IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

MEDFORD DIVISION 

LORI SANGER, 

Plaintiff, 

v. 

ALBERTSON'S, LLC, a foreign limited liability 

Company d.b.a. Albertson's, 

Defendant. 

CLARKE, Magistrate Judge. 

Case No. 1:14-cv-01294-CL 

ORDER 

Defendant objects to a number of Plaintiffs pretrial offerings on the basis that she failed 

to make prior disclosures required under the Federal Rules of Civil Procedure. The Federal Rules 

of Civil Procedure promote the integrity and fairness of the judicial process. They deserve 

compliance and respect. I directed the parties to reference the Rules in two separate court orders 

(#2, #5). In doing so, I explained that their ultimate goal should be "the just, speedy, and 

inexpensive determination of the action." 

I do not take my rulings on Defendant's objections lightly. I understand that they will 

likely make it more difficult for Plaintiff to present her case. However, given Plaintiffs nonORDER-1 
compliance and the undisputed prejudice Defendant would face if these items were allowed into 

evidence, the Rules compel the following exclusions. Goodman v. Staples The Office Superstore, 

LLC, 644 F.3d 817, 827 (9th Cir. 2011) (calling Rule 37(c)(1) a self-executing, automatic 

sanction designed to strongly induce compliance with disclosure requirements). 

I. Defendant's Objection to Plaintiff's Expert Witness 

Plaintiff proposes to call Richard James, M.D. as an expert witness. Defendant objects on 

the grounds that Plaintiff failed to make required disclosures about Dr. James' opinions and 

qualifications. Under Rule 26(a)(2), a party who retains an expert witness must provide the 

adverse party with a written report, prepared and signed by the expert witness, at least 90 days 

before trial. The report must contain: 

(i) a complete statement of all opinions the witness will express and the 

basis and reasons for them; 

(ii) the facts or data considered by the witness in forming them; 

(iii) any exhibits that will be used to summarize or support them; 

(iv) the witness's qualifications, including a list of all publications authored 

in the previous 10 years; 

(v) a list of all other cases in which, during the previous 4 years, the witness 

testified as an expert at trial or by deposition; and 

(vi) a statement of the compensation to be paid for the study and testimony 

in the case. 

FED. R. Crv. P. 26(a)(2)(B). 

To date, Plaintiff has not provided Defendant with an expert report. Where a party fails to 

provide an expert report required by Rule 26(a), that party may not use the related expert witness 

at trial unless it establishes that its failure was substantially justified or is harmless. FED. R. Crv. 

P. 37(c)(1); Goodman, 644 F.3d at 826. Plaintiff has not filed a response to Defendant's 

objection, much less submitted any evidence that mitigates her omission. Accordingly, Dr. James 

may not testify as an expert. Defendant's objection is sustained. 

I I I 

ORDER-2 
II. Defendant's Objection to Plaintiff's Exhibit 1 

Defendant objects to Plaintiffs proposed Exhibit 1, which is a log of medical bills. 

Plaintiff failed to provide some of these bills to Defendant during discovery despite Defendant's 

request. Under Rule 37(c)(l), if a party fails to supplement or correct an incomplete response to a 

discovery request, "the party is not allowed to use that information . . . at a trial, unless the 

failure was substantially justified or is harmless." There is no valid justification for Plaintiffs 

omission. It would be prejudicial to allow Plaintiff to rely on evidence that Defendant has not 

had the opportunity to consider or investigate. Accordingly, Plaintiff is foreclosed from 

producing the omitted bills at trial. FED. R. CIV. P. 37(c)(l). 

Defendant also objects to the remainder of the log's contents on the grounds that it lacks 

a proper foundation. I will defer ruling on this objection until trial. 

III. Defendant's Objection to Plaintiff's Exhibit 14 

Finally, Defendant objects to pages 36 and onward of Plaintiffs proposed Exhibit 14 

because Plaintiff did not provide them to Defendant despite its relevant discovery request. I find 

that Plaintiffs untimely disclosure was not substantially justified or harmless. As such, Rule 

37(c)(l) forbids the use of these pages at trial. 

United States Magistrate Judge 

ORDER- 3