In Merchant v. Corizon Health, published April 2, 2021, the 9th Circuit Court of Appeals affirmed a district court's exclusion of expert evidence and summary judgment in favor of prison officials. The plaintiff, a prisoner, alleged that the state department of corrections and its medical provider were deliberately indifferent to his medical needs and were negligent. After obtaining a continuance of expert disclosure to accommodate his attorney's vacation, the plaintiff disclosed his only non-retained expert two days late; disclosed his expert report and non-retained experts five days late, and without the required information for the non-retained experts; disclosed more non-retained experts 61 days past the deadline; disclosed three rebuttal experts but produced the report for only one, and the report for another five days past the deadline; and disclosed a late affidavit from a non-retained expert. The district court granted the provider's motion in limine to exclude the plaintiff's expert witnesses under Federal Rules of Civil Procedure 37(c)(1). The district court excluded all expert witnesses except the single rebuttal expert whose report was disclosed timely. The court then granted summary judgment on the ground that the plaintiff had insufficient expert evidence to establish either deliberate indifference or negligence. It also ruled that the Prison Litigation Reform Act barred the plaintiff's 42 U.S.C. § 1983 claim because the plaintiff failed to exhaust his administrative remedies.
The 9th Circuit agreed that in light of the plaintiff's persistent disregard of Rule 26(a)(2)'s disclosure deadlines through the course of discovery, the district court acted within its discretion in excluding his improperly disclosed expert evidence. The party facing that sanction bears the burden of showing that the discovery violation is either substantially justified or harmless, and whether a lesser sanction would be appropriate. Where the violating party fails to move for a lesser sanction, district courts need not consider lesser sanctions. The plaintiff did not do so. The defendants also established that the plaintiff did not exhaust the administrative remedies he was required to exhaust.