ERICA P. GROSJEAN, Magistrate Judge.
This is an action under Title III of the Americans with Disabilities Act alleging that Plaintiff Rachel Lobato was denied full access and enjoyment of Defendants' restaurant—El Sarape Restaurant—because of various structural barriers in the restaurant that Defendants have failed to remedy.
This case is set for trial on March 7, 2016. On January 25, 2017, Defendants filed a motion in limine requesting to exclude the following evidence from trial: 1) Plaintiff's medical records and 2) the testimony of Dr. Samuel Leon. (ECF No. 62). Plaintiff filed a response opposing the motion. (ECF No. 68.)
The Court held a motion hearing on the parties' motions in limine on February 22, 2017. (ECF No. 75.) Attorney Zachary Best appeared for Plaintiff and attorney Kathleen Marie Phillips-Vieira appeared for Defendants. (Id.) Defendants' motion in limine (ECF No. 62) was taken under advisement. (ECF No. 80.) Additionally, Plaintiff was directed to submit two copies of the medical records to the Court for in camera review as follows: 1) as produced to Defendants (redacted); and 2) unredacted. (Id.) Following the February 22 hearing, the Court received two sets of the medical records from Plaintiff as directed, which the Court has reviewed in camera.
Defendants' motion in limine requests the Court to enter an order excluding Plaintiff's doctor as a witness and Plaintiff's medical records. (ECF No. 62.) Defendants assert that the medical evidence must be excluded due to Plaintiff's late disclosure, and any probative value is substantially outweighed by the unfair prejudice to them.
Defendants first received notice of Dr. Leon as witness on January 24, 2017, and Defendants did not receive a production of medical records concerning Plaintiff's health condition until January 26, 2017. Plaintiff supplemented her Rule 26 disclosures to include medical records, but has not supplemented its disclosure to name Dr. Leon.
According to the Defendants, the issue of whether or not Plaintiff is disabled is an element of her ADA claim, and therefore, she had an obligation under Rule 26(a) of the Federal Rules of Civil Procedure to disclose any witness or documents she planned to use to support her claims or defenses unless the use would be solely for impeachment. Defendants request sanctions for Plaintiff's failure to disclose under Rule 37 (c) in the form of preclusion of admission into evidence because Plaintiff has not offered any justification for her failure to disclose the evidence.
Additionally, Defendants object to the date range of the medical records. The evidence includes medical records from as late as December 2016. Defendants argue this evidence has no bearing on whether or not she was disabled at the time of her visit to the El Sarape Restaurant on January 11, 2015.
The Court understands Defendants' argument to be a request for a discovery sanction rather than requesting exclusion pursuant to an evidentiary rule. Under Rule 26(a) of the Federal Rules of Civil Procedure, the parties are required, without awaiting a discovery request, to disclose to the parties 1) each individual likely to have discoverable information (along with the subjects of that information), and 2) all documents that the disclosing party may use to support its claims or defenses, unless the use would be solely for impeachment. See Fed. R. Civ. P. 26(a)(1)(A)(i)-(ii). The parties are under a further continuing obligation to supplement or correct its Rule 26(a) disclosure in a timely manner if the party learns that in some material respect the disclosure or response 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. See Fed. R. Civ. P. 26(e)(1)(A).
Under Rule 37(c), a party that "fails to provide information or identify a witness as required by Rule 26(a) or (e)," may not "use that information or witness to supply evidence . . . at a trial, unless the failure was substantially justified or is harmless." Fed. R. Civ. P. 37(c)(1). See also Yeti by Molly, Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 1106 (9th Cir. 2001) ("Rule 37(c)(1) gives teeth to these requirements by forbidding the use at trial of any information required to be disclosed by Rule 26(a) that is not properly disclosed."). "The Advisory Committee Notes describe it as a `self-executing,' `automatic' sanction to `provide[] a strong inducement for disclosure of material. . . .' Fed.R.Civ.P. 37 advisory committee's note (1993)." Yeti, 259 F.3d at 1106.
"Among the factors that may properly guide a district court in determining whether a violation of a discovery deadline is justified or harmless are: (1) prejudice or surprise to the party against whom the evidence is offered; (2) the ability of that party to cure the prejudice; (3) the likelihood of disruption of the trial; and (4) bad faith or willfulness involved in not timely disclosing the evidence." Lanard Toys Ltd. v. Novelty, Inc., 375 F. App'x 705, 713 (9th Cir. 2010) (citing David v. Caterpillar, Inc., 324 F.3d 851, 857 (7th Cir. 2003)). "The burden is on the party facing exclusion of its expert's testimony to prove the delay was justified or harmless." Id. (citing Yeti, 259 F.3d at 1107.
Plaintiff argues that the disclosure of medical records was necessary to rebut the testimony of Allen Stacey, which did not appear in the record until September 2016.
The foregoing exchange reveals that Plaintiff made a strategic decision not to introduce evidence supporting her disability in connection with summary judgment, even after receiving the information from Mr. Stacey and learning that Defendants intended to dispute Plaintiff's disability.
The Court is further troubled by the way that the medical records were ultimately revealed. Plaintiff did not list Plaintiff's medical records on its exhibit list in connection with its Pretrial Statement. (ECF No. 53, p. 13). The Court held a pretrial conference on January 9, 2017. At that time, Plaintiff's counsel mentioned that it may seek to add documents regarding a fall that Ms. Lobato had experienced in December 2016. At the pretrial conference, Plaintiff's counsel did not raise the possibility of producing and using at trial all of Plaintiff's medical records. Without ruling on the issue, the Court directed the parties to meet and confer regarding the December 2016 fall records in connection with potentially scheduling the deposition of Mr. Stacey.
According the email communications submitted in connection with the instant motion, it appears that Plaintiff's counsel wrote to Defense counsel following the conference in an attempt to amend the joint pretrial statement to add medical records. (ECF No. 62, at p. 9) In that correspondence, Defense counsel objected writing "Please point out to me where the records were disclosed in discovery or even in initial disclosures." (ECF No. 62, at p. 10) Plaintiff's counsel responded "If you recall, the records have to do with a fall that happened just before Xmas, long after discovery had closed. It was impossible to have disclosed them prior to that time. If you also recall, the Judge asked us to immediately file an amended pretrial statement to add those docs." (ECF No. 62, at p. 9). In other words, Plaintiff's counsel represented again he was only seeking to add documents regarding Plaintiff's December 2016 fall to the pretrial statement.
Sixteen days later, Plaintiff's counsel sent to defense counsel an amended Rule 26 disclosure describing and attaching "Plaintiff's medical records," which are 64 pages long. They range in dates from 2012 through end of 2016. They cover various procedures and medication and are not limited to Plaintiff's December 2016 fall.
The Court finds that Plaintiffs' delay in providing the medical records until January 26, 2017 was not substantially justified. The Court next turns to whether the late disclosure was harmless.
At oral argument, defense counsel argued that the disclosure of medical records at this late date is prejudicial because the defense could have sought additional discovery and depositions to understand and counter the evidence. At certain times in the argument, both parties claim they would have designated expert witnesses under a different version of events, though neither side ever did so. The Court finds that late disclosure was not harmless in that Defendants could have requested additional discovery, including depositions, to understand the contents of the records, which are largely written in medical terminology. It is also unclear to the Court whether the production constitutes all of Plaintiff's medical records from any source or was otherwise limited to isolate helpful portions to the Plaintiff.
That said, Defense counsel did question the Plaintiff on certain aspects of these medical records, specifically obtaining a prescription for a walker and wheelchair. (ECF No. 62-2, at p. 3 et seq.) Plaintiff testified that she "went to the doctor and I told him my problem and he prescribed me a walker and a wheelchair" that the doctor was "Dr. Leon," and it was within five years. Based on this deposition testimony, the Court finds that it would be harmless to permit late disclosure of the medical records involving obtaining a prescription for the wheelchair. The closest record the Court can locate is at LOBATO000020-21, which reflects Plaintiff requesting a wheelchair prescription, after already using a walker. While it is true that the record includes certain other information that would have likely been explored at deposition, the Court finds that late disclosure of those two pages is sufficiently harmless to permit the late disclosure of those two pages only.
The Court will also permit Plaintiff to introduce medical records dated December 2016 regarding Plaintiff's fall because they were disclosed shortly after the event at issue and were discussed at the pretrial conference. Based on the Court's review, this appears to consist of LOBATO000004-6.
The parties do not dispute that disclosure of Dr. Leon as a witness did not occur until January 2017. Thus, like the medical records, Dr. Leon is subject to automatic exclusion as a witness for Plaintiff's failure to disclose him under Rule 26(a), "unless the failure was substantially justified or is harmless." Fed. R. Civ. P. 37(c)(1). See also Yeti, 259 F.3d at 1106. Moreover, Plaintiff has explained its intention to have Dr. Leon testify as to Dr. Leon's opinion regarding the extent of Plaintiff's disability. Dr. Leon has not been deposed.
Under Rule 26(a)(2)(A), a party must disclose to the other parties the identity of any witness it may use at trial to present evidence under Federal Rule of Evidence 702, 703, or 705. Plaintiff has not supplemented its Rule 26 disclosure to add Dr. Leon, even as of today.
Rule 26(a)(C) applies to witnesses who are not required to give an expert report as described in Rule 26(a)(2)(B)(i)-(vi), but will still give an expert opinion. Dr. Leon's testimony regarding his medical opinions would fall under this rule. Accordingly, he was required to disclose:
He has not done so.
The Court finds that Dr. Leon's late disclosure was not substantially jusitifed and is not harmless. Here, Plaintiff surely would have taken Dr. Leon's deposition and also may have offered competing expert testimony. To allow him to testify without any disclosure or deposition would substantially impair Defendants' ability to question him and counter any opinions.
The Court does not find persuasive Plaintiff's argument that Defendants' were aware of Dr. Leon at least since he was first mentioned Plaintiff's deposition on May 5, 2016, a day before the discovery deadline. Knowing that Plaintiff has a doctor is not the same as knowing that Plaintiff will offer the doctor's testimony at trial. It was reasonable for Defendants to assume that Plaintiff would do exactly what Plaintiff's counsel described at summary judgment: rely on the testimony of the Plaintiff. As Plaintiff's counsel explained to the Court, "there is no requirement for a medical opinion to be provided regarding substantial limitation."
For the forgoing reasons, Defendants' motion in limine (ECF No. 62) is granted, in part, and denied, in part.
The motion is granted as to the exclusion of the medical records, except as to LOBATO000020-21 and LOBATO000004-6 and any other medical records, if any, already disclosed and dated in the month December 2016.
The motion is granted as to the exclusion of Dr. Leon as a witness.
IT IS SO ORDERED.
