United States District Court, D. Idaho
ROBERT WILLIAM SHERWOOD and PAMELA LOUISE SHERWOOD, husband and wife, Plaintiffs,
BNSF RAILWAY COMPANY, a Delaware corporation d/b/a The Burlington Northern and Santa Fe Railway Company, and JOHN DOES I through X, Defendants.
MEMORANDUM DECISION AND ORDER RE DEFENDANT'S
MOTION TO EXCLUDE (DKT. 58) AND DEFENDANT'S MOTION TO
STRIKE (DKT. 66)
Honorable Ronald E. Bush, Chief U.S. Magistrate Judge.
are Defendant's Motion to Exclude Untimely and Late
Disclosed Witnesses and Medical Records (Dkt. 58) and
Defendant's Motion to Strike Supplemental Reports of
Richard Greear and Alan Blackwell (Dkt. 66). Having carefully
considered the record, heard oral argument, and otherwise
being fully advised, the Court enters the following
Memorandum Decision and Order.
Robert Sherwood alleges he was injured when thrown from his
bicycle after his wheel lodged in a gap between two concrete
planks at a railroad crossing used and maintained by
Defendant BNSF Railway Company (“BNSF”) near
Sandpoint, Idaho. Compl. ¶¶ 23, 24, 49-61, 65-70
(Dkt. 1). BNSF admits that Mr. Sherwood was involved in a
bicycle crash on or near the crossing, but denies various
other allegations, including that it is liable for Mr.
Sherwood's injuries. See generally Ans. (Dkt.
5). The accident occurred on July 14, 2014. Compl. ¶ 49
(Dkt. 1); Ans. ¶ 60 (Dkt. 5). Mr. Sherwood sued on
January 6, 2016, alleging negligence. Compl. ¶¶
90-96 (Dkt. 1).
motions are presently pending in this case. This decision
resolves BNSF's pending motions to exclude certain
witnesses and medical records and to strike supplemental
reports by two of the Sherwoods' experts.
Federal Rule of Civil Procedure 37(c)(1), “[i]f a party
fails to provide information or identify a witness as
required by Rule 26(a) or (e), the party is not allowed to
use that information or witness to supply evidence on a
motion, at a hearing, or at a trial, unless the failure was
substantially justified or is harmless.” In deciding
whether a late disclosure is substantially justified or
harmless, the court considers four factors: (1) prejudice or
surprise to the non-offending party; (2) ability of the
non-offending party to cure any prejudice; (3) likelihood of
disrupting trial; and (4) bad faith or willfulness of the
party failing to timely disclose. Gibson v. Credit Suisse
AG, 2016 WL 81224 at *4 (D. Idaho, Jan. 7, 2016) (citing
Lanard Toys Ltd. v. Novelty, Inc., 375 Fed.Appx.
705, 713 (9th Cir. 2010) (unpublished)). It is the offending
party's burden to prove that the untimely disclosure was
substantially justified or harmless. Yeti by Molly, Ltd.
v. Deckers Outdoor Corp., 259 F.3d 1101, 1107 (9th Cir.
Federal Rule of Civil Procedure 26(a)(2)(B) requires a party
to disclose a written report regarding expert witness
testimony including, among other things, “a complete
statement of all opinions the [expert] witness will express
and the basis and reasons for them” and “the
facts or data considered by the witness in forming
them.” Such disclosures are required “at the
times and in the sequence that the court orders.”
Fed.R.Civ.P. 26(a)(2)(D). Rule 26(e) requires supplementation
or correction “if the party learns that in some
material respect the disclosure … is incomplete or
incorrect, and if the additional or corrective information
has not otherwise been made known to the other parties during
the discovery process or in writing.” This is a
continuing duty. Fed.R.Civ.P. 26(a)(2)(E). Failure to comply
with the disclosure requirements applicable to expert
witnesses' reports can result in exclusion of the report
or other sanctions under Rule 37(c)(1).
BNSF's Motion to Exclude Is Granted in Part and Denied in
seeks to exclude certain of the Sherwoods' documents and
witnesses as not timely disclosed (Dkt. 58). According to
BNSF, the Sherwoods' initial disclosures included
documents identifying numerous health care providers, some of
whom were not properly disclosed. Mem. ISO Mot. to Exclude 2
(Dkt. 58-1). BNSF requested supplementation multiple times
between December 2016 and April 2017. Id. On August
7, 2017, the date of the discovery deadline,  the Sherwoods
submitted a supplemental Rule 26 disclosure providing certain
witness names. Id.; see also Order
(Dkt. 25). The Sherwoods submitted additional supplemental
disclosures on September 28, 2017 and October 6, 2017.
contends that the information in the supplemental disclosures
was timely requested and available to the Sherwoods long
before the discovery deadline. Mem. ISO Mot. to Exclude 2
(Dkt. 58-1). Moreover, BNSF argues that it is prejudiced
because it has had no opportunity to depose any witnesses
identified for the first time in the Sherwoods' untimely
disclosures. Id. Nor could it conduct any other
discovery regarding the disclosures. Id. Further,
BNSF's experts lacked the information within the untimely
disclosures when preparing their reports. Reply ISO Mot. to
Exclude 8 (Dkt. 106).
Sherwoods argue that BNSF's motion is overly broad and
that BNSF failed to comply with the Local Rules related to
discovery disputes. Further, they contend that certain of
their untimely disclosures were substantially justified or
harmless. Plfs.' Mem. in Opp'n to BNSF's Mot. to
Exclude 1-2 (Dkt. 91). The Sherwoods also withdraw one
witness, Mr. Scharbarth, thereby mooting BNSF's motion as
to that witness. Id. at 2 n.2.
Sherwoods' challenge that the instant motion is overly
broad has merit. They point out that the conclusion of
BNSF's brief in support of its motion seeks to prohibit
the Sherwoods “from eliciting testimony, seeking
damages, or otherwise relying upon or discussing any
information from these untimely and late disclosed witnesses
and documents - and any others that may be disclosed between
now and time of trial.” Mem. ISO Mot. to Exclude 6
(Dkt. 58-1). On its face, the relief BNSF seeks is overly
broad. However, BNSF's brief does identify certain
witnesses and documents. As to such identified witnesses and
documents, the requested relief is not overbroad.
Specifically, BNSF identifies witnesses Diane Frost, PhD, a
clinical psychologist, Dr. Rita Romero, a psychologist, and
Mr. Sherwood's friend Mr. Robert Scharbarth. Id.
at 5. BNSF also refers to photographs of Mr. Sherwood's
bicycle taken in September 2017 as well as medical records
from treatment Mr. Sherwood received in February 2015,
approximately 18 months prior to the disclosure. Id.
These particulars are sufficiently definite to put the
Sherwoods on notice of the relief sought. But,
correspondingly, the Court will consider only those witnesses
and documents actually mentioned in BNSF's motion or
opening brief as those implicated by the scope of the motion.
Hence, to the extent BNSF seeks to exclude other witnesses or
documents, the motion is denied. This result is necessary
because the Sherwoods have not had adequate notice and an
opportunity to be heard on whether any additional allegedly
untimely disclosures may have been substantially justified or
Sherwoods also contend that BNSF failed to comply with Local
Rule 37.1 by failing to meet and confer prior to filing its
motion and Local Rule 37.2 by failing to include in its
filings those discovery requests related to its motion.
Plfs.' Mem. in Opp'n to BNSF's Mot. to Exclude 2
(Dkt. 91). The parties did not meet and confer with respect
to BNSF's motion prior to its filing. BNSF contends that
because its motion is brought under Federal Rules of Civil
Procedure 26 and 37(c), rather than 37(a), there was no
requirement to meet and confer prior to filing. Reply ISO
Mot. to Exclude 4 (Dkt. 106). The Court agrees. The meet and
confer requirement arises from the text of Rule 37(a), which
deals with motions to compel disclosure or discovery. Rule
37(c), regarding excluding evidence for failure to disclose
as required by Rule 26, contains no meet and confer
requirement. Thus, the fact that BNSF did not attempt to meet
and confer prior to filing its motion does not necessitate
denying the motion.
does BNSF's alleged violation of Local Rule 37.2 hold any
significance here. That Rule requires a movant to
“provide verbatim each disputed interrogatory, request,
answer, response, or objection that underlies” a
discovery motion brought under Rules 26 and 37. BNSF did not
include such disputed discovery requests with its initial
memorandum. BNSF asserts it “rectified that
oversight” by providing such documents with its reply
memorandum, but the discovery request it filed deals with the
Sherwoods' finances and not with any witnesses or
documents BNSF identifies in its initial memorandum. Reply
ISO Mot. to Exclude 7 n.2 (Dkt. 106); Decl. of Andrew
Mitchell ¶ 3 (Dkt. 106-1); Decl. of Andrew Mitchell Ex.
2 (Dkt. 106-3). Regardless, and as previously indicated, the
Court will only consider those witnesses and documents
expressly mentioned in the initial memorandum. Such a ruling
adequately addresses BNSF's failure to file the disputed
discovery requests because the purpose of the Local Rule is
to ensure that the Court and the parties have a “clear
picture of the specific discovery in dispute.”
Plfs.' Mem. in Opp'n to BNSF's Mot. to Exclude 12
(Dkt. 91) (citing In re: Activated Carbon-Based Hunting
Clothing Mktg. & Sales Practices Litig., No.
09-md-2059, 2009 WL 10677928 at *1 (D. Minn. Aug. 19, 2009)).
Limiting BNSF's motion to the witnesses and documents
expressly mentioned in BNSF's initial memorandum ensures
that such a “clear picture” exists.
the Sherwoods contend that any untimely disclosures were
substantially justified or harmless. Id. at 14-19.
They argue separately for each witness and set of documents.
The Court will consider each in turn.
Dr. Diane Frost Is Excluded As a Witness.
respect to Dr. Diane Frost, the Sherwoods contend that she
first saw Mr. Sherwood on April 26, 2017 but was not
disclosed as a witness until August 7, 2017. Id. at
14-15. They explain that Mr. Sherwood forgot to notify
counsel because of his memory problems. Counsel learned in
late July 2017 that Mr. Sherwood was seeing Dr. Frost and
promptly interviewed her and disclosed her as a witness. The
Sherwoods suggest there is no reason to believe BNSF would
have deposed Dr. Frost even had she been timely disclosed.
Apparently acknowledging the untimely disclosure, they state
they would not object to BNSF taking Dr. Frost's
neither practical nor realistic for a defendant in a personal
injury case such as this to speculate about care providers
and construct a case strategy upon such possibilities. The
universe of possible care providers is a large one, and
without the disclosure of such providers and the means of
obtaining discovery about the details of the care they
provided to a plaintiff, it would be impossible for a
defendant to evaluate the significance of such care as it
might pertain to either liability or damage claims. The
prejudice that stems from a late disclosure is almost
inescapable and, here, BNSF was denied the opportunity to
engage in discovery with respect to Dr. Frost as a result of
the Sherwoods' untimely disclosure. Indeed, BNSF argues
that it would be prejudiced if Dr. Frost were allowed as a
witness because it had no opportunity to depose Mr. Sherwood
about Dr. Frost and because its experts' reports and
rebuttal reports were not based on Dr. Frost's records.
Reply ISO Mot. to Exclude 8-9 (Dkt. 106). Moreover, such
prejudice cannot easily be cured at this point, as discovery
has closed and experts have rendered their opinions. The
untimely disclosure of Dr. Frost significantly impacts other
discovery, particularly including the information given to
BNSF's experts to enable them to prepare appropriate
reports. Nor was the delay substantially justified on the
grounds that Mr. Sherwood simply forgot, for five months, to
tell counsel about Dr. Frost treating him. It simply is
implausible that Mr. Sherwood would forget that he was being
seen by Dr. Frost, or that his counsel would not be inquiring
of him about his providers, particularly when supplemental
disclosures were requested, and provided, on multiple
occasions. The Court is not persuaded that the Sherwoods'
late disclosure was substantially justified or harmless.
Accordingly, Dr. Frost will be excluded as a witness.
Dr. Romero's Late Disclosed Documents Are
Sherwoods disclosed Dr. Romero as a witness on September 15,
2016; medical records and invoices she prepared were timely
disclosed in September 2016 and May 2017. Id. at
15-16. At issue are an additional 38 pages of records and a
one-page bill disclosed on September 28, 2017. The Sherwoods
say that the supplemented records “contain the same
information as the previously disclosed records, but are
merely in the form of expanded checklists, rather than
concise summaries.” Id. at 16. They suggest