Jackson v. United Artists Theatre Circuit, Inc.Jackson v. United Artists Theatre Circuit, Inc.
ORDER
Defendant’s Motion for Sanctions (# 77)
This matter is before the Court on Defendant’s Motion for Sanctions (# 77), filed on October 20, 2011; Plaintiffs’ Opposition to the Motion for Sanctions (# 81), filed on November 7, 2011; and Defendant’s Reply in Support of its Motion for Sanctions (# 82), filed on November 16, 2011. The Court conducted a hearing in this matter on December 1, 2011.
Defendant moves for sanctions on the grounds that Plaintiffs failed to timely disclose all of Plaintiff Carol Jackson’s treating physicians and medical providers, failed to timely produce medical records and bills and failed to timely provide a computation of their alleged damages. Defendant also moves for sanctions on the grounds that Plaintiff took an “ex-parte deposition” of a witness after discovery ended and that the “deposition” was taken by a non-attorney in violation of rules that prohibit non-attorneys from engaging in the practice of law. Defendants have also sought sanctions in regard to other matters which the Court concludes are not appropriate issues to be decided on the instant motion.
BACKGROUND
This case involves a negligence action in which Plaintiffs Carol Jackson and Thomas Jackson seek the recovery of damages for bodily injuries and loss consortium. Carol Jackson allegedly slipped on a substance, believed to be popcorn butter oil, in Defendant’s movie theatre on February 29, 2008 and injured her neck, back and shoulder. At the time of the accident, Ms. Jackson was 55 years old. She had been diagnosed with multiple sclerosis (“MS”) more than twenty years before the subject accident and had
Ms. Jackson underwent lumbar spine dis-cectomy and fusion surgery in June 2009 and cervical spine discectomy and fusion surgery in January 2010. She experienced complications following the cervical spine surgery and underwent follow-up surgeries in January and February 2010. The accident injuries and resulting surgeries allegedly aggravated Ms. Jackson’s MS and rendered her more physically disabled than she was prior to the accident(s).
Plaintiffs filed suit against Defendant United Artists in the Nevada District Court on December 9, 2009. The Defendant removed the action to this Court on January 13, 2010. Defendant stated in its removal notice that “Plaintiffs have allegedly incurred medical expenses of at least $851,167.82.” Petition for Removal (# 1), ¶7. In support of this allegation, Defendant attached a letter from the administrator for Plaintiffs health insurance provider, together with printouts listing the medical charges and payments made by Plaintiffs’ health insurer. Id., Exhibit A.
Plaintiffs served their Rule 26 Initial Disclosures on February 17, 2010. Motion for Sanctions (# 77), Exhibit A, “Initial Disclosures.” Plaintiffs listed numerous physicians or health care providers as individuals with relevant information whom they may call as witnesses. Plaintiffs also identified the medical records and bills of the listed physicians and health care providers as documents they may use in support of their claims. Although the Initial Disclosures stated that these documents were in Plaintiffs’ “custody,” Plaintiffs and their counsel had not actually obtained the medical bills and records at the time they made their initial disclosures. The Initial Disclosures stated that the medical records and bills would be provided. Under the heading “Computation of Damages,” the Initial Disclosure stated that “Plaintiff does not have yet this information available, and will provide it when supplemented.” Plaintiffs’ Initial Disclosures, p. 7.
The discovery plan and scheduled order was entered on March 10, 2010 and set a discovery cut-off date of November 15, 2010. The Court granted an extension of discovery in October 2010 and set a new general discovery cut-off date of February 14, 2011. See Stipulation and Order (#22). The Court thereafter granted limited extensions of discovery to complete expert witness depositions and for Plaintiffs to take the deposition of a janitorial services company. Orders (#33 and # 50).
Plaintiff Carol Jackson served her answers to Defendant’s interrogatories on April 26, 2010. Motion to Compel (# 77), Exhibit D. Interrogatory No. 8 asked Ms. Jackson to identify and describe all injuries, ailments, or symptoms she experienced as a result of the subject accident, the treatment she received and the extent of her recovery. Ms. Jackson answered this interrogatory by describing her injuries, and identifying the principal physicians who provided medical treatment to her and the types of treatment provided. Interrogatory No. 10 asked Ms. Jackson to list each doctor, physician, chiropractor, therapist, psychiatrist or other health care professional who examined, treated or consulted with her since the subject accident. Ms. Jackson answered this interrogatory by listing all of the physicians and health care providers previously listed in Plaintiffs’ Initial Disclosures as well as some additional physicians or health care providers who had not previously been disclosed. Ms. Jackson also answered interrogatories regarding other illnesses and ailments, including MS, for which she had received medical treatment, and interrogatories regarding the medical treatment she received for injuries in prior accidents. See Plaintiffs Answers to Interrogatory Nos. 11,12,13,14, and 15.
Ms. Jackson served her responses to Defendant’s requests for production of docu
Plaintiff does not have medical billings or documentation in her possession responsive to this request. Please see Plaintiffs FRCP Rule 26 Disclosures and Plaintiff Carol Jackson’s Responses to Defendant’s Interrogatories, previously presented, for a list of providers. Plaintiff is currently in the process of gathering medical records and billings, and will supplement accordingly when received. Plaintiff reserves the right to amend this response, as discovery is proceeding.
Id., Responses to Requests for Production, p. 2.
In response to Defendant’s requests for medical records relating to treatment of Ms. Jackson’s MS or other medical conditions, Plaintiff also responded that she did not have any items that are responsive to this request in her possession, but that she would provide such items if they came into her possession. See Plaintiffs Response to Request No. 10.
Plaintiffs provided Defendant’s counsel with signed authorizations to obtain Ms. Jackson’s medical records and bills directly from the physicians and other health care providers. As evidenced by Defendant’s supplemental Rule 26 disclosures, it used the authorizations to obtain most of the medical records of the physicians and health care providers identified by Plaintiffs in their initial disclosures and answers to interrogatories. Opposition to Motion for Sanctions (#81), Exhibits 6-1 through 6-11. Defendant provided Ms. Jackson’s medical records, as well as the depositions of her treating physicians — Dr. Thorp, Dr. LaTourette, Dr. Grover and Dr. David Miller — to its biome-chanical expert Richard Harding and to its consulting neurologist Dr. Kurt V. Miller for review and evaluation. Opposition to Motion for Sanctions (#81), Exhibits U and 5.
Plaintiffs served their First Supplement to Rule 26 Disclosures on February 14, 2011, the last day of discovery. Motion for Sanctions (#81), Exhibit G. Plaintiffs listed the same physicians and other health providers that were listed in their Rule 26 Initial Disclosures. Plaintiffs also identified the medical records and bills of the listed physicians and providers as documents they may use to support their claims and again indicated that these records were “to be provided.” It is undisputed that Plaintiffs did not directly provide Defendants with copies of any medical records or bills prior to the close of discovery. Plaintiffs’ First Supplement to Rule 26 Disclosures also did not provide a computation of damages on the grounds that the information needed to provide the computation was not yet available.
Plaintiffs served their Second Supplement to Rule 26 Disclosures on June 6, 2011. Exhibit H. Plaintiffs attached a copy of a January 25, 2011 letter from Plaintiffs surgeon, Dr. Grover, regarding Ms. Jackson’s condition as of that date. The Second Supplement was otherwise unchanged from the First Supplement. Plaintiffs served a Third Supplement to Rule 26 Disclosures on July 19, 2011. Exhibit I. Plaintiffs attached to this supplement a computation of Plaintiff Carol Jackson’s special damages for past and future medical expenses and her general damages for past and future pain and suffering. According to this computation, Ms. Jackson claimed past medical expenses in excess of $880,000, plus future medical expenses in the estimated amount of $864,013.00. Ms. Jackson’s future medical expense claim is based on the opinions of Plaintiffs’ economic and life care plan experts whose reports and opinions were provided during discovery. Plaintiffs also stated the amount of Plaintiff Thomas Jackson’s general damage claim for loss of consortium. Plaintiffs state that Mr. Jackson has no claim for recovery of medical expenses or other special damages.
On August 16, 2011, Plaintiffs served their Fourth Supplement to Rule 26 Disclosures. Exhibit K. With this Supplement, Plaintiffs produced compact discs that contained the medical records of Ms. Jackson. On August 26, 2011, Plaintiffs served their Fifth Supplement to Rule 26 Disclosures which included the medical bills identified in the disclosure.
Defendant contends that Plaintiffs identified fifteen (15) medical providers in their Fourth and Fifth Supplements to their Rule 26 Disclosures who were never previously disclosed. See Motion for Sanctions (# 77), p. 11. It appears, however, that eight of the physicians or providers listed by Defendant were, in fact, disclosed by Plaintiffs and/or their records were obtained by Defendant during discovery. Plaintiff argues that there were, at most, only two or three providers who were not disclosed during discovery.
The Court now turns to Defendant’s allegation regarding the taking of an “ex-parte deposition.” Defendant’s answers to Plaintiffs First Set of Interrogatories served on September 28, 2010, stated that Archie Gat-bonton, a former theatre employee, “conducted inspections in Auditorium #7 prior to the theatre opening on the date of the subject incident and after the first showing of ‘No Country for Old Men.’” See Defendant’s Motion for Summary Judgment (# 61), Exhibit K, Answer to Interrogatory No. 21. Neither party attempted to take Mr. Gatbonton’s deposition prior to the close of discovery. Defendant filed its Motion for Summary Judgment (# 61) on June 13, 2011. In that motion, Defendant argues that there is no evidence that Defendant knew or should have known of the presence of the alleged foreign substance prior to Ms. Jackson’s alleged accident. Plaintiffs filed their Opposition to Defendant’s Motion for Summary Judgment (#69) on July 7, 2011 and attached, as Exhibit 1 thereto, a “Certified Transcript” of the “Examination Under Oath of Archibald Gatbonton” (hereinafter the “examination”) in support of their argument that Defendant was on notice of the foreign substance prior the accident and/or that Defendant’s employees negligently failed to clean the theatre prior to Plaintiffs accident.
According to the transcript of the examination, Robert Clymer, a private investigator employed by Plaintiffs’ counsel, conducted the examination of Mr. Gatbonton on July 6, 2011. Plaintiffs’ attorney Judy Cox, Esq. was also present during the examination and asked questions or interjected comments during the examination. The examination was reported by a certified court reporter who administered an oath to tell the truth to Mr. Gatbonton. Because Mr. Gatbonton is deaf, the questions were interpreted for him by an American Sign Language Interpreter who, in turn, translated his sign language responses into the English language. The court reporter prepared the transcript of the examination which Plaintiffs submitted in support of their Opposition to Defendant’s Motion for Summary Judgment. Plaintiffs’ counsel represents that this method of presenting Mr. Gatbonton’s testimony was used because of the language barrier involved and the need to expeditiously obtain his testimony for the opposition to the motion for summary judgment.
DISCUSSION
The Court will decide only those matters raised in Defendant’s Motion for Sanctions that are properly before the Court under
The Court will decide whether the examination of Mr. Gatbonton constituted a deposition taken in violation of Rule 30 or the scheduling order, and whether it violated the
1. Defendant’s Request for Sanctions Under
Defendant argues that Plaintiffs should be sanctioned under
Rule 26(a)(1)(A) states:
... [A] party must, without awaiting a discovery request, provide to the other parties:
(i) the name and, if known, the address and telephone number of each individual likely to have discoverable information — -along with the subjects of that information — that the disclosing party may use to support its claims or defenses, unless the use would be solely for impeachment;
(ii) a copy — or a description by category and location — of all documents, electronically stored information, and tangible things that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses, unless the use would be solely for impeachment;
(iii) a computation of each category of damages claimed by the disclosing party — -who must also make available for inspection and copying as under Rule 34 the documents or other evi-dentiary material, unless privileged or protected from disclosure, on which each computation is based, including materials bearing on the nature and extent of injuries suffered!!]
Rule 26(a)(1)(C) requires a party to serve his or her initial disclosures, including the computation of damages, within 14 days after the parties’ Rule 26(f) conference. Rule 26(e)(1)(A) states that a party must supplement or correct its disclosures or discovery responses “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.”
The disclosure requirements of Rule 26(a)(1)(A) are designed to accelerate the exchange of basic information and “ ‘help focus the discovery that is needed, and facilitate preparation for trial or settlement.’ See Advisory Committee Notes to 1993 Amendments to
Plaintiffs’
Plaintiffs’ counsel made no adequate effort to obtain copies of Ms. Jackson’s medical records and bills and make them available to the Defendant for copying or inspection prior to the close of discovery. Plaintiffs argue that they had no obligation to do so under
Plaintiffs also argue that they complied with
The Court finds that under the circumstances of this case, Plaintiffs did not violate their disclosure obligation under
Plaintiffs, however, ignored their obligation under
The plaintiff cannot shift to the defendant the burden of attempting to determine the amount of the plaintiffs alleged damages. See Design Strategy, Inc. v. Davis,
Courts are more likely to exclude damages evidence when a party first discloses its computation of damages shortly before trial or substantially after discovery has closed. CQ Inc. v. TXU Mining Company,
Plaintiffs have not shown any justification for their failure to provide a computation of Plaintiff Carol Jackson’s special damages prior to the close of discovery on February 14, 2011. The issue, therefore, is whether the failure was harmless and if not, what sanction should be imposed. Defendant has been aware from the outset of this lawsuit that Plaintiffs are seeking substantial medical expenses damages allegedly related to the treatment of injuries caused by the accident. Defendant’s removal petition stated that “Plaintiffs have allegedly incurred medical expenses of at least $851,167.82.” Plaintiffs’ Initial
Although Plaintiffs’ computation of damages was provided long after it should have been disclosed, this case is still in the summary judgment phase. The joint pre-trial order is not yet due and a trial date has not been set. Unlike Hoffman, the late disclosure of Plaintiffs’ damages computation does not require that discovery be reopened and will not delay trial. Plaintiffs’ violation of
The Court nevertheless concludes that some sanction should be imposed on Plaintiffs’ counsel for their unjustified failure to provide a computation of damages prior to the close of discovery. This is not the first case in which sanctions have been sought or imposed because of Plaintiffs’ counsel’s failure to comply with
The Court will also award Defendant reasonable attorney’s fees and costs in pursuing the motion for sanctions relating to Plaintiffs’ failure to comply with
2. Whether Plaintiffs Should be Sanctioned for Taking an “Ex-Parte Deposition” or Engaging in the Unauthorized Practice of Law With Respect Thereto.
The examination of witness Archibald Gatbonton did not constitute a deposition taken in violation of
In Curnow v. Ridgecrest Police,
“Because there is no reason to believe that the sworn answers to questions are less reliable than an affidavit, to the extent that the content of the deposition testimony is otherwise admissible, that testimony should be admissible on summary judgment.”
See also Parra v. Bashas’ Inc.,
In Tucker v. United States, the plaintiff submitted sworn witness statements obtained by plaintiffs counsel’s investigator in support of his opposition to the government’s motion for summary judgment. The statements were obtained prior to the depositions of the witnesses and appeared to contradict their deposition testimony. Relying on Cumow, the court treated the sworn statements as the equivalent of affidavits for purposes of determining whether there was a genuine issue of material fact.
Defendant argues that Plaintiffs’ counsel’s private investigator engaged in the unauthorized practice of law by questioning Mr. Gatbonton during the examination or “ex-parte deposition.” Non-attorneys are generally not permitted to appear in court or participate in judicial proceedings as the legal representative of a party or another person. See Harrington v. City of Chicago,
The Nevada Supreme Court in In re Lerner,
Taking a sworn factual statement from a witness does not per se involve the exercise of professional legal judgment sufficient to constitute the practice of law. Recorded witness statements are often obtained by investigators or other non-lawyer assistants acting on behalf of attorneys, either before or after the commencement of litigation. It would unduly impair the efficient practice of law if such statements could only be taken by attorneys. Arguably, the taking of ex-parte testimony, whether by affidavit or questioning under oath, should be supervised by the attorney when it is obtained for the specific purpose of being submitted in support of or in opposition to a motion for summary judgment. In this case, one of Plaintiffs’ attorneys was present during the examination of Mr. Gatbonton and interjected clarifying questions or comments at various points during the examination. The presence of counsel fulfilled any required duty of supervision in the taking of the state
CONCLUSION
Based on the foregoing, the Court concludes that sanctions should be imposed for Plaintiffs’ counsel’s failure to provide a timely computation of Plaintiff Carol Jackson’s claim for medical expense damages, together with the supporting documentation, as required by
IT IS HEREBY ORDERED that Defendant’s Motion for Sanctions (# 77) is granted, in part, and denied, in part, as follows:
1. Plaintiffs may not introduce at trial the testimony or medical records or bills of any physicians or health care providers whose identities were not disclosed prior to the end of discovery on February 14, 2011. The parties shall submit a proposed stipulation and order regarding the identities of any such physicians or providers. If the parties are unable to agree, they may supplement their respective briefs, regarding the identities of the physicians or providers who were not disclosed by Plaintiffs during discovery.
2. Defendant is awarded its reasonable attorney’s fees and costs on the motion for sanctions relating to Plaintiffs’ failure to comply with
3. Counsel for Defendant shall, no later than 14 days from entry of this order, serve and file a memorandum, supported by the affidavit of counsel, establishing the amount of attorney’s fees and costs incurred in the motion addressed in this order. The memorandum shall provide a reasonable itemization and description of the work performed, identify the attorney(s) or other staff member(s) performing the work, the customary fee of the attorney(s) or staff member(s) for such work, and the experience, reputation and ability of the attorney performing the work. The attorney’s affidavit shall authenticate the information contained in the memorandum, provide a statement that the bill has been reviewed and edited, and a statement that the fees and costs charged are reasonable.
4. Counsel for Plaintiffs shall have 14 days from service of the memorandum of costs and attorney’s fees in which to file a responsive memorandum addressing the reasonableness of the costs and fees sought, and any equitable considerations deemed appropriate for the court to consider in determining the amount of costs and fees which should be awarded.
5. Counsel for Defendant shall have 7 days from service of the responsive memorandum in which to file a reply.
6. Defendant’s motion for sanctions is otherwise denied.
Notes
. Plaintiffs argue that