FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PAMELA GOODMAN, an unmarried 

individual,

Plaintiff-Appellant, No. 10-15021

v. D.C. No.  2:08-cv-00445-JAT STAPLES THE OFFICE SUPERSTORE,

LLC, a Delaware limited liability OPINION

company; DOES, I-X,

Defendants-Appellees. 

Appeal from the United States District Court

for the District of Arizona

James A. Teilborg, District Judge, Presiding

Argued and Submitted

December 6, 2010—San Francisco, California

Filed May 3, 2011

Before: Robert E. Cowen,* A. Wallace Tashima, and

Barry G. Silverman, Circuit Judges.

Opinion by Judge Silverman;

Concurrence by Judge Tashima

*The Honorable Robert E. Cowen, Senior United States Circuit Judge

for the Third Circuit, sitting by designation. 

5709
COUNSEL

Jeffrey S. Kaufman (argued), Jeffrey S. Kaufman, Ltd.,

Scottsdale, Arizona, for the appellant.

5712 GOODMAN v. STAPLES
Jeffry A. Miller (argued), Matthew B. Stucky, and Carl F.

Mariano of Lewis Brisbois Bisgaard & Smith LLP, San

Diego, California and Phoenix, Arizona, for the appellee.

OPINION

SILVERMAN, Circuit Judge: 

Federal Rule of Civil Procedure 26(a)(2) requires a party to

timely disclose a written report of a witness “if the witness is

one retained or specially employed to provide expert testimony in the case . . . .” Generally speaking, treating physicians are excused from this requirement. They are a species

of percipient witness. They are not specially hired to provide

expert testimony; rather, they are hired to treat the patient and

may testify to and opine on what they saw and did without the

necessity of the proponent of the testimony furnishing a written expert report.

In this case, the plaintiff’s treating doctors not only rendered treatment, but after the treatment was concluded, these

very same doctors were provided with additional information

by plaintiff’s counsel and were asked to opine on matters outside the scope of the treatment they rendered. The district

court ruled that these physicians would be allowed to testify

to the opinions they formed in the course of caring for the

patient, but because no Rule 26 expert witness report had

been provided, the court precluded the treating doctors from

testifying to opinions they formed afterward, opinions solicited from them solely for the purposes of the litigation.

We hold today that when a treating physician morphs into

a witness hired to render expert opinions that go beyond the

usual scope of a treating doctor’s testimony, the proponent of

the testimony must comply with Rule 26(a)(2). However,

because the law regarding these hybrid experts was not setGOODMAN v. STAPLES 5713
tled, and because treating physicians are usually exempt from

Rule 26(a)(2)’s requirements, we exercise our discretion to

apply this clarification prospectively.

I. Background

On the afternoon of May 9, 2007, Goodman and her business associate Jean Adams went to Staples in Scottsdale to

purchase office supplies. The store was being remodeled, but

it was open to the public. As she went to leave the store,

Goodman turned a corner at the end of an aisle. She tripped

on an “end cap” and fell.1

Goodman remained lying on the floor until paramedics

arrived at the store. She was never unconscious. The paramedics took her by ambulance to Scottsdale Healthcare Emergency Department, where she complained of head, neck, and

foot pain and of tingling in her arm. Goodman told the ER

doctor that she thought she hit her head on the floor when she

fell. According to Scottsdale Healthcare records, a CT scan of

Goodman’s head and cervical spine showed no fractures or

subluxations and showed that the fusion plates in her neck

from a cervical spinal fusion surgery six weeks earlier

remained intact. She was diagnosed with acute closed-head

injury, neck pain, and left foot contusion, given a prescription

for pain medication, and discharged with instructions to follow up with her physician back home in California.

Four days after the fall, Goodman went to the emergency

room at Century City Doctors Hospital in Los Angeles, complaining of severe neck pain. An x-ray taken while Goodman

was in the emergency room showed no fracture, subluxation,

or swelling to her cervical spine. She stayed in the hospital for

six days until the pain subsided.

1An “end cap” is a merchandise display area located at the end of a row

of merchandise display shelves, with a display area or shelves perpendicular to the shelves along the row. 

5714 GOODMAN v. STAPLES
A couple months later, on July 26, 2007, Goodman

returned to the doctor in Los Angeles who had performed her

spinal fusion surgery. She told the doctor she had experienced

severe neck pain since her fall at Staples. An MRI and CT

scan were obtained, which revealed a fracture line adjacent to

the fusion plate. Goodman was admitted to the hospital and

underwent fusion revision surgery on July 31, 2007. The surgeon’s operative report states that magnification during surgery confirmed the fracture. 

Over the next few months, despite treatment by a pain management specialist, Goodman’s neck pain persisted. She was

re-admitted to the hospital on January 17, 2008, and underwent another fusion revision surgery on January 22.

On February 7, 2008, Goodman filed a complaint against

Staples in Maricopa County Superior Court. Goodman alleged

that Staples negligently allowed an unreasonably dangerous

condition to exist in their store, resulting in her fall over the

end cap. Staples removed the case to federal court based on

complete diversity between the parties.

The district court issued a scheduling order that established

deadlines for the exchanges of initial disclosures and expert

disclosures and set a discovery cut-off date. On May 21,

2008, Goodman provided Staples with her initial disclosures,

identifying a number of her healthcare providers as potential

witnesses. On November 7, 2008, the deadline for plaintiff

expert disclosures, Goodman disclosed the identities and curricula vitae of two experts: Dr. Gary Bakken, a “human factors” expert, and Alex Balian, a store safety expert. She also

provided a list of those of her healthcare providers whom she

intended to call as expert witnesses. The list of providers

included the name of the doctor or institution, the dates of service, and the bill amount. Goodman’s disclosures did not

include written reports by any experts. 

A week later, after the deadline for her expert disclosures

had already passed, Goodman disclosed two additional nonGOODMAN v. STAPLES 5715
medical experts: Dr. Glenn Wilt, an economist, and Gretchen

Bakkenson, a vocational consultant. This disclosure included

the experts’ contact information and one-paragraph summaries of the topics on which Goodman expected them to testify.

The disclosures did not include the experts’ written reports.

On February 13, 2009, the deadline for defense expert disclosures, Staples disclosed the identity and written reports of

three experts: Dr. William Horsley, a radiologist; Dr. Zoran

Maric, a spine surgeon; and Michael Kuzel, a human factors

expert.

On March 30, 2009, the deadline for plaintiff rebuttal

expert disclosures, Goodman disclosed written reports for previously identified non-medical experts Bakken, Balian, and

Wilt. She also identified a number of rebuttal experts: Dr.

Todd Lanman, Goodman’s spinal surgeon; Dr. Mohammed

Shamie, a psychiatrist; Dr. Natan Shaoulian, a neurologist;

Dr. Daniel Wallace, Goodman’s rheumatologist; and Dr.

Behboush Zarrini, a pain management specialist.

Staples moved to preclude all of Goodman’s experts as

improperly disclosed. The district court granted Staples’

motion in part, striking Bakken and Balian as witnesses and

restricting Wilt’s testimony to rebuttal. The court deferred ruling on the motion with respect to Goodman’s medical experts.

Goodman subsequently filed a “Motion for Clarification of

Prior Court Orders re Plaintiff’s Witnesses.” She asked the

court to allow her healthcare providers, who she had disclosed

as rebuttal experts, to testify in her case-in-chief and to allow

Bakken and Balian to testify on rebuttal. After additional oral

argument, the court clarified its earlier order, stating that Bakken, Balien, and Wilt were precluded from testifying in Goodman’s case-in-chief but were not precluded from testifying on

rebuttal. With respect to Goodman’s healthcare providers, the

court limited their case-in-chief testimony to opinions actually

developed during the course of their treatment of Goodman,

5716 GOODMAN v. STAPLES
as evidenced by their office notes, hospital records, and consultation reports, giving the following rationale in its December 10, 2009 order:

[U]nder Federal Rules of Civil Procedure

26(a)(2)(B), the disclosure of an expert witness must

be accompanied by a written report discussing the

opinion of the expert, including the basis for the

opinion. . . . In this case, Goodman failed to include

any written reports of her retained experts in accordance with the deadlines imposed by this Court. . . .

Rule 26(a)(2)(B) exempts from the requirement of

a written report only those [experts] not “specifically

retained to provide expert testimony in the case or

one whose duties as the party’s employee regularly

involve giving expert testimony.” . . . A treating physician is an expert and to the extent he or she treated

the plaintiff, diagnosed the conditions and reached a

prognosis, that testimony is not testimony for which

the expert has been specially retained. But once the

lawyer for the claimant undertakes to elicit an opinion whether a particular traumatic event caused the

condition as opposed to another cause, the expert has

been transformed into the same type of expert envisioned by the report requirement. . . .

The court did not preclude or limit any testimony the doctors

might be called upon to give in rebuttal. 

After the district court clarified its order regarding the limits on Goodman’s experts’ testimony, Staples moved for summary judgment. On the same day that Staples moved for

summary judgment, Goodman filed a number of motions in

limine and moved for reconsideration of the court’s order limiting her healthcare providers’ case-in-chief testimony. In

granting Staples’ motion for summary judgment, the district

court ruled that Goodman had not established a breach of duty

GOODMAN v. STAPLES 5717
by Staples, holding that the condition of the end cap was open

and obvious as a matter of law. It also ruled that, even assuming a breach of duty, Goodman had not come forward with

evidence proving that her injuries were caused by her fall

because, as previously noted, her treating physicians had been

precluded from opining on causation due to Goodman’s failure to comply with disclosure requirements.

Goodman now appeals the district court’s order.

II. Discussion

A. Standard of Review

We review the district court’s grant of summary judgment

de novo. Bagadi v. Nazar, 84 F.3d 1194, 1197 (9th Cir. 1996).

We must determine, viewing the evidence in the light most

favorable to the nonmoving party, whether genuine issues of

material fact exist and whether the district court correctly

applied the relevant substantive law. Id. (citing Warren v. City

of Carlsbad, 58 F.3d 439, 441 (9th Cir. 1995)).

We review the district court’s rulings concerning discovery,

including the imposition of discovery sanctions, for abuse of

discretion. Halaco Eng’g Co. v. Costle, 843 F.2d 376, 379

(9th Cir. 1988). But to the extent the imposition of sanctions

turns on the resolution of an issue of law, review is de novo.

See Palmer v. Pioneer Inn Assocs., Ltd., 338 F.3d 981, 985

(9th Cir. 2003).

B. Grant of Summary Judgment in Favor of Staples

[1] To establish a claim of negligence under Arizona law,

a plaintiff must prove that (1) defendant owed plaintiff some

duty, (2) defendant breached that duty, (3) defendant’s breach

caused plaintiff’s injuries, and (4) plaintiff sustained actual

damages. Gipson v. Kasey, 150 P.3d 228, 230 (Ariz. 2007).

The district court granted summary judgment for Staples on

5718 GOODMAN v. STAPLES
the grounds that Goodman failed to establish (1) that Staples

breached its duty to Goodman and (2) that Goodman’s injuries were caused by her fall, both essential elements of her

claim. Because we hold that Goodman raised triable issues of

fact as to both of these elements, we reverse the district

court’s grant of summary judgment.

1. Breach of Duty

“Whether the defendant has met the standard of care—that

is, whether there has been a breach of duty—is an issue of

fact that turns on the specifics of the individual case.” Id. A

plaintiff can establish a breach of duty by a business owner

by proving that the owner or his employees created a dangerous condition on the business premises. Walker v. Montgomery Ward & Co., 511 P.2d 699, 702 (Ariz. Ct. App. 1973).

Generally, a business owner is not liable to an invitee for injuries from dangerous conditions that are open and obvious.

Tribe v. Shell Oil Co., 652 P.2d 1040, 1042 (Ariz. 1982) (citing Daugherty v. Montgomery Ward, 428 P.2d 419 (Ariz.

1967)). But a finding that a condition is open and obvious

does not automatically preclude liability. “[I]f the proprietor

should anticipate the harm from the condition despite its obviousness, he may be liable for physical injury caused by that

condition.” Id. If the business owner has reason to expect

harm to the invitee because, for example, the invitee is likely

to be distracted, then duty may require him to warn the invitee

or take other steps to protect him. Id. (citing Restatement

(Second) of Torts § 343A, comment f (1965)).

Here, the district court concluded that Goodman failed to

establish the existence of a dangerous condition, and that she

therefore could not prove any breach of duty by Staples. The

court reviewed photos of the end cap and found that it was “of

enough size and area to remain visible.” The court also noted

that the person walking immediately in front of Goodman—

her business associate, Adams—successfully navigated the

end cap. According to the district court, the end cap was not

GOODMAN v. STAPLES 5719
unreasonably dangerous as a matter of law because it was

open and obvious.

[2] Goodman argues that the district court erred in concluding that the end cap was not unreasonably dangerous as

a matter of law. We agree. In Arizona, whether a hazard is

open and obvious is almost always a jury question; breach of

duty is a factual issue usually decided by the jury. Gipson,

150 P.3d at 230. A court may decide that the defendant did

not breach his duty as a matter of law only when reasonable

people could not conclude otherwise. Flowers v. K-Mart

Corp., 616 P.2d 955, 957 (Ariz. Ct. App. 1980) (citing Moore

v. Maricopa Cnty., 466 P.2d 56 (Ariz. Ct. App. 1970)).

[3] We have reviewed the photos of the end cap on which

the district court relied. It appears that the end cap was a few

inches off the ground. At the time of Goodman’s fall, there

was no merchandise or shelving above the base deck.

Although the end cap was bordered on two sides by contrasting dark-colored carpet, a third side was bordered by linoleum

in a beige color similar to the base deck. Of course, when the

end cap is depicted as the sole subject of a photograph, it

appears obvious. But the picture does not necessarily rebut

Goodman’s testimony that the empty bottom shelf close to the

floor, surrounded by other fully-stocked shelves higher up,

created a sort of optical illusion. Nor was the photo taken

from Goodman’s vantage point as she encountered the end

cap. This poses a quintessential jury question. 

Moreover, even if the end cap were open and obvious, its

open and obvious nature does not automatically preclude liability. See Tribe, 652 P.2d at 1042. In Tribe, the Arizona

Supreme Court reversed a grant of summary judgment in

favor of the defendant in a negligence case involving a slip

and fall at a gas station. The plaintiff and her daughter stepped

up approximately six inches onto the sidewalk where the station’s water fountain was located. Id. After getting a drink,

while cautioning her daughter about passing traffic, the plain5720 GOODMAN v. STAPLES
tiff stepped off a sixteen inch step in front of the sidewalk and

fell, shattering her wrist. Id. Despite the fact that the higher

step was painted a contrasting color, the court held that it was

up to a jury to decide whether the step was open and obvious

and whether the station owner should have anticipated that the

step might cause injuries. Id. Writing for a unanimous Arizona Supreme Court, Justice Bales recently confirmed that

foreseeability of harm may be a factor in determining whether

a defendant breached his duty of care. Gipson, 150 P.3d at

231 (holding that foreseeability is a factor in determining the

nature and extent of conduct necessary to fulfill the duty, and

as such is a factual inquiry reserved for the jury).

Here, a jury could conclude that Staples knew or should

have known that the empty end cap could cause harm. Stores

encourage shoppers to look at merchandise, not at the floor.

A Staples employee testified that his manager trained him not

to leave end caps completely empty—no shelves or

merchandise— because of safety concerns. Another employee

testified that Staples trained him to make sure items in aisles

were at least navel-high so they could be obviously seen.

There is evidence from which a reasonable person could conclude that Staples should have anticipated that a customer

might not notice the end cap under the circumstances and

might fall and injure herself. 

[4] Genuine issues of material fact exist as to whether the

end cap was an open and obvious condition and, even assuming obviousness, whether Staples should have anticipated the

danger nevertheless. We hold that the district court erred in

concluding as a matter of law that no unreasonably dangerous

condition existed at the time of Goodman’s fall.

2. Causation

Under Arizona law, causation is an essential element of a

negligence claim. Id. It is not sufficient for a plaintiff to prove

that her injuries might have been caused by the defendant’s

GOODMAN v. STAPLES 5721
breach of duty; instead, the plaintiff must prove that the

breach probably caused her injuries. See Kreisman v. Thomas,

469 P.2d 107, 110 (Ariz. Ct. App. 1970) (affirming trial

court’s directed verdict for the defendant after close of plaintiff’s case because plaintiff failed to establish breach of duty

and causation). Causation is normally an issue for the jury.

Gipson, 150 P.3d at 230. 

Here, Goodman alleges that her fall at Staples resulted in

a fracture to the fusion mass in her cervical spine, causing

severe pain and necessitating fusion revision surgery. She also

alleges that her injuries from the fall led to psychiatric problems, including depression, anxiety, and stress. To succeed in

her negligence claim against Staples, she would have to prove

that these injuries probably resulted from her fall. However,

the district court prohibited her medical experts from testifying about causation in her case-in-chief due to her failure to

comply with expert disclosure rules. 

[5] Rule 26 of the Federal Rules of Civil Procedure

requires parties to disclose the identity of any expert witness.

If the expert is “one retained or specially employed to provide

expert testimony in the case or whose duties as the party’s

employee regularly involve giving expert testimony,” the disclosure must be accompanied by a written report containing

(1) a complete statement of the expert’s opinions and their

bases, (2) the information relied upon by the expert in forming the opinions, (3) all exhibits to be used to summarize or

support the opinions, (4) the expert’s qualifications and list of

publications, (5) a list of cases in which the expert testified,

and (6) a statement of the expert’s compensation. Fed. R. Civ.

P. 26(a)(2)(B). Generally, a treating physician is not “retained

or specially employed to provide expert testimony”—a treating physician is a percipient witness of the treatment he

rendered—and therefore he is not subject to the written report

requirement. Fed. R. Civ. P. 26(a)(2) advisory committee’s

note (1993).

5722 GOODMAN v. STAPLES
[6] The issue of when, if ever, a treating physician is transformed into an expert offering testimony on matters beyond

the treatment rendered, for purposes of Rule 26 disclosures,

is an issue of first impression for us. Goodman argues that

Rule 26 does not require a written report before a treating

physician testifies to virtually anything. In response, Staples

acknowledges that written reports may not always be required

of treating physicians, but argues that this exception to the

written report requirement applies only when the treating physician formed his opinion during the course of treatment.

Goodman relies primarily on a decision from the Sixth Circuit in support of her argument that treating physicians do not

need to provide written reports. In Fielden v. CSX Transportation, Inc., 482 F.3d 866 (6th Cir. 2007), the Sixth Circuit

held that “a report is not required when a treating physician

testifies within a permissive core on issues pertaining to treatment, based on what he or she learned through actual treatment and from the plaintiff’s records up to and including that

treatment.” Id. at 871. Staples also relies on Fielden, but as

supporting its argument that Rule 26 requires a treating physician to disclose a written report unless evidence shows that

the physician formed his opinion during the course of treatment. 

We agree with Staples that Fielden does not stand for the

proposition that a treating physician never has to disclose an

expert report. Id. at 870 (noting the concern that permitting

treating physicians to testify in all circumstances without providing expert reports would circumvent the policies underlying Rule 26(a)(2)(B)). Instead, the Fielden court concluded

that evidence in the record showed that the physician in question had formed his opinion as to causation during the course

of treatment. Id. at 871. Although the court did not elaborate

on the type of evidence on which it relied in concluding that

the physician formed his opinion during the course of treatment, it did distinguish Fielden from an unpublished Sixth

Circuit case where there was “no evidence that the treating

GOODMAN v. STAPLES 5723
physician reached the same conclusions regarding causation

at the time he treated the patient.” Id. (citing Mohney v. USA

Hockey, Inc., 138 F. App’x 804, 811 (6th Cir. 2005)) (internal

quotation marks and brackets omitted). 

[7] In addition to the Sixth Circuit, other courts hold that

Rule 26 requires parties to disclose a treating physician’s

written report in the absence of some evidence that the physician formed his opinion during the course of treatment. The

Seventh Circuit recently held that a treating physician who is

offered to provide expert testimony as to the cause of the

plaintiff’s injury, but who did not make that determination in

the course of providing treatment, is required to submit an

expert report under Rule 26(a)(2). Meyers v. Nat’l R.R. Passenger Corp., 619 F.3d 729, 734-35 (7th Cir. 2010) (affirming

grant of summary judgment where no evidence in the record

suggested that plaintiff’s doctors considered or determined the

cause of his injuries during the course of treatment). The

Eighth Circuit goes further, requiring disclosure of a written

report any time a party seeks to have a treating physician testify as to the causation of a medical condition, as opposed to

merely the existence of the condition. Brooks v. Union Pac.

R.R. Co., 620 F.3d 896, 900 (8th Cir. 2010) (affirming grant

of summary judgment because, without expert testimony as to

causation, plaintiff could not prove an essential element under

the Federal Employers Liability Act). District courts within

this circuit have limited treating physician testimony to opinions formed during the course of treatment when the party

seeking admission of the testimony disclosed no expert report.

See, e.g., Durham v. Cnty. of Maui, No. 08-00342, 2010 WL

2640117, at *8 (D. Haw. June 30, 2010); Armatis v. OwensBrockway Glass Container, Inc., No. S-08-2538, 2010 WL

148692, at *1 (E.D. Cal. Jan. 14, 2010); J.W. v. City of

Oxnard, No. CV 07-06191, 2008 WL 4810298, at *7 (C.D.

Cal. Oct. 27, 2008); Vines v. United States, No. 2:05-cv02370, 2008 WL 4470795, at *3 (E.D. Cal. Oct. 2, 2008);

Headley v. Ferro Corp., 630 F. Supp. 2d 1261, 1266-67

(W.D. Wash. 2008).

5724 GOODMAN v. STAPLES
[8] Today we join those circuits that have addressed the

issue and hold that a treating physician is only exempt from

Rule 26(a)(2)(B)’s written report requirement to the extent

that his opinions were formed during the course of treatment.

Goodman specifically retained a number of her treating physicians to render expert testimony beyond the scope of the treatment rendered; indeed, to form their opinions, these doctors

reviewed information provided by Goodman’s attorney that

they hadn’t reviewed during the course of treatment.2 For

these reasons, we agree with the district court that those doctors fell outside the scope of the “treating physician” exception insofar as their additional opinions are concerned.

Therefore, Rule 26(a)(2)(B) required disclosure of written

reports. By failing to provide these reports until long after the

deadline for plaintiff’s expert disclosures had passed, Goodman failed to comply with Rule 26’s disclosure requirements.

[9] When a party fails to make the disclosures required by

Rule 26(a), the party is not allowed to use the witness to supply evidence at trial unless it establishes that the failure was

substantially justified or is harmless. Fed. R. Civ. P. 37(c)(1);

see also Torres v. City of L.A., 548 F.3d 1197, 1212-13 (9th

Cir. 2008) (citing Yeti by Molly, Ltd. v. Deckers Outdoor

Corp., 259 F.3d 1101, 1106 (9th Cir. 2001)). Although we

agree with the district court that Goodman failed to comply

with Rule 26(a) when she did not timely disclose expert

reports for her medical experts, we must also acknowledge

2Goodman’s attorney wrote to a number of Goodman’s physicians

enclosing a “Subjective Summary of Pamela Goodman’s Condition

Regarding Injury of May 9, 2007,” a large number of unidentified medical

records, the reports of Staples’ medical experts, MRI and CT scan images,

and, “perhaps other materials.” Goodman’s attorney asked the physicians

to opine on the injuries caused by Goodman’s fall “NOT ONLY based on

your own observations but also based upon your understanding of the

patient’s medical records as well.” The physicians’ rebuttal expert reports

—i.e. their letters to the attorney answering his questions—do not distinguish between opinions based on observations made during the course of

treatment and those based on a review of the records sent by the attorney.

GOODMAN v. STAPLES 5725
that the law regarding the scope of the “treating physician”

exception in the hybrid expert situation was unsettled in this

circuit before today. While we do not fault the district court

for its ruling limiting Goodman’s physicians’ testimony, we

think that fairness counsels in favor of applying our newlyclarified rule regarding hybrid experts prospectively. Under

the circumstances, it would be unjust to allow Goodman’s

mistake about a previously unsettled point of law to be the

coup de grâce to her case. 

[10] Because we hold, as a matter of discretion, that Goodman should be allowed to rectify her error by disclosing

reports for her treating physicians, we reverse the district

court’s summary judgment ruling on causation.

C. Denial of Goodman’s Motion for Reconsideration

Regarding Testimony of Non-Medical Experts

Goodman also appeals the district court’s decision to preclude her non-medical experts from testifying in her case-inchief. Goodman disclosed the identities of Dr. Gary Bakken,

a “human factors” expert, and Alex Balian, a store safety

expert, on November 7, 2008, the deadline for plaintiff’s

expert disclosures. A week later, Goodman disclosed the identities of two additional experts: Dr. Glenn Wilt, an economist,

and Gretchen Bakkenson, a vocational consultant. But she

failed to provide these experts’ reports until four-and-a-half

months after the deadline: on March 30, 2009, after Staples’

deadline for disclosing defense experts had expired, and on

the deadline for disclosure of plaintiff’s rebuttal experts,

Goodman finally produced reports for her non-medical

experts. Staples filed a motion asking the court to preclude

improperly disclosed experts under Rule 37, which the district

court granted as to Goodman’s non-medical experts, allowing

them to testify only on rebuttal. 

As discussed above, Rule 26 of the Federal Rules of Civil

Procedure requires the parties to disclose the identities of each

5726 GOODMAN v. STAPLES
expert and, for retained experts, requires that the disclosure

includes the experts’ written reports. Fed. R. Civ. P. 26(a)(2).

Parties must make these expert disclosures at the times and in

the sequence that the court orders. Id. Rule 37 “gives teeth”

to Rule 26’s disclosure requirements by forbidding the use at

trial of any information that is not properly disclosed. Yeti by

Molly Ltd., 259 F.3d at 1106 (citing Fed. R. Civ. P. 37(c)(1)).

Rule 37(c)(1) is a “self-executing,” “automatic” sanction

designed to provide a strong inducement for disclosure. Id.

(quoting Fed. R. Civ. P. 37 advisory committee’s note

(1993)). The only exceptions to Rule 37(c)(1)’s exclusion

sanction apply if the failure to disclose is substantially justified or harmless. Fed. R. Civ. P. 37(c)(1). 

[11] The district court did not abuse its discretion in deciding that Goodman’s failure to comply with Rule 26 with

respect to her non-medical experts was neither substantially

justified nor harmless. Goodman has never argued that the

failure was substantially justified; indeed, in her opposition to

Staples’ motion to preclude improperly disclosed experts, her

attorney admitted that he simply failed to read the court’s

scheduling order and didn’t realize that Goodman needed to

disclose expert reports. Goodman’s failure to comply with

Rule 26 with respect to her non-medical experts was not substantially justified.

Nor has Goodman shown that the delay was harmless. The

burden to prove harmlessness is on the party seeking to avoid

Rule 37’s exclusionary sanction. Yeti by Molly Ltd., 259 F.3d

at 1107. Goodman disclosed her expert reports more than a

month after Staples’ expert disclosure deadline had already

passed. Because Goodman had not yet disclosed any expert

reports, Staples made its decisions regarding defense experts

under the belief that Goodman’s non-medical experts would

not be testifying in her case-in-chief. Staples’ experts developed their opinions and wrote their reports without knowing

the scope of Goodman’s experts’ opinions. Staples did not

disclose an economist at all, because it thought Goodman

GOODMAN v. STAPLES 5727
would not be presenting an economist in her case-in-chief.

The district court found that this was “obvious prejudice,” and

we agree.

[12] Because Goodman’s failure to disclose her nonmedical experts’ reports in a timely manner was neither substantially justified nor harmless, the district court did not

abuse its discretion in precluding those experts from testifying

in Goodman’s case-in-chief. We affirm the denial of Goodman’s motion for reconsideration with respect to this issue. 

D. Motions In Limine

Goodman appeals the district court’s denial as moot of (1)

her motion in limine to prohibit Staples from contesting the

reasonableness and necessity of her medical bills and (2) Staples’ motion in limine to exclude medical bills disclosed after

the close of discovery. The district court denied these motions

as moot after granting summary judgment for Staples. These

motions were not passed upon below and we decline to

address them. See Singleton v. Wulff, 428 U.S. 106, 120

(1976). Because we reverse the district court’s grant of summary judgment, we remand for the district court to rule on

these motions in the first instance.

III. Conclusion

Accordingly, we REVERSE the district court’s order granting summary judgment in favor of Staples, AFFIRM the

denial of Goodman’s motion for reconsideration of the district

court’s order limiting the testimony of Goodman’s nonmedical experts, and REMAND for further proceedings consistent with this opinion. Each side shall bear its own costs.

AFFIRMED in part; REVERSED in part and

REMANDED.

5728 GOODMAN v. STAPLES
TASHIMA, Circuit Judge, concurring:

Although I concur in all of the majority opinion, I write

separately to explain why I do not disagree with the majority’s conclusion that “fairness counsels in favor of applying

our newly-clarified rule regarding hybrid experts prospectively.” Maj. Op. at 5726. The question is whether this case presents the appropriate circumstances in which to exercise our

discretion to allow “Goodman . . . to rectify her error by disclosing reports for her treating physicians.” Id. at 5726. 

The broader question is when an appellate court’s ruling

should be a “purely prospective” one that does not apply to

the parties before it, contrary to the generally applicable rule.

See James B. Beam Distilling Co. v. Georgia, 501 U.S. 529,

536 (1991). We are told that we should declare rulings to be

purely prospective only “infrequently.” Id. Courts consider

three factors in determining whether a decision should be

applied nonretroactively: (1) whether the decision “establish[es] a new principle of law, either by overruling clear past

precedent on which litigants may have relied, or by deciding

an issue of first impression whose resolution was not clearly

foreshadowed;” (2) whether applying the rule retroactively

will further or retard its operation; and (3) whether retroactive

application will create substantial inequitable results. See

Chevron Oil Co. v. Huson, 404 U.S. 97, 106-07 (1971) (internal citations omitted); see also N. Pipeline Constr. Co. v.

Marathon Pipe Line Co., 458 U.S. 50, 87-88 (1982); Holt v.

Shalala, 35 F.3d 376, 380 (9th Cir. 1994); Usher v. City of

L.A., 828 F.2d 556, 559-60 (9th Cir. 1987). 

These Chevron Oil factors are so open ended that they can

be applied to justify prospective application in virtually any

case where a “new” rule or interpretation of a rule is

announced. In practice, it appears to be a matter wholly within

the discretion of the panel to conclude that “[u]nder the circumstances, it would be unjust to allow Goodman’s mistake

about a previously unsettled point of law to be the coup de

GOODMAN v. STAPLES 5729
grace to her case.” Maj. Op. at 5726. Here, the Chevron Oil

factors can be applied either to support retroactive application

or to justify purely prospective application. Despite my misgivings at so open ended a rule, however, I conclude that this

is a matter within the panel’s broad discretion and the panel’s

decision to so exercise its discretion is not inconsistent with

applicable case law. 

Therefore, although this does not appear to me to be the

unusual case in which the prospective application rule should

be “infrequently” applied, I reluctantly concur in the panel’s

prospective only adoption of the hybrid expert disclosure rule.

I concur without reservation in the remainder of the majority

opinion.

5730 GOODMAN v. STAPLES