United States District Court, D. Idaho
MEMORANDUM DECISION AND ORDER
LYNN WINMILL U.S. DISTRICT COURT JUDGE.
the Court is Defendants William Shubert and Jesus
Gonzalez’s Motion in Limine to Exclude Medical Records,
and Motion for Rule 37(c) Sanctions (Dkt. 150). Defendant
Judith Peterson joined these motions (Dkt. 153). The
Defendants seek to exclude: 1) Prescription records from 2014
(Dkt. 150-2 at 7-8); 2) Medical records from the University
of Utah Moran Eye Center generated in August, 2016 and June,
2018 (Dkt. 150-2 at 18-26); 3) Medical records from Southern
Idaho Ophthalmology generated in April, 2019 (Dkt. 150-2 at
27-31); and 4) Medical records from the Moran Eye Center
generated in May and June, 2019 (Dkt. 150-2 at 9-17).
Defendants also request attorneys’ fees related to
these motions as sanctions under Rule 37(c)(1) for failure to
disclose information under Rule 26(e). The Court orally ruled
on these motions during a conference with all counsel on
September 19, 2019. This Memorandum and Order is filed to
clarify and support the Court’s oral ruling. For the
reasons that follow, the Court will grant in part and deny in
part the Defendants’ Motions.
motion in limine is a procedural mechanism to limit
in advance testimony or evidence in a particular area.
United States v. Heller, 551 F.3d 1108, 1111 (9th
Cir. 2009). Courts have “wide discretion” in
considering and ruling upon a motion in limine.
Trichler v. Co. of Lake, 358 F.3d 1150, 1155 (9th
Cir. 2004). The Federal Rules of Civil Procedure require
parties to provide to other parties “the name ... of
each individual likely to have discoverable information-along
with the subjects of that information-that the disclosing
party may use to support its claims or defenses.”
Fed.R.Civ.P. 26(a)(1)(A)(i). And, “[a] party who has
made a disclosure under Rule 26(a) ... must supplement or
correct its disclosure” in a “timely manner 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.” Id. R. 26(e). A party that does not
timely update its discovery under Rule 26 may not use the
substance of the discovery response to supply evidence at a
trial “unless the failure was substantially justified
or is harmless.” Id. R. 37(c)(1); Yeti by
Molly Ltd. V. Deckers Outdoor Corp., 259 F.3d 1101, 1105
(9th Cir. 2001). The party seeking to introduce
the discovery must prove harmlessness. Yeti by
Molly, 259 F.3d at 1107.
The 2014 Prescription Records
August 16, 2019 the Plaintiff sent a supplemental discovery
response to Defendants, which included two prescription slips
from Southern Idaho Ophthalmology and corresponding receipts
from Chateau Drug Center. Dkt. 150-2 at 7-8. The prescription
records were generated in August, 2014. They were not
produced prior to the Plaintiff’s supplemental
Plaintiff acknowledges, these records should have been
included as part of the initial disclosures. They were
clearly not timely supplemented. Defendants contend that
these records should have been produced much earlier and are
harmful to Defendants. Def.’s Mem. at 6, Dkt.
150-1. Plaintiff argues that these records do not introduce
new information, but only confirm testimony to be offered at
trial. Pl.’s Resp. at 2, Dkt. 151. The
Plaintiff has not met his burden of proving that the 2014
prescription records are harmless. As such the Court will
grant Defendants’ motion as to these records.
The 2016 Medical Records
also sent defendants medical records from the University of
Utah Moran Eye Center, which were generated in August, 2016
(Dkt. 150-2 at 21-26). Like the 2014 records, these medical
records have been in existence since well before the close of
discovery, and were not produced. The Plaintiff does not
address Defendants’ argument to exclude these records
in his response. See Pl.’s Resp., Dkt. 151. As
such he has not shown that these records are harmless.
Accordingly, the Court will grant Defendants’ motion as
to these records.
The 2018 Medical Records
supplemental response, Plaintiff also produced medical
records from the Moran Eye Center generated in 2018. Dkt.
150-2 at 18-20. The Court previously granted
Defendants’ motion to exclude these records in March,
2019. Dkt. 126. Accordingly the Court will grant
Defendants’ motion as to these records.
The 2019 ...