McPeek v. Harrah's Imperial Palace Corp.
2:13-cv-01371
D. Nev.May 20, 2015Background
- McPeek sued Harrah’s for injuries from slips; case filed in New Jersey (2012) and transferred to the District of Nevada (2013).
- The court set and the parties extended discovery deadlines; expert disclosure deadline expired October 24, 2014 (rebuttals due November 24, 2014).
- Harrah’s timely disclosed experts; McPeek disclosed no expert reports by the deadline but listed 21 treating providers.
- Parties stipulated in December 2014 to extend discovery for specific depositions and expressly stated expert-designation deadlines had closed.
- After Harrah’s filed a dispositive motion, McPeek moved (March 2015) to reopen discovery and designate causation and life-care-plan experts (over five months late), offering to pay Defendants’ costs.
- The magistrate denied the motion, finding no substantial justification or harmlessness for the late disclosures, potential prejudice to Harrah’s, and no basis for reconsideration.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether court should reconsider denial of motion to reopen expert-designation deadline | McPeek: experts are crucial for causation and damages; no trial date yet; prejudice can be cured by costs; denial would be catastrophic | Harrah’s: no new facts; deadlines closed by stipulation; untimely motion filed after summary-judgment motion; prejudice from reopening discovery | Denied — no grounds for reconsideration; Plaintiff failed to show newly discovered evidence, clear error, or change in law |
| Whether untimely expert disclosures are substantially justified or harmless under Rule 37(c)(1) | McPeek: delay justified by burden of assembling treating records and worker’s comp file; prejudice minimal without a set trial date | Harrah’s: Plaintiff waited months, retained experts after deadline and after summary-judgment filing; reopening would prejudice and waste resources | Denied — Plaintiff failed to show substantial justification or harmlessness; exclusion appropriate |
| Whether Rule 16/failure to obey scheduling orders supports sanctions (including exclusion) | McPeek: sought less drastic remedy and offered cost-shifting | Harrah’s: Plaintiff and counsel disregarded scheduling order and prior stipulation; Rule 16 supports sanctions | Held: Court exercised Rule 16 and Rule 37 authority to exclude late experts and deny reopening due to lack of diligence and prejudice |
| Whether reopening discovery would be appropriate given case timeline and prior stipulation | McPeek: extra discovery feasible; willingness to pay costs | Harrah’s: prejudice from late change in case posture, need for rebuttal experts, renewed dispositive motion practice | Held: Reopening would unfairly prejudice Harrah’s, consume judicial resources, and reward untimely conduct — denied |
Key Cases Cited
- City of Los Angeles v. Santa Monica Baykeeper, 254 F.3d 882 (9th Cir. 2001) (district court may reconsider interlocutory orders)
- Nunes v. Ashcroft, 375 F.3d 805 (9th Cir. 2004) (standards for reconsideration of interlocutory orders)
- Kona Enters., Inc. v. Estate of Bishop, 229 F.3d 887 (9th Cir. 2000) (reconsideration is extraordinary and used sparingly)
- Johnson v. Mammoth Recreations, Inc., 975 F.2d 604 (9th Cir. 1992) (good-cause standard for modifying scheduling orders; diligence required)
- Yeti by Molly Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101 (9th Cir. 2001) (Rule 37(c)(1) provides broad discretion and automatic sanction for undisclosed evidence)
- Goodman v. Staples The Office Superstore, 644 F.3d 817 (9th Cir. 2011) (Rule 37 gives teeth to Rule 26 disclosure requirements)
- Dreith v. Nu Image, Inc., 648 F.3d 779 (9th Cir. 2011) (sanctions under Rule 37 may include dismissal or other severe measures)