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8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10

11 JUANA MORENO, et al., Case No. 1:23-cv-00449-SAB

12 Plaintiffs, ORDER DENYING DEFENDANT’S MOTION TO STRIKE/EXCLUDE 13 v. PLAINTIFFS’ EXPERT WITNESSES

14 UNITED STATES OF AMERICA, (ECF No. 35)

15 Defendant. 16

17 Currently before the Court is Defendant United States of America’s motion to exclude 18 Plaintiffs Juana Moreno, Veronica Moreno, George Moreno, Diega Moreno, Cristina Moreno, 19 and Nancy Moreno’s (collectively, “Plaintiffs”) proffered experts from testifying at trial. 20 A hearing was held in this matter on June 25, 2025. (ECF No. 38.) Counsel Daniel 21 Harralson appeared on behalf of Plaintiffs and counsel Rachel Davidson appeared on behalf of 22 Defendant. Having considered the moving, opposition, and reply papers, the arguments made at 23 the June 25, 2025 hearing, as well as the Court’s record, for the reasons explained herein, the 24 Court denies Defendant’s motion to exclude Plaintiffs’ expert witnesses and modifies the expert 25 deadlines in the scheduling order. 26 / / / 27 / / / 28 / / / 1 I. 2 LEGAL STANDARD 3 Rule 26 of the Federal Rules of Civil Procedure (“Rule”) requires the disclosure of expert 4 witnesses. Fed. R. Civ. P. 26(a)(2). Unless stipulated by the parties or otherwise ordered by the 5 Court, the party’s expert disclosure must be accompanied by a written report, which has been 6 prepared and signed by the witness. Fed. R. Civ. P. 26(a)(2)(B). The witness’s “report must 7 contain: (i) a complete statement of all opinions the witness will express and the basis and reasons 8 for them; (ii) the facts or data considered by the witness in forming them; (iii) any exhibits that 9 will be used to summarize or support them; (iv) the witness’s qualifications, including a list of all 10 publications authored in the previous 10 years; (v) a list of all other cases in which, during the 11 previous 4 years, the witness testified as an expert at trial or by deposition; and (vi) a statement of 12 the compensation to be paid for the study and testimony in the case.” Fed. R. Civ. P. 26(a)(2)(B). 13 Rule 37(c)(1) gives teeth to the expert disclosure “requirements by forbidding the use at 14 trial 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.,

(9th Cir. 2001). Rule 37 16 provides that a party is not allowed to use information or witnesses that are not disclosed or 17 supplemented as required by Rule 26(a) or (e) unless the failure was substantially justified or 18 harmless. Fed. R. Civ. P. 37(c)(1). “The Advisory Committee Notes describe [this] as a ‘self- 19 executing,’ ‘automatic’ sanction to ‘provide[] a strong inducement for disclosure of 20 material. . . .’ ” Yeti by Molly, Ltd.,

(quoting Rule 37 advisory committee’s 21 note (1994)). District courts have discretion in determining whether to issue sanctions under Rule 22 37(c)(1).

The burden is on the party seeking to admit the evidence to demonstrate that the 23 failure to disclose was substantially justified or harmless.

. 24 II. 25 DISCUSSION 26 A scheduling order issued in this action on October 17, 2023. (ECF No. 19.) The 27 scheduling order provided, in pertinent part, that Plaintiffs were to disclose expert witnesses by 28 April 4, 2025; Defendant was to disclose expert witnesses by May 5, 2025; all supplemental 1 experts were to be disclosed by May 30, 2025; and the parties were to complete expert discovery 2 by August 4, 2025. (Id. at 2-3.) The order expressly states that “written designation of retained 3 and non-retained experts shall be made pursuant to Fed. R. Civ. P. 26(a)(2), (A), (B) and (C) 4 and shall include all information required thereunder. Failure to designate experts in 5 compliance with this order may result in the Court excluding the testimony or other evidence 6 offered through the experts that are not properly disclosed in compliance with this order.” (Id. 7 (emphasis in original).) 8 On April 4, 2025, Plaintiffs filed a document entitled “Plaintif(s) [sic] disclosure of expert 9 witnesses pursuant to Federal Rules of Civil Procedure, Rule 26(a)(1)” directly with the Court. 10 (ECF No. 31.) The document lists two expert witnesses and attaches their curriculum vitae. The 11 disclosure conflictingly noted that the experts’ written reports were both “filed concurrently with 12 th[e] disclosure” and that the reports would be “provided once prepared.” (Id. at 1-2.) As an 13 initial matter, such filing violates Rule 5, which provides that expert disclosures pursuant to Rule 14 26(a)(2) must not be filed with the Court until they are used in the proceeding or the court orders 15 filing. Fed. R. Civ. P 5(d)(1)(A). 16 Plaintiffs’ improperly filed expert disclosure did not include a written report by either 17 expert. After Defendant alerted counsel for Plaintiffs of the deficiency on April 7, 2025, and 18 received no response, Defendant filed an objection to Plaintiffs’ disclosure on April 10, 2025, 19 memorializing on the record that no written expert reports had been provided to Defendant. (ECF 20 No. 35-2 at 6; ECF No. 32.) Counsel for Plaintiffs informed Defendant on April 10, 2025 that he 21 did not anticipate requesting any expert prepare a written report and thus did not have any report 22 to produce but would request that his experts begin preparing reports. (ECF No. 35-2 at 6-8.) 23 On May 2, 2025, the parties filed a sparse stipulation to modify the scheduling order to 24 continue all expert discovery deadlines to allow Plaintiffs’ experts to prepare reports. (ECF No. 25 33.) The same day, the Court denied the procedurally and substantively deficient stipulation, 26 finding the parties failed to provide good cause to sanction the retroactive reopening of Plaintiffs’ 27 expert disclosure under Rule 16. (ECF No. 34.) The Court expressly noted that whether such 28 untimely disclosure was substantially justified or harmless was not before the Court. (Id. at 5.) 1 On May 5, 2025, Defendant filed the instant motion and set the hearing for seven weeks 2 later on June 25, 2025.1 (ECF No. 35.) Defendant contends Plaintiffs’ deficient expert disclosure 3 violated Rule 26(a)(2) and the Court’s scheduling order and requests that Plaintiffs’ experts be 4 automatically excluded under Rule 37(c)(1).2 5 On June 18, 2025, Plaintiffs filed their opposition. (ECF No. 36.) Plaintiffs proffer that 6 since Defendant’s May 5, 2025 motion, they have provided their experts’ written reports: Ari D. 7 Baron, M.D.’s report was served on June 2, 2025 and Joseph Penbera, Ph.D.’s report was served 8 on June 16, 2025. (Id. at 2.) Because June 2, 2025 and June 16, 2025 fall far outside the April 4, 9 2025 expert disclosure deadline, Plaintiffs bear the burden of demonstrating that their failure to 10 disclose experts in compliance with Rule 26(a)(2) was substantially justified or harmless. Yeti by 11 Molly, Ltd.,

. Plaintiffs concede that they violated Rule 26(a)(2) by failing to 12 provide Dr. Baron and Dr. Penbera’s reports by April 4, 2025 and do not dispute such failure is 13 not substantially justified. (ECF No. 36 at 3.) Exclusion of Plaintiffs’ experts therefore hinges on 14 whether the untimely disclosure was harmless. 15 “Among the factors that may properly guide a district court in determining whether a 16 violation of a discovery deadline is justified or harmless are: (1) prejudice or surprise to the party 17 against whom the evidence is offered; (2) the ability of that party to cure the prejudice; (3) the 18 likelihood of disruption of the trial; and (4) bad faith or willfulness involved in not timely 19 disclosing the evidence.” Lanard Toys Ltd. v. Novelty, Inc.,

(9th Cir. 20 2010). Notably, the plaintiff in Lanard failed to strictly comply with the Rule 26(a)(2)(B) 21 requirements by the disclosure deadline, but did timely provide detailed information about the 22 expert’s background and expertise, a copy of the expert’s curriculum vitae, a list of representative 23 cases in which he had testified, a listing of the materials reviewed in support of his declaration, 24 and a statement of his scope of work for the case.

. The Lanard plaintiff then provided

25 1 Given the only relief sought by Defendant is the imposition of sanctions—complete exclusion of Plaintiffs’ expert testimony—Defendant was only required to bring a motion for hearing on fourteen days’ notice. L.R. 251(e). Instead, 26 Defendant set the hearing to occur fifty-one days after the filing of the motion, making Plaintiffs’ response not due until June 18, 2025. 27

2 Defendant’s May 5, 2025 motion does not seek any lesser sanction than complete exclusion of Plaintiffs’ experts 28 for their Rule 26(a) violation. See Fed. R. Civ. P. 37(c)(1)(A)-(C). 1 an expert declaration that fully satisfied Rule 26(a)(2)(B) more than three weeks before the cutoff 2 date for expert discovery and more than seven months before trial.

The Ninth Circuit found 3 the trial court did not abuse its discretion in allowing the expert testimony.

4 Here, Plaintiffs timely served—but improperly filed—an expert disclosure which included 5 limited details about each expert’s qualifications and copies of each expert’s curriculum vitae. 6 (ECF No. 31.) Because Plaintiffs timely disclosed limited details about Dr. Baron, a 7 hematologist-oncologist who will testify about Defendant’s alleged failure to meet the standard of 8 care in diagnosing and providing medical treatment for the decedent related to lung cancer, and 9 Dr. Penbera, a forensic economist who will testify to Plaintiffs’ economic damages, Defendant’s 10 prejudice or surprise is lessened. See Lanard Toys Ltd.,

. Further, and unlike 11 the authorities proffered by Defendant, Defendant’s surprise and indisputable prejudice comes at 12 a time when it now is in possession of the untimely written reports, expert discovery remains 13 open, the dispositive motion deadline is six months away, and the bench trial will not be held for 14 another ten months. (ECF No. 35 (citing Sanchez v. California, No. 1:12-cv-1835,

2185186, at *9-10 (E.D. Cal. May 8, 2015) (granting a parties’ motion in limine to exclude 16 witnesses disclosed after the discovery cutoff who defendants were unable to depose); Quevedo 17 v. Trans-Pac. Shipping, Inc.,

(9th Cir. 1998) (holding that the district court 18 did not abuse its discretion in disregarding an untimely expert witness report that was not 19 provided until the plaintiff submitted it in opposition to the defendant’s motion for summary 20 judgment); Christensen v. Goodman Distrib., Inc., No. 2:18-CV-2776-MCE-KJN,

71799, at *7 (E.D. Cal. Jan. 8, 2021) (imposing the “harsh sanction” of precluding a plaintiff’s 22 mental healthcare providers’ expert testimony after repeated and ongoing failure to provide 23 compliant disclosures despite several extensions from the court and from defendant).) 24 Plaintiffs argue that exclusion of their experts would amount to constructive dismissal of 25 their medical malpractice claim because expert testimony is required to prove that Defendant 26 failed to act in accordance with the prevailing standard of care and that the alleged breach of that 27 standard of care was a substantial factor in causing Plaintiffs’ alleged harm. (ECF No. 36 at 5.) 28 The Ninth Circuit has noted that when a Rule 37(c)(1) sanction will “deal[ ] a fatal blow” to a 1 party's claim, “a district court must consider ‘whether the claimed noncompliance involved 2 willfulness, fault, or bad faith’ in untimely disclosure and, if requested by the noncompliant party, 3 (2) ‘the availability of lesser sanctions’ ” under its harmlessness inquiry. Merch. v. Corizon 4 Health, Inc.,

(9th Cir. 2021) (quoting R & R Sails, Inc. v. Insurance Co. of 5 Pennsylvania,

, 1246–48 (9th Cir. 2012)); see also Lanard Toys Ltd.,

. Here, Plaintiffs’ failure to timely provide written reports was due to counsel’s 7 “impression that reports of experts would only be provided if one was prepared” and, because 8 counsel did not anticipate requesting written reports, he did not have any reports by Dr. Baron or 9 Dr. Penbera prepared. (ECF No. 35-2 at 8.) Plaintiffs undoubtedly should have checked Rule 10 26(a) and the Court’s emphasized citation to it in its October 17, 2023 scheduling order. See 11 Pincay v. Andrews,

(9th Cir. 2004) (recognizing that “a lawyer's failure to read 12 an applicable rule is one of the least compelling excuses that can be offered….”) 13 Defendant’s point that Plaintiffs knew that expert testimony is essential in medical 14 malpractice actions and that counsel for Plaintiffs has previously filed identical deficient 15 disclosures without corresponding written reports gives the Court pause in making its willfulness 16 determination. (ECF No. 37 at 5 (citing Manzo v. United States, No. 1:03-cv-6451-AWI-SMS, 17

at *4-5 (E.D. Cal. Jan. 31, 2006) (plaintiffs filed deficient expert disclosures 18 that only identified experts and their qualifications without the required expert reports and 19 because plaintiffs still failed to provide reports even after defendant pointed out the deficiency, 20 summary judgment was entered for defendant because plaintiffs’ medical malpractice claims 21 required expert testimony) (emphasis added).) Although misunderstanding of an applicable rule 22 is not a compelling excuse—particularly after a documented similar failure to understand the 23 same rule—the Court does not find Plaintiffs’ failure to timely disclose their experts’ written 24 reports in this case rises to the level of bad faith or willfulness that requires the harsh sanction of 25 exclusion. In making such finding, the Court focuses only on the communications between the 26 parties contained in Defendant’s motion and Plaintiffs’ prompt request to their experts therein for 27 written reports when Defendant brought the deficiency to Plaintiffs’ attention. 28 The Court also emphasizes that such finding in no way sanctions a “free pass” for 1 violating Rule 26(a)(2) or that compliance with the Federal Rules, Local Rules, and orders of this 2 Court is optional. (See ECF No. 37 at 4.) The Court does not condone the conceded violation of 3 Rule 26(a)(2) that gave rise to this motion, which required the time and efforts of counsel for 4 Defendant and the Court. As expressed at the June 25, 2025 hearing, the Court is more than 5 willing to entertain additional lesser sanctions; however, Defendant respectfully declined to make 6 any lesser request.3 However, the rules of the federal court are not recommendations, they are 7 rules. Future non-compliance with the rules cannot be further condoned. This analysis also 8 applies to orders of the Court and deadlines. Here endeth the lesson. 9 Plaintiffs request a modification of the scheduling order only to extend the deadline of 10 expert discovery as a lesser sanction.4 See Merch. v. Corizon Health, Inc.,

(“[A] 11 party facing sanctions under [Rule 37] bears the burden of showing that a sanction other than 12 exclusion is better suited to the circumstances.”) Although the Court agrees with Defendant that 13 late disclosure of information required by Rule 26(a) is not harmless where it requires a new 14 scheduling order to be created, Hoffman v. Constr. Prot. Servs., Inc.,

(9th 15 Cir. 2008), as amended (Sept. 16, 2008), Rule 37(c)(1)(C) provides the Court broad discretion to 16 craft an appropriate sanction. Given that (1) Dr. Baron and Dr. Penbera were timely, albeit 17 deficiently, identified in Plaintiffs’ improperly filed initial disclosure; (2) Defendant has now 18 been provided both written reports; and (3) the dispositive motion deadline is six months away 19 and the bench trial is ten months away, the Court finds a limited modification of the scheduling 20 order to be a reasonable alternative to striking Plaintiffs’ experts. (See ECF No. 36 at 4.) 21 The Court recognizes that Defendant has been uniquely prejudiced, as Plaintiffs’ failure to 22 timely disclose their experts’ written reports prohibited Defendant from disclosing its experts by 23 3 Defendant made an alternative “lesser” request to only strike Plaintiffs’ forensic economist, Dr. Penbera, as such 24 expert is not as dispositive of this action as Plaintiff’s standard of care expert. The Court does not find this to be an appropriate sanction given it would require that the Court weigh evidence at this stage to determine a less dispositive 25 expert purely for punitive purposes. Further, even if no expert testimony was potentially case-dispositive, the Court must still consider the remaining factors related to the ability to cure the prejudice and the likelihood of disruption of the distant trial. See Lanard Toys Ltd., 375 F. App’x at 713. 26

4 Defendant argues in reply that Plaintiffs must show good cause under Rule 16 for any scheduling order 27 modification. (ECF No. 37 at 2-3.) If such request was brought by Plaintiffs under a Rule 16 motion, the Court would agree with Defendant. Here, however, modification of the scheduling order is contemplated as a cure to the 28 prejudicial effect of Plaintiff’s Rule 26(a)(2) violation. 1 | the May 5, 2025 deadline pursuant to the parties’ agreement to stagger their expert disclosures. 2 | (ECF Nos. 17, 19, 35.) The Court finds it can cure the prejudice to Defendant without disrupting 3 | the April 21, 2026 bench trial set in this matter by modifying the scheduling order limited only to 4 | reopening Defendant’s expert deadlines and extending the August 4, 2025 expert discovery 5 | deadline to a date proposed by Defendant. As proposed by Defendant at the June 25, 2025 6 | hearing, the expert deadlines shall be modified as follows: Defendant’s expert disclosures shall be 7 | due by July 31, 2025 and the expert discovery deadline is extended to October 10, 2025. As 8 | stated at the hearing and without objection from Plaintiffs, the Court will not reopen the 9 | supplemental expert deadline for Plaintiffs’ benefit that expired on May 30, 2025. The December 10 | 8, 2025 dispositive motion deadline, March 6, 2025 pretrial conference, and April 21, 2026 bench 11 | trial remain unchanged. The parties are advised that no further requests to modify the 12 | scheduling order will be granted. 13 Il. 14 CONCLUSION AND ORDER 15 Based on the foregoing, IT IS HEREBY ORDERED that: 16 1. Defendant’s motion to exclude Plaintiffs’ expert witnesses (ECF No. 35) is 17 DENIED; and 18 2. The scheduling order is modified as follows: Defendant’s expert disclosure 19 deadline is July 31, 2025 and the expert discovery deadline is October 10, 2025. 20 All other aspects of the scheduling order shall remain in effect. 21 IT IS SO ORDERED. DAM Le 73 | Dated: _ June 26, 2025 STANLEY A. BOONE 24 United States Magistrate Judge 25 26 27 28