ROBERT SEPE, Jr. v. GORDON TRUCKING, INC. and ELWOOD HILL

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROBERT SEPE, Jr.,
Plaintiff-Appellant,
v.
GORDON TRUCKING, INC. and
ELWOOD HILL,
Defendants-Appellees.
No. 17-16393
D.C. No.
2:12-cv-01639-TLN-CKD
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
Troy L. Nunley, District Judge, Presiding
Argued and Submitted November 15, 2018
San Francisco, California
Before: FISHER and M. SMITH, Circuit Judges, and PIERSOL,** District Judge.
Robert Sepe, Jr. (“Sepe”) appeals the district court’s order imposing
discovery sanctions under Rule 37(c)(1) of the Federal Rules of Civil Procedure
and order denying Sepe’s Federal Rules of Civil Procedure Rule 59(a) motion for a
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable Lawrence L. Piersol, United States District Judge for
the District of South Dakota, sitting by designation.
FILED
JAN 22 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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new trial. We affirm.
Sepe contends that the district court erred in limiting the causation testimony
of Dr. Orisek and Dr. Lemons in his case-in-chief under Rule 37(c)(1) to that of
treating physicians despite the district court’s finding that the failure to file expert
reports for these witnesses was harmless. Sepe argues that the district court’s error
caused him substantial prejudice, and that the district court abused its discretion in
denying his Rule 59(a) motion for a new trial. We have jurisdiction under 28
U.S.C. § 1291.
We review both the district court's imposition of discovery sanctions and the
denial of the Rule 59(a) motion for abuse of discretion. Goodman v. Staples The
Office Superstore, LLC, 644 F.3d 817, 822 (9th Cir. 2011); Kode v. Carlson, 596
F.3d 608, 611 (9th Cir. 2010).
Causation testimony by a treating physician is expert opinion, subject to the
disclosure and written report requirement detailed in Rule 26(a)(2) if the
physician’s opinion on causation was formed outside the course of treatment. See
Goodman v. Staples The Office Superstore, LLC, 644 F.3d 817, 826 (9th Cir. 2011)
(stating 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). Under Rule 37(c)(1), when a party fails to make the disclosures
required by Rule 26(a)(2), the party is not allowed to use the witness to supply

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expert testimony at trial unless it establishes that the failure to disclose was
substantially justified or harmless. See id. (citing Fed. R. Civ. P. 37(c)(1)).
We hold that the district court erred in limiting the causation testimony of
Dr. Orisek and Dr. Lemons in Sepe’s case-in-chief to opinions formed during the
course of treatment. The district court held that Sepe’s failure to disclose the
physicians as experts and provide expert reports was harmless because the
defendants were aware of both witnesses and continued to subpoena their medical
records. Upon finding that the failure to disclose was harmless, discovery
sanctions under Rule 37(c)(1) limiting the testimony were not warranted.
Although the district court erred in imposing discovery sanctions, we
conclude that the error was harmless. See Fed. R. Civ. P. 61 (stating the harmless
error rule). The district court subsequently permitted Sepe to recall Dr. Orisek to
give substantial expert testimony about causation. In addition, Sepe has not
identified any other causation evidence that Dr. Orisek and Dr. Lemons would
have presented absent the court’s order imposing discovery sanctions. Based on
the foregoing, the district court did not abuse its discretion by denying Sepe’s
motion for a new trial.
AFFIRMED.

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