Balazhi et al v. Allstate Property and Casualty Insurance Company

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
LJUMNIE BALAZHI, for herself and on
behalf of her Minor Child, A.B., and as
Personal Representative of the Estate of
Shaziman Balazhi,
Plaintiffs,
v.
ALLSTATE PROPERTY AND CASUALTY
INSURANCE COMPANY,
Defendant.
Case No. 3:19-cv-00241-JMK
ORDER ON DEFENDANT’S MOTION
TO STRIKE PLAINTIFFS’ TRIAL
WITNESS LIST
(Docket 205)
Before the Court at Docket 205 is Defendant Allstate Property and Casualty
Insurance Company’s Motion to Strike Plaintiffs’ Trial Witness List. The motion is opposed.1 The
Court heard oral argument on the motion at a Continued Final Pre-Trial Conference held on
January 3, 2023. 	Having issued a basic summary of its ruling from the bench, the Court now
supplements its ruling with this written order. 	An additional conference on these matters is
scheduled for the morning of Friday, January 6, 2023.2
1 Docket 216 (Opposition); Docket 215 (Reply). Defendant’s opposition originally was
filed at Docket 213.
2 At Tuesday’s Continued Final Pretrial Conference, the Court told the parties that they
should prepare to discuss objections to the proposed jury instructions at the Friday conference.
However, due to a change in the Court’s schedule, the Court will postpone discussion of the jury
instructions until the morning of Monday, January 9, 2023.
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Balazhi v. Allstate Prop. & Cas. Ins. Co. 	Case No. 3:19-cv-00241-JMK
Order on Defendant’s Motion to Strike Plaintiffs’ Trial Witness List 	Page 2
DISCUSSION
On December 19, 2022, Plaintiffs filed a Final Witness List that includes fifty
witnesses.3 	Allstate has moved to strike the list on multiple grounds: 	(1) it contains witnesses
whom, by virtue of the limited duration of the trial, Plaintiffs almost certainly will not call to testify
in violation of the Court’s Trial Scheduling Order4; (2) it contains myriad witnesses whose
testimony would appear to be duplicative; (3) it contains certain witnesses whose testimony must
be struck under Federal Rule of Evidence 401 or 403; (4) it contains nineteen treating physicians
and medical providers that Plaintiffs did not properly disclose under Federal Rule of Civil
Procedure 26(a)(2)(B) or 26(a)(2)(C).
Plaintiffs oppose. First, Plaintiffs maintain that they intend to call most witnesses
on the Final Witness List, but acknowledge that the list contains “medical providers who they
intend to call to trial in the event of another provider’s unavailability.”5 Plaintiffs also argue that
the testimony will not be duplicative, but that regardless, Allstate’s request is premature.6 Finally,
Plaintiffs assert that they disclosed the treating physicians in their initial witness list over three
years ago, along with the topics on which each physician would testify. It is unclear to the Court
whether Plaintiffs argue that this satisfies the requirements of Rule 26(a)(2)(C), or that if there
were a violation, Allstate has suffered no prejudice. Plaintiffs do not address the specific witnesses
Allstate moves to strike under Rule 403.
3 Docket 203.
4 See Docket 179 (“This trial witness list will disclose only those witnesses whom the
party will in fact call at trial.”).
5 Docket 216 at 3.
6 Id. at 4.
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Balazhi v. Allstate Prop. & Cas. Ins. Co. 	Case No. 3:19-cv-00241-JMK
Order on Defendant’s Motion to Strike Plaintiffs’ Trial Witness List 	Page 3
A. 	Length of Witness List
Allstate moves to strike Plaintiffs’ witness list, as a whole, for violating the Court’s
instruction that the Final Witness List “will disclose only those witnesses whom the party will in
fact call at trial.”7 Allstate argues that the witness list is “useless” and unfairly prejudicial because
it forces Allstate to “guess” which of the fifty witnesses Plaintiffs actually will call to the stand,
thereby preventing them from adequality preparing for trial.8 In response, Plaintiffs acknowledge
that the witness list includes an unspecified number of alternate witnesses to preserve their ability
to call them at trial “given the possibility of witness unavailability.”9
The Court shares Allstate’s frustration with Plaintiffs’ inability to provide a realistic
witness list. After multiple rounds of briefing and hearings, the Court limited Plaintiffs’ request
for a six-week trial to three weeks, highlighting that this is a straightforward breach of contract
case. 	Plaintiffs apparently refuse to digest the Court’s instruction that they have approximately
one week to present their case. On the eve of trial, Plaintiffs have yet to provide Allstate with a
realistic witness list or, at the very least, any indication as to which witnesses are “alternates.” This
undoubtedly is prejudicial and impacts Allstate’s ability to prepare for trial.
Allstate’s motion is GRANTED. 	The Final Witness List at Docket 203 is
STRICKEN. 	As the Court ordered at the Continued Final Pretrial Conference, Plaintiffs are
required to submit a revised Final Witness List by Thursday, January 5, 2023. The Final Witness
List shall include only those witnesses Plaintiff realistically will call at trial and shall be listed in
the order in which they will be called. Any “alternate” witnesses must be designated as such, and
7 Docket 179 at 2.
8 Docket 205-1 at 6.
9 Docket 216 at 3.
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Balazhi v. Allstate Prop. & Cas. Ins. Co. 	Case No. 3:19-cv-00241-JMK
Order on Defendant’s Motion to Strike Plaintiffs’ Trial Witness List 	Page 4
Plaintiffs are advised to limit the number of alternate witnesses. Failure to comply with this Order
will result in sanctions yet to be determined.
B. 	Potentially Cumulative Testimony
Allstate next argues that Plaintiffs’ Final Witness List contains duplicative
witnesses in violation of Federal Rule of Evidence 403,10 and it requests that the Court order
Plaintiffs to “pare down their Final Witness List to include no more than one or two witnesses to
speak on each issue.”11 Plaintiffs respond that each witness will give unique testimony, but that,
in any event, Defendant’s motion is premature.12 The Court agrees. Without the testimony before
the Court, any ruling on cumulative evidence would be purely speculative. Allstate’s request is
DENIED without prejudice.
However, based only on the Final Witness List, it appears possible—if not
probable—that some witnesses will be duplicative. 	The Court cautions Plaintiffs that it will
entertain a renewed objection on this ground during trial.
C. 	Other Witnesses
Allstate also seeks to exclude several of Plaintiffs’ other witnesses—Harmony
Lucas; Philip Mendoza, MD; and two providers from Empower Physical Therapy—from testifying
at trial. 	It also moves to exclude four nurse practitioners who provided medical services to
Shaziman Balazhi during the course of his treatment for pancreatic cancer.13
10 Under Rule 403, “[t]he court may exclude relevant evidence if its probative value is
substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing
the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative
evidence.”
11 Docket 205-1 at 8.
12 Docket 216 at 4.
13 Docket 205-1 at 10.
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Balazhi v. Allstate Prop. & Cas. Ins. Co. 	Case No. 3:19-cv-00241-JMK
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Harmony Lucas. 	The Court reiterates its ruling from the bench that Lucas is
excluded from testifying. Lucas is a former claims adjuster for Allstate. Allowing her to testify
would frustrate the Court’s previous order in limine prohibiting the parties from mentioning the
insurer-insured relationship between Allstate and Plaintiffs. Furthermore, her potential testimony
is not relevant to the remaining claim in this case. Accordingly, Allstate’s request is GRANTED,
and Harmony Lucas is excluded as a testifying witness.
Philip Mendoza, MD. 	Allstate seeks to exclude treating physician Dr. Philip
Mendoza from testifying at trial. Allstate alleges that it “has not been provided a single treatment
record for any of the plaintiffs which was authored by Dr. Mendoza.” 	It asserts that allowing
Dr. Mendoza to testify therefore would be unfairly prejudicial and would violate Federal Rule of
Evidence 403.14 Plaintiffs’ opposition memorandum does not respond to this allegation.15
The Court will GRANT Allstate’s request. Dr. Mendoza was among the treating
physicians for whom Plaintiffs never made the requisite Rule 26(a)(2)(C) disclosure. Discussed
below, the Court declines to entirely exclude Plaintiffs’ treating physician witnesses, in part,
because Allstate had notice of the treating physicians and had copies of their relevant treatment
records. 	But given that Plaintiffs have apparently never provided any treatment records for
Dr. Mendoza, the Court finds that Rule 37(c)’s default sanction of exclusion is warranted. 	To
impose a lesser sanction likely would unfairly prejudice Allstate’s ability to mount a defense.
Empower Physical Therapy Witnesses (Justin Handy and Morgan Borkovec).
Allstate seeks to exclude Justin Handy and Morgan Borkovec, physical therapists from Empower
Physical Therapy who have treated Plaintiffs, from testifying at trial. Allstate alleges that Plaintiffs
14 Id. at 9.
15 See Docket 213.
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Balazhi v. Allstate Prop. & Cas. Ins. Co. 	Case No. 3:19-cv-00241-JMK
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did not disclose any treatment records from Empower Physical Therapy until December 2, 2022,
approximately one month before the commencement of trial. Allstate asserts that under Rule 403,
allowing Handy and Borkovec to testify therefore would unduly prejudice its defense.16 As with
Dr. Mendoza, Plaintiffs’ opposition memorandum does not directly respond to Allstate’s
argument.17
The Court declines to address these two witnesses at present, given the limited
information the Court has regarding the nature and extent of the medical records at issue. 	The
Court will inquire into this matter further at the hearing scheduled on the morning of Friday,
January 6, 2023, and will make an appropriate ruling from the bench.
Providence Nurses. 	Allstate moves to exclude Shaziman Balazhi’s nurse
practitioners as irrelevant under Rule 401 and prejudicial under Rule 403, arguing that any
testimony provided by the nurses would relate to Mr. Balazhi’s cancer rather than injuries
sustained in his car accident, and therefore confuse the jury.18 Again, this argument would require
the Court to speculate as to the content of the witnesses’ testimony. This request is premature, and
as such, is DENIED without prejudice. The Court invites Allstate to renew its objection at trial
and warns Plaintiffs that any testimony offered by the nurse witnesses must relate to injuries that
Mr. Balazhi sustained in the underlying motor vehicle accident.
D. 	Plaintiffs’ Treating Physician Witnesses
At the outset, the parties have appeared to resolve whether Plaintiffs’ treating
physicians are governed by Federal Rule of Civil Procedure 26(a)(2)(B) or 26(a)(2)(C). 	In its
motion, Allstate argues that Plaintiffs have failed to disclose the treating physicians under
16 Docket 205-1 at 9.
17 See Docket 213.
18 Docket 205-1 at 10.
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Rule 26(a)(2)(C), but “[e]ven more concerning, it is abundantly clear that plaintiffs intend to elicit
testimony from these treating physicians [sic] opinions not expressed in the medical records
disclosed during the course of discovery”19 and, as such, they would have been required to submit
an expert report under Rule 26(a)(2)(B).20 	Plaintiffs respond that the treating physicians are
expected to testify only as to opinions developed during the course of their treatment and based on
their own medical records.21 Allstate does not object to this, but it expresses hesitation that the
experts will abide by this rule.22 The Court will analyze the treating physicians as non-retained
experts under Rule 26(a)(2)(C) and Allstate may object at trial if testimony exceeds those bounds.
Federal Rule of Civil Procedure 26(a)(2)(C) requires parties to provide an initial
disclosure for any testifying “non-retained expert witness”—such as a non-retained treating
physician23—that states “(i) the subject matter on which the witness is expected to present evidence
under Federal Rule of Evidence 702, 703, or 705; and (ii) a summary of the facts and opinions to
which the witness is expected to testify.”24 	Rule 37(c)(1) “gives teeth” to the disclosure
requirements of Rule 26.25 Rule 37(c)(1) provides that a party who fails to identify a witness as
required by Rule 26(a) is not allowed to use that witness at trial unless that failure was
“substantially justified” or “harmless.” Exclusion under Rule 37(c)(1) is a “self-executing” and
19 Id. at 13.
20 See Goodman v. Staples The Office Superstore, LLC, 644 F.3d 817, 826 (9th Cir. 2011)
(“[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.”).
21 Docket 216 at 7.
22 Docket 215 at 8–9.
23 The Court and the parties often have used the terms “non-retained expert witness,”
“treating physician,” and “hybrid expert witness” interchangeably when referring to witnesses
governed by Rule 26(a)(2)(C). For specificity, this order will refer to these witnesses as “treating
physicians.”
24 See Fed. R. Civ. P. 26(a)(2)(C); Merchant v. Corizon Health, Inc., 993 F.3d 733, 739–
40 (9th Cir. 2021).
25 Yeti by Molly, Ltd. v. Deckers Outdoor Corp., 249 F.3d 1001, 1106 (9th Cir. 2001).
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Balazhi v. Allstate Prop. & Cas. Ins. Co. 	Case No. 3:19-cv-00241-JMK
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“automatic” sanction26 “designed to provide a strong inducement for disclosure.”27 	But
Rule 37(c)(1)’s automatic nature does not require courts to exclude evidence as a sanction.28
Rule 37(c)(1) provides that, “in addition to or instead of” the exclusion sanction, a court may
impose other appropriate sanctions, such as attorney’s fees or informing the jury of the party’s
failure to disclose.29 “[A] party facing sanctions under [Rule 37] bears the burden of showing that
a sanction other than exclusion is better suited to the circumstances.”30
Here, the boilerplate statements Plaintiffs included on their initial and final witness
lists fail to comply with the Rule 26(a)(2)(C)(ii) requirement to provide “a summary of the facts
and opinions to which the witness is expected to testify.” For each treating physician, the witness
list claims that the physician will “testify consistent with his medical records as to his diagnosis
and treatment of [Plaintiffs] and his prognosis as to [Plaintiff A.B.] to include future treatment and
medical conditions,” and for some witnesses, “[i]t is also anticipated that [the witness] will defend
his diagnosis and prognosis in light of the opinions of [Allstate’s] retained expert witnesses.”31
Plaintiffs’ disclosures state that these treating physicians will testify to “treatments,” “diagnoses,”
and “prognoses,” but they fail to say, for example, what these “prognoses” actually are.32 Such a
failure hamstrings Allstate’s ability to assess whether to take these witnesses’ depositions and to
26 Id.
27 Goodman, 644 F.3d at 827.
28 See Merchant, 993 F.3d at 740.
29 Id.
30 Id. at 741.
31 See generally Docket 203.
32 See Jenkins v. Richardson, No. 3:20-cv-00086-HRH, 2021 WL 2581413, at *1 (D.
Alaska June 23, 2021) (“Plaintiff’s witness list does not include a discrete, witness-by-witness
disclosure of the subject matter or the facts and opinions which each non-retained (treating
physician) witness would offer. 	Instead, plaintiff’s witness list incorporates a ‘one-size-fits-all’
statement that MDs and other health care providers will give expert opinions” as to certain topics).
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Balazhi v. Allstate Prop. & Cas. Ins. Co. 	Case No. 3:19-cv-00241-JMK
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help their own expert witnesses prepare rebuttal testimony. 	The Court finds that these failures
have been prejudicial to Allstate’s case and, therefore, are not harmless.
Although Plaintiffs undoubtedly have failed to comply with the requirements of
Rule 26(a)(2)(C), the Court does not find exclusion to be an appropriate remedy. This is not the
paradigmatic case in which a party springs a surprise expert witness on an unsuspecting opponent
on the eve of trial. Allstate has known since 2019, when Plaintiffs filed their initial witness list,
that Plaintiffs intended to call these witnesses as treating physicians. 	This fact militates against
the seriousness of Plaintiffs’ failure to comply with Rule 26(a)(2)(C). The Court therefore finds
that excluding Plaintiffs’ treating physicians entirely would be an overly harsh sanction,
particularly since total exclusion would likely be fatal to Plaintiffs’ case.33
Instead, the Count finds that the appropriate sanction for Plaintiffs’ failures is to
strike Plaintiffs’ Final Witness List and require them to submit a new list that complies with
Rule 26(a)(2)(C). 	The treating physicians’ opinion testimony will be limited to those opinions
formed in the course of their own evaluations and treatment of Plaintiffs. 	Plaintiffs’ treating
physicians shall not give any opinion testimony derived from sources other than their own
examinations and evaluations of Plaintiffs as contained in the medical records.34 Allstate’s request
is GRANTED IN PART.
33 See Merchant, 993 F.3d at 740–41 (“[I]f a Rule 37(c)(1) sanction will ‘deal[] a fatal
blow’ to a party’s claim, a district court must consider (1) ‘whether the claimed noncompliance
involved willfulness, fault, or bad faith’ and (2) ‘the availability of lesser sanctions.’” (second
alteration in original) (quoting R & R Sails, Inc. v. Ins. Co. of Penn., 673 F.3d 1240, 1246–48 (9th
Cir. 2012)).
34 In its Reply and at the Continued Final Pretrial Conference, Allstate voiced concern that
Plaintiffs provided updated medical records indicating that treating physician Dr. Alfred Collins
had reviewed the reports of Allstate’s retained expert and was including rebuttal opinions in those
medical records. Plaintiffs disputed Allstate’s assertion. The Court is not equipped to rule on this
issue without an evidentiary record and will resolve this factual dispute regarding Dr. Collins’s
testimony at a future hearing.
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Balazhi v. Allstate Prop. & Cas. Ins. Co. 	Case No. 3:19-cv-00241-JMK
Order on Defendant’s Motion to Strike Plaintiffs’ Trial Witness List 	Page 10
CONCLUSION
For the reasons described in this order, the Court rules as follows: Plaintiffs’ Trial
Witness List is stricken in its entirety. On or before 5:00 PM on Thursday, January 5, 2023,
Plaintiffs shall file an amended trial witness list that includes proper Rule 26(a)(2)(C) summaries
for each of their treating physicians. If Plaintiffs fail to do so, the Court will entirely exclude these
witnesses from testifying at trial.
IT IS SO ORDERED this 5th day of January, 2023, at Anchorage, Alaska.
/s/ Joshua M. Kindred
JOSHUA M. KINDRED
United States District Judge
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