Gary Merchant v. Corizon Health, Inc., 19-36093

Gary Merchant, an Idaho prisoner, swallowed a razor blade to force hospitalization; doctors later diagnosed necrotizing fasciitis in his left leg and performed an above‑the‑knee amputation.
Merchant sued IDOC and Corizon Health under 42 U.S.C. § 1983 (deliberate indifference) and state negligence claims, alleging delayed diagnosis/treatment caused the amputation.
The district court set expert disclosure deadlines; Merchant repeatedly missed them and failed to provide required expert reports and summaries for retained and non‑retained experts.
Corizon moved to exclude Merchant’s expert testimony under Fed. R. Civ. P. 37(c)(1) and for summary judgment, arguing Merchant lacked the expert proof necessary on standard of care and causation and that he failed to exhaust administrative remedies under the PLRA.
The district court excluded Merchant’s improperly disclosed experts (finding only one rebuttal disclosure proper), granted summary judgment for defendants for lack of expert proof, and held Merchant had not exhausted IDOC’s grievance process. Merchant appealed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether exclusion of Merchant’s expert evidence under Fed. R. Civ. P. 37(c)(1) was erroneous	Merchant: violations were de minimis and substantially justified (counsel’s travel); exclusion is overly harsh	Corizon: repeated, long delays and deficient disclosures (missing reports/summaries) prejudiced defendants	Affirmed. Exclusion proper: Merchant repeatedly violated Rule 26(a)(2), failed to show substantial justification or harmlessness, and never moved for lesser sanctions, so district court did not abuse discretion
Whether Merchant exhausted administrative remedies under the PLRA	Merchant: his Health Services Requests (HSRs) put Corizon/IDOC on notice and suffice as grievances	Corizon: IDOC policy requires filing an Offender Concern Form as the grievance; HSRs are prospective medical requests, not grievances	Affirmed. HSRs are requests for care, not retrospective grievances; Merchant failed to use IDOC’s grievance process, so Section 1983 claim was unexhausted

Yeti by Molly, Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101 (9th Cir. 2001) (Rule 37(c)(1) exclusion is automatic unless violation is substantially justified or harmless)
R & R Sails, Inc. v. Ins. Co. of Pennsylvania, 673 F.3d 1240 (9th Cir. 2012) (when exclusion is case‑dispositive, court should consider willfulness/fault and availability of lesser sanctions as part of harmlessness inquiry)
Vanderberg v. Petco Animal Supplies Stores, Inc., 906 F.3d 698 (8th Cir. 2018) (noncompliant party must move for lesser sanctions to trigger court’s consideration of alternatives)
Goodman v. Staples The Office Superstore, LLC, 644 F.3d 817 (9th Cir. 2011) (distinction between retained expert reports and treating‑physician disclosures)
Albino v. Baca, 747 F.3d 1162 (9th Cir. 2014) (en banc) (defendant must plead nonexhaustion; burden shifts to prisoner to show remedies were unavailable)
Woodford v. Ngo, 548 U.S. 81 (2006) (proper exhaustion requires compliance with procedural rules and deadlines)
Griffin v. Arpaio, 557 F.3d 1117 (9th Cir. 2009) (grievance specificity standard — a grievance must alert the prison to nature of wrong sought to be remedied)
Leon v. IDX Sys. Corp., 464 F.3d 951 (9th Cir. 2006) (standard of review for discovery sanctions and factual findings)