1 2 3 4 5 6 7 8 9 10 UNITED STATES DISTRICT COURT 11 SOUTHERN DISTRICT OF CALIFORNIA 12 13 ANTHONY FILIPPONE, et al., Case No.: 22-cv-00017-DMS-JLB

14 Plaintiffs, ORDER RE: DEFENDANT THRYV, 15 v. INC.’S MOTION TO EXCLUDE TESTIMONY FROM DR. MOON 16 THRYV, INC., AND PLAINTIFFS’ NON-RETAINED 17 Defendant. EXPERTS

18 [ECF No. 32] 19 20 Before the Court is a Motion to Exclude Testimony from Dr. Moon and Plaintiffs’ 21 Non-Retained Experts filed by Defendant Thryv Inc. (“Defendant”). (ECF No. 32.) 22 Plaintiffs Anthony Filippone and Giovanni Filippone (collectively, “Plaintiffs”) oppose the 23 motion. (ECF No. 35.) This motion has been referred to the undersigned judge to 24 determine in the first instance whether Plaintiffs’ expert disclosures violated Federal Rule 25 of Civil Procedure 26. For the reasons set forth below, the Court finds that Plaintiffs’ 26 expert disclosures violated Federal Rule of Civil Procedure 26. 27 /// 28 /// 1 I. BACKGROUND 2 The initial Scheduling Order issued in this case regulating discovery and other pre- 3 trial proceedings provided that all parties must designate their respective experts in writing 4 and comply with the disclosure provisions in Rule 26(a)(2)(A) and (B) of the Federal Rules 5 of Civil Procedure no later than July 22, 2022. (ECF No. 21 ¶¶ 4–5.) The parties were 6 also required to exchange rebuttal experts and supplement their disclosures regarding 7 contradictory or rebuttal evidence under Federal Rules of Civil Procedure 26(a)(2)(D) and 8 26(e) by August 19, 2022. (Id. ¶¶ 4, 6.) All expert discovery was required to be completed 9 by September 16, 2022. (Id. ¶ 7.) 10 Pursuant to a joint motion filed by the parties, the Court later modified the 11 Scheduling Order, such that the expert designation and disclosure deadline was extended 12 to August 5, 2022, and the rebuttal expert designation and disclosure deadline was extended 13 to September 2, 2022. (ECF Nos. 25, 26.) 14 Shortly before close of business on August 5, 2022, Plaintiffs’ counsel advised 15 defense counsel that their office had experienced a power outage that prevented them from 16 accessing their servers. (ECF No. 32-1, Declaration of Christopher Reilly (“Reilly Decl.”), 17 ¶ 3; see also ECF No. 35-1, Declaration of Andy Van Le (“Van Le Decl.”), ¶ 4.) Defendant 18 agreed to accept service of Plaintiffs’ expert designations when counsel was able to regain 19 access to the firm’s servers. (Reilly Decl. ¶ 3.) Plaintiffs thereafter served their initial 20 expert disclosures on August 7, 2022. (Id. ¶ 4, Ex. A; see also Van Le Decl. ¶ 5.) 21 Plaintiffs’ initial expert disclosures designated Michael Moon, MD (“Dr. Moon”), 22 Heather H. Xitco, MBA, CPA, CFF, and Jay M. Finkelman, MBA, MLS, PhD, ABPP as 23 their retained expert witnesses. (Reilly Decl., Ex. A.) However, Plaintiffs did not include 24 any expert reports. (Id. ¶ 4, Ex. A.) Plaintiffs also designated 111 treating physicians as 25 their non-retained expert witnesses but did not include the subject matter upon which the 26 111 witnesses were expected to testify, nor a summary of the facts and opinions they 27 intended to offer at trial. (Id.) 28 /// 1 On August 8, 2022, Defendant requested that Plaintiffs immediately correct their 2 disclosures by, inter alia, producing their Rule 26(a)(2)(B) reports. (Reilly Decl. ¶ 5.) 3 Plaintiffs stated they could not comply because their retained experts had not yet prepared 4 the required reports. (Id.) Defendant therefore agreed to submit another joint motion to 5 amend the Scheduling Order to give Plaintiffs additional time. (Id.) 6 Pursuant to a second joint motion filed by the parties on August 12, 2022, the Court 7 modified the Scheduling Order to extend the expert disclosure deadline to August 19, 2022, 8 and the rebuttal disclosure deadline to September 16, 2022. (ECF Nos. 27, 28.) The expert 9 discovery deadline was also continued to September 30, 2022. (Id.) 10 On August 19, 2022, Plaintiffs served amended expert disclosures. (Reilly Decl. ¶ 11 6, Ex. B; see also Van Le Decl. ¶ 7.) With this disclosure, Plaintiffs did not produce an 12 expert report for Dr. Moon and designated the same list of 111 non-retained expert 13 witnesses. (Id.) For the majority of the non-retained expert witnesses, Plaintiffs simply 14 list a name. (Reilly Decl., Ex. B.) For the witnesses listed as “Persons most knowledgeable 15 and Custodians of Records,” Plaintiffs state that they are expected to testify “regarding 16 medical treatment of Plaintiffs and billing records related thereto.” (Id.) 17 Upon receiving the amended expert disclosures, Defendant initiated the meet and 18 confer process. (Reilly Decl. ¶ 7; see also Van Le Decl. ¶ 11.) While meeting and 19 conferring, Plaintiffs indicated they have no intention of calling all 111 non-retained 20 experts to testify at trial. (Reilly Decl. ¶ 7.) Rather, they stated they only intend to call 21 between five and ten of the treating physicians at trial. (Id.) 22 On August 31, 2022, without obtaining leave of Court for a late disclosure, Plaintiffs 23 served purported “draft” second amended expert disclosures. (Reilly Decl. ¶ 8, Ex. C; see 24 also Van Le Decl. ¶¶ 12–13.) Although the disclosure identifies Dr. Moon as a retained 25 expert witness, the disclosure still does not include Dr. Moon’s expert report. (Reilly Decl. 26 ¶ 8, Ex. C.) However, Plaintiffs did limit the number of non-retained physicians to the 27 ones whom Plaintiffs treated with and continue to treat with the most extensively. (Van 28 Le Decl. ¶ 12.) The second amended expert disclosure identifies twelve non-retained 1 expert witnesses and all persons most knowledgeable and custodians of records at eleven 2 medical groups to testify about Plaintiffs’ medical treatment and billing records related 3 thereto. (Reilly Decl., Ex. C.) 4 Pursuant to a third joint motion filed by the parties on September 16, 2022, the Court 5 modified the existing Scheduling Order to, inter alia, continue the expert discovery 6 deadline to October 14, 2022. (ECF Nos. 29, 30.) However, the parties did not jointly 7 request to continue the expert disclosure deadline.1 8 On September 19, 2022, the parties contacted the Court with respect to this discovery 9 dispute. (ECF No. 31.) The Court issued a briefing schedule. (Id.) 10 II. LEGAL STANDARD 11 Pursuant to Federal Rule of Civil Procedure 26(a)(2)(A), “a party must disclose to 12 the other parties the identity of any witness it may use at trial to present evidence under 13 Federal Rule of Evidence 702, 703, or 705.” Fed. R. Civ. P. 26(a)(2)(A). “[T]his disclosure 14 must be accompanied by a written report—prepared and signed by the witness—if the 15 witness is one retained or specially employed to provide expert testimony in the case or 16 one whose duties as the party’s employee regularly involve giving expert testimony.” Fed. 17 R. Civ. P. 26(a)(2)(B). “[I]f the witness is not required to provide a written report, this 18 disclosure must state: (i) the subject matter on which the witness is expected to present 19 evidence under Federal Rule of Evidence 702, 703, or 705; and (ii) a summary of the facts 20 and opinions to which the witness is expected to testify.” Fed. R. Civ. P. 26(a)(2)(C). 21 Federal Rule of Civil Procedure 37(c)(1) “gives teeth to these requirements by 22 forbidding the use at trial of any information required to be disclosed by Rule 26(a) that is 23 not properly disclosed.” Yeti by Molly, Ltd. v. Deckers Outdoor Corp.,

, 24 1106 (9th Cir. 2001). Under Rule 37, if a party fails to provide information as required by 25 Rule 26(a), “the party is not allowed to use that information or witness to supply evidence 26 27 1 After the briefing of this motion, the Court granted Defendant one additional 28 1 on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is 2 harmless.” Fed. R. Civ. P. 37(c)(1). “The party facing sanctions bears the burden of 3 proving that its failure to disclose the required information was substantially justified or is 4 harmless.” R & R Sails, Inc. v. Ins. Co. of Pa.,

(9th Cir. 2012). 5 In addition to or instead of the sanction of exclusion, “the court, on motion and after 6 giving an opportunity to be heard: (A) may order payment of the reasonable expenses, 7 including attorney’s fees, caused by the failure; (B) may inform the jury of the party’s 8 failure; and (C) may impose other appropriate sanctions, including any of the orders listed 9 in Rule 37(b)(2)(A)(i)–(vi).” Fed. R. Civ. P. 37(c)(1)(A)–(C). 10 District courts have discretion to determine whether to impose discovery sanctions— 11 including whether to exclude evidence. See Yeti by Molly, Ltd., 259 F.3d at 1105–06 12 (district courts have “wide latitude” to issue sanctions under Rule 37(c)(1); reviewed for 13 abuse of discretion). Evidence preclusion can, however, be a “harsh sanction.” R & R 14 Sails, Inc.,

(citation and modification omitted). Therefore, if the sanction 15 is tantamount to a dismissal, district courts must consider whether the noncompliance 16 involved “willfulness, fault, or bad faith,” and the availability of lesser sanctions. See Yeti 17 by Molly, Ltd.,

; R & R Sails, Inc.,

. These considerations 18 are required as part of the harmlessness inquiry under Rule 37(c)(1). R & R Sails, Inc., 673 19 F.3d at 1247. 20 Nonetheless, “a noncompliant party must avail himself of the opportunity to seek a 21 lesser sanction by formally requesting one from the district court.” Merch. v. Corizon 22 Health, Inc.,

(9th Cir. 2021) (citation and internal quotation marks 23 omitted). “[I]f the noncompliant party fails to move for lesser sanctions, the district court 24 is not required to consider one and does not abuse its discretion in excluding evidence 25 where such action is otherwise justified.”

(citation omitted). 26 III. DISCUSSION 27 Defendant argues that Plaintiffs’ expert disclosures fail to comply with Federal Rule 28 of Civil Procedure 26(a)(2). (ECF No. 32 at 2.) Specifically, Defendant argues that 1 Plaintiffs were required to disclose information and documents pertaining to any experts 2 that may testify at trial pursuant to Rule 26(a)(2), but they failed to provide an expert report 3 for Dr. Moon and did not provide the requisite information for each of their non-retained 4 expert witnesses. (Id.) The Court will address each alleged failure below. 5 A. Dr. Moon 6 Plaintiffs timely designated Dr. Moon as a “retained expert witness,” but did not 7 provide an expert report for Dr. Moon. (See Reilly Decl., Exs. A, B.) Plaintiffs argue that 8 because Dr. Moon is their treating physician and his opinions were formed during the 9 course of treatment, no expert report is required. (ECF No. 35 at 4–5.) Plaintiffs further 10 appear to argue that they satisfied their Rule 26 obligations by providing Dr. Moon’s CV 11 and fee schedule, as well as producing his records and reports regarding Plaintiffs’ injuries 12 and treatment in discovery. (Id. at 5.) Defendant argues that because Dr. Moon was 13 identified as a “retained expert witness,” a Rule 26(a)(2)(B) report should have been 14 produced. (ECF No. 32 at 6.) 15 “[A] treating physician is . . . exempt from Rule 26(a)(2)(B)’s written report 16 requirement to the extent that his opinions were formed during the course of treatment.” 17 Goodman v. Staples The Off. Superstore, LLC,

(9th Cir. 2011); see also 18 Merch. v. Corizon Health, Inc.,

(9th Cir. 2021) (“A treating physician 19 who is expected to testify regarding opinions formed during the course of treatment need 20 not submit a detailed expert report.” (internal quotation marks and citation omitted)). 21 Nonetheless, disclosures of non-retained, treating physicians must still comply with 22 Rule 26(a)(2)(C) and include “(i) the subject matter on which the witness is expected to 23 present evidence under Federal Rule of Evidence 702, 703, or 705; and (ii) a summary of 24 the facts and opinions to which the witness is expected to testify.” Merch.,

739–40 (quoting Fed. R. Civ. P. 26(a)(2)(C), and then citing Fed. R. Civ. P. 26 advisory 26 committee’s note to 2010 amendment). 27 Without more information than currently provided, the Court cannot definitively 28 determine whether Dr. Moon was required to produce a full expert report pursuant to Rule 1 26(a)(2)(B). See, e.g., Goodman,

(requiring a full Rule 26(a)(2)(B) expert 2 report where the plaintiff’s treating physicians were retained to render expert testimony 3 beyond the scope of the treatment rendered). Regardless, none of Plaintiffs’ disclosures 4 related to Dr. Moon comply with Rule 26(a)(2)(B) or Rule 26(a)(2)(C). As such, their 5 expert disclosures with respect to Dr. Moon are insufficient. 6 Plaintiffs appear to contend that identifying Dr. Moon, providing his CV and fee 7 schedule, and producing all his records and reports2 satisfies their Rule 26(a)(2)(C) 8 obligations. (ECF No. 35 at 5.) However, “[l]isting a physician in initial disclosures and 9 providing medical records does not suffice to meet the disclosure obligation under Rule 10 26(a)(2)(C).” Thai v. Cnty. of Los Angeles, No. 15-cv-583-WQH (NLS),

2392461, at *4 (S.D. Cal. July 1, 2022). As such, the Court finds that Plaintiffs’ disclosures 12 violate Rule 26(a)(2) with respect to Dr. Moon. 13 B. Non-Retained Expert Witnesses 14 Defendant further argues that Plaintiffs’ non-retained expert disclosures are deficient 15 under Rule 26(a)(2)(C). (ECF No. 32 at 6–8.) In their final timely disclosures served on 16 August 19, 2022, Plaintiffs list over 111 non-retained expert witnesses who they expect to 17 offer testimony or evidence at trial. (Reilly Decl., Ex. B.) Several of the individuals, 18 identified as professionals by their credentials (e.g., MD, DPT, Ph.D, LCSW, OT), are 19 listed without any further information. (Id.) Additional unnamed individuals are identified 20 as “Persons Most Knowledgeable and Custodians of Records . . . regarding medical 21 treatment of Plaintiffs and billing records” for various medical facilities. (Id.) 22 In their opposition, Plaintiffs do not address the alleged insufficiency of their non- 23 retained expert witness disclosures. Rather, Plaintiffs only address Defendant’s criticism 24 of the number of individuals identified, asserting that “Plaintiffs have seen a significant 25

26 27 2 Plaintiffs do not specify what “reports” they are referring to, but it would appear from context that they are referring to medical reports that are part of the medical treatment 28 1 number of physicians” and the fact that the “number of physicians is voluminous is not the 2 fault of Plaintiffs, but rather a product of their extensive treatment of their injuries.” (ECF 3 No. 35 at 6.) 4 In their most recent, untimely, “draft” disclosures, Plaintiffs appear to reduce the 5 number of non-retained experts. However, the amended disclosures still do not comply 6 with Rule 26(a)(2)(C). Even if the Court were to ignore the untimeliness of the disclosures, 7 Plaintiffs’ repeated statement that each listed individual will testify “regarding the medical 8 treatment of Plaintiffs and billing records related thereto” is insufficient. (See Reilly Decl., 9 Ex. C.) 10 As other district courts have noted, simply disclosing the topics of testimony is 11 insufficient under Rule 26(a)(2)(C). PerkinElmer Health Scis., Inc. v. SCR Living LLC, 12 No. 5:20-cv-02083-JWH-KK,

, at *10 (C.D. Cal. June 22, 2022) (citing 13 cases); see also Alfaro v. D. Las Vegas, Inc., No. 2:15-cv-02190 MMD PAL,

4473421, at *13 (D. Nev. Aug. 24, 2016) (identifying the broad subject matter areas on 15 which each treating physician is expected to testify or present evidence is insufficient under 16 Rule 26 (a)(2)(C)), aff’d by

(D. Nev. July 26, 2017), and aff’d sub nom. 17 Torrez v. D. Las Vegas, Inc.,

, 951 (9th Cir. 2019). Rather, the disclosure 18 must include both a summary of each non-retained expert’s opinions—i.e., an abstract, 19 abridgement, or compendium—as well as facts supporting those opinions. See

Without 20 the required disclosures, even with the benefit of the Plaintiffs’ medical records, Defendant 21 does not have enough information to make an informed decision about which providers to 22 depose, how to meaningfully depose them, and whether to retain rebuttal experts. See 23 Alfaro,

, at *3. 24 For the foregoing reasons, the Court finds that Plaintiffs’ expert disclosures also 25 violated Rule 26(a)(2) with respect to their non-retained experts. 26 IV. CONCLUSION 27 For the foregoing reasons, the Court finds that Plaintiffs’ expert disclosures violate 28 their obligations under Federal Rule of Civil Procedure 26(a)(2). Accordingly, within | ||three court days of the date of this Order, Plaintiffs shall: (1) serve amended expert 2 || disclosures on Defendant that comply with Rule 26(a)(2); and (2) file a supplement to their 3 ||opposition (ECF No. 35), which addresses the appropriate sanction, if any, under 4 37(c)(1), and attaches the amended expert disclosures as an exhibit. The supplement 5 ||shall be no longer than three pages, exclusive of exhibits. Defendant may file a reply to 6 ||the supplemental opposition within two court days. The reply shall be no longer than 7 || three pages. 8 After the parties have complied with the foregoing, the undersigned judge will issue 9 ||a report and recommendation to the Honorable Dana M. Sabraw addressing the appropriate 10 || sanction, if any, for Plaintiffs’ violation. 11 IT IS SO ORDERED. 12 Dated: November 3, 2022 .

14 n. Jill L. Burkhardt ited States Magistrate Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28