Franceen Hill, an individual v. U.s. Department of Homeland Security;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
FRANCEEN HILL, an individual,
Plaintiff - Appellant,
v.
U.S. DEPARTMENT OF HOMELAND
SECURITY; et al.,
Defendants - Appellees.
No. 12-56115
D.C. No. 2:10-cv-06327-ODW-JC
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Otis D. Wright II, District Judge, Presiding
Argued and Submitted April 9, 2014
Pasadena, California
Before: THOMAS, M. SMITH, and CHRISTEN, Circuit Judges.
Franceen Hill sued the United States for negligence under the Federal Tort
Claims Act after her car was hit by a bus driven by a United States Department of
FILED
APR 18 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

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Homeland Security, Immigration and Customs Enforcement employee.1 The
district court granted all four of the motions in limine brought by the government
to exclude Hill’s lay witnesses, trial exhibits, damages calculations, and expert
witnesses for failure to comply with the disclosure requirements of Federal Rule of
Civil Procedure 26(a). The case proceeded to trial. At the conclusion of Hill’s
case, the district court granted the government’s motion for judgment on partial
findings under Federal Rule of Civil Procedure 52(c). Hill appeals, arguing that
the district court abused its discretion by granting the government’s motions in
limine. We have jurisdiction under 28 U.S.C. § 1291, and we affirm. We review
the district court’s imposition of discovery sanctions for abuse of discretion. R&R
Sails, Inc. v. Ins. Co. of Pa., 673 F.3d 1240, 1245 (9th Cir. 2012).
1. Federal Rule of Civil Procedure 26(a)(1)(A)(i) requires a party to
disclose: “the name and, if known, the address and telephone number of each
individual likely to have discoverable information . . . that the disclosing party may
use to support its claims or defenses.” Hill failed to make the required disclosures
under Rule 26(a)(1)(A)(i) by the court’s May 25, 2011 deadline.
1 Because the parties are familiar with the facts of the case, we will not
recount them here.
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Hill’s late disclosure of approximately 35 witnesses in her response to
written discovery requests did not cure this non-compliance. See Henry v. Gill
Indus., Inc., 983 F.2d 943, 947 (9th Cir. 1993). Her failure to make timely
disclosures was not harmless; if nothing else, it deprived the government of the
opportunity to serve additional discovery requests to determine which of the 35
witnesses had useful information, and to depose those witnesses. The court’s order
did not prevent Hill from presenting a claim. She was permitted to testify at trial
regarding damages, which was the testimony she claimed her lay witnesses would
provide. See R&R Sails, 673 F.3d at 1247. The district court did not abuse its
discretion by excluding Hill’s six lay witnesses under Rule 37(c)(1).
2. Federal Rule of Civil Procedure 26(a)(1)(A)(ii) requires a party to
disclose: “a copy—or a description by category and location—of all documents . . .
that the disclosing party . . . may use to support its claims or defenses.” Hill did
not provide any copies of documents or descriptions of documents by the May 25,
2011 deadline.
Hill argues that her failure to comply with Rule 26(a)(1)(A)(ii) was harmless
because the government subpoenaed her medical records, its experts reviewed the
records, and its experts were fully prepared to discuss the records when they were
deposed. To the extent her proposed trial exhibits included the same medical
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records the government subpoenaed and relied on to prepare its own witnesses,
Hill’s non-compliance was likely harmless and the district court’s order may have
been over-broad. But any error by the district court in granting this motion in
limine was harmless because Hill was not able to prove her injuries were caused by
the subject accident. It is more probable than not that the district court would have
entered judgment against Hill even if some of her medical record exhibits had been
admitted. See Obrey v. Johnson, 400 F.3d 691, 701 (9th Cir. 2005). Further, the
order granting this motion in limine did not prevent Hill from presenting a claim.
She was allowed to testify regarding her injuries and damages at trial. See R&R
Sails, 673 F.3d at 1247.
3. Federal Rule of Civil Procedure 26(a)(1)(A)(iii) requires a party to
disclose a computation of each category of damages, but Hill did not provide a
computation of damages before the May 25, 2011 deadline. Because she asked for
different categories of damages at different times, it was unclear exactly what
damages Hill was seeking. Neither the exhibit Hill attached to her complaint, the
spreadsheet included in the box of documents she delivered in response to the
government’s written discovery requests, nor the “Final Damage Calculation” she
served just before trial were sufficient to satisfy Rule 26. None of these documents
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included “a copy or a description of the documents on which [Hill] based [her]
damages.” R&R Sails, 673 F.3d at 1246; see also Fed. R. Civ. P. 26(a)(1)(A)(iii).
Hill’s failure to timely comply with Rule 26(a)(1)(A)(iii) was not harmless
because it was unclear which damages she attributed to the accident given the
extensive injuries described in her written interrogatory responses, and her
significant preexisting health history. The order granting this motion in limine did
not prevent Hill from presenting a claim. She was permitted to testify about her
damages at trial. See R&R Sails, 673 F.3d at 1247. The district court did not abuse
its discretion by excluding Hill’s computation of damages under Rule 37(c)(1).
4. Rule 26(a)(2) requires that parties to litigation disclose the identity of
any expert witnesses. A party offering a retained expert witness must provide an
expert report, Fed. R. Civ. P. 26(a)(2)(B), or if the witness is not a retained expert,
the party offering the testimony must disclose the subject matter of the testimony
and a summary of the facts and opinions of the testimony, Fed. R. Civ. P.
26(a)(2)(C).
Hill failed to make any expert disclosures pursuant to Rule 26(a)(2) before
the court-ordered deadline. The list of doctors and medical facilities included in
Exhibit 2 attached to Hill’s complaint did not comply with the expert report
requirements of Rule 26(a)(2)(B) or the requirements of Rule 26(a)(2)(C). Hill’s
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failure to timely comply with the disclosure requirements of Rule 26(a)(2)
prevented the government from deposing her experts, and the delay cannot be
described as harmless. See Wong v. Regents of the Univ. of Cal., 410 F.3d 1052,
1062 (9th Cir. 2005). It was not a foregone conclusion that Hill would be unable
to prove her case without expert testimony when the court ruled on these motions
in limine, and the court’s orders granting the motions did not dispose of Hill’s
case. See R&R Sails, 673 F.3d at 1247. The court did not abuse its discretion by
excluding Hill’s experts. See Wong, 410 F.3d at 1062.
5. Some of the physician witnesses Hill proposed were actually her
treating physicians, not retained experts. The district court’s order excluding their
testimony as fact witnesses may have been over-broad because Hill listed six
doctors in Exhibit 2, which was attached to her complaint.
Given the district court’s unchallenged finding that Hill had extensive
preexisting medical conditions, and its unchallenged finding that Hill lacked
credibility, Hill’s accident reconstructionist, biomechanical engineer, and expert
medical opinion testimony were critical to proving causation. But the district
court’s arguably over-broad order granting the motion in limine excluding experts
did not implicate the retained experts who might have established causation. All
such experts were properly excluded. It is more probable than not that the district
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court would have reached the same verdict even if Hill’s treating physicians had
been permitted to testify. See Obrey, 400 F.3d at 701.
AFFIRMED.
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