Wong v. Seattle School District No. 1

Filing 63

ORDER on Defendant's 47 MOTIONS in Limine and Plaintiffs' 49 MOTIONS in Limine, signed by Judge Richard A. Jones. The parties' motions in limine are granted in part, denied in part, and reserved in part. (VE)

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HONORABLE RICHARD A. JONES

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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JENNIFER and EUGENE WONG,

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Plaintiffs,

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ORDER

v.

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CASE NO. C16-1774 RAJ

SEATTLE SCHOOL DISTRICT NO.
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Defendant.

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This matter comes before the Court on the parties’ Motions in limine. Dkt. ## 47,
49. The Court GRANTS in part and DENIES in part the motions, and RESERVES
RULING on a number of motions for trial.
I. BACKGROUND

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This case arises from Defendant’s treatment of Plaintiffs’ child, J.W., who is a
student with disabilities. See generally Dkt. # 9 (First Amended Complaint). Plaintiffs
claim that Defendant failed to provide J.W. Free and Appropriate Public Education,
excluding him from campus since February 2014. Dkt. # 14 at 2. Plaintiffs contend they
were then forced to place J.W. in a private educational school, the Academy for Precision
Learning (“APL”), at the start of the 2014-15 school year. Dkt. # 9 at 21, ¶¶ 53–54.

ORDER- 1

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The parties are now before the Court on their respective motions in limine. Dkt.

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II. LEGAL STANDARD
Parties may file motions in limine before or during trial “to exclude anticipated

5 prejudicial evidence before the evidence is actually offered.” Luce v. United States, 469
6 U.S. 38, 40 n. 2 (1984). To decide on the motions in limine, the Court is generally
7 guided by Federal Rules of Evidence 401 and 403. Specifically, the Court considers
8 whether evidence “has any tendency to make a fact more or less probable than it would
9 be without the evidence,” and whether “the fact is of consequence in determining the
10 action.” Fed. R. Evid. 401. However, the Court may exclude relevant evidence if “its
11 probative value is substantially outweighed by a danger of one or more of the following:
12 unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or
13 needlessly presenting cumulative evidence.” Fed. R. Evid. 403.
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III. PLAINTIFF’S MOTIONS IN LIMINE

15 A. Motion to Exclude Testimony and Documents from Alison Moors-Lipshin
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Plaintiffs request the Court prohibit Defendant from offering any lay testimony,

17 opinion or conclusions to establish the admissibility of documents submitted from Alison
18 Moors-Lipshin, the Director of APL. Dkt. # 49 at 2-3. Plaintiffs claim that Ms. Moors19 Lipshin was subpoenaed only in her individual capacity, and can only speak as to the
20 admissibility of documents to which she has personal knowledge. Id.
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Defendants counter that Ms. Moors-Lipshin has personal knowledge of her own

22 interactions with J.W. since J.W. began to attend APL at the beginning of the 2014–2015
23 school year. Plaintiffs previously seemed to acknowledge this, as they called Ms. Moors24 Lipshin as their own witness in the prior administrative proceeding against Defendant at
25 OSPI Cause No. 2015-SE-0018. Dkt. # 54-2.
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Defendant indicates in its pretrial statement that Ms. Moors-Lipshin, if she is

27 called, will testify in her individual capacity as to her own personal experiences with

ORDER- 2

1 J.W., and potentially to authenticate documents for which she is the author and has
2 personal knowledge. Dkt. # 59 at 18-19. Defendant has given no indication it intends to
3 call Ms. Moors-Lipshin to testify in a representative capacity for APL. At this point, the
4 Court will take Defendant at its word.
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The Court accordingly RESERVES RULING on Plaintiffs’ motion to exclude

6 Ms. Moors-Lipshin. Ms. Moors-Lipshin may testify as to matters in which she has
7 personal knowledge and experience. To expand beyond these matters would require a
8 further ruling from this Court. Should Defendant seek to offer Ms. Moors-Lipshin’s
9 testimony for an improper purpose or contrary to the Federal Rules of Evidence,
10 Plaintiffs may make specific objections at that time.
11 B.
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Motion to Exclude Subpoenaed Documents From APL
Plaintiffs seek to prohibit Defendant from offering any evidence and testimony

13 regarding documents from APL that were the subject of Defendant’s subpoena, claiming
14 they are irrelevant and prejudicial. Dkt. # 49 at 4-5. Plaintiffs are essentially relitigating
15 their Motion to Quash Defendant’s subpoena, which this Court already denied. Dkt. ##
16 41, 42. The Court sees no need to revise its earlier ruling. Moreover, Plaintiffs fail to
17 identify any specific record as objectionable, and any resulting “prejudice” due to late
18 disclosure is at least in part due to Plaintiff’s delay in filing its Motion to Quash.
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Accordingly, the Court DENIES this motion. Plaintiffs may object to specific

20 records and documents from APL as irrelevant, prejudicial, or hearsay if they are
21 presented at trial.
22 C. Motion to Exclude Medical Intake Forms and Brooks Power Group Interview
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Notes
Plaintiffs seek to exclude as evidence certain medical intake forms from Brooks

25 Powers Group and the CARE Clinic, as well as interview notes taken by Dr. Allison
26 Brooks during her interview with Plaintiffs. Dkt. # 49 at 5. Plaintiffs argue that
27 Defendant has no witness that has personal knowledge to admit these intake forms and

ORDER- 3

1 interviews, and that they are hearsay. Id. However, as Defendants note, the intake forms
2 were completed by Plaintiffs; both Plaintiffs would have personal knowledge of their
3 own communications, and their own statements would not be hearsay. Fed. R. Evid.
4 801(d)(2). Plaintiffs also claim the intake forms would be prejudicial, but fail to explain
5 how. The Court accordingly DENIES Plaintiffs’ motion as to the intake forms.
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As to the interview notes, both Dr. Brooks and Plaintiffs, the interview

7 participants, would have personal knowledge of the information discussed in the
8 interview, and Dr. Brooks is listed as a witness for both parties. Dkt. # 60 at 11. While it
9 is possible that the interview notes themselves are hearsay, Plaintiffs do not explain how,
10 and Defendant gives no explanation for why they aren’t hearsay. The Court does not
11 have enough information at this stage to make a ruling on this evidence. Accordingly,
12 the Court RESERVES RULING on Plaintiffs’ motion as to the interview notes.
13 Plaintiffs may renew this objection at trial.
14 D. Motion to Exclude Case Note Documents From Dr. Snell
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Plaintiffs seek to exclude case notes from Dr. Jennie Snell, which reflect meetings

16 in 2010 between Dr. Snell and Plaintiffs regarding J.W.’s mental health prior to J.W.’s
17 enrollment in the Seattle School District. Dkt. # 49 at 6. Plaintiffs claim these case notes
18 are irrelevant to this case, but they do not explain why. Id. Plaintiffs also claim that the
19 case note documents are unfairly prejudicial under Rule 403 because they will be used to
20 bring in information “concerning Ms. Wong’s parenting and other information.” Id.
21 Defendant opposes, claiming that the case note documents are relevant to J.W.’s behavior
22 in a school setting, to rebut Plaintiffs’ claims that J.W. was an innocent victim of
23 bullying, and to counter Plaintiffs’ damages claim for emotional harm. Dkt. # 53 at 6-7.
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The Court concludes that these case note documents may have relevance under

25 Rule 401 for the limited purpose of rebutting certain claims by Plaintiffs. Accordingly,
26 the Court RESERVES RULING on Plaintiffs’ motion. Should Defendant seek to offer
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ORDER- 4

1 these documents for an improper purpose at trial, Plaintiffs may renew this objection at
2 that time.
3 E.
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Motion to Exclude Efforts to Attack Administrative Law Rulings
Plaintiffs move to prohibit Defendant from introducing evidence or arguments that

5 “attempt to attack findings of fact and conclusion of law issued by the administrative law
6 judge on May 14, 2016.” Dkt. # 49 at 6. Plaintiffs do not identify any such piece of
7 evidence, witness, or argument advanced by Defendant that it fears Defendant will try to
8 introduce at trial. Defendant claims that it “has not asserted that it intends to relitigate
9 any issues from the prior case Plaintiffs brought under the IDEA; rather, it has asserted
10 that the relief provided to Plaintiffs pursuant to the FFCL forms an affirmative defense to
11 Plaintiffs’ claims in this case.” Dkt. # 53 at 7-8.
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The Court agrees that this case should not be used as a vehicle to disturb the

13 administrative law rulings, and accepts Defendants’ suggestion that it will not offer
14 evidence attacking those rulings. Accordingly, the Court GRANTS Plaintiff’s motion.
15 Defendant may not offer evidence to attack the findings or conclusions issued by the
16 administrative law judge on May 14, 2016 (OSPI Cause No. 2015-SE-0018).
17 F.
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Motion to Exclude Undisclosed Lay Witness Peter Klingman
Plaintiffs request that this court exclude undisclosed lay witnesses; however, the

19 only such witness Plaintiffs identify is Defendant’s witness Peter Klingman. Dkt. # 49 at
20 7-10. Defendant does not object to this motion and agree to remove Mr. Klingman from
21 its proposed witness list. Dkt. # 53 at 8.
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The Court accordingly GRANTS this motion and excludes Peter Klingman as a

23 witness.
24 G. Motion to Exclude Witnesses From Courtroom
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Plaintiffs request that the Court order all non-party witnesses to be excluded from

26 the courtroom. Dkt. # 49 at 8. Defendant does not oppose. Dkt. # 53 at 8. Non-party
27 witnesses are not permitted to observe the trial until the Court has excused such

ORDER- 5

1 witnesses. Once the witnesses have been excused, they are permitted to observe the
2 remainder of the trial. Once a witness has been excused, they are not permitted under any
3 circumstances to be recalled as a witness.
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Accordingly, the Court GRANTS this motion to the extent that Plaintiffs wish to

5 exclude witnesses from the courtroom prior to their being excused. The Court DENIES
6 this motion insofar as Plaintiffs wish to bar witnesses entirely from the courtroom
7 H. Motion for Reservation of Rights
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Plaintiff requests leave to supplement its Motions in Limine to address additional

9 concerns they may have over Defendant’s proposed exhibits, which they had not yet
10 received at the time they filed their Motion. Dkt. # 48 at 8. Defendants oppose, claiming
11 that Plaintiffs seek an “open-ended order” and can object to documents at trial. Dkt. # 53
12 at 8.
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The Court DENIES Plaintiff’s motion. The Court will not permit additional

14 motions in limine. To the extent Plaintiffs object to certain of Defendant’s exhibits, they
15 may make these objections at trial.
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IV. DEFENDANTS’ MOTION IN LIMINE

17 A. Motion to Exclude Evidence of Damages
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Defendant seeks to prohibit Plaintiffs from offering evidence of damages due to

19 Plaintiffs’ untimely disclosures of its damages computation and evidence. Dkt. # 47 at 320 12. Rule 26(a)(1)(A)(iii) requires all parties to provide each other with “a computation of
21 each category of damages claimed by the disclosing party” and make available all
22 documents or evidence on which the computation is based. This requirement promotes
23 transparency in litigation and informs a client's decision on whether to pursue litigation or
24 an early settlement. According to the advisory committee notes, the purpose of the rule is
25 to “‘accelerate the exchange of basic information’ that is ‘needed in most cases to prepare
26 for trial or make an informed decision about settlement.’” City and County of San
27 Francisco v. Tutor-Saliba Corp., 218 F.R.D. 219, 221 (N.D. Cal. 2003) (quoting Fed. R.

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1 Civ. P. 26(a) Advisory Committee’s Note (1993)). In other words, without knowing the
2 scope of the potential damages sought, a defendant is unable to make the necessary
3 calculations to determine how to proceed. “Given these purposes, the plaintiff should
4 provide more than a lump sum statement of the damages allegedly sustained.” Id. The
5 computation of damages “contemplates some analysis; for instance, in a claim for lost
6 wages, there should be some information relating to hours worked and pay rate.” Id.
7 (citing cases).
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Here, there is no dispute that Plaintiff’s initial disclosures, served January 31,

9 2017, did not include any computation of damages. Dkt. # 48-1. Instead, Plaintiffs’
10 initial disclosures claimed that their damages were “continuing by nature,” and explained
11 that a witness would later testify as to various categories of damages, including (a)
12 “compensatory damages for moneys spent on education and related costs and education
13 denied”; (b) “[l]ost wages of Jennifer Wong”; (c) “[e]motional damages” including
14 “emotional distress, generalized anxiety, medical costs and ongoing therapy costs”; and
15 (d) “damages related to the daparagement of [J.W.’s]record on Scomis, including loss of
16 opportunity for gainful employment and all attorneys’ fees associated with efforts to
17 attempt to seal public record.” Id. Plaintiffs initial disclosures provided no further clarity
18 or computation for these categories of damages. Id.
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Starting in June 2017, Defendant attempted to ascertain a more precise calculation

20 through targeted discovery requests. In July 2017, Plaintiffs responded by providing
21 medical records dating back to 2009. Dkt. # 48 at p. 2, ¶ 3. The only additional clarity
22 Plaintiffs offered was to state that discovery was “on-going,” that their damages would be
23 determined at trial, but that the damages would include, but not be limited to: “at least
24 $250,000 for medical and educational costs; consequential damages including at least
25 $300,000 for lost wages and insurance costs; and general damages for pain, suffering, and
26 interference with J.W.’s normal life, including the impacts on J.W.’s employment
27 prospects, totaling at least $1,000,000.” Dkt. ## 48-2 at p. 6; 56 at 2. Defendant

ORDER- 7

1 attempted again to obtain a more precise damages calculation in September 2017 through
2 additional discovery requests. Dkt. # 48-3 at 1-5. In their responses on November 3,
3 2017, Plaintiffs again refused to provide a calculation, explaining that “discovery is
4 ongoing” because Plaintiffs were still waiting on relevant bills and insurance information
5 from medical providers. Dkt. # 48-3 at 6-12. Plaintiffs also produced some additional
6 medical records, such as receipts for one of J.W.’s therapists dating back to 2011. Dkt. #
7 48 at p. 2, ¶ 4.
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During a deposition of Ms. Wong in November 2017, Defendant tried again to

9 obtain a more precise estimate for Plaintiffs’ damages, and to ascertain the factual basis
10 for the damages estimations in Plaintiffs’ discovery responses. Dkt. # 48-4. Ms. Wong
11 testified that although Plaintiffs had produced to Defendant a large amount of medical
12 records, she could not identify which ones formed part of Plaintiffs’ damages claim,
13 stating that it was “up to you guys.” Id. at 9-10. Ms. Wong also testified that she
14 believed the damages evidence was still being gathered, and suggested that an expert
15 witness would provide the calculation. Id. at 9-11, 14-15. Plaintiffs did not amend their
16 initial disclosures to include a damages computation until September 17, 2018, well after
17 the close of discovery in November 2017. Dkt. # 57-3. Plaintiffs’ newly-served revised
18 calculations, which now hover around $5 million, are well in excess of the “estimates”
19 Plaintiffs gave to Defendant in their discovery responses, which totaled approximately
20 $1.55 million. Id.
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There is no question that Plaintiffs failed to timely disclose their damages

22 computations under Rule 26(a), and failed to rectify this error during discovery. See, e.g.,
23 Ishow.com, Inc. v. Lennar Corp., No. C15-1550RSL, 2017 WL 3020927, at *4 (W.D.
24 Wash. July 14, 2017) (“Making certain documents available and promising that someone
25 will testify regarding damages is not a ‘computation’ and fails to apprise defendants of
26 the extent of their exposure in this case.”). Plaintiffs’ claim that they were not required to
27 provide damages computations in their initial disclosures or discovery responses because

ORDER- 8

1 their damages were “ongoing” and “continued to mount.” Dkt. # 56 at 2. The Court is
2 unpersuaded by this argument. Many of Plaintiffs’ claimed damages are for out-of3 pocket costs incurred by the Wongs from 2013 to 2017, and Plaintiffs provide no reason
4 for why they could not have provided computations for those damages earlier in this case.
5 Dkt. # 57-3. Although Plaintiffs may not have been able to quantify their emotional
6 distress damages prior to this point in the litigation, the Court sees no reason why
7 Plaintiffs had to wait until September 2018 to calculate their lost wages, transportation
8 costs, medical expenses, costs related to prior litigation, and other out-of-pocket costs.
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Even if it was not “feasible” to provide an exact calculation of all future damages

10 in early 2017, it was not an appropriate response to wait until the eve of trial to inform
11 Defendant it was facing $5 million in exposure. Plaintiffs should have supplemented
12 their initial disclosures far sooner than they did. Rule 26(e)(1) requires that “[a] party
13 who has made a disclosure under Rule 26(a) . . . must supplement or correct its disclosure
14 . . . in a timely manner if the party learns that in some material respect the disclosure or
15 response is incomplete or incorrect . . . .” Fed. R. Civ. P. 26(e)(1)(A). Plaintiffs claim
16 that its damages estimations were untimely because of delays in obtaining medical
17 records through T-Scan data. Dkt. # 56 at 2-3. However, Plaintiff represented to the
18 Court, in an earlier filing, that “the last medical records were obtained by T-Scan on
19 December 22 [2017].” Dkt. # 24 at 3. Plaintiffs apparently had all the medical records
20 they needed late last year, yet they waited over nine months after the discovery cutoff to
21 inform Defendant of their damages calculations. Instead of timely supplementing its
22 discovery responses, Plaintiffs blindsided Defendant weeks before trial with previously
23 unseen damages calculations and evidence, and gave Defendant little opportunity to
24 challenge or evaluate the bases for the calculations. Moreover, although Plaintiffs did
25 produce a large amount of medical records to Defendant, they did not indicate which
26 ones would be used in their damages calculation. See MKB Constructors v. Am. Zurich
27 Ins. Co., No. C13-0611 JLR, 2014 WL 4848229, at *6 (W.D. Wash. Sept. 29, 2014)

ORDER- 9

1 (“The plaintiff cannot shift to the defendant the burden of attempting to determine the
2 amount of the plaintiff's alleged damages. . . . Simply providing documents or other
3 information and assuming that the defendant will somehow divine the plaintiff's damages
4 computation from those documents or other information is insufficient and not in accord
5 with the requirements of Rule 26(a) and (e)”) (internal citations omitted). Under any
6 reasonable application of Rule 26(a) and (e), Plaintiffs’ supplemental disclosure of its
7 damages calculations in September 2018 was untimely, without substantial justification,
8 and not harmless.
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The question then turns to the appropriate sanction. “If a party fails to provide

10 information or identify a witness as required by Rule 26(a) or (e), the party is not allowed
11 to use that information or witness to supply evidence on a motion, at a hearing, or at trial,
12 unless the failure was substantially justified or harmless.” Fed. R. Civ. P. 37(c)(1). For
13 this reason, “Rule 37(c)(1) gives teeth to these requirements by forbidding the use a trial
14 of any information required to be disclosed by Rule 26(a) that is not properly disclosed.”
15 Yeti by Molly Ltd. v. Deckers Outdoor Corp. 259 F.3d 1101, 1106 (9th Cir. 2001). To
16 avoid this sanction, the party who has failed to comply with the initial disclosure
17 requirements has the burden to show that its failure “was substantially justified or is
18 harmless.” Fed. R. Civ. P. 37(c)(1). The Court has discretion to exclude evidence as a
19 sanction for failing to comply with Rule 26(a), even if a party's case or cause of action is
20 precluded. Yeti, 259 F.3d at 1106 (affirming exclusion of an expert on damages). So
21 long as the sanction is less than dismissal, the Court need not find willfulness, fault or
22 bad faith. Id. This sanction is “self-executing,” and no showing of bad faith or
23 willfulness is required. Yeti, 259 F.3d at 1106.
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Previously, in situations where parties fail to provide their damages calculations in

25 their initial disclosures and fail to supplement them, this Court has prohibited those
26 parties from introducing damages evidence at trial. See, e.g., MKB, 2014 WL 4848229 at
27 * 9 (excluding from trial untimely supplemental damages calculation); Reed Constr., Inc.

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1 v. James River Ins. Co., No. C11-960 MJP, 2012 WL 13024803, at *2 (W.D. Wash. Apr.
2 6, 2012) (“The Court finds exclusion of evidence of damages a proper remedy for Reed's
3 failure to provide a computation of damages in its initial disclosures.”); cf. Cont'l Cars,
4 Inc. v. Mazda Motor of Am., Inc., No. C11-5266 BHS, 2012 WL 4903253, at *1 (W.D.
5 Wash. Oct. 16, 2012) (rejecting claim that general description of damages in initial
6 disclosures in lieu of computation was “sufficient to put [defendant] on notice” and
7 dismissing expert report with damages calculation). The Court is persuaded that this case
8 is analogous in most respects, and deserves a similar sanction.
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However, the Court recognizes a line of cases in this Circuit that hold that parties

10 need not disclose a precise computation of emotional distress damages in their initial
11 disclosures or before trial. See, e.g., Iguarta v. Mid-Century Ins. Co., No.
12 216CV00849JADCWH, 2017 WL 1013869, at *2 (D. Nev. Mar. 14, 2017) (finding that
13 plaintiff’s failure to provide calculation for emotional distress damages in initial
14 disclosures harmless because such damages were not “susceptible to precise
15 calculations”); E.E.O.C. v. Wal-Mart Stores, Inc., 276 F.R.D. 637, 639–40 (E.D. Wash.
16 2011) (denying motion to compel computation of emotional distress damages because
17 they were an issue for the factfinder); Crocker v. Sky View Christian Acad., 2009 WL
18 77456 (D. Nev. 2009) (finding that because emotional suffering is personal and difficult
19 to quantify, damages for emotional anguish likely will be established predominantly
20 through the Plaintiff's presentations to the jury, rather than through a Rule 26(a)
21 disclosure); Creswell v. HCAL Corp., No. 04cv388 BTM (RBB), 2007 WL 628036, at *2
22 (S.D.Cal. Feb. 12, 2007) (“While Rule 26 generally requires a party to provide a
23 computation of such damages, emotional damages, because of their vague and unspecific
24 nature, are oftentimes not readily amenable to computation.”). The Court recognizes that
25 Plaintiffs’ initial disclosures advised Defendant that they were seeking emotional distress
26 damages, and that it would have been difficult to quantify these damages at that time. At
27 least for this specific category of damages, Plaintiffs’ failure was arguably harmless, so

ORDER- 11

1 long as Plaintiffs did not later argue for a specific sum of emotional distress damages.
2 Warren v. Bastyr Univ., No. 2:11-CV-01800-RSL, 2013 WL 1412419, at *8 (W.D.
3 Wash. Apr. 8, 2013) (stating that Court would prevent plaintiffs from “suggesting a
4 specific amount” of emotional distress damages at trial if they did not timely disclose the
5 factual basis for their $1,000,000 claim). Unfortunately, Plaintiffs did just that, claiming
6 $1,000,000 in emotional distress damages, and did not supplement their initial disclosures
7 with facts or evidence supporting this figure. Dkt. # 57-3. The Court will not allow this
8 late-disclosed computation to be presented at trial.
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Accordingly, the Court GRANTS IN PART AND DENIES IN PART

10 Defendant’s Motion. Plaintiffs may not offer evidence or seek actual damages (i.e.
11 medical costs and compensatory education costs) or consequential damages (i.e. lost
12 wages and additional insurance costs). Plaintiffs may offer evidence of general damages
13 only in the form of emotional distress damages. Moreover, absent written consent from
14 Defendant, Plaintiffs may only offer as evidence of emotional distress damages
15 documents that were properly produced to Defendant prior to the discovery cutoff date of
16 November 13, 2017. Plaintiffs also may not request any specific sum of emotional
17 distress damages. Should the Court find for Plaintiffs on the question of liability,
18 Plaintiffs may use the evidence presented during trial to argue for a particular sum of
19 damages. Plaintiffs’ late-disclosed damages calculations, as reflected in its amended
20 initial disclosures and its expert reports, are excluded.
21 B.
22

Motion to Exclude Experts Thom Thompson and Judith Parker
Defendant’s second Motion in Limine seeks to exclude the testimony and expert

23 reports of two of Plaintiffs’ expert witnesses, Thom Thompson and Judith Parker,
24 because of the untimely disclosure and service of their expert reports. Dkt. # 47 at 12.
25 Each party must disclose expert witnesses by a certain deadline set by the Court. Fed. R.
26 Civ. P. 26(a)(2). Absent a stipulation or court order to the contrary, expert disclosures
27 must be made at least 90 days before trial. Fed. R. Civ. P. 26(a)(2)(D)(i). Parties may

ORDER- 12

1 disclose an expert witness after that deadline only if the “evidence is intended solely to
2 contradict or rebut evidence on the same subject matter identified by another party.” Fed.
3 R. Civ. P. 26(a)(2)(D)(ii). Fed. R. Civ. P. 26(a)(2)(B) provides that expert disclosures
4 “must be accompanied by a written report.”
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A party who, without substantial justification, fails to properly disclose its experts

6 and their reports is barred from using as evidence at a trial or hearing, or on a motion, the
7 undisclosed witnesses and information, unless the failure is harmless. Fed. R. Civ. P.
8 37(c)(1). “Rule 37(c)(1) gives teeth to these requirements by forbidding the use at trial of
9 any information required to be disclosed by Rule 26(a) that is not properly disclosed.”
10 Yeti., 259 F.3d at 1106. A court has “particularly wide latitude” in its decision to impose
11 sanctions via Rule 37(c)(1). Id.
12

Plaintiffs served their expert witness disclosures under Rule 26(a)(2) on October

13 27, 2017, this Court’s deadline for doing so. Dkt. ## 21, 57-1. The Court agrees with
14 Defendant that these disclosures were inadequate. Of the two experts that are the subject
15 of this Motion, only Thom Thompson was listed on Plaintiff’s Expert Witness List. Dkt.
16 # 57-1. Plaintiffs did not disclose Judith Parker by name in its Expert Witness
17 Disclosures; instead, Plaintiff disclosed that it might call a “representative/witness” from
18 “OSC Vocational Systems, Inc.” Id. at 4. This is insufficient under Rule 26(a)(2)(A) to
19 convey the “identity” of the expert, as Defendant had no way of knowing which
20 representative of OSC would serve as Plaintiffs’ expert. Plaintiff disclosed Judith Parker
21 as the representative a week later; at this point, however, the disclosure was untimely,
22 and still did not include a report. Dkt. # 27 at 15. In fact, neither disclosure was
23 accompanied by a written report on October 27, 2017, and Plaintiffs indicated that the
24 experts would not be providing written reports “in the interest of efficiency.” Dkt. # 27 at
25 5-15.
26

Plaintiff’s failure to disclose these experts on October 27, 2017 might have been

27 excusable had Plaintiffs promptly corrected the errors and communicated earlier with

ORDER- 13

1 Defendant and the Court. Instead, Plaintiffs waited over two months after the discovery
2 deadline (November 13, 2017) to request from this Court a retroactive extension of the
3 lapsed deadlines, which this Court rejected. Dkt. ## 24, 28. Plaintiff’s expert reports
4 were not completed until August 23, 2018 (Thompson) and August 30, 2018 (Parker).
5 Dkt. # 57-3 at 22-51. Defendants assert, and Plaintiffs do not deny, that the expert
6 reports were served for the first time on Defendants on August 25, 2018 (Thompson) and
7 August 30, 2018 (Parker), and only after Defendant specifically requested them after
8 noticing the two experts listed on Plaintiff’s pretrial statement. Dkt. # 47 at 13. These
9 dates fall less than two months before trial, which was then set for October 1, 2018, then
10 later moved to October 23, 2018.
11

Plaintiffs readily admits that the failure to properly disclose their experts was

12 “without substantial justification,” but claims that this failure was “harmless.” Dkt. # 56
13 at 7. The Court disagrees, as the untimely disclosure of Plaintiff’s expert reports puts
14 Defendants in the untenable situation of preparing for trial and modifying its defense
15 theories based on new expert testimony on the eve of trial. Plaintiff’s argument that the
16 prejudice to Defendant is ameliorated because Plaintiff made the experts available for
17 deposition earlier in the year is unavailing. Dkt. # 56 at 7. Without an expert report in
18 hand, Defendant’s depositions of Plaintiff’s experts would be guesswork at best, and
19 would not have provided a meaningful opportunity to evaluate the expert’s forthcoming
20 testimony. Serving expert reports only a few weeks before trial deprives Defendant of a
21 meaningful opportunity to evaluate these experts and prepare effective rebuttals.
22

Plaintiffs suggest that, as an alternative to exclusion, the Court permit their experts

23 to be called as rebuttal witnesses. Dkt. # 56 at 8-9. Fed. R. Civ. P. 26(a)(2)(D) provides
24 that rebuttal experts must be disclosed either (i) within 90 days before the date set for
25 trial; or (ii) within 30 days of the other parties’ disclosure, if the evidence is used solely
26 to contradict or rebut the same subject matter identified by the other party. Neither of
27 Plaintiff’s expert reports purport to “rebut” any subject matter put forth by Defendant or

ORDER- 14

1 Defendant’s experts, and neither were disclosed before 90 days of even the October 23,
2 2018 trial date. 1 Even if Mr. Thompson’s expert report was timely disclosed, the Court
3 would treat it with great skepticism. Mr. Thompson’s report merely states Plaintiffs’
4 legal arguments, and the Court does not need expert testimony on how to apply or
5 interpret the law. However, the Court recognizes that Plaintiffs’ ability to rebut certain
6 claims by Defendant may be unduly constrained if Ms. Parker possesses unique
7 information specific to the merits of Plaintiffs’ rebuttal.
8

Ultimately, Plaintiffs failed to disclose Mr. Thompson and Ms. Parker as experts

9 as was required per Rule 26. Moreover, Plaintiffs fail to show that the failure was either
10 substantially justified or harmless. The Court thus agrees with Defendant that Plaintiffs’
11 expert reports should be excluded. The Court thus GRANTS IN PART AND
12 RESERVES RULING IN PART on Defendant’s motion. Plaintiffs may not rely on the
13 testimony on direct, or the expert reports, of Thom Thompson and Judith Parker. The
14 Court will consider allowing testimony from Judith Parker to rebut specific testimony
15 from one or more defense witnesses or evidence. However, in order to do so, Plaintiffs
16 must make a proffer before calling Ms. Parker explaining to the Court the specific areas
17 of testimony or evidence that Ms. Parker will testify in rebuttal to, and the Court will
18 make a determination at that time. Thom Thompson is excluded as a witness.
19 C. Motion to Exclude Testimony of Patricia Maroney
20

Defendant also seeks to exclude testimony from Patricia Maroney, who Plaintiffs

21 identified as a potential expert witness in their pretrial statement. Dkt. # 47 at 15. Each
22 party must disclose the identity of each expert it expects to call at trial. Fed. R. Civ. P.
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1

This case is distinguishable from Theoharis, which Plaintiff cites, in which this Court
permitted at least some rebuttal experts were timely disclosed with proper rebuttal reports, but
25
rejected those that weren’t. Theoharis v. Rongen, No. C13-1345RAJ, 2014 WL 3563386, at *3-4
26 (W.D. Wash. July 18, 2014) (rejecting a rebuttal report that “did not address any particular
opinion in [the plaintiff's expert report]” but “[r]ather . . . was a new means to support
27 [defendant's] original opinion.”). Here, neither report was timely disclosed.

ORDER- 15

1 26(a)(2)(A); Fed. R. Evid. 702. Even those experts who do not provide a written report
2 must be timely disclosed. Fed. R. Civ. P. 26(a)(2)(C). A party who, without substantial
3 justification, fails to properly disclose its experts and their reports is barred from using as
4 evidence at a trial or hearing, or on a motion, the undisclosed witnesses and information,
5 unless the failure is harmless. Fed. R. Civ. P. 37(c)(1).
6

Prior to the pretrial statement, Plaintiffs had not disclosed Patricia Maroney as a

7 potential expert. Plaintiffs also did not disclose Patricia Maroney as an expert witness in
8 any capacity in its October 27, 2017 Expert Witness List. Id. By not disclosing Ms.
9 Maroney earlier, Plaintiffs have deprived Defendant from conducting meaningful
10 discovery as to the expert’s testimony and credentials, to hire rebuttal witnesses, or to
11 prepare its own defenses accordingly. Patricia Maroney has also not been properly
12 disclosed as a rebuttal expert under Fed. R. Civ. P. 26(a)(2).
13

Accordingly, the Court GRANTS Defendant’s Motion, and excludes Plaintiffs’

14 expert Patricia Maroney’s testimony from trial.
15

V. CONCLUSION

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For the foregoing reasons, the Court GRANTS IN PART AND DENIES IN

17 PART the motions in limine. Dkt. ## 47, 49.
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Dated this 27th day of September, 2018.

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A

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The Honorable Richard A. Jones
United States District Judge

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ORDER- 16