Sherwood v. BNSF Railway Co.

          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.

         Pending 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.

         BACKGROUND

         Plaintiff 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).

         Ten 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.

         LEGAL STANDARDS

         Under 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 v. Novelty, Inc., 375 Fed.Appx. 705, 713 (9th Cir. 2010) (unpublished)).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. 2001).

         Separately, 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).

         DISCUSSION

         A. BNSF's Motion to Exclude Is Granted in Part and Denied in Part.

         BNSF 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, ^[1] the Sherwoods submitted a supplemental Rule 26 disclosure providing certain witness names.^[2] Id.; see also Order (Dkt. 25). The Sherwoods submitted additional supplemental disclosures on September 28, 2017 and October 6, 2017.

         BNSF 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).

         The 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.

         The 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 harmless.

         The 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.

         Nor 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.

         Finally, 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.

         1. Dr. Diane Frost Is Excluded As a Witness.

         With 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 deposition now.

         It is 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.

         2. Dr. Romero's Late Disclosed Documents Are Excluded.

         The 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 ...