Strategies, Challenges, and Answers

Computation of Damages Update

In March, 2011, the Nevada Law Blogs described the advantages of consistent enforcement of the discovery rules that require the Plaintiff to disclose and compute their damages.  Fed. R. Civ. P. 26(a)(1)(A)(iii) and Nev. R. Civ. P. 16.1(a)(1)(D).  HERE.  Billed vs. PaidSince that time, a number of courts in Nevada have sanctioned Plaintiffs for untimely disclosure of damages.

In the case of Shakespear v. Wal-Mart Stores, Inc., No. 2:12-cv-01064-MMD-PAL, 2013 U.S. Dist. LEXIS 100644 (D. Nev. July 8, 2013), the court refused Plaintiff’s proffer of opinion testimony disclosed after discovery cut-off that would have allowed Plaintiff a future knee replacement surgery and would have increased medical expenses more than $228,000.  In other similar cases, the court refused to allow the introduction of documents and damages that were untimely disclosed.  Baltodano v. Wal-Mart Stores, Inc., No. 2:10-cv-2062-JCM-RJJ, 2011 U.S. Dist. LEXIS 98306 (D. Nev. Aug. 31, 2011); Olaya v. Wal-Mart Stores, Inc., No. 2:11-cv-997-KJD-CWH, 2012 U.S. Dist. LEXIS 111079 (D. Nev. Aug. 7, 2012).

Another recent is Patton v. Wal-Mart Stores, Inc., No. 2:12-cv-02142-GMN-VCF, 2013 U.S. Dist. LEXIS 165689 (D. Nev. Nov. 19, 2013).  In that case, the court rejected arguments that the defendant knew or should have known that Plaintiff’s expert future surgery opinion would be coming and therefore Defendants were therefore not prejudiced. Most recent is the case of Smith v. Wal-Mart Stores, Inc., No. 2:13-cv-1597-MMD-VCF, 2014 U.S. Dist. LEXIS 97175 (D. Nev. July 16, 2014).  There, the court sanctioned the Plaintiff by refusing to allow admission of future care.

If you have questions about whether damages have been properly and timely disclosed, feel free to contact Mike Mills at 702-240-6060 x114.  He will be glad to talk to you.

About Michael Mills

Mr. Mills practices in the area of civil litigation and appeals, with particular experience in matters involving trucking liability, insurance defense, insurance coverage, premises liability, products liability and defense of personal injury. Mr. Mills is a member of the Trucking Insurance Defense Association, the Defense Research Institute Trucking Committee and the Nevada Motor Transport Association. Mr. Mills is licensed to practice before the Nevada Supreme Court and the Utah Supreme Court. He is also licensed to appear before the United States Supreme Court, the U.S. District Courts for the Districts of Nevada and Utah, as well as the U.S. Court of Appeals for the Ninth Circuit. Mr. Mills has created 3 Blogs for the benefit of the insurance industry. He serves as editor and publisher of the Nevada Insurance Law Blog, the Nevada Coverage and Bad Faith Blog and the Nevada Trucking Law Blog.

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