Homesite Insurance Company v. Norcold, Inc.

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4                     UNITED STATES DISTRICT COURT                       
5                          DISTRICT OF NEVADA                            
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7   Homesite Insurance Company as subrogee of  Case No. 2:21-cv-02167-RFB-DJA 
Traci Marx and Raymond Marx,                                         
8                                                  ORDER                 
             Plaintiff,                                              
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     v.                                                              
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Norcold, Inc.; Norcold, LLC; Thetford                                
11  Corporation; Thetford, LLC; the Dyson-                               
Kissner-Moran Corporation; Camping World                             
12  of Henderson; Camping World, Inc.; and                               
CWI, Inc., et al.,                                                   
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            Defendants.                                              
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And related consolidated claims.                                     
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     Pending before the Court are two unopposed motions for leave to file (ECF Nos. 184, 186), 
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a motion in limine (ECF No. 160), and an unopposed motion to permanently seal ECF Nos. 188 
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and 189 (ECF No. 198). This case arises from a fire that occurred on December 21, 2018. Plaintiffs 
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Homesite Insurance Company, Traci Marx, Ray Marx, Alyssa Dillard, and Seth Dillard allege the 
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fire was caused by and originated at a Defendant Norcold LLC refrigerator in a 1999 Monaco 
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Holiday Rambler motor home that was parked on their property.        
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      I.  Motion In Limine                                           
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     On August 14, 2024, Defendant Norcold LLC filed a motion in limine, (ECF No. 160), to 
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exclude the opinions of Plaintiffs’ expert Kevin Lewis. “A motion in limine is a procedural 
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mechanism to limit in advance testimony or evidence in a particular area.” United States v. Heller, 
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551 F.3d 1108, 1111 (9th Cir. 2009). Motions in limine are a well-recognized judicial practice 
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authorized under case law. See, e.g., Ohler v. United States, 529 U.S. 753, 758 (2000). The Court’s 
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1   power to rule on motions in limine stems from its “inherent authority to manage the course of 
2   trials.” Luce v. United States, 469 U.S. 38, 41 n.4 (1984). In limine rulings are provisional, and 
3   “are not binding on the trial judge[] [who] may always change his mind during the course of a 
4   trial.” Ohler, 529 U.S. at 758 n.3.                                  
5        Defendants’ motion in limine seeks to exclude the opinions of Kevin Lewis on the grounds 
6   that Mr. Lewis did not prepare his expert report, in violation of Rule 26(a)(2)(B). The report states 
7   that it was only “reviewed by” Mr. Lewis, and another of Plaintiffs’ experts, Jonathan Contreras, 
8   states in a deposition that he was the sole author of the report. Plaintiff filed an opposition on 
9   August 28, 2024. Defendants replied on September 4, 2024.            
10       Under Rule 26, “a party must disclose to the other parties the identity of any witness it may 
11  use at trial.” Fed.R.Civ.P. 26(a)(2)(A). Furthermore, “if the witness is one retained or specially 
12  employed to provide expert testimony,” a party must accompany this disclosure with a “written 
13  report prepared and signed by the witness.” Fed.R.Civ.P. 26(a)(2)(B). This report must include 
14  among other disclosures, a “complete statement of all opinions the witness will express and the 
15  basis and reasons for them.” Fed.R.Civ.P. 26(a)(2)(B)(i). “If a party fails to provide information 
16  or identify a witness as required by Rule 26(a) ..., the party is not allowed to use that information 
17  or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was 
18  substantially justified or is harmless.” Fed.R.Civ.P. 37(c)(1).      
19       Here, the two experts, Jonathan Contreras and Kevin Lewis, are both employed by Jensen 
20  Hughes. They were retained to examine the Norcold Inc. refrigerator involved in the fire to assess 
21  whether it failed or malfunctioned, and whether the failure/malfunction of the refrigerator was 
22  consistent with the refrigerator being the cause of the fire. Their report is 40 pages long and signed 
23  by both experts. The report includes separate compensation, testimony records, and qualifications 
24  for each of the two experts. However, the evidence examinations, discussion, and opinion and 
25  bases sections do not differentiate between their separate actions or opinions.  
26       Federal Rule of Civil Procedure 26(a)(2)(B) does not preclude a joint expert report and 
27  there is “no reason to think the practice [is] always and inherently impermissible” under Rule 26. 
28  See, e.g., Dale K. Barker Co., P.C. v. Valley Plaza, 541 Fed. Appx. 810, 815 (10th Cir. 2013) 
1   (explaining that “[c]o-authored expert reports aren’t exactly uncommon”). In Barker, the Tenth 
2   Circuit allowed a joint report when both experts “reviewed the same materials, and, working 
3   together, came to the same opinions.” Id. at 816. In multiple instances, federal courts have allowed 
4   joint expert reports. See, e.g., Montgomery v. Wal-Mart Stores, Inc., No. 12CV3057-AJB (DHB), 
5   2015 WL 11233382, at *5 (S.D. Cal. Sept. 24, 2015) (finding that “joint expert reports are not per 
6   se improper”); see also Univ. of Fla. Research Found., Inc. v. Motorola Mobility LLC, Civ. No. 
7   13-cv-61120, 2013 WL 12043502, at *8 (S.D. Fla. Dec. 23, 2013) (same). 
8        However, the joint expert report at issue here does not reveal the division of labor between 
9   the two experts, nor how they reached their separate opinions. See, e.g., Adams v. United States, 
10  Civ. No. 03-cv-0049, 2011 WL 2144574, at *1 (D. Idaho May 29, 2011) (“When two experts work 
11  as a team and divide up the work, the report must reveal this division of labor.”); Late v. United 
12  States, No. 1:13-CV-0756, 2016 WL 8793108, at *1 (M.D. Pa. Sept. 20, 2016) (“The court finds 
13  that the joint report . . . adequately reveals . . . the division of labor[.]”); Dan v. United States, No. 
14  CIV 01–25 MCA/LFG–ACE, 2002 WL 34371519, at *2–3, *5 (D.N.M. Feb. 6, 2002) (finding 
15  that the report does not “delineate which opinions belong to which expert”). Therefore, Plaintiffs 
16  must disclose how Jonathan Contreras and Kevin Lewis divided up their work, and how each relied 
17  on the other in arriving at their opinions.                          
18       Finally, while the Court reaches the merits of this motion, the Court notes that Defendants 
19  failed to comply with Local Rule 16-3, which provides that the movant must attach a statement 
20  certifying that the parties have participated in the meet-and-confer process and have been unable 
21  to resolve the matter without court action.                          
22        II.  Motions for Leave to File                                 
23       The Court, having reviewed Defendants’ unopposed motion for leave to file a motion for 
24  partial summary judgment, (ECF No. 184), and the Plaintiffs’ unopposed motion for leave to file 
25  a joint motion to exclude the opinions of Defense expert Christopher Bloom, (ECF No. 186), and 
26  good cause appearing therefor, finds that Defendants’ motion for partial summary judgment, (ECF 
27  No. 182), and Plaintiffs’ joint motion in limine, (ECF No. 182), are deemed timely filed, nunc pro 
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1        III.  Motion to Seal                                            
2        Courts have long recognized “a general right to inspect and copy public records and 
3   documents, including judicial records and documents.” Kamakana v. City & Cty. of Honolulu, 447 
4   F.3d 1172, 1178 (9th Cir. 2006) (citations omitted). However, this right is not absolute. Id. There 
5   is a “strong presumption in favor of access” to dispositive motions or their attachments, and a party 
6   seeking to seal such document bears the burden of overcoming this presumption by providing a 
7   compelling and fact-based reason for the document to be sealed. Id. (citations and quotation marks 
8   omitted). “[I]f the court decides to seal certain judicial records [attached to dispositive motions], 
9   it must base its decision on a compelling reason and articulate the factual basis for its ruling, 
10  without relying on hypothesis or conjecture.” Id. at 1179 (citation and quotation marks omitted). 
11  “When ruling on a motion to seal court records, the district court must balance the competing 
12  interests of the public and the party seeking to seal judicial records.” In re Midland Nat. Life Ins. 
13  Co. Annuity Sales Practices Litig., 686 F.3d 1115, 1119 (9th Cir. 2012).  
14       Plaintiffs filed an unopposed motion to seal its joint opposition to Defendants’ motion for 
15  summary judgment, which included both a memorandum, (ECF No. 188), and a declaration, (ECF 
16  No. 189), which in turn had twenty-five exhibits attached (ECF Nos. 189-1 to 189-25). The motion 
17  to seal is based solely on the fact that the included deposition testimony falls under the ambit of 
18  the  parties’ protective order, (ECF  Nos.  100,  101),  defining  confidential  documents  during 
19  discovery. However, the governing protective order provides the following: “The fact that the 
20  Court has entered the instant stipulated protective order and that a party has designated a document 
21  as confidential pursuant to that protective order does not, standing alone, establish sufficient 
22  grounds to seal a filed document.”                                   
23       Plaintiffs’ reliance on the protective order is insufficient to warrant sealing. By nature, 
24  protective orders are overinclusive because parties do not need to make a “good cause” showing 
25  under  Fed.R.Civ.P.  26(c)  and  the  court  typically  does  not  analyze  whether  each  particular 
26  document should be sealed. See Beckman Indus. v. Int'l Ins. Co., 966 F.2d 470, 476 (9th Cir. 1992) 
27  (“Reliance will be less with a blanket order, because it is by nature overinclusive.”); San Jose 
28  Mercury News, Inc. v. U.S. Dist. Ct. (Saldivar), 187 F.3d 1096, 1103 (9th Cir. 1999) (“Such 
1   blanket orders are inherently subject to challenge and modification, as the party resisting disclosure 
2   generally has not made a particularized showing of good cause with respect to any individual 
3   document.”); Foltz v. State Farm Mut. Auto Ins. Co., 331 F.3d 1122, 1133 (9th Cir. 2003). By 
4   relying solely on the protective order, Plaintiffs have failed to provide sufficient reasons for sealing 
5   the documents. Plaintiffs’ motion to seal is therefore denied without prejudice.  
6        Accordingly, IT IS HEREBY ORDERED that Defendants’ Motion in Limine, (ECF No. 
7   160), is DENIED without prejudice.                                   
8        IT IS FURTHER ORDERED that on or before January 20, 2025, Plaintiffs shall disclose 
9   how Jonathan Contreras and Kevin Lewis divided their work and how each relied on the other in 
10  arriving at their opinions.                                          
11       IT IS FURTHER ORDERED that Defendants’ Unopposed Motion for Leave to File, 
12  (ECF  No.  184),  and  Plaintiffs’  Unopposed  Motion  for  Leave  to  File,  (ECF  No.  186),  are 
13  GRANTED.                                                             
14       IT IS FURTHER ORDERED that Defendants’ Motion for Partial Summary Judgment, 
15  (ECF No. 182), and Plaintiffs’ Motion in Limine, (ECF No. 181), are deemed timely filed, nunc 
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17       IT IS FURTHER ORDERED that Plaintiffs’ Unopposed Motion to Permanently Seal, 
18  (ECF No. 198), is DENIED without prejudice. If the parties wish to file a properly supported 
19  motion to seal, they may do so no later than January 20, 2025.       
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21  DATED: January 6, 2025.                                              
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23                                     _______________________________   
                                   RICHARD F. BOULWARE, II           
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                                   UNITED STATES DISTRICT JUDGE      
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