Alfaro Affirmed

The Ninth Circuit affirmed exclusion leading to summary judgment as the appropriate sanction for failing to adequately disclose non-retained experts.  During Expert-aganza ’17 I posted about a local decision that evaluated whether a non-retained expert disclosure was appropriate.  It wasn’t.  The Magistrate Judge wrote “[t]he identical descriptions of expected testimony that Plaintiffs provided for all 11 treating physicians and providers are so generic, unhelpful, and boilerplate they could apply to any virtually any case.”  She excluded the non-retained experts from trial.  The District Judge affirmed, ruling the disclosures “are boilerplate statements that do not reveal any information, let alone a summary of what opinions the witnesses will offer or what facts support these opinions.”  The District Judge then entered summary judgment because he couldn’t causally relate his injuries to the accident without medical expert testimony.

Plaintiff appealed to the Ninth Circuit, who affirmed.[1]  As to the disclosures, it noted Plaintiff did provide “the names and addresses of his proposed witnesses, but his purported disclosures beyond that were, as the magistrate judge stated, ‘so generic, unhelpful, and boilerplate they could apply to . . . virtually any case.’ In practical effect, there were no ‘disclosures’ within the meaning of Rule 26(a)(2)(C).”  Exclusion was also the appropriate sanction.  “Before the district court, [Plaintiff] did not argue that his failure was substantially justified or harmless; rather, he insisted that his disclosures were perfectly adequate. Thus, the award of sanctions was strongly supported.”  “The unhelpful disclosures were plainly designed to give as little useful information as possible, and were there any doubt, Torrez’s obstinate insistence that he did all he had to do underscored that.” For those in the federal system, this reemphasizes the importance of adequate non-retained expert disclosures.

[1] Torrez v. D. Las Vegas, Inc., No. 18-15474, 2019 U.S. App. LEXIS 21524 (9th Cir. 2019).