Summary
finding that "plaintiffs' belated disclosure of [expert] reports was harmless" because "their substance was available to defendants" at a much earlier date
Summary of this case from Lister v. Hyatt Corp.Opinion
Case No. ED CV 05-00660 MMM (RCx).
June 28, 2007
I. FACTUAL AND PROCEDURAL BACKGROUND
On July 25, 2005, the Estate of Manuel A. Gonzalez, Jr., by and through his executor Manuel A. Gonzalez, and decedent's minor (M.G. and G.G.) and adult sons (Mark Gonzalez and Steven Gonzalez) filed this action against defendants Roderick Q. Hickman, Jeanne S. Woodford, Suzan Hubbard, John Dovey, Wendy Still, Lori DiCarlo, Carol Roddy, Greg Mellott, and certain fictitious defendants. On February 24, 2006, the court consolidated the action with Case No. ED CV 06-143 MMM (RCx). That case, which was filed on February 8, 2006 by decedent's minor daughters (R.G. and J.G.), named the same individual defendants, as well as the California Department of Corrections and Rehabilitation ("CDCR"). In the lead action, the Estate contends that defendants deprived Gonzalez of liberty without due process of law in violation of his rights under the Fourteenth Amendment to the United States Constitution and 42 U.S.C. § 1983. Specifically, the Estate contends that defendants improperly classified inmate Jon Christopher Blaylock at the California Institute for Men ("CIM"), where Gonzalez served as a correctional officer and where he was murdered by Blaylock on January 10, 2005. In both of the actions, decedent's children assert that defendants' conduct violated their Fourteenth Amendment substantive due process right to familial association with their father. Plaintiffs seek compensatory damages of $50 million, punitive damages of $50 million, costs of suit, attorneys' fees, and other appropriate relief.
Although named as a defendant, the CDCR was apparently never served with summons and complaint. Any action against it in this court, of course, would be barred by Eleventh Amendment immunity. See, e.g., Palismo v. California Dept. of Corrections, 145 Fed. Appx. 215, 216 (9th Cir. Aug. 15, 2005) (Unpub. Disp.); Walker v. Clark, 53 Fed. Appx. 804, 805-06 (9th Cir. Dec. 10, 2002) (Unpub. Disp.).
On January 30, 2006, the court issued an order granting in part and denying in part two motions to dismiss filed by defendants. Specifically, the court dismissed claims against defendants in their official capacities with prejudice on the basis of Eleventh Amendment immunity. It also concluded that defendants could not be held liable under § 1983 on a state-created danger theory for certain failures to act or intervene, i.e., (1) their alleged failure to provide Gonzalez with a protective vest; (2) their alleged failure to provide supervision, administration, and support to the correctional staff to make sure that Blaylock was not given authority as a "shot caller"; (3) their alleged failure to provide supervision, administration, and support to the correctional staff to ensure that security protocols and procedures were enforced; and (4) their alleged failure to equip the medical clinic and train the medical staff adequately. Conversely, the court held that defendants could be held liable under § 1983 for improperly assigning Blaylock to a general population cell upon his arrival at the California Institute for Men, and for returning him to the general prison population after he was detained in administrative segregation for purportedly assaulting another inmate.
On October 2, 2006, defendants Hickman, Woodford, Hubbard, Dovey, and Still (the "State Defendants") moved for summary judgment under Rule 56 of the Federal Rules of Civil Procedure. The remaining defendants, Di Carlo, Roddy, and Mellott (the "Warden Defendants"), filed a separate Rule 56 motion the same day. On December 12, 2006, the court issued a minute order in which it concluded that resolution of defendants' motions would have to await decision of a motion to compel the production of documents filed by plaintiffs in the Eastern District of California against nonparty CDCR. As a result, the court took defendants' motions for summary judgment off calendar, and indicated that, following resolution of the motion to compel, it would set a new hearing date. After additional proceedings in this district and in the Eastern District regarding the disputed documents, plaintiffs filed supplemental oppositions to defendants' motions, and the court placed them on calendar for hearing.
On May 30, 2007, the court issued an order granting in part and denying in part defendants' motions for summary judgment. With respect to the State Defendants and Roddy, the court found that plaintiffs had failed to adduce sufficient evidence to raise a triable issue of fact as to whether these defendants were personally involved in any decisions concerning Blaylock's placement in general population at CIM. The court consequently entered judgment in favor of these defendants and dismissed them from the action. With respect to Di Carlo and Mellott, however, the court concluded that plaintiffs had raised triable issues of fact as to whether they acted with deliberate indifference by allowing Blaylock to be placed in general population at CIM, and in this manner affirmatively exposing Gonzalez and other correctional officers to danger. Following the court's order of defendants' motions for summary judgment, the following claims remain to be tried: (1) the Estate's 42 U.S.C. § 1983 claim, which alleges a violation of Gonzalez's substantive due process right to be free from state-created danger; and (2) the derivative 42 U.S.C. § 1983 claim of the decedent's children, which alleges a violation of their substantive due process right to familial association.
Trial is set to begin on July 10, 2007. In anticipation of the evidence that may be presented at trial, defendants have filed five motions in limine. The first four of these seek exclusionary sanctions under Rule 37(c)(1) of the Federal Rules of Civil Procedure. The fifth motion seeks to preclude plaintiffs from offering any evidence concerning the use of protective vests on the basis that such evidence is irrelevant.
II. DEFENDANTS' MOTIONS IN LIMINE FOR EXCLUSIONARY SANCTIONS
A. Standard for Exclusionary Sanctions Pursuant to Rule 37(c)(1)
Under Rule 26(a)(1) of the Federal Rules of Civil Procedure, "a party must, without awaiting a discovery request, provide to other parties," inter alia, "a computation of any category of damages claimed by the disclosing party." The party must also "mak[e] available for inspection and copying as under Rule 34 the documents or other evidentiary material . . . on which such computation is based, including materials bearing on the nature and extent of injuries suffered." FED.R.CIV.PROC. 26(a)(1)(C). Under Rule 26(a)(2), "a party shall disclose to other parties the identity of any person who may be used at trial [as an expert]," and provide a "written report" containing certain, specified information "at the times and in the sequence directed by the court." FED.R.CIV.PROC. 26(a)(2). Under Rule 26(e), litigants have a continuing duty to supplement their Rule 26(a) disclosures at appropriate intervals if the prior disclosures were incomplete or incorrect and additional or corrective information has not otherwise been made known to their opponent during discovery or in writing. See FED.R.CIV.PROC. 26(e)(1).
The sanction for failing to comply with these disclosure obligations is set forth in Rule 37. It provides that "[a] party that without substantial justification fails to disclose information required by Rule 26(a) or 26(e)(1), or to amend a prior response to discovery as required by Rule 26(e)(2), is not, unless such failure is harmless, permitted to use as evidence at a trial, at a hearing, or on a motion any witness or information not so disclosed." FED.R.CIV.PROC. 37(c)(1); see also Yeti by Molly 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. . . . This particular subsection, implemented in the 1993 amendments to the Rules, is a recognized broadening of the sanctioning power. . . . TheAdvisory Committee Notes describe it as a `self-executing,' `automatic' sanction to `provide a strong inducement for disclosure of material. . . .' Courts have upheld the sanction even when a litigant's entire cause of action or defense has been precluded.." (emphasis added)).
It is the obligation of the party facing sanctions to show that its failure to comply with Rule 26(a)(2) was either justified or harmless. Id. at 1107; accord Southern States Rack Fixture, Inc. v. Sherwin-Williams Co., 310 F.3d 592, 596 (4th Cir. 2003) (the burden is on the party facing sanction to prove harmlessness); Wilson v. Bradlees of New England, Inc., 250 F.3d 10, 21 (1st Cir. 2001) (same); Finely v. Marathon Oil Co., 75 F.3d 1225, 1230 (7th Cir. 1996) (same). "The determination of whether a Rule 26(a) violation is justified or harmless is entrusted to the broad discretion of the district court." Mid-America Table Wares, Inc. v. Mogi Trading Co., Ltd., 100 F.3d 1353, 1361 (7th Cir. 1996).
B. Application
1. Motion In Limine Number One: Evidence of Plaintiffs' Damages
In their first motion in limine, defendants seek to preclude plaintiffs from offering any evidence of the damages they claim to have suffered as a result of Gonzalez's death. Defendants contend that "plaintiffs have failed to . . . make any disclosure concerning the[ir] damages . . . as is required by the clear and unmistakable terms of Rule 26(a)(1)(C)." Plaintiffs counter that the failure to disclose was harmless because "[d]efendants are as capable as plaintiffs of determining the amount of economic loss suffered as a result of Officer Gonzalez's death and the children's loss is a determination that the jury must make."
"As a general matter, disclosing a computation of damages under Rule 26(a) is necessary for the opposing party to produce responding evidence, such as an expert report." EEOC v. GLC Restaurants, Inc., No. CV 05-618 PCT DGC, 2007 WL 30269, *9 (D. Ariz. Jan. 4, 2007); see also Hewlett Packard Co. v. Factory Mut. Ins. Co., No. Civ. 04-2791 TPG DF, 2006 WL 1788946, *14 (S.D.N.Y. June 28, 2006) ("[E]arly disclosure of a party's damages computation `provide[s] [the] opposing party with an early understanding of the basis and amount of any damages claim it is facing, so that it may conduct meaningful discovery as to the underpinning of such a claim'").
With this in mind, the court believes that plaintiffs' failure to disclose its computation of "the children's loss[es]" incurred as a result of Gonzalez's death is harmless, so that this type of damages evidence need not be excluded at trial. Plaintiffs' complaint makes clear that the damages decedent's children seek are based on the emotional suffering they have experienced as a result of the loss of their father. No additional information could have been provided in a computation of damages disclosed pursuant to Rule 26(a)(1)(C). Indeed, if plaintiffs prevail on their familial association claims, their losses will be proved predominately (if not exclusively) through testimony they offer regarding the emotional suffering they have experienced, not through rebuttable documentary evidence or expert opinion. Defendants do not contend that the decedent's children were not included in plaintiffs' Rule 26(a)(1)(A) disclosure, or that they were not made available for deposition. Given these facts, the court believes that plaintiffs' failure to disclose a "computation" of "the children's loss[es]" incurred as a result of Gonzalez's death is harmless, and denies defendants' Rule 37 motion for the exclusion of such evidence. See, e.g., Williams v. Trader Publishing Co., 218 F.3d 481, 486 n. 3 (5th Cir. 2000) ("Since compensatory damages for emotional distress are necessarily vague and are generally considered a fact issue for the jury, they may not be amenable to the kind of calculation disclosure contemplated by Rule 26(a)(1)(C)"); Creswell v. HCAL Corp., No. CV 04-388 BTM (RBB), 2007 WL 628036, *2 (S.D. Cal. Feb. 12, 2007) ("While Rule 26 generally requires a party to provide a computation of such damages, emotional damages, because of their vague and unspecific nature, are oftentimes not readily amenable to computation. . . . Thus, Plaintiff's failure to provide a computation of his emotional damages is excused and Plaintiff is permitted to seek such damages at trial"); Burrel v. Crown Central Petroleum, Inc., 177 F.R.D. 376, 386 (E.D. Tex. 1997) (finding that no computation of compensatory damages attributable to mental anguish was required under Rule 26(a)(1)(C) because such damages would be determined by the trier of fact).
See, e.g., Complaint for Violation of Civil Rights 42 USC Section 1983 (No. ED CV 05-660 MMM (RCx)), ¶ 76 ("[A]s a direct result of the foregoing acts, decedent was brutally and unnecessarily murdered resulting in the loss [to] plaintiffs, [G.G.], [M.G.], Mark Gonzalez, [and] Steven Gonzalez of their loving father"). At the hearing on defendants' motions in limine, plaintiffs represented that they also seek damages for child support payments Officer Gonzalez was obligated to make to support the children of his first wife. Pursuant to Rule 37(d)(1), the court grants defendants' motion in limine to preclude plaintiffs from offering evidence of this type of damages. The complaint did not make clear that plaintiffs sought damages for lost parental support in addition to damages for emotional distress on their familial association claims. Even if this had been clear from the pleading, plaintiffs did not disclose a computation of these damages as required by Rule 26(a)(1)(C). Indeed, they did not even provide to defense counsel the documentary evidence substantiating the claim until sometime during the past month, after the fact discovery cut-off date had passed. Consequently, defendants' motion in limine to exclude evidence of this type of damages is granted.
Conversely, the court believes that plaintiffs' failure to disclose a computation of the Estate's estimated damages was not harmless, and that evidence of such damages must be excluded at trial. Unlike the children's claimed damages, the complaint does not make clear the basis on which the Estate seeks damages. Although it appears, based on plaintiffs' untimely disclosure of Tamorah Hunt's expert report, that the Estate seeks damages exclusively for Gonzalez's lost earning potential, the Estate might also have pursued damages based on the pain and suffering Gonzalez experienced in the moments following his stabbing but preceding his death. Defendants were entitled to know the type or types of damages the Estate sought so that they could prepare rebuttal evidence. By failing to disclose the type of damages it alleged, the Estate prejudiced defendants, warranting the exclusion of any lost earnings evidence under Rule 37(c)(1). Cf. Austrian Airlines Oesterreichische Lufverkehrs AG v. UT Finance Corp., No. Civ. 04-3854 RCC (AJP), 2005 WL 977850, *2 (S.D.N.Y. Apr. 28, 2005) ("[E]ven if plaintiff could not calculate its . . . damages at the time of its initial disclosure . . ., there is no reason that it did not disclose its damage theory. The Court will not allow plaintiff to assert this new, additional damage theory at the eleventh hour. Pursuant to Rules 26(a)(1)(C) and 37(c)(1), preclusion is appropriate"); Am. Realty Trust, Inc. v. Matisse Partners, L.L.C., No. CV 00-1801, 2002 WL 1489543, *6 (N.D. Tex. July 10, 2002) ("[T]he plaintiffs here had all of the necessary facts to disclose their damage theory months ago, and they have never provided proper support for their damage calculations. Therefore, for all of the reasons discussed, the court grants the defendants' motion to exclude the plaintiffs' evidence of damages arising from securities liquidated due to margin calls").
See Office of the Inspector General's Special Review into the Death of Correctional Officer Manual A. Gonzales, Jr. on January 10, 2005 at the California Institution for Men ("OIG Report") at 49-50 (indicating that Gonzalez was stabbed by Blaylock just before 10:57 a.m. but was not pronounced dead until 11:52 a.m., twenty-two minutes after arriving at Chino Valley Medial Center).
In addition, even had the Estate timely disclosed that it would seek lost earnings damages, the court would find its failure to disclose a computation of damages under Rule 26(a)(1)(C) sufficiently prejudicial to warrant exclusion. Unlike the children's emotional damages, which the jury must estimate after hearing the children's testimony, the Estate's claim for economic damages, based on Gonzalez's lost earning potential, depends both on undisclosed documentary evidence of past earnings and on assumptions regarding his future work life (e.g., his life expectancy, the age at which he would have retired, his career trajectory, inflation rates, etc.). It depends as well on appropriate discounting of any future earnings to present value. Defendants were entitled to know plaintiffs' assumptions concerning these various computational criteria, to test them through discovery aimed at the relevant underlying factors (e.g., Gonzalez's medical records, the longevity of his ancestors, etc.), and to rebut them by retaining an expert who could opine on Gonzalez's potential future earnings and the appropriate discount rate. Plaintiffs' failure to disclose the Estate's damages calculation precluded defendants from taking the necessary discovery and obtaining an appropriate expert opinion. This warrants exclusion of lost earnings evidence under Rule 37(c)(1). Cf. Gilvin v. Fire, No. CV 99-530, 2002 WL 32170943, *3 (D.D.C. Aug. 16, 2002) ("At no time prior to filing the Pretrial Statement did Plaintiff identify any actual damages resulting from [defendant's conduct], let alone provide a computation of such damages in accordance with Fed.R.Civ.P. 26(a)(1)(C). . . . [B]ecause Plaintiff failed to provide Defendant with a computation of his damages for expense restrictions and failed to provide any factual basis whatsoever for the claim, Plaintiff may not present evidence at trial of those damages"); Colombini v. Members of Bd. of Directors of Empire College School of Law, No. C 97-4500 CRB, 2001 WL 1006785, *8 (N.D. Cal. Aug. 17, 2001) ("While the plaintiff has claimed that he was damaged by the defendants' conduct and has asserted that his compensatory damages total $400,000 . . . he has utterly failed to provide a calculation of those damages despite repeated requests from the defendants. . . . Under Rule 37(c)(1), where a party fails to disclose information required in Rule 26(a) and that failure is not harmless, a party may not be permitted to use that evidence at trial. Here, the plaintiff's failure to provide any information whatsoever about the computation of his damages is harmful to the defendants, as they have no way to defend against the plaintiff's damages claims. As a result, the plaintiff would be precluded from introducing such evidence at trial").
Plaintiffs argue that defendants have equal access to information about Gonzalez's wages and benefits at the time of his death, since they were Gonzalez's employer. This may be true, but it does not take into account the other, less quantifiable factors that go into a calculation of lost future earnings in a case such as this. In this regard, the court notes that the case differs from the typical wrongful discharge case, where the plaintiff is not deceased, and has typically has been able to secure other employment and/or demonstrate that he or she will not able to obtain such employment. See Lucterhand v. Granite Microsystems, Inc., No. 05-CV-1047, 2007 WL 703400, *18 (E.D. Wis. Mar. 2, 2007) (concluding that a plaintiff's failure to provide a damages calculation was harmless because "[t]he defendants knew that after he was terminated by Granite Microsystems Lucterhand was unemployed from November 11, 2004, to February 14, 2005, and that during that three-month period, Lucterhand received four weeks of unused vacation pay and two weeks of severance pay from Granite Microsystems, followed by unemployment compensation from the State of Wisconsin. . . . In addition, the defendants knew that Lucterhand became employed on February 14, 2005 by a company located in Pittsburgh, Pennsylvania, with a salary of $94,000 per year, and in March 2006 he received a $2,000 increase in pay. . . . With this information, the defendants could make reasonable calculations regarding the amount of compensatory damages. As such, the defendants do not demonstrate that they were actually harmed by Lucterhand's failure to provide specific computations").
For the reasons stated, the court grants in part and denies in part defendants' first motion in limine. Plaintiffs are precluded from offering evidence at trial concerning the Estate's claimed damages, but may present evidence concerning the children's claimed damages.
2. Motion In Limine Number Two: Testimony of David Tristan, Don Stockman, and Mike Yaborough
In their second motion in limine, defendants seek to preclude plaintiffs from offering the expert testimony of Tristan, Stockman, and Yaborough at trial on the ground that "plaintiffs have not made timely disclosures of the opinions . . . [of these experts] as is required by the clear and unmistakable terms of Rule 26(a)(2)(B)." Plaintiffs counter that the experts' reports were timely disclosed, and that defense counsel, "who rejected the opportunity to depose plaintiffs' experts, [should be deemed to] have waived the right to preclude their testimony at trial." In support of their opposition, plaintiffs have submitted emails between counsel that reveal the following: (1) on March 19, 2007, counsel agreed that the parties would have until March 30, 2007 to exchange expert reports and produce their experts for deposition; (2) on March 28, 2007, plaintiffs' counsel informed defendants that Tristan's and Stockman's declarations, submitted in opposition to defendants' motions for summary judgment, constituted their expert reports; and (3) on March 28, 2007, plaintiffs' counsel sent defendants Yarborough's expert report.
Declaration of Mark J. Peacock in Support of Plaintiffs' Opposition to Motion In Limine 1 Through 5 of Defendants Lori DiCarlo and Gregory Mellott, Exhibit A (email dated March 19, 2007 at 10:50 p.m.).
Id. (email dated March 28, 2007 at 10:58 a.m.).
Id. (email dated March 28, 2007 at 6:35 p.m.).
Based on this showing, the court concludes that plaintiffs' untimely disclosure of the expert reports of Tristan, Stockman, and Yaborough was justified and harmless. Although the court does not condone the parties' decision to circumvent the court-ordered deadline for the exchange of expert reports, see, e.g., Jarritos, Inc. v. Los Jarritos, No. C 05-2380 JSW, 2007 WL 1302506, *4 (N.D. Cal. May 2, 2007) (noting that parties may not, through "agreement or understanding," circumvent court-ordered deadlines for the exchange of expert reports), it concludes that plaintiffs were substantially justified in seeking to delay the exchange of expert reports, since the opinions contained in the reports are based in large part on information that could only be obtained through fact discovery (e.g., the depositions of defendants and the information in Blaylock's central file). For reasons addressed in a number of prior orders, defendants unnecessarily delayed producing the central file; this in turn required postponement of depositions. In addition, plaintiffs' belated disclosure of the reports was harmless, as their substance was available to defendants as early as November 20, 2006, when plaintiffs filed Tristan's declaration in opposition to defendants' motions for summary judgment. Cf. Tuna Processors, Inc. v. Haw. Int'l Seafood, Inc., No. Civ. 05-517 BMK, 2007 WL 433547, *2 (D. Haw. Feb. 5, 2007) ("The failure to properly disclose is harmless where there is no prejudice to the opposing party. There is generally no prejudice where the untimely evidence does not raise any new issues in the case" (citations omitted)). Finally, the court notes that defendants have had the opportunity to depose plaintiffs' three expert witnesses since, at the latest, March 28, 2007, which was before the court-ordered expert discovery cut-off date. The fact that defendants chose not to do so does not provide a reason for the court to exclude the testimony of plaintiffs' experts at trial. Cf. Ramil v. Allstate Ins. Co., No. C 04-2258 RMW, 2005 WL 1876062, *4 (N.D. Cal. Aug. 8, 2005) ("[Defendant] objects to [plaintiff's expert's declaration] on the grounds that plaintiff failed to identify [her] as an expert as required under Federal Rule of Civil Procedure 26. . . . While defendant intimates that plaintiff's failure to disclose [her expert] caused it harm because it occurred three weeks after the court designated date for disclosure of rebuttal witnesses, [defendant] does not state in what way it was harmed. The February 28, 2005 designation listed [the expert's] name, general background, and anticipated testimony topics. On the other hand, plaintiff makes no attempt to defend its failure to timely submit [her] expert['s] report. Nevertheless the court finds that, absent evidence to the contrary, the failure to timely submit [the] expert report did not cause [defendant] harm, because [the expert] was disclosed before the cutoff for expert designations").
In an October 3, 2006 minute order, the court set January 19, 2007 as the deadline for the exchange of expert reports.
In a February 26, 2007 minute order, the court set March 30, 2007 as the expert discovery cut-off date.
For these reasons, the court denies defendants' second motion in limine. 3. Motion In Limine Number Three: Testimony of Tamorah Hunt
The court questions whether the testimony of the three experts will be cumulative, but reaches no conclusion regarding the issue at the present time. The court may require that plaintiffs make an offer of proof regarding each of the witnesses so that it can evaluate the question further during trial.
In their third motion in limine, defendants seek to preclude plaintiffs from calling Hunt as an expert witness at trial on the ground that "plaintiffs have never made any disclosure of the opinions . . . [of this expert] as is required by the clear and unmistakable terms of Rule 26(a)(2)(B)." Plaintiffs concede that Hunt's report — which was not provided to defense counsel until after he filed this motion — was not timely exchanged. They argue, however, that the failure was harmless because (1) defendants "are well aware of [Gonzalez's] income potential and the amount of economic damages he and his family incurred because of his . . . death," and (2) defendants have adequate time before trial to review Hunt's report and, if necessary, depose her.
Plaintiffs make no attempt to justify the late disclosure.
The court grants defendants' motion to exclude Hunt's expert testimony. Plaintiffs' failure to disclose Hunt's expert report in a timely fashion prejudiced defendants by hindering their ability to conduct meaningful discovery and to rebut the Estate's damages evidence. Plaintiffs' suggestion that defendants have adequate time to depose Hunt before trial, and that this cures the prejudice flowing from their failure to disclose her report earlier is incorrect. Trial is set to commence in a mere fifteen days, during which defendants will undoubtedly have to engage in substantial trial preparation activities. Offering a deposition at this stage of the proceedings does not afford defendants adequate opportunity either to prepare to meet Hunt's testimony at trial or to complete the myriad other activities to which they must attend before trial. See, e.g., Harris v. United States, 132 Fed.Appx.. 183, 185 (9th Cir. 2005) (Unpub. Disp.) ("[Plaintiff] disclosed her expert's report and identified the expert as a witness just eight days before trial. This left [defendant] with insufficient time to depose the witness or otherwise prepare to cross-examine him at trial"); see also Yeti by Molly, 259 F.3d at 1107 (holding that it was not harmless to provide an expert report one month before trial in a complex case because "[t]o respond to it, plaintiffs would have had to depose [the expert] and prepare to question him at trial"); Mayes v. City of Hammond, Indiana, No. CV 03-379 PRC, 2006 WL 2054377, *5 (N.D. Ind. July 21, 2006) (At th[is] stage of the litigation, . . . days from trial, Defendants are prejudiced in their ability to prepare for trial by not having retained an expert witness to respond to Mayes' evidence. To ask Defendants now to conduct the necessary additional expert discovery in addition to preparing for a substantial trial, even in light of Mayes' offer to pay for expedited expert discovery for Defendants and to decline deposing any such expert, is not harmless"); Benedict v. Zimmer, Inc., 232 F.R.D. 305, 319 (N.D. Iowa 2005) ("Here, the Benedicts' expert reports were not submitted until October 28, 2005, little more than two months in advance of trial. Zimmer would have insufficient time to prepare to refute the evidence at trial. . . . The Benedicts' offer to allow Zimmer to depose Loper cannot remedy this harm this close to trial").
This prejudice was exacerbated by plaintiffs' failure to disclose a computation of the Estate's damages as required by Rule 26(a)(1)(C).
Even were defendants to depose Hunt, moreover, this would not cure the prejudice they have suffered. Deposing Hunt will not enable defendants to challenge, with documentary evidence or rebuttal expert testimony, the numerous assumptions underlying her calculation of Gonzalez's lost earnings potential. As a result, exclusionary sanctions pursuant to Rule 37(d)(1) are warranted. Cf. Jarritos, 2007 WL 1302506 at *4 ("The parties debate whether Defendants had a fair opportunity to depose [plaintiff's experts] when discovery was open. Even assuming arguendo that Defendants did have a fair opportunity to depose them during the discovery period, Plaintiff does not dispute . . . that Defendants lost their opportunity to locate and designate experts to rebut the late reports submitted by Plaintiff. In order properly to rebut the proposed expert reports submitted by [plaintiff's experts], Defendants would need to have discovery reopened, as well as extend the period for submitting rebuttal expert reports. Moreover, the Court would need to continue both the pretrial conference and the trial. Disruption of the schedule of the Court and of Defendants is not harmless" (internal quotation marks omitted)); Carson Harbor Village, Ltd. v. Unocal Corp., No. CV 96-3281 MMM (RCx), 2003 WL 22038700, *3 (C.D. Cal. Aug. 8, 2003) ("If the testimony is allowed at this point, defendants will be substantially prejudiced, because they have not had the opportunity to depose Dr. Lee regarding his opinions, because they have not been able to obtain declarations from rebuttal experts, and because they would incur significant expense and suffer further prolonged proceedings if these motions were continued to permit discovery and the preparation of appropriate expert rebuttal at this point"). 4. Motion In Limine Number Four: Testimony of Alexander Jason
At the hearing on defendants' motions, plaintiffs argued that any prejudice to defendants could be cured because they were willing to pay all expenses incurred by defendants in deposing Hunt and in retaining an expert to rebut her testimony. This does not cure the prejudice. The Ninth Circuit has "squarely rejected the notion that a failure to comply with the rules of discovery is purged by belated compliance." Anheuser-Busch, Inc. v. Natural Beverage Distribs., 69 F.3d 337, 354 (9th Cir. 1995). Here, even if defense counsel were able to find a rebuttal expert in time for trial, imposing this task on him would doubtlessly interfere with his trial preparation activities, which — as noted — are likely to be substantial. Plaintiffs' last-minute offer to pay the costs of deposing Hunt, and identifying and retaining a defense expert, does not cure this aspect of the prejudice defendants have suffered due to plaintiffs' untimely exchange of Hunt's expert report. See Mayes, 2006 WL 2054377 at *5 ("To ask Defendants now to conduct the necessary additional expert discovery in addition to preparing for a substantial trial, even in light of Mayes' offer to pay for expedited expert discovery for Defendants and to decline deposing any such expert, is not harmless (emphasis added)); cf. Frederick v. Hanna, No. CV 05-514, 2007 WL 853480, *4 (W.D. Pa. Mar. 16, 2007) (granting defendants' Rule 37 motion to exclude witnesses and documents identified for first time in plaintiffs' pretrial filings and observing: "Defendants are prejudiced, because trial is imminent and they are unable to now prepare to address the late-disclosed documents; Defendants cannot cure that prejudice, because I will not now postpone the trial date to accommodate additional preparation; and waiver of the Rule 37 sanctions would disrupt the efficient trial of this case, as well as the Court's crowded trial docket").
In their fourth motion in limine, defendants seek to preclude plaintiffs from calling Alexander Jason to testify as an expert at trial on the ground that "plaintiffs have never made any disclosures of the opinions . . . [of this expert] as is required by the clear and unmistakable terms of Rule 26(a)(2)(B)." Defendants also move to exclude Jason's testimony — which concerns CIM's failure to distribute protective vests to correctional officers — as irrelevant. Because the court, for the reasons stated below, grants defendants' fifth motion in limine, it also grants defendants' fourth motion in limine, finding that Jason's testimony would be irrelevant and thus inadmissible under Rule 402 of the Federal Rules of Evidence.
For this reason, the court need not address defendant's contention, substantiated by counsel's sworn declaration, that plaintiffs failed to disclose Jason's expert opinions. Plaintiffs counsel flatly contradicts this assertion in his sworn declaration, stating that the disclosure was not only made, but that it was timely.
III. DEFENDANTS' FIFTH MOTION IN LIMINE
In their fifth motion in limine, defendants seek to preclude plaintiffs from offering at trial any evidence concerning the use of protective vests, arguing that such evidence is irrelevant. The court agrees and grants defendants' motion.In the court's order granting in part and denying in part defendants' motions to dismiss, the court observed:
"Plaintiffs' allegations regarding defendants' conduct fall into five broad categories: (1) placement of Blaylock in the general prison population; (2) failure and refusal to provide Gonzalez with a protective vest; (3) failure and refusal to provide supervision, administration, and support to the correctional staff to make sure that Blaylock was not given authority as a "shot caller"; (4) failure and refusal to provide supervision, administration, and support to the correctional staff to ensure that security protocols and procedures — and in particular, the modified program and modified lockdown directives — were enforced; and (5) failure to equip the medical clinic and train the medical staff adequately. With the exception of the first category, the `acts' plaintiffs allege are omissions, i.e., failures to act or intervene. Inserting the word `refusal' following the word `failure' does not transform an omission into an affirmative act."
See Order Denying Defendants' Motions To Dismiss; Dismissing Claim Against Defendants in Their Official Capacities at 26 (filed January 30, 2006).
For this reason, the court concluded that defendants' failure to provide Gonzalez with a protective vest did not provide a legally cognizable basis for the Estate's state-created danger claim, because "the conclusory statement that defendants `created' a dangerous condition [by failing to distribute the protective vests] is inadequate . . . [w]ithout any underlying factual allegations of an affirmative act." Defendants' failure to provide Gonzalez with a protective vest is accordingly no longer at issue in this action, and evidence concerning that failure is irrelevant and subject to exclusion under Rule 402 of the Federal Rules of Evidence.
Id.
In their opposition to defendants' fifth motion in limine, plaintiffs advance two arguments as to why evidence concerning defendants' failure to provide Gonzalez with a protective vest is admissible. First, plaintiffs argue that they "were unaware [at the time they filed their complaint] of the facts which were later demonstrated at summary judgment — i.e., that, in fact, over 300 vests were received [by CIM,] including one fitted to Officer Gonzalez and with his name labeled on it. . . ." The court finds this argument unavailing, as it is clear that plaintiffs were aware of this fact at the time that they filed their complaint. Even had plaintiffs been "unaware" of this fact at the time they filed their complaint, moreover, the court's conclusion would not change, as failure to distribute the vests was an omission that is not actionable under the state-created danger theory of § 1983 liability. Plaintiffs' attempt to construe the failure as an affirmative act in their opposition to defendants' motion ("there was a deliberate, knowing decision by Lori DiCarlo to withhold distribution of the vest to Officer Gonzalez and other correctional officers whose vests had been received") does not alter the analysis set forth in the court's order granting in part and denying in part defendants' motion to dismiss.
See OIG Report at 42 ("At the time of the stabbing of Officer Gonzalez . . . the California Institute for Men had been holding in its warehouse 362 vests it had received on September 9, 2004. While the failure of the institution to distribute the vests immediately may not have violated the agreement with the union . . ., distributing the vests expeditiously would certainly have improved employee safety, including that of Officer Gonzalez, whose personally fitted vest was in the warehouse when he was stabbed"). The OIG Report was issued on January 10, 2005, more than six months before plaintiffs commenced this action and more than a year before the court issued its order on defendants' motions to dismiss.
IV. CONCLUSION
For the foregoing reasons, the court grants in part and denies in part defendants' first motion in limine; denies defendants' second motion in limine; and grants defendants' third, fourth, and fifth motions in limine.
In addition, the court grants defendants' request to bifurcate the trial. In the first phase, the jury will determine the issue of liability, as well as whether plaintiffs have established the predicate to an award of punitive damages; in the second phase, the jury will determine (if necessary) the amount of compensatory and punitive damages to which plaintiffs are entitled. The court believes that bifurcation will preserve judicial resources (e.g., in the event the trier of fact finds for defendants on the issue of liability) and prevent undue prejudice to defendants as a result of the evidence that may be presented in support of plaintiffs' claim for compensatory and punitive damages. Although bifurcation may inconvenience some of plaintiffs' witnesses (e.g., correctional officers who worked with Gonzalez at CIM whom plaintiffs represent will testify both about the events preceding Gonzalez's death as well as his character (for purposes of damages)), any potential inconvenience to these witnesses, which will occur only plaintiffs prevail in the first phase, does not outweigh the prejudice that defendants will suffer if the trial is not bifurcated.
Rule 42(b) of the Federal Rules of Civil Procedure provides for separate trials of claims or issues if bifurcation will "further . . . convenience or . . . avoid prejudice, or when separate trials will be conducive to expedition and economy." FED.R.CIV.PROC. 42(b). Whether to bifurcate is a decision reserved to the trial court's "sound discretion." See Cravens v. County of Wood, Ohio, 856 F.2d 753, 755 (6th Cir. 1988); Davis Cox v. Summa Corp., 751 F.2d 1507, 1517 (9th Cir. 1985). In exercising this discretion, a court should consider such factors as the "potential prejudice to the parties, potential confusion to the jury, and the relative convenience and economy which would result." Cravens, 856 F.2d at 755 (quotation omitted); see also Bates v. UPS, 204 F.R.D. 404, 448 (N.D. Cal. 2001) (factors include "avoiding prejudice, separability of the issues, convenience, judicial economy, and reducing risk of confusion"). "A decision ordering bifurcation is dependent on the facts and circumstances of each case." Saxion v. Titan-C-Manufacturing, 86 F.3d 553, 556 (6th Cir. 1996).
In opposition to defendants' request to bifurcate, plaintiffs argued at the oral hearing on defendants' motions in limine that the trial should be conducted in a single phase because the Gonzalez family "deserves to be heard." In so arguing, plaintiffs highlight one type of potentially prejudicial testimony that prompts the court to bifurcate the trial. In considering whether the defendants acted with deliberate indifference to Gonzalez's safety by placing Blaylock in general population at CIM, the jury will not be assisted by the testimony of Gonzalez's family members regarding how much they miss their father. This testimony would instead only serve to prejudice the defendants. See United States v. Hankey, 203 F.3d 1160, 1172 (9th Cir. 2000) ("[U]nfair prejudice means `undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one'").