Robinson v. Invacare Corporation

Filing 46

Opinion and Order, Scheduling Order by Judge Michael W. Mosman regarding Motion for Imposition of Sanctions 39 . ORDER DENYING Invacares Motion for Imposition of Sanctions and extending the deadline for Mr. Robinson to make expert disclos ures and provide expert reports to April 24, 2017. Invacares rebuttal expert disclosures and reports are due May 1, 2017, and dispositive motions are due May 15, 2017. Additionally, Mr. Robinson is advised that if he does not make the necessary disclosures in accordance with Rule 26(a)(2) by April 24, 2017, I may impose the sanction that Invacare now seeks. Signed on 03/22/2017 by Judge Michael W. Mosman. (rs)

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

ROGER ROBINSON,
No. 3:15-cv-00415-MO
Plaintiff
v.

OPINION AND ORDER

INVACARE CORPORATION, an
Ohio corporation,
Defendant.

MOSMAN, J.,
This matter comes before me on Invacare’s Motion for Imposition of Sanctions [39]. For
the reasons set forth below, I DENY the Motion.
BACKGROUND
On August 31, 2016, I held a telephone status conference [38] to resolve a discovery
dispute between the parties regarding case deadlines. During the conference, I extended the
relevant discovery and pretrial deadlines, which included a deadline of December 3, 2016, for
Mr. Robinson to make his expert disclosures and provide expert reports. Although Mr. Robinson
provided Invacare with a “progress report” on December 29, 2016, he has yet to make any expert
disclosures or provide expert reports in accordance with Federal Rule of Civil Procedure
26(a)(2). As such, Invacare asks me to prohibit Mr. Robinson from using any expert witness in
this case as a sanction for his failure to comply with the deadline.

1 – OPINION AND ORDER

Mr. Robinson admits he has not made the required expert disclosures. He claims he is
committed to obtaining and providing expert reports, but he has had trouble retaining experts due
to limited financial resources. As of this writing, however, Mr. Robinson has retained two
experts – Dr. Nathan Kemalyan and Tom Fries – to serve as experts in his case. Mr. Robinson
also asserts that he expects to be able to provide his expert reports within the “near future.”
LEGAL STANDARD
A party that fails to “provide information or identify a witness as required by Rule 26(a) .
. . is not allowed to use that information or witness to supply evidence on a motion, at a hearing,
or at trial, unless the failure was substantially justified or is harmless.” Fed. R. Civ. P. 37(c)(1).
This includes instances in which parties have failed to make the proper disclosures and provide
the necessary reports in a timely manner. See Yeti by Molly, Ltd. v. Deckers Outdoor Corp., 259
F.3d 1101, 1105-06 (9th Cir. 2001) (affirming the district court’s decision to exclude evidence
from the defendant’s damages expert). A district court’s decision regarding sanctions is reviewed
for an abuse of discretion. See Yeti by Molly, 259 F.3d at 1105.
DISCUSSION
I.

Whether Mr. Robinson’s Non-Compliance Is Substantially Justified
There is no dispute that Mr. Robinson failed to make his expert disclosures in accordance

with Rule 26(a)(2) by the December 3, 2016 deadline. However, I find his non-compliance to be
substantially justified.
Following the incident giving rise to this case, Mr. Robinson received virtually all of his
medical care from the Veterans Administration (“VA”) in the Portland and Seattle areas. He
asserts that he has been unsuccessful in obtaining reports from VA doctors and, therefore, has

2 – OPINION AND ORDER

had to search for non-treating experts to review his medical records and write reports. Because of
his limited financial resources, this has been a difficult task.
Invacare points out that Mr. Robinson’s present reason for delay is the same as the one he
gave prior to the August 31, 2016 status conference for refusing to agree to a date by which to
make expert disclosures. The fact that the reason is the same, however, does not make it any less
genuine. A lack of financial resources presents a serious limitation on a party’s ability to advance
its case in an effective and predictable way. Thus, it is reasonable that a person on a limited
budget might struggle to meet all relevant deadlines, especially those dealing with retaining
experts.
This does not mean that Mr. Robinson did not need to comply with the deadline I set at
the August 31, 2016 hearing. Indeed, he should have filed a motion to extend the deadlines,
rather than simply send a “progress report” to Invacare. Still, Mr. Robinson’s failure to comply
with the expert disclosure deadline was substantially justified and does not warrant the
significant sanction of prohibiting expert testimony on his behalf.
II.

Whether Mr. Robinson’s Non-Compliance Is Harmless
Even if not substantially justified, Mr. Robinson’s failure to meet the expert disclosure

deadline is harmless. In its Motion, Invacare argues Mr. Robinson’s failure is not harmless
because it caused Invacare to incur additional legal fees in determining how to respond to the
non-compliance. I find this reason unconvincing. I do not doubt that Invacare incurred some
legal fees in having its counsel respond to Mr. Robinson’s non-compliance. But filing a threepage Motion for Sanctions [39] and a Motion for Extension of Time [41] regarding other case
deadlines hardly seems significant enough to justify imposing sanctions on Mr. Robinson.
Furthermore, the noncompliance does not affect Invacare’s ability to file rebuttal expert

3 – OPINION AND ORDER

disclosures and dispositive motions. Cf. James v. Or. Sandblasting & Coating, Inc., No. 3:15-cv01706-HZ, 2016 WL 7107227, at *5 (D. Or. Dec. 4, 2016) (noting that the plaintiff’s untimely
disclosure was not harmless because it was made after the close of discovery). Likewise, the
noncompliance does not affect any trial, as a trial date for this matter has not yet been set. Cf.
Yeti by Molly, 259 at 1107 (noting that the plaintiffs received the defendant’s untimely report
“one month before they were to litigate a complex case”).
CONCLUSION
For the reasons set forth above, I DENY Invacare’s Motion for Imposition of Sanctions.
That said, Mr. Robinson cannot simply ignore case deadlines and make his expert disclosures at
his own convenience, even if he is on a “limited budget.” Mr. Robinson represents that he has
retained two experts who should be able to provide reports “in the near future.” Thus, I extend
the deadline for Mr. Robinson to make expert disclosures and provide expert reports to April 24,
2017. Invacare’s rebuttal expert disclosures and reports are due May 1, 2017, and dispositive
motions are due May 15, 2017. Additionally, Mr. Robinson is advised that if he does not make
the necessary disclosures in accordance with Rule 26(a)(2) by April 24, 2017, I may impose the
sanction that Invacare now seeks.
IT IS SO ORDERED.
DATED this

22nd

day of March, 2017.
/s/ Michael W. Mosman_________
MICHAEL W. MOSMAN
Chief United States District Judge

4 – OPINION AND ORDER