffs to provide an
“adequate computation of damages and evidentiary support as required.”
Specifically, Defendant asks that Plaintiffs be required to provide a computation
of non-economic damages – emotional distress and punitive damages – and the
“other expenses not listed, but still accruing” mentioned in the Plaintiffs’ initial
disclosures. Plaintiffs maintain that they are not required to offer a computation
of non-economic damages because these are not susceptible to precise
calculation. For the reasons set forth below, the motion is GRANTED IN PART
AND DENIED IN PART.
At a hearing held on January 23, 2014, the Court directed Plaintiffs to
supplement their initial disclosures with respect to the “other expenses” (sewer
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line repairs) which have accrued since November 22, 2013, the date the initial
disclosures were provided. Plaintiffs were also directed to provide figures for
any other economic damages they claim. This Order addresses Plaintiffs’
obligations under Fed.R.Civ.P. 26(a)(1)(A)(iii) as to non-economic damages.
Applicable Legal Principles
The Federal Rules of Civil Procedure provide that a party must include in
its initial disclosures:
A computation of each category of damages claimed by the
disclosing party – who must also make available for inspection and
copying as under Rule 34 the documents or other evidentiary
material, unless privileged or protected from disclosure, on which
each computation is based, including materials bearing on the
nature and extent of injuries suffered….
Rule 26(a)(1)(A)(iii); Morrison Knudsen Corp. v. Fireman’s Fund Ins. Co., 175 F.3d
1221, 1229 (10th Cir. 1999) (“A party must “automatically disclose ‘a
computation of any category of damages claimed’ and must produce for
inspection all materials on which it bases its computation.”).
These computations are based on the information then reasonably
available to the disclosing party and are subject to supplementation as discovery
proceeds. Rule 26(a)(1)(E) and 26(e).
Rule 26 disclosures are designed to “accelerate” the exchange of basic
information and help focus the parties on what discovery is necessary, either for
settlement or for trial. McKinney v. Reassure Am. Life Ins. Co., 2006 WL 3228791,
at *2 (E.D.Okla. Nov. 2, 2006) (quoting Sender v. Mann, 255 F.R.D. 645, 650
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(D.Colo. 2004). Disclosure of basic damages information is also required by
principles of due process and fundamental fairness. Id., at *2.
Discussion
Courts have held that Rule 26(a)(1)(A)(iii) “is unambiguous – it applies to
each category of damages claimed; it is not limited to economic damages.” Lucas
v. Transamerica Life Ins. Co., 2011 WL 5148883, *1 (E.D.Ky. Oct. 21, 2011);
Richardson v. Rock City Mechanical Co., 2010 WL 711830, *3 (M.D.Tenn. Feb. 24,
2010); McKinney, supra. These courts have required a plaintiff to disclose a
specific damage sum or range as to non-economic damages. The goal is to avoid
trial by ambush. As the Court noted in McKinney, supra, “It is simply unfair for
any defendant to remain in forced ignorance regarding this number [damages]
until the rebuttal portion of a plaintiff’s closing argument.” 2006 WL 3228791,
at *2 (citing American Realty Trust, Inc. v. Matisse Partners LLC, 2002 WL 1489543
(N.D.Tex. July 10, 2002). In American Realty, Plaintiff for the first time disclosed
a claim for $30 million after close of discovery and less than two months before
trial. American Realty, 2002 WL 1489543, at *1. The Court found this a clear
violation of Rule 26 disclosures and barred any evidence of these damages.
The concern of trial by ambush is less, however, where the nature of the
claim is revealed but the claim is for garden variety non-economic damages. In
this situation, Courts have recognized the difficulty in computing non-economic
damages. E.g., De Varona v. Discount Auto Parts, LLC, 2012 WL 2334703, *2
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(S.D.Fla. June 19, 2012); Gray v. Florida Dept. of Juvenile Justice, 2007 WL 295514,
*2 (M.D.Fla. Jan. 30, 2007); Merrill v. Waffle House, Inc., 227 F.R.D. 467, 470
(N.D.Tex. 2005); Sandoval v. Am. Building Maintenance Indus., Inc., 267 F.R.D. 257,
282 (D.Minn. 2007). These courts have not required plaintiff to provide a
calculation of non-economic damages, at least where plaintiff does not intend to
ask a jury for a specific dollar amount or range of compensation for such
damages.
With respect to Plaintiffs’ claim for emotional distress damages, if
Plaintiffs intend to submit evidence as to the severity of their emotional distress,
request a specific amount from the jury, or use expert testimony to support
their emotional distress claim, they must provide Defendant with a computation
of these damages. If Plaintiffs intend to make a “garden variety”1 emotional
distress claim, there is no basis for a computation. The matter is left to the
discretion of the jury; however, Plaintiffs must at least advise Defendant of a
number or range within which they believe their emotional distress damages
fall. Who could better gauge this sort of “garden variety” emotional distress
injury and the appropriate compensation? Defendant is entitled to know what
A “garden variety” emotional distress claim is one “devoid of evidence of
medical treatment or physical manifestation.” U.S. v. Hylton, 944 F.Supp.2d 176,
196 (D.Conn. 2013). Garden variety claims include damages for mental anguish,
mental distress, emotional pain, anxiety, embarrassment, humiliation, career
disruption, and inconvenience foreseeably flowing from defendant's actions.
Kankam v. University of Kan. Hosp. Auth., 2008 WL 4369315, *4 (D.Kan. Sept. 23,
2008) (citing Owens v. Sprint/United Mgt. Co., 221 F.R.D. 657, 659 (D.Kan. 2004).
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the Plaintiffs believe is the economic value of this injury. Thus, Plaintiffs are not
required to provide a damages computation if they are will not introduce
evidence or testimony concerning the alleged emotional distress. However,
Plaintiffs must provide an estimate of the emotional distress damages to which
they believe they are entitled.
Punitive damages present a different situation. Punitive damages are not
meant to compensate the Plaintiff for any injury. Punitive damages represent an
assessment by the jury of an appropriate amount to punish the Defendant for
certain egregious misconduct. Thiry v. Armstrong World Indus., 661 P.2d 515, 518
(Okla. 1983). Unlike emotional distress damages, punitive damages are not
uniquely within the Plaintiffs’ knowledge. In considering a punitive damage
award, the jury usually considers the net worth of the wrongdoer, and net worth
is generally determined from financial records that are in the possession of the
Defendant. A party is not required to provide a calculation of damages when
that calculation depends on information in the possession of another party.
AVX Corp. v. Cabot Corp., 252 F.R.D. 70, 77 (D.Mass. 2008); Advisory Committee
Notes, 1993 Amendments. Furthermore, this Court has historically denied
Plaintiffs access to the Defendant’s financial information until the Court first
determines that a punitive damage claim will proceed. E.g., Toussaint-Hill v.
Montereau in Warren Woods, 2007 WL 3231720, *1 (N.D.Okla. Oct. 29, 2007).
For this reason, the Court concludes that under the circumstances presented
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here, a computation of punitive damages is not required at this time. Should
Plaintiffs determine that they will ask the jury for a specific amount of punitive
damages or otherwise arrive at a specific dollar amount they will seek from the
jury, they must supplement their discovery responses to provide that
information in timely fashion.
Accordingly, Defendant’s motion is GRANTED IN PART. Within 10 days
of the date hereof, Plaintiffs are to supplement their initial disclosures to include
all elements of economic damages claimed and update that information.
Plaintiffs are to provide Defendant with a range of the monetary value of their
claimed emotional distress damages.
Defendant’s motion is DENIED IN PART. Plaintiffs are not required to
provide a punitive damage computation until such time as the Court determines
the punitive damage claim will proceed and they have been given the requisite
net worth information upon which a punitive damage claim would be based.
Each party will bear its own attorney fees associated with this motion.
IT IS SO ORDERED this 28th day of January 2014.
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