Lee Arthur Rice Ii v. Dale Morehouse;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
LEE ARTHUR RICE II,
Plaintiff-Appellant,
v.
DALE MOREHOUSE; et al.,
Defendants-Appellees.
No. 18-35459
D.C. No. 1:13-cv-00441-BLW
MEMORANDUM*
Appeal from the United States District Court
for the District of Idaho
B. Lynn Winmill, District Judge, Presiding
Argued and Submitted November 8, 2019
Portland, Oregon
Before: GILMAN,** PAEZ, and RAWLINSON, Circuit Judges.
Lee Arthur Rice II appeals the district court’s orders excluding his proffered
experts’ testimony from a jury trial in this civil rights case. We have jurisdiction
under 28 U.S.C. § 1291. We review the district court’s imposition of discovery
sanctions under the abuse-of-discretion standard. See Elhouty v. Lincoln Benefit
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable Ronald Lee Gilman, United States Circuit Judge for
the U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
FILED
MAR 8 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Life Co., 886 F.3d 752, 756–57 & n.15 (9th Cir. 2018). For the reasons discussed
below, we affirm.1
Federal Rule of Civil Procedure 26 requires parties to disclose the identity of
an expert witness “at the times and in the sequence that the court orders.” Fed. R.
Civ. P. 26(a)(2). Rule 37 “gives teeth” to Rule 26’s requirements “by forbidding
the use at trial of any information required to be disclosed by Rule 26(a) that is not
properly disclosed.” Yeti by Molly, Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101,
1106 (9th Cir. 2001); Fed. R. Civ. P. 37(c)(1). “Two express exceptions
ameliorate the harshness of Rule 37(c)(1): The information may be introduced if
the parties’ failure to disclose the required information is substantially justified or
harmless.” Yeti by Molly, Ltd., 259 F.3d at 1106. In addition, a district court has
discretion, “on motion and after giving an opportunity to be heard,” to provide
alternative sanctions. Fed. R. Civ. P. 37(c)(1).
Here, Rice disclosed his experts in December 2017, long after the scheduling
order’s September 15, 2014 expert disclosure deadline had passed. Rice argues
that the district court abused its discretion in not finding that Rice’s delay was
“substantially justified.” Rice primarily relies on events that occurred after Rice
missed the expert disclosure deadline, such as delays associated with defendants’
1 Rice also appeals the district court’s order granting partial summary judgment to
defendants, which we reverse in a separate opinion.

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appeals of the denial of qualified immunity. But logically, events occurring after
the expert discovery deadline cannot justify Rice’s failure to meet it.
Rice also points to the district court’s June 2014 order partially granting the
motion for a protective order, but Rice does not explain how the order justifies his
delay. The order permitted Rice to conduct discovery “limited to identifying the
role each defendant played in the events in question.” To the extent that Rice
sought to introduce Dr. Mark Cook as a treating physician, the district court
expressly permitted it as non-expert testimony. Similarly, to the extent that Rice
sought to introduce Dr. James Davidson as an expert on Post Traumatic Stress
Disorder (PTSD), it is not clear how the protective order could have hindered the
development of Davidson’s testimony about Rice’s condition.2 Finally, although
Rice also sought to introduce testimony from two experts on the use of excessive
force, Rice does not explain how the protective order hindered the development of
their testimony or how the protective order substantially justified Rice’s three-year
delay.
In sum, the district court did not abuse its discretion in impliedly finding that
Rice’s untimely expert disclosures were not “substantially justified.” See Elhouty,
2 In any event, Rice’s attorney only recently discovered Rice’s PTSD, and so the
protective order could not have hindered the development of that testimony before
the September 2014 deadline. Rice does not argue here that the recent discovery of
his PTSD substantially justified his delayed disclosure of Dr. Davidson.

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886 F.3d at 756–57. Moreover, because Rice concedes that the exclusion did not
amount to a dismissal of his claims, the district court was not required to consider
lesser sanctions. See R & R Sails, Inc. v. Ins. Co. of Pennsylvania, 673 F.3d 1240,
1247 (9th Cir. 2012). Especially in light of the “particularly wide latitude” we give
to a district court’s imposition of sanctions under Rule 37(c)(1), Yeti by Molly,
Ltd., 259 F.3d at 1106, we decline to disturb the district court’s imposition of
sanctions under that rule here.
AFFIRMED.

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