Opinion
Case No. 2:03CV676DB.
March 29, 2005
ORDER
THIS MATTER comes before the Court on Roosevelt City, et. al. (Defendants') Motion to Strike Trent Sowsonicut, et al. (Plaintiffs') Supplemental Initial Disclosure Regarding Damages and "to prevent Plaintiffs from seeking damages for future medical expenses." Def.s' Motion, docket no. 52. In the alternative, Defendants ask the Court to reopen limited discovery on the issue if the Court "is inclined to allow [P]laintiffs to pursue their claim for future medical expenses." Def.s' Supp. Mem. p. 4.
On December 21, 2004, the Court heard argument concerning this motion and other motions filed by the parties. The Court ruled on the other motions, and took Defendants' Motion to Strike under advisement pending additional supplementation by Plaintiffs to their answer to Interrogatory No. 9. See Order, docket no. 80. At the hearing, Plaintiffs were represented by attorney Brett Painter and Defendants were represented by attorney Peter Stirba.
BACKGROUND
The instant dispute centers around Plaintiffs' claims concerning medical expenses and Plaintiffs' initial disclosures along with the answers given to Defendants' Interrogatory No. 9.
In November 2003, Plaintiffs served Defendants with their initial disclosures. In the "computation of damages" section Plaintiffs' state:
Plaintiffs seek compensatory damages for medical expenses. Plaintiffs seek noncompensatory damages for emotional distress, humiliation, loss of enjoyment of life, and other harm in an amount to be proven at trial. Plaintiffs also seek punitive damages in an amount to be proven at trial.
Def.s' Mem. in Supp. Exh. A (Plaintiffs' Initial Disclosures).
Defendants' motion does not seek to strike Plaintiffs' claims of noncompensatory damages for emotional distress, humiliation, loss of enjoyment of life and the other harm to be proven at trial.
Defendants then served all Plaintiffs with Interrogatory No. 9 seeking to obtain more information regarding Plaintiffs' damages claim for future medical expenses. This interrogatory states:
Interrogatory No. 9: If Plaintiff claim [sic] they will be required to incur medical expenses in the future for any of the injuries or illnesses identified in Plaintiff' [sic] answer to Interrogatory No. 4, set forth the amounts which it is claimed will be incurred and set forth the basis for your calculations, including the names and addresses of anyone including medical practitioners, upon whom you may have relied in making such claim or calculation.
Def.s' Supplemental Mem. p. 2, docket no. 78.
On approximately February 17, 2004, Plaintiffs provided their response to this interrogatory. Plaintiffs stated:
Response Plaintiff objects to this interrogatory on the grounds that it is vague and ambiguous. Notwithstanding and without waiving these objections, plaintiff responds as follows: Plaintiff may be required to incur medical expenses in the future for counseling as a result of this incident. Plaintiff's expert report will supplement this response.
Def.s' Mem. in Supp. p. 2, docket no 53 (emphasis in original).
On August 12, 2004, one day before the discovery deadline, Plaintiffs served Defendants with a supplement to their Rule 26(a)(1) initial disclosures. The supplement stated:
Plaintiffs estimate that they will require approximately one year of mental health treatment, or approximately 52 sessions. Plaintiffs base their damages computation for this element on typical treatment rates, such as those charged by the Northwestern Counseling Center in Vernal, Utah.
Def.s' Mem. in Supp. p. 3. According to Defendants, this supplement was the first time that Plaintiffs claimed they would definitely be seeking compensatory damages for future expenses related to counseling and other medical treatments. See id. At some point, Plaintiffs decided to not use an expert nor an expert report as they had answered they would do in their response to Interrogatory No. 9. Unfortunately, this was not made known to Defendants until the end of discovery. See id. p. 5.
Following the hearing held in December, the Court granted Plaintiffs leave to supplement their answer to Interrogatory No. 9. On January 20, 2005, Plaintiffs served the following supplemental answer:
Plaintiffs object to this interrogatory on the grounds that it is vague and ambiguous. Notwithstanding and without waiving these objections, Plaintiffs respond as follows: Plaintiffs will seek damages for future medical expenses in an amount to be determined by the jury.
Def.s' Supplemental Mem. p. 2.
DISCUSSION
As a preliminary matter the Court considers two procedural arguments raised by the parties. First, Plaintiffs argue that Defendants failed to comply with the requirements found in local rule 37-1. Therefore, according to Plaintiffs, because Defendants' motion is a discovery motion, the Court should deny Defendants' motion for failing to comply with the rule. See Pla.s' Mem. in Opp. p. 3.
Second, Defendants contend that Plaintiffs' damages request should be stricken because Plaintiffs' Answer to Interrogatory No. 9 is not signed and verified by the individual Plaintiffs.See Def.s' Supplemental Mem. p. 3. The Court addresses each parties argument in turn.
Local rule 37-1 states in pertinent part:
the court will not entertain any discovery motion, . . . unless counsel for the moving party files with the court, at the time of filing the motion, a statement showing that the attorney making the motion has made reasonable effort to reach agreement with opposing attorneys on the matters set forth in the motion.
DUCivR 37-1. Accordingly, based on rule 37-1, a failure to confer may be a basis for the Court to deny Defendants' motion. See id.
The Court disagrees with Plaintiffs' assertion that Defendants' motion is a discovery motion. See Pla.s' Mem. in Opp. p. 3. It is clear from the Federal Rules, which the local rules are based on, that Federal Rule 37 pertains to motions brought to compel discovery. See Fed.R.Civ.P. 37. Defendants' motion does not seek the production of information concerning Plaintiffs' medical claims. Rather, this motion seeks to strike those claims based on Plaintiffs' failure to provide required disclosures under Federal Rule 26. Therefore, the Court finds that a "meet and confer" before filing the instant motion was unnecessary and the Court rejects Plaintiffs' argument. Though unfortunate, the Court doubts that a meet and confer concerning the present dispute, even if it had been required, would have resulted in much progress toward resolution given the nature of the litigants before the Court.
Next, Defendants argue that Plaintiffs' failure to verify their answers is a violation of Federal Rule 30 and a basis for granting their motion. In contrast, Plaintiffs argue that Defendants fail to cite a single case supporting their argument.
Apparently, Plaintiffs must have overlooked Cabales v. United States, 51 F.R.D. 498, 499 (S.D.N.Y. 1970), which is clearly cited by Defendants in support of their argument. See Def.s' Supp. Mem. p. 3. In Cabales, the court found that unsigned and unsworn interrogatory answers offered by the plaintiff violated Rule 33 of the Civil Rules. Therefore, they did "not qualify as an answer" under the rules. Cabales, 51 F.R.D. at 499. The plaintiff was a seaman and unavailable when the answers were prepared. See id. However, the court found the plaintiff's absence did not excuse verification. See id. Apparently, the plaintiff had a whole year in which to verify the answers but failed to do so prior to the defendants filing a Rule 37 application. See id. Such a delay was inexcusable in the court's view. See id.
The Court notes that perhaps Plaintiffs' oversight may have arisen from Defendants incorrectly citing this case. In their memorandum Defendants cite Cabales v. United States as 52 F.R.D. 498. See Def.s' Supp. Mem. p. 3. However, the correct citation is 51 F.R.D. 498. Notwithstanding this error, it is somewhat puzzling to the Court that Plaintiffs fail to mention the case in their reply. Certainly, Plaintiffs' counsel could have ascertained the correct case citation in a relatively short time frame.
Contrary to Plaintiffs' position, based on the foregoing there is case support, as well as support in the Federal Rules, for deeming unsigned and unsworn interrogatory answers as failing to qualify as an answer under Rule 33. Federal Rule 33 states:
(1) Each interrogatory shall be answered separately and fully in writing under oath, unless it is objected to, in which event the objecting party shall state the reasons for objection and shall answer to the extent the interrogatory is not objectionable.
(2) The answers are to be signed by the person making them, and the objections signed by the attorney making them.
Counsel for Plaintiffs represent to the Court that they "are diligently working to obtain verifications from all Plaintiffs and expect to cure any deficiency in this regard by the end of the week of February 21, 2005." Pla.s' Supplemental Mem. in Opp. p. 3. Apparently, on February 18, 2005, Plaintiffs' counsel submitted a series of documents that "purported to verify [P]laintiffs' responses to Interrogatory No. 9 `on behalf of' [P]laintiffs Angelyn Caren, Wendellena Navanick, Cheryl Gardner and Angelo Checora, Jr." Def.s' Additional Mem. in Supp. p. 3, docket no. 82. However, in these verifications, Plaintiffs' parents basically admit that they do not have personal knowledge of the matters contained in Plaintiffs' answer to Interrogatory No. 9. See id. Exh. A. The verifications state that the parents' answer is "`based upon information supplied to me by others.'" See id. (quoting from the verifications). This appears to be a violation of Rule 33 because "[t]he answers are to be signed by the person making them." Fed.R.Civ.P. 33(b)(2). A verification by a representative that lacks personal knowledge of the matters they are verifying appears to be improper.
Arguably, therefore, this case is similar to Cables and Defendants' motion should be granted on this basis alone. However, the Court notes that the court in Cables further found that the plaintiff failed to verify the answers during the whole year preceding the defendant's Rule 37 application. See Cables 51 F.R.D. at 499. Such is not the case in the instant action. Therefore, the Court does not solely rely on this argument in its decision. Instead, the Court finds that Plaintiffs' failure to verify the responses to Interrogatory No. 9 is indicative of a pattern of bad faith conduct engaged in by Plaintiffs throughout this case.
The heart of the instant dispute centers around Rule 26 and whether Plaintiffs violated this Rule. "`The determination of whether a Rule 26(a) violation is justified or harmless is entrusted to the broad discretion of the district court.'"Woodworker's Supply Inc., v. Principal Mutual Life Ins. Co., 170 F.3d 985, 993 (10th Cir. 1999) (citing Mid-America Tablewares, Inc. v. Mogi Trading Co., 100 F.3d 1353, 1363 (7th Cir. 1996)). "A district court need not make explicit findings concerning the existence of a substantial justification or the harmlessness of a failure to disclose." Woodworker's Supply, 170 F.3d at 993, However, the following factors are helpful:
(1) the prejudice or surprise to the party against whom the testimony is offered; (2) the ability of the party to cure the prejudice; (3) the extent to which introducing such testimony would disrupt the trial; and (4) the moving party's bad faith or willfulness.Id.
Rule 26(a)(1)(C) provides in relevant part:
(a) Required Disclosures;
(1) Initial Disclosures. . . . a party must, without awaiting a discovery request, provide to other parties:
(C) a computation of any category of damages claimed by the disclosing party, making available for inspection and copying as under Rule 34 the documents or other evidentiary material not privileged or protected from disclosure, on which such computation is based, including materials bearing on the nature and extent of injuries suffered. Id.
A party, such as Plaintiff in this case, who "without substantial justification, fails to disclose information required by Rule 26(a) . . ., is not, unless such failure is harmless, permitted to use as evidence at trial, at a hearing, or on a motion any witness or information not so disclosed." Fed.R.Civ.P. 37(c)(1). In applying this rule, "the court must first determine whether substantial justification for failing to make the required disclosure exists." Mounger v. Goodyear Tire Rubber Co., 2000 WL 1466198 *2 (D.Kan. Sept. 22, 2000) (citing case law). If the party who failed to make the required disclosure cannot demonstrate substantial justification, then the court must determine whether the failure to disclose was harmless. See id.
In the instant case, Plaintiffs have not even attempted to offer any justification for their failure to provide a computation of the alleged damages they are seeking. Furthermore, Plaintiffs do not offer any justification for the complete failure to set forth which injuries require future treatment, the approximate amounts of the treatment, and the numbers from which these amounts are based upon. Plaintiffs' state that they base their damage computation on the "typical treatment rates" charged by counseling centers in Vernal, Utah. However, in the Court thinks this is simply too unspecific. See Fed.R.Civ.P. 26(a)(1)(C). One reason the Court granted Plaintiffs another opportunity to amend their answer was to allow them to be more specific in their answer. Instead, Plaintiffs' answered that they "will seek damages for future medical expenses in an amount to be determined by the jury." Def.s' Supplemental Mem. p. 2. In the Court's view, this Supplemental Answer did little toward providing the specificity required by the rules and sought by Defendants.
Finally, Plaintiffs offer no justification for their failure to adequately and timely update their answer to Interrogatory No. 9 or their initial disclosure. See Fed.R.Civ.P. 26(e)(2).
Based on the foregoing, the Court finds that there was no substantial justification for Plaintiffs' failure to make required disclosures. See Mounger, 2000 WL 1466198; Fed.R.Civ.P. 37(c)(1).
Rather than offering any justification for their actions, Plaintiffs' argue that they have made it clear to Defendants that they intend to seek recovery for future medical expenses. See Pla.s' Supplemental Resp. Mem. p. 3. Plaintiffs' allege that Defendants cannot demonstrate any "incurable prejudice" that was not of their own making. Pla.s' Mem. in Opp. p. 3. According to Plaintiffs, "Defendants had numerous opportunities to obtain discovery from the Plaintiffs on [future medical expenses] but failed to do so." Id. p. 5. The Court disagrees.
In their initial disclosures Plaintiffs state that they "seek compensatory damages for medical expenses." Def.s' Mem. in Supp. Exh. A. Defendants' Interrogatory No. 9 sought follow up information to Plaintiffs' initial disclosure concerning medical expenses. Interrogatory No. 9 was a discovery device used by Defendants to obtain information regarding future medical expenses. Plaintiffs' sworn answer, which was not updated until after the close of discovery, stated that they " may be required to incur medical expenses in the future for counseling as a result of this incident. Plaintiff's expert report will supplement this response." Def.s' Mem. in Supp. p. 2 (emphasis in original).
Plaintiffs argue that it was Defendants responsibility to resolve any confusion concerning the status of this claim. See Pla.s' Mem. in Opp. p. 3. According to Plaintiff, Defendant could have asked questions concerning future medical expenses during depositions, including the depositions of Plaintiffs' mothers.See id. While Defendant could have asked these questions, the Court finds that it was reasonable for Defendants to rely on Plaintiffs' sworn answer to Interrogatory No. 9. Furthermore, Plaintiffs' answered that they "may be required to incur medical expenses." This answer is by its own nature indefinite. It seems illogical to the Court that Defendants should have a duty to resolve the confusion created by Plaintiffs own answer. Therefore, in the Court's view, there would have been no need at the time of the depositions for Defendants to ask questions regarding future medical expenses.
The Court agrees with Plaintiffs' assertion that they were not necessarily required to file an expert report. However, Plaintiffs were required to update their answer and inform Defendants that they would not be using an expert to support their claim for future medical expenses. See Fed.R.Civ.P. 26(e)(1). Rule 26(e)(1) and (2) states:
(1) A party is under a duty to supplement at appropriate intervals its disclosure under subdivision (a) if the party learns that in some material respect the information disclosed 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.
(2) A party is under a duty seasonably to amend a prior response to an interrogatory, . . . if the party learns that the response is in some material respect 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.Id.
Based on the foregoing, Plaintiffs had a duty to update their answer to Interrogatory No. 9 as well as their initial disclosure concerning damages. The Court finds that Plaintiffs failed to meet their duty under the rules. The Court further finds that the confusion surrounding Plaintiffs' damages claim for future medical expenses was created by Plaintiffs.
Perhaps the most novel argument offered by Plaintiffs is that their damage claims for future medical expenses and emotional distress are equivalents. "This [referring to their claim for future medical expenses,] is essentially a claim for emotional distress damages, including future emotional distress, which can be established by Plaintiffs' own testimony." Pla.s' Supplemental Mem. p. 3. The Court does not disagree with Plaintiffs argument that emotional distress can be established by Plaintiffs own testimony. However, the Court disagrees with Plaintiffs argument that these damage claims are essentially the same because even Plaintiffs do not do this in their own filings.
In Plaintiffs' complaint, Plaintiffs seek relief for intentional infliction of emotional distress and negligent infliction of emotional distress. See Pla.s' Complaint p. 9-11. In the damages portion of their complaint, Plaintiffs' seek
1. Compensatory damages for all of Defendants' wrongful conduct including, but not limited to, medical expenses, emotional distress, humiliation, and loss of enjoyment of life;
2. Punitive damages in an amount to be determined at trial; . . .Id. p. 13.
In their initial disclosures, Plaintiffs also draw a distinction between their claim for future medical expenses and their claim for emotional distress. Based on Plaintiffs own treatment of these claims and the plain language found in the documents, the Court rejects Plaintiffs argument that these claims are essentially equivalents.
After a court has determined whether substantial justification exists for failing to make a required disclosure, then the court must determine whether the failure to disclose was harmless.See Mounger 2000 WL 1466198. Failure to disclose is considered harmless when there is "no prejudice to the party entitled to the disclosure." Id. *2; accord Nguyen v. IBP, Inc., 162 F.R.D. 675, 680 (D.Kan. 1995). "The burden to establish harmlessness is on the party who failed to make the required disclosure." Burton v. R.J. Reynolds Tobacco Co., 203 F.R.D. 636, 639 (D.Kan. 2001). In the instant case, the burden falls upon Plaintiffs since they are the party that did not make the required disclosures. Once again, the Court notes the helpful factors found in Woodworker's Supply, 170 F.3d at 993.
The first factor the Court considers is the prejudice or surprise Defendants will suffer because of Plaintiffs' belated disclosures. See Woodworker's Supply, 170 F.3d at 993. This factor weighs in favor of Defendants. Plaintiffs left their claim for future medical expenses uncertain until the day before the end of discovery. Plaintiffs stated that they "may be required to incur medical expenses in the future [and that an expert report will supplement this response." Def.s' Mem. in Supp. p. 2. As discussed above, Plaintiffs never removed the uncertainty in their response until filing their Rule 26(a)(1) supplemental disclosure. If anything, Plaintiffs only added to the uncertainty by not filing an expert report by the required deadline. Plaintiffs stated that they would do so and never informed Defendants otherwise. Now that discovery has ended it would be very difficult for Defendants to obtain information about Plaintiffs' damages claim.
The second factor the Court considers is the ability to cure the prejudice. See Woodworker's Supply, 170 F.3d at 993. The Court agrees with Plaintiffs that the prejudice in the instant case caused by some dilatory tactics is curable. This factor in the Court's view is essentially a tie. The Court can strike the trial date and amend the scheduling order to allow for more discovery. However, to do so would require Defendants to incur additional expenses for re-opening depositions, issuing third party subpoenas, and possibly conducting Rule 35 examinations as well as hiring an expert witness. It is this added expense, which arises from Plaintiffs dilatory actions that leads the Court to find that this factor favors neither party.
The Court also wishes to point out in passing the contradictory positions Plaintiffs take concerning whether or not discovery should even be reopened. In Plaintiffs' Opposition Memoranda they "agree to make themselves available for follow up discovery." Pla.s' Mem. in Opp. p. 5. However, in Plaintiffs' response to Defendants' Supplemental Memoranda, Plaintiffs argue that Defendants are not entitled to an extension of time to conduct discovery. See Pla.s' Supp. Mem. p. 5. It is as if Plaintiffs have come to a fork in the road and do not know which way to go. Perhaps then, as the wise Cheshire cat eloquently stated in Lewis Carroll's timeless classic Alice in Wonderland, "it doesn't matter."
The third factor, the extent to which the trial will be disrupted, weighs in favor of Plaintiffs. Although discovery has ended the trial date is still a ways off and could always be struck to allow for more discovery. On the other hand, the primary goal of sanctions is to deter misconduct, and to allow Plaintiffs essentially a free pass for misconduct would provide no deterrence toward future misconduct. See White v. General Motors Corp., Inc., 908 F.2d 675, 683 (10th Cir. 1990) (discussing sanctions under Federal Rule 11).
Finally the fourth factor the court considers is Defendants' bad faith or willfulness, if any. See Woodworker's Supply, 170 F.3d at 993. Plaintiffs have not demonstrated any bad faith or willfulness on the part of Defendants. Therefore, this factor weighs in favor of Defendants.
Upon consideration and balancing of the above mentioned factors the Court HEREBY GRANTS Defendants' Motion to Strike. The Court finds this appropriate in light of Plaintiffs' dilatory tactics, the prejudice to Defendants, and Plaintiffs response following the end of discovery. The Court specifically granted Plaintiffs an additional opportunity to amend their answer to Interrogatory No. 9. Plaintiffs' answer, in the Court's view was unresponsive and provided little more information than was already known. It should have been clear to Plaintiffs that they had a duty to update their disclosures and answer in a timely and correct manner; their failure to do so "cannot be laid at anyone else's doorstep." Bronk v. Ineichen 54 F.3d 425, 432 (7th Cir. 1995)
IT IS SO ORDERED.