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Mills + Woods Law, PLLC

5055 North 12th Street, Suite 101

Phoenix, AZ 85014-2555

480.999.4556

Robert T. Mills (Arizona Bar #018853)

Sean A. Woods (Arizona Bar #028930)

Jordan C. Wolff (Arizona Bar #034110)

MILLS + WOODS LAW, PLLC

5055 North 12th Street, Suite 101

Phoenix, Arizona 85014

Telephone 480.999.4556

docket@millsandwoods.com

Attorneys for Plaintiffs

UNITED STATES DISTRICT COURT

DISTRICT OF ARIZONA

Keith and Tammy Early, et al,

Plaintiffs,

vs.

The State of Arizona, et al,

Defendants.

Case No.: 2:16-cv-00031-SPL (DMF)

PLAINTIFFS’ RESPONSE TO CHC

DEFENDANTS’ MOTION TO

PRECLUDE PLAINTIFFS’

DAMAGES EXPERT DR. BARBARA

C. LUNA FROM TESTIFYING AT

TRIAL DUE TO UNTIMELY

DISCLOSURE

(Oral Argument Requested)

(Assigned to the Hon. Deborah M. Fine)

Plaintiffs, by and through undersigned counsel, hereby submit their Response To

CHC Defendants’ Motion To Preclude Plaintiffs’ Damages Expert Dr. Barbara C. Luna

From Testifying At Trial Due To Untimely Disclosure. This response is supported by the 

following Memorandum of Points and Authorities.

MEMORANDUM OF POINTS AND AUTHORITIES

I. INTRODUCTION

CHC Defendants’ motion to exclude Dr. Luna’s expert report and preclude her from 

testimony at trial should be summarily denied because CHC Defendants laid in wait for 

nearly nine (9) months before informing Plaintiffs and this Court of any objections

regarding Dr. Luna’s damages report. Despite knowing about Plaintiffs’ damages expert in 

May of 2018 and having Dr. Luna’s complete report no later than August 20, 2018, CHC 

Case 2:16-cv-00031-SPL-DMF Document 248 Filed 02/22/19 Page 1 of 9
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5055 North 12th Street, Suite 101

Phoenix, AZ 85014

480.999.4556

Defendants did not make any efforts to cure any of the alleged prejudice they are now 

complaining about. At the time CHC Defendants received Dr. Luna’s complete report, the 

deadline for rebuttal reports had not passed. (Doc. 206). More importantly, the deadline for 

discovery was not for another two months and the deadline to depose expert witnesses was 

not until December 21, 2018—four months after Dr. Luna’s full report was disclosed. Id.

There is also no trial setting in this matter. 

Instead of requesting an extension to file a rebuttal report, conducting further 

discovery, and/or deposing Dr. Luna, CHC Defendants did absolutely nothing. Now, they 

motion this Court requesting that Dr. Luna’s report and testimony should be excluded from

trial because they were prejudiced by the late disclosure. As explained herein, CHC 

Defendants have not been prejudiced, and if they have, they had the ability to cure most if 

not all the prejudice, but they made the decision not to. Therefore, this Court should deny 

CHC Defendants’ Motion to Preclude Plaintiffs’ Damages Expert Dr. Barbara C. Luna 

From Testifying At Trial Due To Untimely Disclosure.

II. LEGAL ARGUMENT

A. Luna’s August Disclosure Was Substantially Justified And Harmless

Rule 37(c)(1) and Ninth Circuit case law recognize that untimely disclosed expert

testimony should not be excluded where the failure to timely disclose “was substantially

justified or is harmless.” Yeti by Molly, Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101,

1106–07 (9th Cir. 2001); Lanard Toys Ltd. v. Novelty, Inc., 375 Fed.Appx. 705, 711 (9th

Cir. 2010); Fed. R. Civ. P. 37(c)(1).

Among the factors that may properly guide a district court in determining whether

a violation of a discovery deadline is justified or harmless are: (1) prejudice or surprise to

the party against whom the evidence is offered; (2) the ability of that party to cure the

prejudice; (3) the likelihood of disruption of the trial; and (4) bad faith or willfulness

involved in not timely disclosing the evidence. Lanard Toys Ltd., 375 Fed. Appx. at 713

(citing David v. Caterpillar, Inc., 324 F.3d 851, 857 (7th Cir. 2003).

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Mills + Woods Law, PLLC

5055 North 12th Street, Suite 101

Phoenix, AZ 85014

480.999.4556

1. Defendants were not Prejudiced

Plaintiffs disclosed Barbara Luna’s calculations in May 2018 as part of their 8th

supplemental disclosure statement (the “Original Report”).

1 Unfortunately, due to a

miscommunication between a former employee of Plaintiffs’ counsel’s law firm and the

expert witness, Dr. Luna only provided her final table; her C.V. and supporting documents,

but the final version of the report (the “Luna Report”) with required disclosures was not

provided to Defendants’ counsel until August 12, 2018. See Aug. 12, 2018 Email attached 

hereto as Ex. A. Plaintiffs immediately disclosed it on August 16, 2018 in Plaintiffs’ 8th

Amended Supplemental Disclosure Statement. (Doc. 207).2 BFI Waste Sys. of N. Am. v. 

Dekalb County, Georgia, 303 F. Supp. 2d 1335, 1345 (N.D. Ga. 2004) (allowing expert 

report where it was provided “as soon as it became available,” even when it was disclosed 

after a party filed for summary judgment.). At the time of the disclosure no rebuttal reports

were due and the deadline for fact discovery was not for another two months. (Doc. 206).3

Furthermore, CHC Defendants aver that they were prejudiced by the August 16, 

2018 production of the Luna Report because CHC Defendants assumed that the Court 

would not grant any more extensions. (Doc. 236 at 10:17-19). Conversely, on February 11, 

2019, CHC Defendants requested an extension of time to file their motion for summary 

judgment. (Doc. 242). That same day, this Court granted their request. (Doc. 243).

Moreover, CHC Defendants never requested additional time for a rebuttal report

from Plaintiffs nor moved this Court for an extension of time to file a rebuttal report. The 

CHC Defendants cannot claim they were prejudiced based on their assumption the Court 

 1 CHC Defendants admit that they had Dr. Luna’s calculations for damages prior to their 

June 29, 2018 expert disclosure deadline. (Doc. 236 at 4:19-21.).

2 CHC Defendants claim that there was no difference between the documents disclosed in 

Plaintiffs’ Eighth Supplemental Disclosure and their Eighth Amended Disclosure. (Doc. 

236 at 6:10-12. This is untrue. Plaintiffs’ applied new bates stamps to the expert reports in 

their Eighth Amended Supplemental Disclosure. The expert reports previously had the 

prefix of “EARLY” but in the Eighth Amended, the bates labels were changed to the last 

name of each expert. 

3 CHC Defendants incorrectly state that the Luna Report was disclosed after the rebuttal 

deadline. (Doc. 236 at 10:9-11).

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Mills + Woods Law, PLLC

5055 North 12th Street, Suite 101

Phoenix, AZ 85014

480.999.4556

would deny their request for an extension. CHC Defendants’ argument is purely 

speculative and the fact that CHC Defendants requested an extension of time to file their 

motion for summary judgment, which the Court granted, makes their argument meritless.

CHC Defendants failed to demonstrate how they were prejudiced or how the late 

production interfered with their ability to prepare for trial. Therefore, this Court should 

deny their motion. BFI Waste Sys. of N. Am., 303 F. Supp. 2d at 1345 (permitting Plaintiffs’ 

expert report when Defendants failed to show that they are prejudiced by the report’s 

untimeliness). Wendt v. Host Intern., Inc., 125 F.3d 806, 814 (9th Cir. 1997) (The Ninth 

Circuit vacated a district court’s order precluding late-produced expert discovery because 

(i) less drastic sanctions were available, and (ii) the defendants were not prejudiced in their 

ability to prepare for trial by the late disclosure).

2. Defendants were able to cure any prejudice but chose not to

When Plaintiffs disclosed the Luna report, the Defendants did not voice any

objections.4 This evident in the August 13, 2018 Joint Stipulated [Seventh] Motion to

Extend Deadlines, which CHC Defendants Draft, there was no mention of any late

disclosure. As a matter of fact, CHC Defendants stated that “Plaintiffs disclosed their

expert witness reports on or before May 15, 2018.” (Doc. 205 at 2:11-15).

In its Motion, CHC Defendants recognizes its substantial flaw for requesting relief:

Plaintiffs will undoubtedly claim that even though her

designation as an expert witness and report were disclosed late,

Defendants could have still deposed Dr. Luna to alleviate any

prejudice. That argument, however, ignores what this Court

well knows, that this Court extended disclosure and discovery

deadlines seven times at the request of the parties and clearly

indicated on the last such extension that it would be the last.

 4 In the August 13, 2018 Joint Stipulated [Seventh] Motion to Extend Deadlines, which 

CHC Defendants Drafted, there was no mention of any late or incomplete disclosures. As 

a matter of fact, CHC Defendants stated that “Plaintiffs disclosed their expert witness 

reports on or before May 15, 2018.” (Doc. 205 at 2:11-15). Had CHC Defendants raised 

an issue with Plaintiffs’ prior disclosures at this time, the parties could have attempted to 

resolve it and, if not, brought the issue to the Court’s attention back in August 2018.

Instead, for roughly nine months, CHC Defendants made Plaintiffs and this Court believe 

that there were no issues with Plaintiffs’ productions.

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Mills + Woods Law, PLLC

5055 North 12th Street, Suite 101

Phoenix, AZ 85014

480.999.4556

(Doc. 236 at 10:14-16).

On August 14, 2018, two (2) days before the Luna Report was disclosed, the Court

extended expert depositions until December 21, 2018. (Doc. 206). Moreover, at the time

CHC Defendants received the Luna Report, CHC Defendants had not deposed any of

Plaintiffs’ expert witnesses. (See docs. 233, 234). It was not until September 7, 2018,

roughly three (3) weeks after CHC Defendants received the Luna Report, Michael Smith,

CHC’s counsel, sent an email to Plaintiffs’ counsel, which stated:

No problem. Jordan – I’ve been out of the office and am

catching up. Have we bneen [sic] provided with dates of

availability to depose Mr. Gause and Dr. Rubenstein? I know

you provided us with some availability for Ms. Luna already. Can you provide the same for the other 2 experts? Thanks.

Michael.

Sept. 7, 2018 Email attached hereto as Ex. B. (emphasis added).

Undeniably, Mr. Smith acknowledged that Plaintiffs made Dr. Luna available for a

deposition and provided CHC Defendants Dr. Luna’s availability for her deposition.

5

However, CHC Defendants made the decision not to take Dr. Luna’s deposition, which

would have cured most if not all prejudice. See W. All. Bank v. Jefferson, 119 F. Supp. 3d

961, 968 (D. Ariz. 2015) (holding that the deposition of an expert witness after the

disclosure of late materials obviates most of the harm).

Now, nine months after CHC Defendants received Luna’s damages calculations and 

six months after they received the Luna Report, CHC Defendants are now claiming that

they have been prejudiced by the late disclosure of Dr. Luna’s report because they have

not had the opportunity to take Dr. Luna’s deposition.6 (Doc. 236 at 10:14-16). This

argument is disingenuous. CHC Defendants had four (4) months to depose Dr. Luna, but 

they intentionally chose not to depose her.7

 5 It should be noted that CHC Defendants did not make any objection regarding the Luna 

Report disclosed on August 16, 2018. (Doc. 206).

6 CHC Defendants waited until the final month to depose Plaintiffs’ two other experts. 

(Docs. 233, 234).

7 The deadline for expert depositions was December 21, 2018. (Doc. 206). Furthermore, 

filed in the same week with this Response is Plaintiffs’ Motion to Extend Deadlines to take 

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Mills + Woods Law, PLLC

5055 North 12th Street, Suite 101

Phoenix, AZ 85014

480.999.4556

In addition to not taking Dr. Luna’s deposition, CHC Defendants assert that they

have been prejudiced by the August 16, 2018 disclosure of the Luna Report because

“Plaintiff have prejudiced Defendants’ ability to counter or contend with that testimony at

trial.” (Doc. 236 at 10:13-14). Defendants fail to inform the Court that on June 15, 2018,

CHC Defendants requested a two-week extension to submit their expert reports. (Doc.

196). The Court granted CHC’s request on June 19, 2018. (Doc. 198). However, when the

CHC Defendants disclosed their expert reports, they did not produce a damages report.

Their failure to produce their own damages report was not the result of any prejudice due 

to the August 16, 2018 disclosure of the Luna Report. CHC Defendants conducted

discovery directly related to the damages in this case.

8

Furthermore, when CHC Defendants purportedly received the Luna Report on

August 20, 2018—four days prior to the last day to submit rebuttal reports (Doc. 206)—

CHC Defendants never requested additional time to submit a rebuttal report. Had CHC

Defendantsrequested additional time to submit Plaintiffs would not have objected. Counsel

in this case has routinely worked with each other’s schedules to grant extensions or to work

around discovery issues. For example, Mr. Woods had a death in his extended family in

late July 2018 and as such requested an extension for Plaintiffs’ rebuttal reports, which

CHC Defendants graciously granted. (Doc 205 at 3:2-5). In fact, Mr. Woods also offered

similar extensions to CHC Defendants due to the unexpected need to request extensions

for Plaintiffs. See Aug. 7, 2018 Email attached hereto as Ex. D. CHC Defendants’

prejudicial argument relies solely on speculation that the Court would not grant an

additional extension, but no request was ever made by CHC Defendants’ counsel for

 

Depositions – something that has been discussed extensively with Defendants’ counsel and 

something that Plaintiffs would be more than willing to add a deposition of Dr. Luna to the 

requested relief. (See Doc. 245). 8 On October 11, 2016, CHC Defendants served interrogatories requesting information 

regarding Neil Early’s education and employment history. See Def CHC’s 1st Set of 

Interrogs., No. 3 attached hereto as Ex. C. CHC Defendants have not raised an issue with 

the Plaintiffs’ responses to their discovery requests regarding Neil Early’s education and 

employment history.

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Mills + Woods Law, PLLC

5055 North 12th Street, Suite 101

Phoenix, AZ 85014

480.999.4556

Plaintiffs’ counsel to stipulate to extend the time to produce a rebuttal report. In reality, the

additional two or three weeks that may have been needed for CHC Defendants to prepare

a rebuttal report would not have affected any other deadlines at the time and in no way

would have been prejudicial to the CHC Defendants because Mr. Smith waited three (3)

weeks to get dates for expert depositions and did not begin conducting expert depositions

until November 29, 2018. See Ex. B; (Doc. 233). By failing to request an extension from 

both Plaintiffs and the Court, CHC Defendants intentionally chose not to cure any alleged 

prejudice.

CHC Defendants undoubtedly had the ability to cure any alleged prejudice that the

Luna Report may have inadvertently caused. But CHC Defendants made no objections to

the August 16, 2018 disclosure of the Luna Report and did not attempt to cure any

purported prejudice. Instead, they laid in wait until the final day to exclude experts to raise

any objections to the Luna Report claiming that the late production was prejudicial.

Accordingly, the Court should deny CHC Defendants’ motion.

3. The is no likelihood of disruption of the trial

There is zero likelihood that there would be a disruption of trial because there has

not been a trial setting for this matter.

4. There was no bad faith nor willfulness involved in not timely

disclosing the Luna Report

As explained herein, there was no bad faith or willfulness involved in disclosing the

Luna Report on August 16, 2018. Plaintiffs did not have Dr. Luna’s full report until August

12, 2018. Once Dr. Luna provided the report to Plaintiffs’ counsel, Plaintiff disclosed it to 

all of the parties in this matter.

III. CONCLUSION

For the foregoing reasons, Plaintiffs request that the Court deny CHC Defendants’ 

Motion To Preclude Plaintiffs’ Damages Expert Dr. Barbara C. Luna From Testifying At 

Trial Due To Untimely Disclosure

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Mills + Woods Law, PLLC

5055 North 12th Street, Suite 101

Phoenix, AZ 85014

480.999.4556

RESPECTFULLY SUBMITTED this 22nd day of February 2019.

MILLS + WOODS LAW, PLLC

By /s/ Sean A. Woods

Robert T. Mills

Sean A. Woods

Jordan C. Wolff

5055 North 12th Street, Suite 101

Phoenix, AZ 85014

Attorneys for Plaintiffs

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Mills + Woods Law, PLLC

5055 North 12th Street, Suite 101

Phoenix, AZ 85014

480.999.4556

CERTIFICATE OF SERVICE

I hereby certify that on February 22, 2019, I electronically transmitted the foregoing

document to the Clerk’s Office using the ECF System for filing and transmittal of a Notice

of Electronic Filing to the following ECF registrants:

LEWIS BRISBOIS BISGAARD & SMITH LLP

Michael Smith

2929 North Central Ave, Ste 1700

Phoenix Arizona 85012

Attorneys for Defendants Correctional Healthcare

Companies, Inc., Physicians Network Association, Inc., Arshad

Tariq, Toan Lai, and Tiffany Thompson

DICKINSON WRIGHT LLC

Denise Troy

1850 North Central Ave, Ste 1400

Phoenix, Arizona 85004

Attorney for Defendant Melissa Johnson

/s/ Jordan C. Wolff

Case 2:16-cv-00031-SPL-DMF Document 248 Filed 02/22/19 Page 9 of 9