FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PAMELA GOODMAN, an unmarried
individual,
Plaintiff-Appellant, No. 10-15021
v.
D.C. No.
2:08-cv-00445-JAT
STAPLES THE OFFICE SUPERSTORE,
LLC, a Delaware limited liability OPINION
company; DOES, I-X,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Arizona
James A. Teilborg, District Judge, Presiding
Argued and Submitted
December 6, 2010—San Francisco, California
Filed May 3, 2011
Before: Robert E. Cowen,* A. Wallace Tashima, and
Barry G. Silverman, Circuit Judges.
Opinion by Judge Silverman;
Concurrence by Judge Tashima
*The Honorable Robert E. Cowen, Senior United States Circuit Judge
for the Third Circuit, sitting by designation.
5709
5712 GOODMAN v. STAPLES
COUNSEL
Jeffrey S. Kaufman (argued), Jeffrey S. Kaufman, Ltd.,
Scottsdale, Arizona, for the appellant.
GOODMAN v. STAPLES 5713
Jeffry A. Miller (argued), Matthew B. Stucky, and Carl F.
Mariano of Lewis Brisbois Bisgaard & Smith LLP, San
Diego, California and Phoenix, Arizona, for the appellee.
OPINION
SILVERMAN, Circuit Judge:
Federal Rule of Civil Procedure 26(a)(2) requires a party to
timely disclose a written report of a witness “if the witness is
one retained or specially employed to provide expert testi-
mony in the case . . . .” Generally speaking, treating physi-
cians are excused from this requirement. They are a species
of percipient witness. They are not specially hired to provide
expert testimony; rather, they are hired to treat the patient and
may testify to and opine on what they saw and did without the
necessity of the proponent of the testimony furnishing a writ-
ten expert report.
In this case, the plaintiff’s treating doctors not only ren-
dered treatment, but after the treatment was concluded, these
very same doctors were provided with additional information
by plaintiff’s counsel and were asked to opine on matters out-
side the scope of the treatment they rendered. The district
court ruled that these physicians would be allowed to testify
to the opinions they formed in the course of caring for the
patient, but because no Rule 26 expert witness report had
been provided, the court precluded the treating doctors from
testifying to opinions they formed afterward, opinions solic-
ited from them solely for the purposes of the litigation.
We hold today that when a treating physician morphs into
a witness hired to render expert opinions that go beyond the
usual scope of a treating doctor’s testimony, the proponent of
the testimony must comply with Rule 26(a)(2). However,
because the law regarding these hybrid experts was not set-
5714 GOODMAN v. STAPLES
tled, and because treating physicians are usually exempt from
Rule 26(a)(2)’s requirements, we exercise our discretion to
apply this clarification prospectively.
I. Background
On the afternoon of May 9, 2007, Goodman and her busi-
ness associate Jean Adams went to Staples in Scottsdale to
purchase office supplies. The store was being remodeled, but
it was open to the public. As she went to leave the store,
Goodman turned a corner at the end of an aisle. She tripped
on an “end cap” and fell.1
Goodman remained lying on the floor until paramedics
arrived at the store. She was never unconscious. The parame-
dics took her by ambulance to Scottsdale Healthcare Emer-
gency Department, where she complained of head, neck, and
foot pain and of tingling in her arm. Goodman told the ER
doctor that she thought she hit her head on the floor when she
fell. According to Scottsdale Healthcare records, a CT scan of
Goodman’s head and cervical spine showed no fractures or
subluxations and showed that the fusion plates in her neck
from a cervical spinal fusion surgery six weeks earlier
remained intact. She was diagnosed with acute closed-head
injury, neck pain, and left foot contusion, given a prescription
for pain medication, and discharged with instructions to fol-
low up with her physician back home in California.
Four days after the fall, Goodman went to the emergency
room at Century City Doctors Hospital in Los Angeles, com-
plaining of severe neck pain. An x-ray taken while Goodman
was in the emergency room showed no fracture, subluxation,
or swelling to her cervical spine. She stayed in the hospital for
six days until the pain subsided.
1
An “end cap” is a merchandise display area located at the end of a row
of merchandise display shelves, with a display area or shelves perpendicu-
lar to the shelves along the row.
GOODMAN v. STAPLES 5715
A couple months later, on July 26, 2007, Goodman
returned to the doctor in Los Angeles who had performed her
spinal fusion surgery. She told the doctor she had experienced
severe neck pain since her fall at Staples. An MRI and CT
scan were obtained, which revealed a fracture line adjacent to
the fusion plate. Goodman was admitted to the hospital and
underwent fusion revision surgery on July 31, 2007. The sur-
geon’s operative report states that magnification during sur-
gery confirmed the fracture.
Over the next few months, despite treatment by a pain man-
agement specialist, Goodman’s neck pain persisted. She was
re-admitted to the hospital on January 17, 2008, and under-
went another fusion revision surgery on January 22.
On February 7, 2008, Goodman filed a complaint against
Staples in Maricopa County Superior Court. Goodman alleged
that Staples negligently allowed an unreasonably dangerous
condition to exist in their store, resulting in her fall over the
end cap. Staples removed the case to federal court based on
complete diversity between the parties.
The district court issued a scheduling order that established
deadlines for the exchanges of initial disclosures and expert
disclosures and set a discovery cut-off date. On May 21,
2008, Goodman provided Staples with her initial disclosures,
identifying a number of her healthcare providers as potential
witnesses. On November 7, 2008, the deadline for plaintiff
expert disclosures, Goodman disclosed the identities and cur-
ricula vitae of two experts: Dr. Gary Bakken, a “human fac-
tors” expert, and Alex Balian, a store safety expert. She also
provided a list of those of her healthcare providers whom she
intended to call as expert witnesses. The list of providers
included the name of the doctor or institution, the dates of ser-
vice, and the bill amount. Goodman’s disclosures did not
include written reports by any experts.
A week later, after the deadline for her expert disclosures
had already passed, Goodman disclosed two additional non-
5716 GOODMAN v. STAPLES
medical experts: Dr. Glenn Wilt, an economist, and Gretchen
Bakkenson, a vocational consultant. This disclosure included
the experts’ contact information and one-paragraph summa-
ries of the topics on which Goodman expected them to testify.
The disclosures did not include the experts’ written reports.
On February 13, 2009, the deadline for defense expert dis-
closures, Staples disclosed the identity and written reports of
three experts: Dr. William Horsley, a radiologist; Dr. Zoran
Maric, a spine surgeon; and Michael Kuzel, a human factors
expert.
On March 30, 2009, the deadline for plaintiff rebuttal
expert disclosures, Goodman disclosed written reports for pre-
viously identified non-medical experts Bakken, Balian, and
Wilt. She also identified a number of rebuttal experts: Dr.
Todd Lanman, Goodman’s spinal surgeon; Dr. Mohammed
Shamie, a psychiatrist; Dr. Natan Shaoulian, a neurologist;
Dr. Daniel Wallace, Goodman’s rheumatologist; and Dr.
Behboush Zarrini, a pain management specialist.
Staples moved to preclude all of Goodman’s experts as
improperly disclosed. The district court granted Staples’
motion in part, striking Bakken and Balian as witnesses and
restricting Wilt’s testimony to rebuttal. The court deferred rul-
ing on the motion with respect to Goodman’s medical experts.
Goodman subsequently filed a “Motion for Clarification of
Prior Court Orders re Plaintiff’s Witnesses.” She asked the
court to allow her healthcare providers, who she had disclosed
as rebuttal experts, to testify in her case-in-chief and to allow
Bakken and Balian to testify on rebuttal. After additional oral
argument, the court clarified its earlier order, stating that Bak-
ken, Balien, and Wilt were precluded from testifying in Good-
man’s case-in-chief but were not precluded from testifying on
rebuttal. With respect to Goodman’s healthcare providers, the
court limited their case-in-chief testimony to opinions actually
developed during the course of their treatment of Goodman,
GOODMAN v. STAPLES 5717
as evidenced by their office notes, hospital records, and con-
sultation reports, giving the following rationale in its Decem-
ber 10, 2009 order:
[U]nder Federal Rules of Civil Procedure
26(a)(2)(B), the disclosure of an expert witness must
be accompanied by a written report discussing the
opinion of the expert, including the basis for the
opinion. . . . In this case, Goodman failed to include
any written reports of her retained experts in accor-
dance with the deadlines imposed by this Court. . . .
Rule 26(a)(2)(B) exempts from the requirement of
a written report only those [experts] not “specifically
retained to provide expert testimony in the case or
one whose duties as the party’s employee regularly
involve giving expert testimony.” . . . A treating phy-
sician is an expert and to the extent he or she treated
the plaintiff, diagnosed the conditions and reached a
prognosis, that testimony is not testimony for which
the expert has been specially retained. But once the
lawyer for the claimant undertakes to elicit an opin-
ion whether a particular traumatic event caused the
condition as opposed to another cause, the expert has
been transformed into the same type of expert envi-
sioned by the report requirement. . . .
The court did not preclude or limit any testimony the doctors
might be called upon to give in rebuttal.
After the district court clarified its order regarding the lim-
its on Goodman’s experts’ testimony, Staples moved for sum-
mary judgment. On the same day that Staples moved for
summary judgment, Goodman filed a number of motions in
limine and moved for reconsideration of the court’s order lim-
iting her healthcare providers’ case-in-chief testimony. In
granting Staples’ motion for summary judgment, the district
court ruled that Goodman had not established a breach of duty
5718 GOODMAN v. STAPLES
by Staples, holding that the condition of the end cap was open
and obvious as a matter of law. It also ruled that, even assum-
ing a breach of duty, Goodman had not come forward with
evidence proving that her injuries were caused by her fall
because, as previously noted, her treating physicians had been
precluded from opining on causation due to Goodman’s fail-
ure to comply with disclosure requirements.
Goodman now appeals the district court’s order.
II. Discussion
A. Standard of Review
We review the district court’s grant of summary judgment
de novo. Bagadi v. Nazar, 84 F.3d 1194, 1197 (9th Cir. 1996).
We must determine, viewing the evidence in the light most
favorable to the nonmoving party, whether genuine issues of
material fact exist and whether the district court correctly
applied the relevant substantive law. Id. (citing Warren v. City
of Carlsbad, 58 F.3d 439, 441 (9th Cir. 1995)).
We review the district court’s rulings concerning discovery,
including the imposition of discovery sanctions, for abuse of
discretion. Halaco Eng’g Co. v. Costle, 843 F.2d 376, 379
(9th Cir. 1988). But to the extent the imposition of sanctions
turns on the resolution of an issue of law, review is de novo.
See Palmer v. Pioneer Inn Assocs., Ltd., 338 F.3d 981, 985
(9th Cir. 2003).
B. Grant of Summary Judgment in Favor of Staples
[1] To establish a claim of negligence under Arizona law,
a plaintiff must prove that (1) defendant owed plaintiff some
duty, (2) defendant breached that duty, (3) defendant’s breach
caused plaintiff’s injuries, and (4) plaintiff sustained actual
damages. Gipson v. Kasey, 150 P.3d 228, 230 (Ariz. 2007).
The district court granted summary judgment for Staples on
GOODMAN v. STAPLES 5719
the grounds that Goodman failed to establish (1) that Staples
breached its duty to Goodman and (2) that Goodman’s inju-
ries were caused by her fall, both essential elements of her
claim. Because we hold that Goodman raised triable issues of
fact as to both of these elements, we reverse the district
court’s grant of summary judgment.
1. Breach of Duty
“Whether the defendant has met the standard of care—that
is, whether there has been a breach of duty—is an issue of
fact that turns on the specifics of the individual case.” Id. A
plaintiff can establish a breach of duty by a business owner
by proving that the owner or his employees created a danger-
ous condition on the business premises. Walker v. Montgom-
ery Ward & Co., 511 P.2d 699, 702 (Ariz. Ct. App. 1973).
Generally, a business owner is not liable to an invitee for inju-
ries from dangerous conditions that are open and obvious.
Tribe v. Shell Oil Co., 652 P.2d 1040, 1042 (Ariz. 1982) (cit-
ing Daugherty v. Montgomery Ward, 428 P.2d 419 (Ariz.
1967)). But a finding that a condition is open and obvious
does not automatically preclude liability. “[I]f the proprietor
should anticipate the harm from the condition despite its obvi-
ousness, he may be liable for physical injury caused by that
condition.” Id. If the business owner has reason to expect
harm to the invitee because, for example, the invitee is likely
to be distracted, then duty may require him to warn the invitee
or take other steps to protect him. Id. (citing Restatement
(Second) of Torts § 343A, comment f (1965)).
Here, the district court concluded that Goodman failed to
establish the existence of a dangerous condition, and that she
therefore could not prove any breach of duty by Staples. The
court reviewed photos of the end cap and found that it was “of
enough size and area to remain visible.” The court also noted
that the person walking immediately in front of Goodman—
her business associate, Adams—successfully navigated the
end cap. According to the district court, the end cap was not
5720 GOODMAN v. STAPLES
unreasonably dangerous as a matter of law because it was
open and obvious.
[2] Goodman argues that the district court erred in con-
cluding that the end cap was not unreasonably dangerous as
a matter of law. We agree. In Arizona, whether a hazard is
open and obvious is almost always a jury question; breach of
duty is a factual issue usually decided by the jury. Gipson,
150 P.3d at 230. A court may decide that the defendant did
not breach his duty as a matter of law only when reasonable
people could not conclude otherwise. Flowers v. K-Mart
Corp., 616 P.2d 955, 957 (Ariz. Ct. App. 1980) (citing Moore
v. Maricopa Cnty., 466 P.2d 56 (Ariz. Ct. App. 1970)).
[3] We have reviewed the photos of the end cap on which
the district court relied. It appears that the end cap was a few
inches off the ground. At the time of Goodman’s fall, there
was no merchandise or shelving above the base deck.
Although the end cap was bordered on two sides by contrast-
ing dark-colored carpet, a third side was bordered by linoleum
in a beige color similar to the base deck. Of course, when the
end cap is depicted as the sole subject of a photograph, it
appears obvious. But the picture does not necessarily rebut
Goodman’s testimony that the empty bottom shelf close to the
floor, surrounded by other fully-stocked shelves higher up,
created a sort of optical illusion. Nor was the photo taken
from Goodman’s vantage point as she encountered the end
cap. This poses a quintessential jury question.
Moreover, even if the end cap were open and obvious, its
open and obvious nature does not automatically preclude lia-
bility. See Tribe, 652 P.2d at 1042. In Tribe, the Arizona
Supreme Court reversed a grant of summary judgment in
favor of the defendant in a negligence case involving a slip
and fall at a gas station. The plaintiff and her daughter stepped
up approximately six inches onto the sidewalk where the sta-
tion’s water fountain was located. Id. After getting a drink,
while cautioning her daughter about passing traffic, the plain-
GOODMAN v. STAPLES 5721
tiff stepped off a sixteen inch step in front of the sidewalk and
fell, shattering her wrist. Id. Despite the fact that the higher
step was painted a contrasting color, the court held that it was
up to a jury to decide whether the step was open and obvious
and whether the station owner should have anticipated that the
step might cause injuries. Id. Writing for a unanimous Ari-
zona Supreme Court, Justice Bales recently confirmed that
foreseeability of harm may be a factor in determining whether
a defendant breached his duty of care. Gipson, 150 P.3d at
231 (holding that foreseeability is a factor in determining the
nature and extent of conduct necessary to fulfill the duty, and
as such is a factual inquiry reserved for the jury).
Here, a jury could conclude that Staples knew or should
have known that the empty end cap could cause harm. Stores
encourage shoppers to look at merchandise, not at the floor.
A Staples employee testified that his manager trained him not
to leave end caps completely empty—no shelves or
merchandise— because of safety concerns. Another employee
testified that Staples trained him to make sure items in aisles
were at least navel-high so they could be obviously seen.
There is evidence from which a reasonable person could con-
clude that Staples should have anticipated that a customer
might not notice the end cap under the circumstances and
might fall and injure herself.
[4] Genuine issues of material fact exist as to whether the
end cap was an open and obvious condition and, even assum-
ing obviousness, whether Staples should have anticipated the
danger nevertheless. We hold that the district court erred in
concluding as a matter of law that no unreasonably dangerous
condition existed at the time of Goodman’s fall.
2. Causation
Under Arizona law, causation is an essential element of a
negligence claim. Id. It is not sufficient for a plaintiff to prove
that her injuries might have been caused by the defendant’s
5722 GOODMAN v. STAPLES
breach of duty; instead, the plaintiff must prove that the
breach probably caused her injuries. See Kreisman v. Thomas,
469 P.2d 107, 110 (Ariz. Ct. App. 1970) (affirming trial
court’s directed verdict for the defendant after close of plain-
tiff’s case because plaintiff failed to establish breach of duty
and causation). Causation is normally an issue for the jury.
Gipson, 150 P.3d at 230.
Here, Goodman alleges that her fall at Staples resulted in
a fracture to the fusion mass in her cervical spine, causing
severe pain and necessitating fusion revision surgery. She also
alleges that her injuries from the fall led to psychiatric prob-
lems, including depression, anxiety, and stress. To succeed in
her negligence claim against Staples, she would have to prove
that these injuries probably resulted from her fall. However,
the district court prohibited her medical experts from testify-
ing about causation in her case-in-chief due to her failure to
comply with expert disclosure rules.
[5] Rule 26 of the Federal Rules of Civil Procedure
requires parties to disclose the identity of any expert witness.
If the expert is “one retained or specially employed to provide
expert testimony in the case or whose duties as the party’s
employee regularly involve giving expert testimony,” the dis-
closure must be accompanied by a written report containing
(1) a complete statement of the expert’s opinions and their
bases, (2) the information relied upon by the expert in form-
ing the opinions, (3) all exhibits to be used to summarize or
support the opinions, (4) the expert’s qualifications and list of
publications, (5) a list of cases in which the expert testified,
and (6) a statement of the expert’s compensation. Fed. R. Civ.
P. 26(a)(2)(B). Generally, a treating physician is not “retained
or specially employed to provide expert testimony”—a treat-
ing physician is a percipient witness of the treatment he
rendered—and therefore he is not subject to the written report
requirement. Fed. R. Civ. P. 26(a)(2) advisory committee’s
note (1993).
GOODMAN v. STAPLES 5723
[6] The issue of when, if ever, a treating physician is trans-
formed into an expert offering testimony on matters beyond
the treatment rendered, for purposes of Rule 26 disclosures,
is an issue of first impression for us. Goodman argues that
Rule 26 does not require a written report before a treating
physician testifies to virtually anything. In response, Staples
acknowledges that written reports may not always be required
of treating physicians, but argues that this exception to the
written report requirement applies only when the treating phy-
sician formed his opinion during the course of treatment.
Goodman relies primarily on a decision from the Sixth Cir-
cuit in support of her argument that treating physicians do not
need to provide written reports. In Fielden v. CSX Transpor-
tation, Inc., 482 F.3d 866 (6th Cir. 2007), the Sixth Circuit
held that “a report is not required when a treating physician
testifies within a permissive core on issues pertaining to treat-
ment, based on what he or she learned through actual treat-
ment and from the plaintiff’s records up to and including that
treatment.” Id. at 871. Staples also relies on Fielden, but as
supporting its argument that Rule 26 requires a treating physi-
cian to disclose a written report unless evidence shows that
the physician formed his opinion during the course of treat-
ment.
We agree with Staples that Fielden does not stand for the
proposition that a treating physician never has to disclose an
expert report. Id. at 870 (noting the concern that permitting
treating physicians to testify in all circumstances without pro-
viding expert reports would circumvent the policies underly-
ing Rule 26(a)(2)(B)). Instead, the Fielden court concluded
that evidence in the record showed that the physician in ques-
tion had formed his opinion as to causation during the course
of treatment. Id. at 871. Although the court did not elaborate
on the type of evidence on which it relied in concluding that
the physician formed his opinion during the course of treat-
ment, it did distinguish Fielden from an unpublished Sixth
Circuit case where there was “no evidence that the treating
5724 GOODMAN v. STAPLES
physician reached the same conclusions regarding causation
at the time he treated the patient.” Id. (citing Mohney v. USA
Hockey, Inc., 138 F. App’x 804, 811 (6th Cir. 2005)) (internal
quotation marks and brackets omitted).
[7] In addition to the Sixth Circuit, other courts hold that
Rule 26 requires parties to disclose a treating physician’s
written report in the absence of some evidence that the physi-
cian formed his opinion during the course of treatment. The
Seventh Circuit recently held that a treating physician who is
offered to provide expert testimony as to the cause of the
plaintiff’s injury, but who did not make that determination in
the course of providing treatment, is required to submit an
expert report under Rule 26(a)(2). Meyers v. Nat’l R.R. Pas-
senger Corp., 619 F.3d 729, 734-35 (7th Cir. 2010) (affirming
grant of summary judgment where no evidence in the record
suggested that plaintiff’s doctors considered or determined the
cause of his injuries during the course of treatment). The
Eighth Circuit goes further, requiring disclosure of a written
report any time a party seeks to have a treating physician tes-
tify as to the causation of a medical condition, as opposed to
merely the existence of the condition. Brooks v. Union Pac.
R.R. Co., 620 F.3d 896, 900 (8th Cir. 2010) (affirming grant
of summary judgment because, without expert testimony as to
causation, plaintiff could not prove an essential element under
the Federal Employers Liability Act). District courts within
this circuit have limited treating physician testimony to opin-
ions formed during the course of treatment when the party
seeking admission of the testimony disclosed no expert report.
See, e.g., Durham v. Cnty. of Maui, No. 08-00342, 2010 WL
2640117, at *8 (D. Haw. June 30, 2010); Armatis v. Owens-
Brockway Glass Container, Inc., No. S-08-2538, 2010 WL
148692, at *1 (E.D. Cal. Jan. 14, 2010); J.W. v. City of
Oxnard, No. CV 07-06191, 2008 WL 4810298, at *7 (C.D.
Cal. Oct. 27, 2008); Vines v. United States, No. 2:05-cv-
02370, 2008 WL 4470795, at *3 (E.D. Cal. Oct. 2, 2008);
Headley v. Ferro Corp., 630 F. Supp. 2d 1261, 1266-67
(W.D. Wash. 2008).
GOODMAN v. STAPLES 5725
[8] Today we join those circuits that have addressed the
issue and hold 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.
Goodman specifically retained a number of her treating physi-
cians to render expert testimony beyond the scope of the treat-
ment rendered; indeed, to form their opinions, these doctors
reviewed information provided by Goodman’s attorney that
they hadn’t reviewed during the course of treatment.2 For
these reasons, we agree with the district court that those doc-
tors fell outside the scope of the “treating physician” excep-
tion insofar as their additional opinions are concerned.
Therefore, Rule 26(a)(2)(B) required disclosure of written
reports. By failing to provide these reports until long after the
deadline for plaintiff’s expert disclosures had passed, Good-
man failed to comply with Rule 26’s disclosure requirements.
[9] When a party fails to make the disclosures required by
Rule 26(a), the party is not allowed to use the witness to sup-
ply evidence at trial unless it establishes that the failure was
substantially justified or is harmless. Fed. R. Civ. P. 37(c)(1);
see also Torres v. City of L.A., 548 F.3d 1197, 1212-13 (9th
Cir. 2008) (citing Yeti by Molly, Ltd. v. Deckers Outdoor
Corp., 259 F.3d 1101, 1106 (9th Cir. 2001)). Although we
agree with the district court that Goodman failed to comply
with Rule 26(a) when she did not timely disclose expert
reports for her medical experts, we must also acknowledge
2
Goodman’s attorney wrote to a number of Goodman’s physicians
enclosing a “Subjective Summary of Pamela Goodman’s Condition
Regarding Injury of May 9, 2007,” a large number of unidentified medical
records, the reports of Staples’ medical experts, MRI and CT scan images,
and, “perhaps other materials.” Goodman’s attorney asked the physicians
to opine on the injuries caused by Goodman’s fall “NOT ONLY based on
your own observations but also based upon your understanding of the
patient’s medical records as well.” The physicians’ rebuttal expert reports
—i.e. their letters to the attorney answering his questions—do not distin-
guish between opinions based on observations made during the course of
treatment and those based on a review of the records sent by the attorney.
5726 GOODMAN v. STAPLES
that the law regarding the scope of the “treating physician”
exception in the hybrid expert situation was unsettled in this
circuit before today. While we do not fault the district court
for its ruling limiting Goodman’s physicians’ testimony, we
think that fairness counsels in favor of applying our newly-
clarified rule regarding hybrid experts prospectively. Under
the circumstances, it would be unjust to allow Goodman’s
mistake about a previously unsettled point of law to be the
coup de grâce to her case.
[10] Because we hold, as a matter of discretion, that Good-
man should be allowed to rectify her error by disclosing
reports for her treating physicians, we reverse the district
court’s summary judgment ruling on causation.
C. Denial of Goodman’s Motion for Reconsideration
Regarding Testimony of Non-Medical Experts
Goodman also appeals the district court’s decision to pre-
clude her non-medical experts from testifying in her case-in-
chief. Goodman disclosed the identities of Dr. Gary Bakken,
a “human factors” expert, and Alex Balian, a store safety
expert, on November 7, 2008, the deadline for plaintiff’s
expert disclosures. A week later, Goodman disclosed the iden-
tities of two additional experts: Dr. Glenn Wilt, an economist,
and Gretchen Bakkenson, a vocational consultant. But she
failed to provide these experts’ reports until four-and-a-half
months after the deadline: on March 30, 2009, after Staples’
deadline for disclosing defense experts had expired, and on
the deadline for disclosure of plaintiff’s rebuttal experts,
Goodman finally produced reports for her non-medical
experts. Staples filed a motion asking the court to preclude
improperly disclosed experts under Rule 37, which the district
court granted as to Goodman’s non-medical experts, allowing
them to testify only on rebuttal.
As discussed above, Rule 26 of the Federal Rules of Civil
Procedure requires the parties to disclose the identities of each
GOODMAN v. STAPLES 5727
expert and, for retained experts, requires that the disclosure
includes the experts’ written reports. Fed. R. Civ. P. 26(a)(2).
Parties must make these expert disclosures at the times and in
the sequence that the court orders. Id. Rule 37 “gives teeth”
to Rule 26’s disclosure requirements by forbidding the use at
trial of any information that is not properly disclosed. Yeti by
Molly Ltd., 259 F.3d at 1106 (citing Fed. R. Civ. P. 37(c)(1)).
Rule 37(c)(1) is a “self-executing,” “automatic” sanction
designed to provide a strong inducement for disclosure. Id.
(quoting Fed. R. Civ. P. 37 advisory committee’s note
(1993)). The only exceptions to Rule 37(c)(1)’s exclusion
sanction apply if the failure to disclose is substantially justi-
fied or harmless. Fed. R. Civ. P. 37(c)(1).
[11] The district court did not abuse its discretion in decid-
ing that Goodman’s failure to comply with Rule 26 with
respect to her non-medical experts was neither substantially
justified nor harmless. Goodman has never argued that the
failure was substantially justified; indeed, in her opposition to
Staples’ motion to preclude improperly disclosed experts, her
attorney admitted that he simply failed to read the court’s
scheduling order and didn’t realize that Goodman needed to
disclose expert reports. Goodman’s failure to comply with
Rule 26 with respect to her non-medical experts was not sub-
stantially justified.
Nor has Goodman shown that the delay was harmless. The
burden to prove harmlessness is on the party seeking to avoid
Rule 37’s exclusionary sanction. Yeti by Molly Ltd., 259 F.3d
at 1107. Goodman disclosed her expert reports more than a
month after Staples’ expert disclosure deadline had already
passed. Because Goodman had not yet disclosed any expert
reports, Staples made its decisions regarding defense experts
under the belief that Goodman’s non-medical experts would
not be testifying in her case-in-chief. Staples’ experts devel-
oped their opinions and wrote their reports without knowing
the scope of Goodman’s experts’ opinions. Staples did not
disclose an economist at all, because it thought Goodman
5728 GOODMAN v. STAPLES
would not be presenting an economist in her case-in-chief.
The district court found that this was “obvious prejudice,” and
we agree.
[12] Because Goodman’s failure to disclose her non-
medical experts’ reports in a timely manner was neither sub-
stantially justified nor harmless, the district court did not
abuse its discretion in precluding those experts from testifying
in Goodman’s case-in-chief. We affirm the denial of Good-
man’s motion for reconsideration with respect to this issue.
D. Motions In Limine
Goodman appeals the district court’s denial as moot of (1)
her motion in limine to prohibit Staples from contesting the
reasonableness and necessity of her medical bills and (2) Sta-
ples’ motion in limine to exclude medical bills disclosed after
the close of discovery. The district court denied these motions
as moot after granting summary judgment for Staples. These
motions were not passed upon below and we decline to
address them. See Singleton v. Wulff, 428 U.S. 106, 120
(1976). Because we reverse the district court’s grant of sum-
mary judgment, we remand for the district court to rule on
these motions in the first instance.
III. Conclusion
Accordingly, we REVERSE the district court’s order grant-
ing summary judgment in favor of Staples, AFFIRM the
denial of Goodman’s motion for reconsideration of the district
court’s order limiting the testimony of Goodman’s non-
medical experts, and REMAND for further proceedings con-
sistent with this opinion. Each side shall bear its own costs.
AFFIRMED in part; REVERSED in part and
REMANDED.
GOODMAN v. STAPLES 5729
TASHIMA, Circuit Judge, concurring:
Although I concur in all of the majority opinion, I write
separately to explain why I do not disagree with the majori-
ty’s conclusion that “fairness counsels in favor of applying
our newly-clarified rule regarding hybrid experts prospective-
ly.” Maj. Op. at 5726. The question is whether this case pres-
ents the appropriate circumstances in which to exercise our
discretion to allow “Goodman . . . to rectify her error by dis-
closing reports for her treating physicians.” Id. at 5726.
The broader question is when an appellate court’s ruling
should be a “purely prospective” one that does not apply to
the parties before it, contrary to the generally applicable rule.
See James B. Beam Distilling Co. v. Georgia, 501 U.S. 529,
536 (1991). We are told that we should declare rulings to be
purely prospective only “infrequently.” Id. Courts consider
three factors in determining whether a decision should be
applied nonretroactively: (1) whether the decision “estab-
lish[es] a new principle of law, either by overruling clear past
precedent on which litigants may have relied, or by deciding
an issue of first impression whose resolution was not clearly
foreshadowed;” (2) whether applying the rule retroactively
will further or retard its operation; and (3) whether retroactive
application will create substantial inequitable results. See
Chevron Oil Co. v. Huson, 404 U.S. 97, 106-07 (1971) (inter-
nal citations omitted); see also N. Pipeline Constr. Co. v.
Marathon Pipe Line Co., 458 U.S. 50, 87-88 (1982); Holt v.
Shalala, 35 F.3d 376, 380 (9th Cir. 1994); Usher v. City of
L.A., 828 F.2d 556, 559-60 (9th Cir. 1987).
These Chevron Oil factors are so open ended that they can
be applied to justify prospective application in virtually any
case where a “new” rule or interpretation of a rule is
announced. In practice, it appears to be a matter wholly within
the discretion of the panel to conclude that “[u]nder the cir-
cumstances, it would be unjust to allow Goodman’s mistake
about a previously unsettled point of law to be the coup de
5730 GOODMAN v. STAPLES
grace to her case.” Maj. Op. at 5726. Here, the Chevron Oil
factors can be applied either to support retroactive application
or to justify purely prospective application. Despite my mis-
givings at so open ended a rule, however, I conclude that this
is a matter within the panel’s broad discretion and the panel’s
decision to so exercise its discretion is not inconsistent with
applicable case law.
Therefore, although this does not appear to me to be the
unusual case in which the prospective application rule should
be “infrequently” applied, I reluctantly concur in the panel’s
prospective only adoption of the hybrid expert disclosure rule.
I concur without reservation in the remainder of the majority
opinion.