United States District Court, D. Oregon, Portland Division
OPINION AND ORDER
MICHAEL W. MOSMAN Chief United States District Judge
matter comes before me on Invacare's Motion for
Imposition of Sanctions . For the reasons set forth
below, I DENY the Motion.
August 31, 2016, 1 held a telephone status conference  to
resolve a discovery dispute between the parties regarding
case deadlines. During the conference, I extended the
relevant discovery and pretrial deadlines, which included a
deadline of December 3, 2016, for Mr. Robinson to make his
expert disclosures and provide expert reports. Although Mr.
Robinson provided Invacare with a "progress report"
on December 29, 2016, he has yet to make any expert
disclosures or provide expert reports in accordance with
Federal Rule of Civil Procedure 26(a)(2). As such, Invacare
asks me to prohibit Mr. Robinson from using any expert
witness in this case as a sanction for his failure to comply
with the deadline.
Robinson admits he has not made the required expert
disclosures. He claims he is committed to obtaining and
providing expert reports, but he has had trouble retaining
experts due to limited financial resources. As of this
writing, however, Mr. Robinson has retained two experts - Dr.
Nathan Kemalyan and Tom Fries - to serve as experts in his
case. Mr. Robinson also asserts that he expects to be able to
provide his expert reports within the "near
that fails to "provide information or identify a witness
as required by Rule 26(a) . . . is not allowed to use that
information or witness to supply evidence on a motion, at a
hearing, or at trial, unless the failure was substantially
justified or is harmless." Fed.R.Civ.P. 37(c)(1). This
includes instances in which parties have failed to make the
proper disclosures and provide the necessary reports in a
timely manner. See Yeti by Molly, Ltd. v. Deckers Outdoor
Corp., 259 F.3d 1101, 1105-06 (9th Cir. 2001) (affirming
the district court's decision to exclude evidence from
the defendant's damages expert). A district court's
decision regarding sanctions is reviewed for an abuse of
discretion. See Yeti by Molly, 259 F.3d at 1105.
Whether Mr. Robinson's Non-Compliance Is Substantially
is no dispute that Mr. Robinson failed to make his expert
disclosures in accordance with Rule 26(a)(2) by the December
3, 2016 deadline. However, I find his non-compliance to be
the incident giving rise to this case, Mr. Robinson received
virtually all of his medical care from the Veterans
Administration ("VA") in the Portland and Seattle
areas. He asserts that he has been unsuccessful in obtaining
reports from VA doctors and, therefore, has had to search for
non-treating experts to review his medical records and write
reports. Because of his limited financial resources, this has
been a difficult task.
points out that Mr. Robinson's present reason for delay
is the same as the one he gave prior to the August 31, 2016
status conference for refusing to agree to a date by which to
make expert disclosures. The fact that the reason is the
same, however, does not make it any less genuine. A lack of
financial resources presents a serious limitation on a
party's ability to advance its case in an effective and
predictable way. Thus, it is reasonable that a person on a
limited budget might struggle to meet all relevant deadlines,
especially those dealing with retaining experts.
does not mean that Mr. Robinson did not need to comply with
the deadline I set at the August 31, 2016 hearing. Indeed, he
should have filed a motion to extend the deadlines, rather
than simply send a "progress report" to Invacare.
Still, Mr. Robinson's failure to comply with the expert
disclosure deadline was substantially justified and does not
warrant the significant sanction of prohibiting expert
testimony on his behalf.
Whether Mr. Robinson's ...