Experts — Abusive Supplementation of Report — Rule 37(c) Exclusion of New Damages Evidence and Theories That Constituted Not Mere Supplementation But Untimely New Opinion

Munchkin, Inc. v. Playtex Products, LLC, 2015 U.S. App. LEXIS 13424 (9th Cir. July 31, 2015):

The district court also acted within its discretion when it determined that Munchkin failed to comply with its obligations under Fed. R. Civ. P. 26 and when it fashioned an exclusion sanction [*3]  pursuant to Fed R. Civ. P. 37. Although it is true that Rule 26(e) contemplates the supplementation of disclosures, "[s]upplementation under the Rules means correcting inaccuracies, or filling . . . interstices." Keener v. United States, 181 F.R.D. 639, 640 (D. Mont. 1998); see also Luke v. Family Care & Urgent Med. Clinics, 323 F. App'x 496, 500 (9th Cir. 2009). Munchkin's extensive new damages evidence and theories were not a mere supplementation within the meaning of the Rules. The district court, having concluded that a violation of Rule 26 occurred, did not abuse its discretion in excluding the evidence pursuant to Rule 37.1

 Our Rule 37 case law does provide that a party has the right not to have its damages evidence excluded, where that exclusion "amount[s] to dismissal of a claim," absent a finding that the "noncompliance involved willfulness, fault, or bad faith." R & R Sails, Inc. v. Ins. Co. of Pa., 673 F.3d 1240, 1247 (9th Cir. 2012). The record indicates no objection made by Munchkin on this basis before the district court, nor was this argument "raised clearly and distinctly in the opening brief" on appeal. McKay v. Ingleson, 558 F.3d 888, 891 n.5 (9th Cir. 2009); see also Crawford v. Lungren, 96 F.3d 380, 389 n.6 (9th Cir. 1996). Any such argument is waived. There is evidence that the district court would have made the requisite finding if the issue had been raised, and the record supports the conclusion that only Munchkin and its counsel were responsible for the late disclosures.

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