Gorbani v. Gonzalez et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
MORTEZA GORBANI,
Plaintiff,
vs. 	Civ. No. 25-413 DHU/SCY
EDWARD E. GONZALEZ and
BLATTNER ENERGY, LLC,
Defendants.
ORDER DENYING MOTION TO STRIKE AND
GRANTING MOTION FOR EXTENSION
Presently before the Court is Defendants’ Motion to Strike Plaintiff’s Expert Disclosure
or, in the Alternative, for Extension of Time to Designate Expert Witness. Doc. 28; see also Doc.
29 (response). Defendants argue that Plaintiff provided an insufficient disclosure for his non-
expert treating physician, Dr. Gonzalez. Specifically, the entirety of Dr. Gonzalez’s expert
disclosure is:
Dr. Gonzalez is a medical doctor who is double board certified in Pain
Management and Anesthesiology. He is a Diplomate of the American Board of
Pain Medicine and the American Board of Anesthesiology. Dr. Gonzalez is
expected to testify regarding Plaintiff’s injuries, causation, diagnoses, prognosis,
nature, extent and duration of Plaintiff’s injuries and treatment and the
reasonableness and necessity of treatment rendered and charges associated with
said treatment and related issues.
Doc. 28-1. Additionally, Defendants argue that, after the expert disclosure deadlines, Plaintiff
produced additional medical records for a recommended future surgery from a previously
undisclosed treating physician. Indeed, Plaintiff’s expert deadline was September 5, 2025 and
Defendants’ expert deadline was October 6, 2025, Doc. 17, and Plaintiff disclosed the surgery
estimate on November 4, 2025. Defendants request that the Court strike Plaintiff’s expert
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disclosure and the late-disclosed surgery estimate, or in the alternative, that the Court grant an
extension of the expert disclosure deadlines and all following case management deadlines.
Under Federal Rule of Civil Procedure 26, “certain disclosure requirements attach to
witnesses who intend to deliver expert (as opposed to lay) testimony. Retained expert witnesses,
or employees ‘whose duties regularly involve giving expert testimony,’ must file detailed written
reports.” Vincent v. Nelson, 51 F.4th 1200, 1214 (10th Cir. 2022) (quoting Fed. R. Civ. P.
26(a)(2)(B)) (alteration omitted). “These ‘extensive’ disclosure requirements, however, do not
apply to non-retained expert witnesses.” Id. (quoting Fed. R. Civ. P. 26 advisory committee notes
to 2010 amendment). “Non-retained expert witnesses need only disclose ‘the subject matter on
which [he or she] is expected to present evidence’ and ‘a summary of the facts and opinions to
which [he or she] is expected to testify.’” Id. (quoting Fed. R. Civ. P. 26(a)(2)(C)(i)-(ii))
(emphasis in Vincent, not in Rule 26). “A ‘summary’ is customarily defined as ‘an abridgment’
of a fuller accounting of material.” Id. at 1216 (quoting Summary, Black’s Law Dictionary (11th
ed. 2019)) (alteration omitted). “Indeed, the advisory notes caution against requiring ‘undue
detail,’ as witnesses testifying under Rule 26(a)(2)(C) generally ‘have not been specially retained
and may not be as responsive to counsel as those who have.’” Id. (quoting Fed. R. Civ. P. 26
advisory committee notes to 2010 amendment).
The Tenth Circuit has explained that other circuits “seem largely to have faulted parties
only when they have filed disclosures ‘so generic, unhelpful, and boilerplate that they could
apply to virtually any case.’” Vincent, 51 F.4th at 1216 (quoting Torrez v. D. Las Vegas, Inc.,
773 F. App’x 950, 951 (9th Cir. 2019)) (alterations omitted). Because the Tenth Circuit cited
Torrez approvingly, it is worth examining the disclosures in that case—which are nearly
identical to the facts at issue here. As the magistrate judge in that case explained:
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In the initial disclosure, Alfaro and Torrez identified a total of 11 healthcare
providers. The initial disclosure also identified “person(s) most knowledgeable
and/or custodian of records and/or the treating physician or other healthcare
provider” by name. For each of these providers, the following identical disclosure
was provided:
The aforementioned medical care providers and/or their representatives
are expected to testify as treating physicians and as experts regarding the
injuries sustained; past, present and future medical treatment impairment;
prognosis; disability; pain and suffering; disfigurement; causation; and the
reasonableness and necessity of all care and billing as it relates to Plaintiff,
as well as the authenticity of their medical records and cost of the services
rendered.
The aforementioned medical care providers will opine regarding future
treatment, including, but not limited to, spinal cord simulators,
chiropractic care, physical therapy, rehabilitative care, fusion surgery
and/or therapeutic and/or diagnostic injections of the facets, nerve roots
and/or medical branches. Said doctors will also opine regarding other pain
management procedures such as radiofrequency ablations, occipital blocks
and any other foreseeable medical treatment. Said doctors will also opine
regarding all treatment in this case as it pertains to defending their
opinions, to include any and all medical treatment as a result of the
incident at issue, and any and all medical treatment prior to the incident at
issue, and any and all depositions of other medical providers or defense
experts, and any and all defense medical reports prepared to attack said
doctor’s opinions.
Alfaro v. D. Las Vegas, Inc., No. 15cv2190, 2016 WL 4473421, at *3-4 (D. Nev. Aug. 24, 2016)
(footnote omitted), aff’d 773 F. App’x 950. In the paragraph quoted by the Ninth Circuit, the
magistrate judge found that:
They do not disclose any expert opinions at all. Although the identical disclosures
arguably include broad subject matter areas on which each witness is expected to
testify or present evidence, they do not include a “summary of the facts and
opinions to which the witness is expected to testify.” See Fed. R. Civ. P.
26(a)(2)(C)(ii). The initial disclosure and supplemental disclosures do not even
identify the conditions for which Plaintiffs were treated, their diagnosis or
prognosis, or the course of treatment provided. No information at all is provided
linking any injury claimed by either Plaintiff to the accident in this case. The
identical descriptions of expected testimony that Plaintiffs provided for all 11
treating physicians and providers are so generic, unhelpful, and boilerplate they
could apply to any virtually any case.
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Id. at *13. Under Rule 26(a)(2)(C), “the disclosure must contain sufficient information to allow
opposing counsel to make an informed decision on which, if any, of the treating providers should
be deposed, determine whether to retain experts, and conduct a meaningful deposition or cross
examination of the witness at trial.” Id. at *14. The Ninth Circuit affirmed, quoting the “generic,
unhelpful, and boilerplate” language from the magistrate judge’s order and the Tenth Circuit
later echoed this sentiment. 773 F. App’x at 951; Vincent, 51 F.4th at 1216.
Plaintiff’s disclosure in this case suffers from the same deficiencies described in
Alfaro/Torrez. Plaintiff’s summary of the expert’s opinion does not: identify the conditions for
which the physician treated Plaintiff; describe the provider’s diagnosis or prognosis; summarize
any course of treatment; or summarize how the accident at issue caused Plaintiff’s claimed
injuries. Furthermore, the disclosure only provides a summary of the subject-matter of the
anticipated testimony and does not actually disclose a single fact or opinion to which the
provider will testify. Cf. Fed. R. Civ. P. 26(a)(2)(C)(i)-(ii)) (“this disclosure must state (i) the
subject matter on which the witness is expected to present evidence under Federal Rule of
Evidence 702, 703, or 705; and (ii) a summary of the facts and opinions to which the witness is
expected to testify” (emphasis added)).
The Court finds that Plaintiff’s non-retained expert disclosure violates Rule 26 because it
fails to provide a summary of any facts and opinions to which the witness is expected to testify.
Additionally, the late-disclosed surgical estimate add significant damages to the case and such
disclosure after the expiration of the expert deadlines prevents Defendants from rebutting the
information with their own expert. Accordingly, the Court must now consider the appropriate
remedy.
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If a party fails to disclose information required by Rule 26(a), it may not use any
undisclosed information at trial, unless the failure is substantially justified or harmless. Fed. R.
Civ. P. 37(c)(1); Jacobsen v. Deseret Book Co., 287 F.3d 936, 953 (10th Cir. 2002) (“A trial
court has broad discretion to decide if a Rule 26(a) violation is justified or is harmless.”). This
“unless the failure is substantially justified or harmless” caveat exists to “avoid unduly harsh
penalties.” Fed. R. Civ. P. 37(c)(1) Advisory Committee Notes, 1993 amendment. “The decision
to exclude evidence is a drastic sanction.” Summers v. Missouri Pac. R.R. Sys., 132 F.3d 599,
604 (10th Cir. 1997); see also Ehrenhaus v. Reynolds, 965 F.2d 916, 921 (10th Cir. 1992)
(recognizing “the judicial system’s strong predisposition to resolve cases on their merits”).
The Tenth Circuit has instructed that the following factors should guide a district court’s
discretion regarding whether to exclude evidence under Rule 37(c)(1): (1) whether the other
party will be prejudiced, (2) the ability to cure any prejudice, (3) whether allowing the evidence
would disrupt the trial, and (4) the violator’s bad faith or willfulness. Jacobsen, 287 F.3d at 952-
53; Woodworker’s Supply, Inc. v. Principal Mut. Life Ins. Co., 170 F.3d 985, 993 (10th Cir.
1999).
The first and second factor favor Defendants’ alternate request of extending the expert
deadlines. That is, any prejudice to Defendants from the insufficient disclosure and from the late
disclosure of the surgical estimate can be cured by extending the expert disclosure deadlines and
discovery deadline such that the parties can engage in additional expert discovery and provide
sufficient expert disclosures. Indeed, Plaintiff does not oppose “a mutual, limited extension of
deadlines.” Doc. 29 at 4. As to the third factor, allowing the parties to complete further expert
discovery on the contested evidence will not disrupt trial because there is currently no trial
setting in this case. Finally, on the last factor, there is no evidence Plaintiff violated Rule 26 in
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bad faith. Harvey v. THI of N.M. at Albuquerque Care Ctr., LLC, No. 12cv727, 2015 WL
13667111, at *6 (D.N.M. Mar. 31, 2015) (“Without a finding of bad faith or gamesmanship,
courts are loathe to invoke the strong medicine of precluding expert testimony.” (internal
quotation marks and alterations omitted)).
IT IS THEREFORE ORDERED that Defendants’ Motion to Strike Plaintiff’s Expert
Disclosure or, in the Alternative, for Extension of Time to Designate Expert Witnesses (Doc. 28)
is GRANTED IN PART AND DENIED IN PART. The Court denies Defendants’ request to
strike Plaintiff’s expert disclosure and supplemental surgical estimate. The Court grants
Defendants’ request for an extension of case management deadlines as follows:
 	Plaintiff’s expert disclosure deadline: December 5, 2025
 	Defendants’ expert disclosure deadline: January 9, 2026
 	Termination date for discovery: April 20, 2026
 	Motions relating to discovery due by: May 8, 2026
 	Pretrial motions other than discovery motions due by: May 15, 2026
IT IS SO ORDERED.
____________________________________
STEVEN C. YARBROUGH
UNITED STATES MAGISTRATE JUDGE
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