Sanger v. Albertson's

Filing 52

ORDER on Pretrial Conference. Please access entire text by document number hyperlink. Signed on 10/14/2015 by Magistrate Judge Mark D. Clarke. (rsm)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
MEDFORD DIVISION

LORI SANGER,

Case No. 1:14-cv-01294-CL
Plaintiff,
ORDER

v.
ALBERTSON'S, LLC, a foreign limited liability
Company d.b.a. Albertson's,

Defendant.

CLARKE, Magistrate Judge.
Defendant objects to a number of Plaintiffs pretrial offerings on the basis that she failed
to make prior disclosures required under the Federal Rules of Civil Procedure. The Federal Rules
of Civil Procedure promote the integrity and fairness of the judicial process. They deserve
compliance and respect. I directed the parties to reference the Rules in two separate court orders
(#2, #5). In doing so, I explained that their ultimate goal should be "the just, speedy, and
inexpensive determination of the action."
I do not take my rulings on Defendant's objections lightly. I understand that they will
likely make it more difficult for Plaintiff to present her case. However, given Plaintiffs nonORDER-1

compliance and the undisputed prejudice Defendant would face if these items were allowed into
evidence, the Rules compel the following exclusions. Goodman v. Staples The Office Superstore,
LLC, 644 F.3d 817, 827 (9th Cir. 2011) (calling Rule 37(c)(1) a self-executing, automatic

sanction designed to strongly induce compliance with disclosure requirements).

I.

Defendant's Objection to Plaintiff's Expert Witness
Plaintiff proposes to call Richard James, M.D. as an expert witness. Defendant objects on

the grounds that Plaintiff failed to make required disclosures about Dr. James' opinions and
qualifications. Under Rule 26(a)(2), a party who retains an expert witness must provide the
adverse party with a written report, prepared and signed by the expert witness, at least 90 days
before trial. The report must contain:
(i) a complete statement of all opinions the witness will express and the
basis and reasons for them;
(ii) the facts or data considered by the witness in forming them;
(iii) any exhibits that will be used to summarize or support them;
(iv) the witness's qualifications, including a list of all publications authored
in the previous 10 years;
(v) a list of all other cases in which, during the previous 4 years, the witness
testified as an expert at trial or by deposition; and
(vi) a statement of the compensation to be paid for the study and testimony
in the case.
FED. R. Crv. P. 26(a)(2)(B).
To date, Plaintiff has not provided Defendant with an expert report. Where a party fails to
provide an expert report required by Rule 26(a), that party may not use the related expert witness
at trial unless it establishes that its failure was substantially justified or is harmless. FED. R. Crv.
P. 37(c)(1); Goodman, 644 F.3d at 826. Plaintiff has not filed a response to Defendant's
objection, much less submitted any evidence that mitigates her omission. Accordingly, Dr. James
may not testify as an expert. Defendant's objection is sustained.
I I I
ORDER-2

II.

Defendant's Objection to Plaintiff's Exhibit 1
Defendant objects to Plaintiffs proposed Exhibit 1, which is a log of medical bills.

Plaintiff failed to provide some of these bills to Defendant during discovery despite Defendant's
request. Under Rule 37(c)(l), if a party fails to supplement or correct an incomplete response to a
discovery request, "the party is not allowed to use that information . . . at a trial, unless the
failure was substantially justified or is harmless." There is no valid justification for Plaintiffs
omission. It would be prejudicial to allow Plaintiff to rely on evidence that Defendant has not
had the opportunity to consider or investigate. Accordingly, Plaintiff is foreclosed from
producing the omitted bills at trial. FED. R. CIV. P. 37(c)(l).
Defendant also objects to the remainder of the log's contents on the grounds that it lacks
a proper foundation. I will defer ruling on this objection until trial.

III.

Defendant's Objection to Plaintiff's Exhibit 14
Finally, Defendant objects to pages 36 and onward of Plaintiffs proposed Exhibit 14

because Plaintiff did not provide them to Defendant despite its relevant discovery request. I find
that Plaintiffs untimely disclosure was not substantially justified or harmless. As such, Rule
37(c)(l) forbids the use of these pages at trial.

United States Magistrate Judge

ORDER- 3