1

2 UNITED STATES DISTRICT COURT 3 DISTRICT OF NEVADA 4 * * * 5 Jessica Lynn Huth, Case No. 2:21-cv-00966-JAD-DJA 6 Plaintiff, 7 Order v. 8 Mary Allyson Parham, et al., 9 Defendants. 10 11 12 This is a personal injury action arising out of a car accident between Plaintiff Jessica Lynn 13 Huth and Defendant Mary Allyson Parham, who was driving a U.S. Air Force-owned vehicle. 14 Plaintiff sues Defendants for damages, alleging negligence; negligent entrustment; respondeat 15 superior; and negligent hiring, training, and supervision. Defendants move to strike Plaintiff’s 16 expert witnesses, arguing that Plaintiff’s disclosures were late. Because the Court finds that 17 Plaintiff has neither shown good cause or excusable neglect to extend the deadline nor met the 18 expert disclosure requirements, it grants Defendants’ motion. The Court finds these matters 19 properly resolved without a hearing. LR 78-1. 20 I. Background. 21 From the start of this case, the parties emphasized the importance of organized expert 22 disclosures. (ECF No. 14 at 1). In their discovery plan and scheduling order, the parties 23 requested special scheduling for a three-step expert and rebuttal expert disclosure plan, along with 24 thirty additional days to accommodate the three-step approach. (Id.). Nonetheless, Plaintiff 25 missed her initial disclosure deadline and her expert disclosure deadline, after which Defendants 26 moved to strike her expert disclosures. (ECF No. 17). 27 Plaintiff’s expert disclosures were due on September 24, 2021. (ECF No. 14 at 2). 1 December 23, 2021. (Id.). Plaintiff never moved to extend these deadlines. As Defendant 2 explains, Plaintiff provided her initial disclosures on October 11, 2021, seventeen days after the 3 expert deadline and six months after filing her complaint. (ECF No. 17 at 2-3). She then 4 provided her designation of expert witnesses—comprised of her treating physicians—on October 5 14, 2021, twenty days after the expert deadline and ten days before Defendants were scheduled to 6 disclose their experts. (Id.). Plaintiff provided no explanation why the disclosures were late. 7 (Id.). Additionally—although Defendant does not address it—the Court’s review of her initial 8 disclosures and expert designation reveals that the initial disclosures did not identify experts and 9 the designation of experts did not include the requisite reports. (ECF No. 17-1 at 4; ECF No. 17- 10 2). 11 In response to Defendants’ motion, Plaintiff seems to argue that missing the initial 12 disclosure and expert disclosure deadlines was harmless because she had sent a demand letter 13 including her medical records to Defendants on October 24, 2019. (ECF No. 18 at 4). She argues 14 that “it is reasonable to assume that Defendant knew Plaintiff would disclose her treating medical 15 providers” and thus “Defendants’ anticipated experts to challenge Plaintiff’s medical damages is 16 likely unchanged.” (Id. at 6). While Plaintiff cites to the excusable neglect and good cause 17 standards for missing her deadline, she does not explain why she missed the deadline other than 18 blaming a vague “scheduling conflict” and “calendaring error.” (Id. at 5-6). Plaintiff also asks 19 the Court to extend the expert disclosure deadlines by thirty days. (Id. at 7-8). 20 Defendants point out in reply that Plaintiff’s reasons for missing her deadlines— 21 “scheduling conflict” and “calendaring error”—are inconsistent and insufficient. (ECF No. 19 at 22 3). They argue that the Court should deny the request to extend the expert disclosure deadline 23 because Plaintiff has given no reason why she missed it, let alone why it should be extended. (Id. 24 at 4). Finally, because Defendants were not able to disclose their own experts in response to 25 Plaintiff’s, they assert that Plaintiff’s error was not harmless. (Id. at 6). 26 27 1 II. Discussion. 2 A. The Court denies Plaintiff’s request to extend deadlines. 3 A request to extend deadlines in the court’s scheduling order must be supported by a 4 showing of good cause for the extension. Local Rule 26-3; see Johnson v. Mammoth 5 Recreations, Inc.,

(9th Cir. 1992). The “good cause” inquiry focuses mostly 6 on the movant’s diligence. Coleman v. Quaker Oats Co.,

(9th Cir. 7 2000). Good cause to extend a discovery deadline exists “if it cannot reasonably be met despite 8 the diligence of the party seeking the extension.” Johnson,

. While prejudice to 9 the opposing party may also be considered, when the movant “fails to show diligence, the inquiry 10 should end.” Coleman,

(internal quotations and citations omitted). Further, to 11 seek an extension of an expired discovery deadline, the movant must make both a showing of 12 good cause and demonstrate that the failure to act before the deadline expired was the result of 13 excusable neglect. LR 26-3. 14 The Court denies Plaintiff’s request to extend the expert disclosure deadline because 15 Plaintiff has neither made a showing of good cause nor excusable neglect. Plaintiff has not 16 attempted to explain whether she was diligent in disclosing her experts or moving for an 17 extension. To the contrary, Plaintiff has not moved to extend any deadlines in this case, made her 18 initial disclosures late (and only a few days before Defendants were scheduled to disclose their 19 experts), and then disclosed a deficient list1 of her experts a few days later. Although Plaintiff 20 cites the good cause and excusable neglect standards in her response to Defendants’ motion, the 21 only reasons she provides for missing her deadlines are a “calendaring error” and “scheduling 22 conflict” (ECF No. 18 at 5-6). Otherwise, Plaintiff provides no explanation. Worse, the parties 23 explicitly considered a staggered expert disclosure deadline at the start of their case, requesting 24 special scheduling to avoid litigation over their expert disclosures. (ECF No. 14 at 1, 2). With 25 expert disclosures so prominently considered in scheduling this case, Plaintiff’s lack of 26

27 1 As discussed more fully below, Plaintiff’s expert disclosures were not only late, but they were 1 explanation and diligence is even more glaring. The Court thus denies Plaintiff’s request to 2 extend the expert disclosure deadline. 3 B. The Court grants Defendants’ motion to strike Plaintiff’s experts. 4 Federal Rule of Civil Procedure 26 requires parties to disclose the identity of any person 5 who may be used as an expert witness. Fed. R. Civ. P. 26(a)(2). For each disclosed expert, Rule 6 26(a)(2)(B) requires that the disclosure be accompanied by a written report prepared and signed 7 by the witness. Fed. R. Civ. P. 26(a)(2)(B). Expert reports are required to eliminate unfair 8 surprise to the opposing party and to conserve resources. Gilbert v. Spirit Airlines, Inc., No. 2:12- 9 cv-00930-JCM-PAL,

, at *2 (D. Nev. Oct. 18, 2013). 10 Federal Rule of Civil Procedure 37 authorizes sanctions for a party’s failure to make 11 disclosures or cooperate in discovery. Fed. R. Civ. P. 37. Under Rule 37(c)(1), “[i]f a party 12 failed to…identify a witness as required by Rule 26(a)…the party is not allowed to use that 13 information or witness to supply evidence on a motion, at a hearing, or at trial, unless the failure 14 was substantially justified or is harmless.” Fed. R. Civ. P. 37(c)(1). The burden is on the party 15 facing discovery sanctions under Rule 37(c)(1) to prove harmlessness. Torres v. City of Los 16 Angeles,

(9th Cir. 2008). The severity and degree of a sanction under Rule 17 37(c)(1) is up to the discretion of the district court. See Gilbert,

, at *2 (citing 18 Miller v. Safeco Title Ins. Co.,

(9th Cir. 1985) and Keener v. United States, 181

, 641 (D. Mont. 1998)). Exclusion of an expert’s testimony for failure to comply with 20 the requirements of Rule 26(a) is a sanction available to the trial court within its wide discretion 21 under Rule 37(c)(1) even in the absence of bad faith or willfulness. Gilbert,

, 22 at *3 (citing Yeti by Molly Ltd. v. Dekcers Outdoor Corp.,

, 1106 (9th Cir. 2001)). 23 In Gilbert v. Spirit Airlines, the Honorable Magistrate Judge Peggy A. Leen considered 24 the complexity of the case and the availability of medical records in striking a deficient expert 25 report. See Gilbert,

, at *4-5. The case involved negligence, negligence per 26 se, and wrongful death claims for the death of the plaintiffs’ mother while aboard a plane. See

27 Plaintiffs’ experts included aviation and air safety experts along with pathology, cardiology, 1 plaintiffs’ expert would not be detrimental to the plaintiffs’ case because the case was not 2 complex. See

It also noted that Plaintiffs’ counsel would have access to all the information 3 about which Plaintiffs’ experts would presumably testify. See

The court explained that 4 Plaintiffs’ experts in pathology and cardiology would have likely offered opinions about the 5 decedent’s medical condition, cause of death, and appropriate treatments along with Plaintiffs’ 6 emotional distress, “information [already] uniquely available to the Plaintiffs.”

7 The Court grants Defendants’ motion to strike because, not only were Plaintiff’s 8 disclosures late, but they were also deficient. Defendant does not address the fact that Plaintiff’s 9 disclosures were not accompanied by a written report for each witness as required under Rule 10 26(a)(2)(B). Nonetheless, the Court addresses this issue because Plaintiff seems to suggest that, 11 because she sent Defendant her medical records in 2019, Defendant should have been prepared to 12 address Plaintiff’s experts. This argument is without merit and ignores that “[e]xpert reports are 13 required to eliminate unfair surprise to the opposing party.” Gilbert,

, at *2. 14 Just because Plaintiff disclosed medical records does not mean that Defendant should have 15 designated experts in anticipation that Plaintiff would employ her physicians as experts. 16 Plaintiff’s provision of her medical records does not make up for the fact that she never disclosed 17 her expert reports as required under Rule 26(2)(b), which alone is sanctionable. 18 To Plaintiff’s argument that excluding her experts is an “extreme sanction,” for which 19 argument she cites to Third Circuit precedent, Plaintiff’s case is not complex, and she is not 20 without the evidence to establish her medical claims. (ECF No. 18 at 5-6). Plaintiff’s case is 21 even less complex than the one in Gilbert which involved a wrongful death claim and a decedent 22 who could not testify on her own behalf. Plaintiff’s case involves primarily negligence claims, 23 there is no indication that witnesses are unavailable, and Plaintiffs experts have all issued their 24 opinions on Plaintiff’s medical condition in the form of medical records. And like the court 25 determined in Gilbert, here, excluding Plaintiff’s experts will not be detrimental. Plaintiff’s 26 experts—as her treating physicians—would presumably offer opinions consistent with Plaintiff’s 27 medical records. Because this information is already uniquely available to Plaintiff, her argument 1 that excluding her experts is an “extreme sanction” is not persuasive. The Court thus grants 2 Defendants’ motion to strike. 3 4 IT IS THEREFORE ORDERED that Defendants motion to strike (ECF No. 17) is 5 granted. 6 7 DATED: January 5, 2022 8 DANIEL J. ALBREGTS 9 UNITED STATES MAGISTRATE JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27