Ansolabehere v. Dollar General Corp., 1:19-cv-01017

Plaintiff Melanie Ansolabehere slipped and fell in a Dollar General Market on June 16, 2017 and sued for negligence/premises liability.
Case removed to federal court; the Court set a schedule that, after an ex parte amendment, required initial expert disclosures by February 12, 2021 and rebuttal disclosures by March 12, 2021 (expert discovery to close April 16, 2021).
On February 12, 2021 Plaintiff disclosed multiple experts but did not produce a report from her safety/liability expert, Brad Avrit, explaining he needed to inspect the premises first.
Plaintiff’s counsel conducted an unnotified site inspection and produced Avrit’s report on March 31, 2021—after the disclosure and rebuttal deadlines and after Defendant’s experts had issued reports.
Defendant moved to strike Avrit under Fed. R. Civ. P. 37(c)(1) for untimely expert disclosure; Plaintiff argued the delay was substantially justified (staffing disruptions) or harmless.
The Court found the delay neither substantially justified nor harmless, applied Wendt factors, and granted Defendant’s motion, excluding Avrit’s report and testimony.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Timeliness of expert disclosure under Rule 26/37	Late report excused because Avrit needed a site inspection and counsel had staffing/remote-access problems	Avrit’s report was produced after the court’s deadline and after Defendant’s experts’ reports, so untimely	Avrit’s report was untimely (produced Mar 31, 2021, after Feb 12 disclosure deadline)
Whether delay was substantially justified	Counsel’s loss of associates, time to replace them, limited remote access, and associate’s lack of diligence justify delay	Counsel should have sought court extension; other attorneys of record monitored case; failures do not justify missing deadlines	Delay not substantially justified (counsel’s internal staffing issues insufficient)
Whether delay was harmless/prejudicial	Late disclosure could be cured before trial; Defendants have time to obtain rebuttal opinions	Report gave Plaintiff a litigation advantage (inspection after seeing Defendant’s reports); rebuttal deadline had passed; disruption to court schedule	Delay not harmless; prejudice to Defendant (strategic advantage and schedule disruption)
Whether exclusion under Rule 37(c)(1) is appropriate	Exclusion is drastic; lesser sanctions could suffice	Court should enforce schedule and sanctions are warranted	Applying Wendt factors, exclusion warranted; lesser sanctions inadequate given prior warnings in scheduling order

Yeti by Molly, Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101 (9th Cir. 2001) (Rule 37(c)(1) exclusionary sanction and district court discretion)
Goodman v. Staples The Office Superstore, L.L.C., 644 F.3d 817 (9th Cir. 2011) (burden on party facing exclusion to show substantial justification or harmlessness)
Wendt v. Host Int’l, Inc., 125 F.3d 806 (9th Cir. 1997) (factors to consider before excluding evidence for discovery violations)
Wong v. Regents of Univ. of Cal., 410 F.3d 1052 (9th Cir. 2005) (scheduling disruption is not harmless)
Quevedo v. Trans-Pac. Shipping, Inc., 143 F.3d 1255 (9th Cir. 1998) (failure to seek extension is ground for excluding late expert)
Ingenco Holdings, LLC v. Ace Am. Ins. Co., 921 F.3d 803 (9th Cir. 2019) (late disclosures that disrupt court and parties weigh against harmlessness)
Johnson v. Mammoth Recreations, Inc., 975 F.2d 604 (9th Cir. 1992) (scheduling orders must be taken seriously by counsel)
Malone v. U.S. Postal Service, 833 F.2d 128 (9th Cir. 1987) (prejudice analysis and warning as alternative sanction)
Ferdik v. Bonzelet, 963 F.2d 1258 (9th Cir. 1992) (court may rely on prior warning when imposing sanctions)
Rhodes v. Sutter Health, 949 F. Supp. 2d 997 (E.D. Cal. 2013) (Rule 37(c)(1) is self-executing)