Opinion
No. CV-17-8159-PCT-SPL (DMF)
03-15-2019
Valerie Leland, et al., Plaintiffs, v. County of Yavapai, et al., Defendants.
REPORT AND RECOMMENDATION
TO THE HONORABLE U.S. DISTRICT JUDGE STEVEN P. LOGAN:
This Report and Recommendation hereby amends the Order at Doc. 162 pursuant to LRCiv 72.2(a)(1), which requires a report and recommendation regarding the nature of relief.
Plaintiffs Valerie Leland and Julia Muncy, the daughter and mother of Francis Naomi Wright, who died while detained in the Yavapai County Jail, brought this civil rights action for alleged constitutional and state law violations against Yavapai County, numerous County employees, Wexford Health Sources, Inc., and numerous Wexford employees. (Doc. 13, Ex. 1.) Plaintiffs initiated this action in Yavapai County Superior Court on December 29, 2016. (Doc. 1.) In April 2017, Wexford Defendants removed the action to federal court. (Id.)
The "County Defendants" or "Yavapai County Defendants" are Yavapai County, Cody Winton, Jessica Barbey, Paul and Kelly Kellerman, Rogelio Chavez, Garrett Russell, and Joe and Andrea Valdez.
Wexford Health Service, Inc. ("Wexford") is a privately-owned corporation contracted to provide medical care to detainees in the Yavapai County Jail. The nurses named as Defendants—Valerie Whitcomb, Deborah Gallihar, Debra Wagner, Shirley Mitchell, and Theresa Goble—and Defendant Dr. Wilkinson were all Wexford employees at the relevant time. Together, these defendants are referred to as "Wexford Defendants."
A Case Management Order issued on November 2, 2017, allowing approximately one year for fact discovery and final supplementation of MIDP responses. (Doc. 28.) This matter is before the Court on Plaintiffs' Motion to Exclude Late Disclosures (Doc. 132), to which responses (Docs. 142, 147 with exhibits which are on the Court's public record and one which is sealed at Docs. 151, 153) and a reply (Doc. 158) have been filed. District Judge Logan referred this matter to undersigned (Docs. 14, 85, 144 at 3, lines 27-28). The Court will recommend that District Judge Logan grant the motion in part and deny the motion in part. I. BACKGROUND
This background section is taken from District Judge Logan's Order at Doc. 144. For case consistency, other portions of Judge Logan's Order also were used in this Report and Recommendation without quotations or reference to Judge Logan's Order.
Plaintiffs' claims stem from Wright's death during her confinement as a pretrial detainee in the Yavapai County Jail in 2016. (Doc. 13-1 ¶ 17.) In their First Amended Complaint, Plaintiffs allege the following:
On May 9, 2016, Wright was arrested and booked into the County Jail. (Id.) During the booking process, she reported that she took drugs, that she had withdrawal problems, that she was currently detoxing, and that she had fainted or had a head injury within the past 6 months. (Id. ¶¶ 17-21.) Around 10:00 p.m. that night, Wright was assigned to the jail's infirmary for observation. (Id. ¶ 25.) Beginning the morning of May 10, 2016, Wright's health began to deteriorate, and she repeatedly requested medical assistance orally, in writing, and, eventually, through use of the emergency button in her cell. (Id. ¶¶ 31-38, 49, 52, 55, 63, 89.) Other detainees also called for help over the intercom system and emergency buttons in their cells. (Id. ¶¶ 64, 78, 84.) Wright suffered from headaches, diarrhea, nausea, vomiting, tremors, chills, body aches, and syncope episodes, and she became more and more pale. (Id. ¶¶ 37, 41, 46, 52-53, 81, 90.) By the early morning of May 11, 2016, Wright began to suffer seizures and pass out, which caused her to hit her head on the floor. (Id. ¶¶ 58, 61, 75-77, 84.)
County Defendant detention officers Winton, Barbey, Kellerman, Chavez, Russell, and Sergeant Valdez all interacted with Wright, directly observed her interactions with medical staff, and were present when she requested medical assistance or took her written requests for medical attention. (Id. ¶¶ 28, 30, 34, 37-38, 40, 44-45, 55.) Wright specifically requested assistance from Winton and Russell, but they walked away and did not help her. (Id. ¶¶ 55-56, 71-72.) Russell and Valdez responded to the cell when Wright passed out and fell and hit her head, and, after she passed out a second time, they revived her with smelling salts and thereafter joked about her condition. (Id. ¶¶ 76-79, 84-85, 87.) Neither Defendant nurses nor Defendant detention officers would help Wright, despite her requests for help. (Id. ¶¶ 89, 94.) Although Dr. Wilkinson was in the medical office across the hall from Wright's cell, he did not come out to check on Wright. (Id. ¶¶ 88, 96.) At approximately 4:00 p.m. on May 11, 2016, Wright was found dead. (Id. ¶ 95.)
Plaintiffs set forth three claims for relief. In Count One, they assert Eighth and Fourteenth Amendment claims under 42 U.S.C. § 1983 based on the denial of medical care. (Id. ¶¶ 97-102.) In Count Two, they assert a claim for wrongful death under Arizona Revised Statutes § 12-611. (Id. ¶¶ 103-109.) And in Count Three, Plaintiffs assert a Fourteenth Amendment claim under § 1983 based on interference with the right to family society and companionship. (Id. ¶¶ 110-112.)
II. DISCUSSION
By the Court's Case Management Order, the deadline for fact discovery and to provide supplemental disclosures was November 2, 2018. (Docs. 28.) The parties agree that they stipulated to allow fact disclosures for a few additional weeks, to November 16, 2018, and under such agreement, the disclosures at issue were made within those few weeks. The questions before the Court are whether the disclosures should have been made earlier, and if so, whether the disclosures should be precluded at trial.
While Rule 26(a), Fed. R. Civ. P., requires only disclosure of the identity of persons who are likely to have discoverable information and "the subjects of that information," the Mandatory Initial Discovery Pilot ("MIDP"), through General Order 17-08, supersedes Rule 26(a), Fed. R. Civ. P. and requires that the parties:
State the names and, if known, the addresses and telephone numbers of all persons who you believe are likely to have discoverable information relevant to any party's claims or defenses, and provide a fair description of the nature of the information each such person is believed to possess.(Doc. 4 at 6, lines 22-25.) Importantly, a "fair description of the nature of the information" a fact witness is believed to possess, not a detailed recitation of each aspect of the person's possible testimony, is required. Further, "[i]f new information is revealed in a written discovery response or a deposition in a manner that reasonably informs all parties of the information, the information need not be presented in a supplemental response." (Doc. 4 at 6, lines 4-6.) While "facts relevant" to "claims or defenses" must be disclosed (Doc. 4 at 7, lines 17-18), the MIDP Order does not require a detailed written preview of all the fact testimonial evidence to be offered at trial.
The MIDP disclosure duties extend to relevant matters, whether favorable or not to a party: "Parties must provide the requested information as to facts that are relevant to the claims and defenses in the case, whether favorable or unfavorable, and regardless of whether they intend to use the information in presenting their claims or defenses." (Doc. 4 at 4, lines 18-20.) Further, and importantly, the MIDP Order is clear that the parties are not to wait until late in the case to develop information relevant to the claims:
Each party's response must be based on the information then reasonably available to it. A party is not excused from providing its response because it has not fully investigated the case, it challenges the sufficiency of another party's response, or another party has not provided a response.(Doc. 4 at 4, lines 11-17.)
At any time during discovery, a party "may request more detailed or thorough responses to these mandatory discovery requests if it believes the responses are deficient." (Doc. 4 at 8, lines 3-4.) Further, Rule 37(c)(1), Fed. R. Civ. P. "gives teeth" to disclosure requirements "by forbidding the use at trial of any information required to be disclosed ... that is not properly disclosed." Yeti by Molly, Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 1106 (9th Cir. 2001); Fed. R. Civ. P. 37(c)(1) ("[i]f a party fails to provide information or identify a witness as required . . ., the party is not allowed to use that information"). The information may be used at trial, however, if the party's failure to disclose the required information is substantially justified or harmless. Fed. R. Civ. P. 37(c)(1). The party making the late disclosure bears the burden of establishing that the failure to disclose is substantially justified or harmless. See Yeti by Molly, 259 F.3d at 1107. In determining whether substantial justification or harmlessness exist, a court considers (1) prejudice or surprise to the other party, (2) the ability of that party to cure the prejudice, (3) the likelihood of disruption of trial, and (4) willfulness or bad faith. Silvagni v. Wal-Mart Stores, Inc., 320 F.R.D. 237, 242 (D. Nev. 2017). Still, a court is not required to make a finding of willfulness or bad faith before excluding testimony at trial. See Hoffman v. Constr. Protective Servs., Inc., 541 F.3d 1175, 1180 (9th Cir. 2008) (rejecting the notion that the court must find willfulness or bad faith to exclude evidence because Rule 37 is "a self-executing, automatic sanction" meant to induce disclosure) (quotation omitted).
All disclosure and discovery deadlines have passed, and the dispositive motions deadline also passed in January, 2019. (Docs. 28, 76.) The filed dispositive motion has been decided, and the parties agree that case is ready to be tried. (Docs. 144, 159.)
In its early Case Management Order setting case deadlines, the Court explicitly stated:
General Order 17-08 implements the MIDP and should be reviewed carefully. It requires parties to timely supplement their MIDP responses as new information is discovered. Parties who fail to timely disclose relevant
information will be precluded from using it in the case and may be subject to other sanctions. Parties who unreasonably postpone disclosure of relevant information to the end of the discovery period will also be subject to sanctions.(Doc. 28 at 2 n.1.) Plaintiffs were entitled to assume that the Court meant this, that Rule 37(c)(1) means what it says, and that untimely disclosed evidence would be excluded from evidence at trial. Reopening discovery and setting new deadlines for depositions and other discovery at this juncture would lead to increased costs to Plaintiffs and a substantial delay and inconvenience for the Court. The Ninth Circuit has held that "[d]isruption to the schedule of the court and other parties . . . is not harmless." Wong v. Regents of Univ. of Cal., 410 F.3d 1052, 1061-62 (9th Cir. 2005) (finding that trial court did not abuse its discretion in excluding expert witness not identified by the case management deadline). This is true even where the trial date is not imminent. See id. at 62 (exclusion of witness testimony appropriate even though "the ultimate trial date was still some months away"). Thus, any last day disclosures which should have been made earlier prejudice Plaintiffs and are not harmless.
The defense arguments that there is no harm from the last moment disclosures because the Court can re-open discovery and a trial date has not been set are not well taken. By Defendants' arguments, there will always be incentive for parties to make last moment disclosures rather than diligently pursuing discovery and engaging in required disclosure during the discovery period. If the Court is unwilling to preclude wrongful last moment disclosures, one party likely will not have an opportunity to meaningfully pursue or develop its case during the discovery window; at worst for the late disclosing party, the Court may order a limited amount of additional discovery. The MIDP Order in this and other cases eliminates such gamesmanship.
Each last moment disclosure will be addressed individually below. . . . . . .
A. Johanna Hoffman Affidavit Dated November 6, 2018
Plaintiffs complain of only one aspect of the disclosure by the Yavapai County Defendants, the statement of Ms. Hoffman obtained in November, 2018, in the form of an affidavit and the content therein. At the same time the affidavit was disclosed by the Yavapai Defendants, it was also disclosed by the Wexford Defendants, and the Court's ruling applies to all defendants. Because Ms. Hoffman's affidavit was disclosed on the last day of possible disclosures, Plaintiffs were precluded from considering the affidavit in making the decision as whether or not to depose Ms. Hoffman during the fact discovery timeframe. Importantly, the affidavit differs in several material respects from Ms. Hoffman's previous statement, made close to the alleged events. It appears defense counsel drafted the affidavit for Ms. Hoffman's signature after meeting with her.
Defendants claim that they disclosed the affidavit promptly after defense counsel's contact with Ms. Hoffman and her signature on the affidavit. Yet, it does not appear that defense counsel attempted to write Ms. Hoffman until late October, 2018, just weeks before the discovery and supplementation deadline. There is no evidence before the Court that defense counsel had been trying to contact Ms. Hoffman before then other than an investigator attempt to find Ms. Hoffman's phone number, which only resulted in the address to which the late October, 2018, letter was written. Noteworthy is that Ms. Hoffman responded quickly to the letter from defense counsel. While the timing of the contact and disclosure may have complied with Rule 26(e)(1)(A), Fed. R. Civ. P., absent MIDP, here, MIDP required that defense counsel try to make the contact and disclosure earlier in the discovery/disclosure window and in time for Plaintiffs to decide whether or not to depose Ms. Hoffman. See Rule 26(e)(1)(B), Fed. R. Civ. P. (requiring supplementation "as ordered by the court"); General Order 17-08 (Doc. 4 at 4, lines 11-17) ("Each party's response must be based on the information then reasonably available to it. A party is not excused from providing its response because it has not fully investigated the case, it challenges the sufficiency of another party's response, or another party has not provided a response.").
Defendants have not shown good cause for obtaining and disclosing the affidavit so late that did not allow Plaintiffs to meaningfully consider whether or not to depose Ms. Hoffman. As with Anderson's expert report excluded by District Judge Logan, Defendants failed "to exercise due diligence" and "cannot justify their late disclosure" of the affidavit of Ms. Hoffman. (Doc. 144 at 6, line 26.) Thus, undersigned recommends that the use of the affidavit of Ms. Hoffman in any way at trial is precluded.
Nevertheless, undersigned recommends that Ms. Hoffman may testify under oath, called by either party, to any of her recollection, whether it is consistent with the statement she made closer to the events or consistent to the affidavit (although the affidavit may not be mentioned or used) or otherwise. All the parties knew that Ms. Hoffman was a significant witness and could be called to testify at trial about her observations of decedent Wright as well as what Defendants did and did not do for Wright. MIDP requires disclosure of a "fair description of the nature of the information" a witness is believed to possess, not a detailed description of each aspect of the witness's testimony. (Doc. 4 at 6, lines 22-25.)
If the substantive details of Ms. Hoffman's trial testimony turn out to be different than statements she previously made (and include the contrary information in the excluded affidavit), that is one of the purposes of cross examination at trial. Plaintiffs' counsel may inquire as to the meetings and communications with defense counsel that preceded the testimony, including those communications leading up to the November, 2018, affidavit. In other words, undersigned will not recommend that District Judge Logan enter orders precluding Ms. Hoffman from testifying under oath as to what she represents to be her particular recollections of the pertinent events. The undersigned recommends that the quite delayed and therefore late obtained and disclosed affidavit, though, shall not be used in any way at or for trial except to argue, outside of the presence of the jury, that Ms. Hoffman is a hostile witness to Plaintiffs. . . . . . .
B. Wexford Supplementation
Plaintiffs object to Wexford Defendants' last day supplementation in three ways. First, there were ten new witnesses disclosed by Wexford Defendants. Second, there were two documents and one category of documents identified, all pertaining to expert reports. Third, there was supplementation of anticipated testimony of Dr. Wilkinson, Nurses Gallihar, Wagner, and Mitchel, as well as Officers Barbey and Kellerman.
These are in addition to objection regarding Ms. Hoffman's affidavit, addressed supra.
1. New witnesses
Insofar as the disclosure of witness Claudia Converse, decedent Wright's primary care provider, the record is clear that the Wexford Defendants repeatedly had listed her and her workplace records (Spectrum) on its disclosures during the litigation as it proceeded through discovery. Plaintiffs complain that "Claudia Converse (Spectrum)" was listed only as a "party of interest" in October, 2017, but if Plaintiffs believed this disclosure was inadequate, then Plaintiffs could have raised the matter with Defendants and, if necessary, the Court, reasonably after the disclosure in late 2017. Plaintiffs did not do so, and the Court will not exclude witness Claudia Converse and corresponding Spectrum records (i.e., records to which Claudia Converse can testify and/or pertain to her care/treatment of decedent Wright).
Early in the litigation, Wexford Defendants clearly knew that Spectrum treated Plaintiff and had records pertinent to the issues in the case insofar as they pertained to Claudia Converse, decedent Wright's primary care provider. On November 16, 2018, the last day for supplementation and when no further discovery could be conducted by Plaintiffs, Wexford Defendants disclosed other Spectrum providers as witnesses, specifically Loeffler and Rhoades, and possibly records related thereto. Wexford Defendants blame Plaintiffs for having not earlier disclosed such persons. As with the affidavit of Ms. Hoffman, the Wexford Defendants failed "to exercise due diligence" and "cannot justify their late disclosure." (Doc. 144 at 6, line 26.) Further, because Wexford Defendants had Spectrum's records early in the litigation, Wexford Defendants could have long ago raised with Plaintiffs and the Court that Plaintiffs had not disclosed the other providers reflected in the records. The undersigned recommends that Plaintiffs' motion be granted as to witnesses Loeffler and Rhoades and related documents that are not admissible through witness Claudia Converse.
Wexford Defendants claim that earlier disclosure of behavioral health Community Bridges, Inc. ("CBI") records for decedent Wright justifies its last day, November 16, 2018, disclosures of CBI witnesses Peters, Stewart, and Walters. Further, Wexford Defendants blame a purported more recent focus by Plaintiffs' on decedent Wright's cardiac issues for Wexford Defendants' last day disclosure of these witnesses. Wexford Defendants do not adequately explain how behavioral-health treatment providers have anything to do with pre-existing cardiac issues. Further, the cardiac issues were raised by defense experts in June, 2018, long before fact discovery closed in November, 2018. Wexford Defendants have offered no substantial justification for the last minute listing of witnesses Peters, Stewart, and Walters. Plaintiffs are prejudiced. Thus, the undersigned recommends that these witnesses also be precluded.
Insofar as Plaintiffs' treating psychiatrist and physicians, Drs. Schenkel, Schneider, Richards, and Whiteman, Defendants Wexford timely disclosed these witnesses as to damages issues given the timing of notice to Defendants Wexford of the existence of these witnesses. The undersigned recommends that Plaintiffs' motion be denied as to these witnesses.
2. Documents listed at Doc. 132, lines 8-13
Wexford Defendants represent that the documents about which Plaintiffs complain were all referenced in one or another of the parties' previously disclosed expert reports. In their reply, Plaintiffs seem to have abandoned argument that any of the documents in this category should be excluded. The Court finds that timing and manner of the disclosure of these documents were not improper under the applicable rules and orders. The undersigned recommends that Plaintiffs' motion be denied as to this category of the November, 2018, disclosures by Wexford Defendants.
It appears to the Court that one of the standards, NCCHC Standard J-E-04 may not have been referenced in the reports. Nevertheless, other NCCHC standards were referenced and this standard may be needed for full cross examination of the experts.
3. Supplementation of testimony of Defendants: Dr. Wilkinson, Nurses Gallihar, Wagner, and Mitchell as well as Officers Barbey and Kellerman
A Case Management Order issued on November 2, 2017, allowing one year for fact discovery and setting an expert disclosure and discovery schedule that provided for Plaintiffs' expert disclosures on or by May 4, 2018, Defendants' expert disclosures on or by June 22, 2018, and rebuttal expert disclosures due on or by August 13, 2018. (Docs. 28, 77, 93.) Rebuttal disclosures were expressly "limited to responding to opinions stated by initial experts." (Id.) The Scheduling Order also required that treating medical care providers opinions be disclosed on the same schedule as expert reports:
Disclosures under Rule 26(a)(2)(A) must include the identities of treating physicians and other witnesses who will provide testimony under Federal Rules of Evidence 702, 703, or 705, but who are not required to provide expert reports under Rule 26(a)(2)(B). Rule 26(a)(2)(C) disclosures are required for such witnesses on the dates set forth above. Rule 26(a)(2)(C) disclosures must identify not only the subjects on which the witness will testify, but must also provide a summary of the facts and opinions to which the expert will testify. The summary, although clearly not as detailed as a Rule 26(a)(2)(B) report, must be sufficiently detailed to provide fair notice of what the expert will say at trial.(Doc. 28 at 3, lines 1-9.)
Importantly, all of the medical care witnesses regarding whom Plaintiffs seek to preclude supplemented testimony are actual defendants in this case. The supplements by Wexford Defendants came on the heels of detailed previous disclosures and are related to what the defendants actually did (or did not do) and their state of mind at the time of their actions and inactions, including their training regarding such. To undersigned, these were fact disclosures, not expert disclosures, and were timely. Further, given the brevity of the supplements about which Plaintiffs complain regarding these witnesses, it is hard to believe that Plaintiffs would have made a different deposition decision about any of these defendants.
Likewise, for Defendant Officers Barbey and Kellerman. Significantly, Plaintiffs only complain about some of the newly disclosed supplemented testimony that Plaintiffs assert is actually improper expert testimony. In their reply, Plaintiffs argue that such testimony crosses the line into improper expert testimony by a lay witness under the Federal Rules of Evidence. Plaintiffs make the same arguments in support of precluding the Wexford Defendants doctor and nurse testimony supplements. Presently, the only question before the Court is whether the proffered testimony should be stricken for late disclosure. Whether the proffered testimony is improper under the Federal Rules of Evidence as improper trial testimony is a question for District Judge Logan on motion in limine or objection at trial, not on a motion to preclude based on late disclosures. Therefore, this Report and Recommendation does not reach such questions for any of the proffered witness/defendant supplemental testimony of the doctor, nurses, or officers.
Given the above, the undersigned recommends that District Judge Logan deny Plaintiffs' motion as to the supplementation of the Wexford Defendants' testimony.
Accordingly,
IT IS RECOMMENDED that Plaintiffs' Motion to Exclude Late Disclosures (Doc. 132) be granted in part and denied in part, as set forth herein.
IT IS FURTHER RECOMMENDED that the affidavit of Johanna Hoffman disclosed by Defendants not be used in any way at trial, but that Ms. Hoffman not be prevented from freely testifying under oath, as District Judge Logan finds admissible under the Federal Rules of Evidence, about what occurred and her prior oral statements and written statements regarding such, other than the November, 2018, affidavit. It is also recommended that Plaintiffs, outside the presence of the jury, be allowed to use the affidavit in requesting that Ms. Hoffman be treated as a hostile witness as to leading questions on direct examination.
IT IS FURTHER RECOMMENDED that Plaintiffs' motion be denied as to Claudia Converse and corresponding Spectrum records.
IT IS FURTHER RECOMMENDED that Plaintiffs' motion be granted as to witnesses Loeffler and Rhoades and corresponding records that are not admissible through witness Converse; it is recommended that witnesses Loeffler and Rhoades and corresponding records that are not admissible through witness Converse be excluded.
IT IS FURTHER RECOMMENDED that Plaintiffs' motion BE granted as to witnesses Peters, Stewart, and Walters; it is recommended that these witnesses be excluded.
IT IS FURTHER RECOMMENDED that Plaintiffs' motion be denied as to psychiatrist and physicians, Drs. Schenkel, Schneider, Richards, and Whiteman.
IT IS FURTHER RECOMMENDED that Plaintiffs' motion be denied as to documents referenced in timely disclosed expert reports (and NCCHC Standard J-E-04 if it was not referenced specifically).
IT IS FURTHER RECOMMENDED that Plaintiffs' motion be denied as to supplementation of testimony of Defendants: Dr. Wilkinson, Nurses Gallihar, Wagner, and Mitchell as well as Officers Barbey and Kellerman.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1) of the Federal Rules of Appellate Procedure should not be filed until entry of the District Court's judgment. The parties shall have fourteen days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6, 72; see also LRCiv 72.2(a)(1). The parties shall have fourteen days within which to file responses to any objections. Failure to file timely objections to the Magistrate Judge's Report and Recommendation may result in the acceptance of the Report and Recommendation by the District Court without further review. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Failure to file timely objections to any factual determination of the Magistrate Judge may be considered a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the Magistrate Judge's recommendation. See Fed. R. Civ. P. 72.
Dated this 15th day of March, 2019.
/s/ _________
Honorable Deborah M. Fine
United States Magistrate Judge