United States District Court, W.D. Arkansas, Texarkana Division
O. Hickey, United States District Judge.
Court's September 11, 2017 order (ECF No. 63) is hereby
amended to state that Plaintiffs may not seek past medical
expenses in excess of $95, 237.73.
the Court is Defendants John K. Kimani and Tolyn Express,
LLC's Motion to Limit Plaintiffs' Evidence of Medical
Expenses. (ECF No. 49). Plaintiffs Terrance Rabon and
Kathleen Rabon filed a response. (ECF No. 56). The Court
finds the matter ripe for consideration.
case arises from an automobile accident that occurred on
October 26, 2013, at the Flying J Truck Stop in Texarkana,
Arkansas. Plaintiff Terrance Rabon (“Mr. Rabon”)
alleges that he suffers from ongoing pain because of the
accident, for which he underwent and is undergoing various
forms of medical treatment, including an anterior cervical
decompression and fusion surgery in April 2014. Intervenor
Sentry Select Insurance Company claims to have paid roughly
$250, 000.00 in personal-injury protection benefits to Mr.
Rabon and intervened in this action seeking reimbursement
and/or subrogation under Section 500.3116 of Michigan's
Insurance Code of 1956.
23, 2016, Plaintiffs provided to Defendants their initial
Rule 26(f) disclosures, in which they stated the types of
damages sought, but did not provide a computation or
itemization of damages. Defendants subsequently propounded
discovery requests on Plaintiffs, seeking inter
alia, the names of all physicians who treated Mr. Rabon
in connection with the accident, a description of all medical
care provided, and the amounts charged for the care. On July
8, 2016, Plaintiffs responded to the discovery request,
providing an itemization of medical expenses totaling $93,
231.23. On December 8, 2016, Plaintiffs disclosed an
additional $2, 006.50 in medical expenses. On May 19, 2017,
the discovery deadline in this matter passed. On September 1,
2017, Plaintiffs provided Defendants an updated
medical-expense summary, totaling $135, 983.96.
September 5, 2017, Defendants filed the instant motion,
stating that Plaintiffs untimely disclosed supplemental
medical expenses that Plaintiffs claim as damages. Defendants
state that Plaintiffs disclosed the challenged medical
expenses less than three weeks before the September 18, 2017
trial date of this matter and well past the discovery
deadline in this case. Defendants argue that the untimely
disclosure leaves them without time to investigate the
increased medical expenses, seek the relevant bills and
medical documents related to the expenses, and determine
whether the associated medical care was necessary and
reasonably incurred as a proximate cause of the accident.
Defendants argue that Plaintiffs' failure to timely
disclose the challenged medical expenses is not substantially
justifiable or harmless, and move the Court under Federal
Rule of Civil Procedure 37 for exclusion of all evidence
related to the challenged expenses.
argue in response that any untimely disclosed information is
substantially justifiable or harmless. Plaintiffs state that
Defendants' defenses with respect to causation and
damages remain unchanged, and that Plaintiffs promptly
disclosed certain medical expenses after becoming aware of
them. Plaintiffs argue that their answers to Defendants'
discovery requests named Mr. Rabon's medical providers,
and Plaintiffs state that they provided Defendants with a
medical release. Plaintiffs argue that Defendants could have
utilized the medical release to obtain the additional medical
expenses. Plaintiffs conclude that Defendants have not been
prejudiced by the supplemental disclosures and that
Plaintiffs would be prejudiced if the additional medical
expenses are excluded.
must make initial disclosures, including a computation of
damages and documents on which the damage computations are
based, and must supplement their initial disclosures when
they learn of new information. Fed.R.Civ.P. 26(a)(1)(A)(iii);
Janvrin v. Cont'l Res., Inc., No. 4:14-cv-4124,
2016 WL 4574665, at *1 (D.S.D. Sept. 1, 2016). Parties must
also timely supplement their responses to discovery requests.
Fed.R.Civ.P. 26(e)(1)(A). Untimely, evasive, or incomplete
disclosures are considered nondisclosures. Fed.R.Civ.P.
37(a)(4); Trost v. Trek Bicycle Corp., 162 F.3d
1004, 1008 (8th Cir. 1998). If a party fails to disclose
information as contemplated by Rules 26(a) and (e), the court
may exclude the untimely disclosed information unless the
party's failure to disclose is substantially justified or
harmless. Fed.R.Civ.P. 37(c)(1); Wegener v. Johnson,
527 F.3d 687, 692 (8th Cir. 2008). In determining whether to
exclude untimely disclosed information, courts consider
“the reason for noncompliance, the surprise and
prejudice to the opposing party, the extent to which allowing
the information or testimony would disrupt the order and
efficiency of the trial, and the importance of the
information or testimony.” Wegener, 527 F.3d
do not appear to argue that their revised medical-expenses
summary was timely disclosed, and the Court finds that it was
untimely. Thus, the Court's only consideration is whether
the disclosure was substantially justified or harmless.
Plaintiffs state that they failed to timely disclose certain
medical expenses because Intervenor Sentry Select Insurance
Company paid the expenses and Plaintiffs simply were not
aware of the expenses, but that they promptly disclosed them
once they were discovered. Plaintiffs offer no explanation
for the untimely disclosure of the other additional medical
expenses. Thus, the Court finds that Plaintiffs' untimely
disclosure was not substantially justified. See 3M
Innovative Properties Co. v. Dupont Dow Elastomers, LLC,
No. CIV. 03-3364MJDJGL, 2005 WL 6007042, at *4 (D. Minn. Aug.
29, 2005) (“Rule 26 provides ‘no safe harbor'
for a party's ‘lack of diligence.'”)
are prejudiced by the untimely disclosure, as the additional
medical expenses were disclosed long after the close of
discovery and less than three weeks before trial. If the
additional medical expenses are admitted, Defendants would be
denied an opportunity to conduct discovery with respect to
the additional medical expenses. The Court is unpersuaded by
Plaintiffs' argument that Defendants were not prejudiced
because they could have utilized their medical authorization
to obtain Mr. Rabon's additional medical expenses.
See Curtis v. Daviess-Dekalb Reg'l Jail Dist.,
No. 08-6075-CV-SJ-GAF, 2009 WL 3382930, at *1-2 (W.D. Mo.
Oct. 19, 2009) (stating that a party cannot satisfy its Rule
26 damage-computation requirements by merely providing the
other party with a medical-record authorization). The Court
does not see a way to cure the prejudice to Defendants, other
than continuing the trial and re-opening discovery, which
would unnecessarily delay this case, burden the Court's
docket, and tax judicial resources. Thus, the Court finds
that Plaintiffs' untimely disclosure is not harmless.
light of the Court's finding that Plaintiffs' failure
to disclose was neither substantially justifiable nor
harmless, exclusion of the untimely disclosed medical
expenses is proper in this instance. See Stickney v.
Pillsbury Co., No. 4:02-cv-3240, 2003 WL 26111555, at
*10 (D. Neb. Apr. 25, 2003) (stating in dicta that exclusion
of untimely disclosed additional medical expenses would be
proper if the case was at the trial stage). The additional
medical expenses are of importance to the amount of liability
but exclusion of the evidence would not be fatal to the
merits of Plaintiffs' case. Defendant's motion will
be granted to the extent that it seeks exclusion of the
untimely disclosed past medical expenses. However,
Defendants' motion is denied to the extent that it seeks
to exclude all evidence related to the untimely disclosed
medical expenses, as the Court is without sufficient
information at this stage to rule on the admissibility of
this general category of evidence. Counsel may approach the
bench at trial if an issue of the admissibility of this
reasons discussed above, Defendants' motion (ECF No. 49)
is hereby GRANTED IN PART AND DENIED IN
PART. Plaintiffs may not seek past medical expenses
in excess of $95, 237.73.