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Case 1:15-cv-07433-LAP Document 1320-33 Filed 01/03/24 Page 11 of 24 The factors considered in evaluation precluded as a sanction for non-disclosure under rule 26(a) are: “(1) the party's explanation for the failure to comply with the discovery [requirement]; (2) the importance of ... the precluded [evidence]; (3) the prejudice suffered by the opposing party as a result of having to prepare to meet the new testimony; and (4) the possibility of a continuance.” Mikulec v. Town of Cheektowaga, 302 F.R.D. 25, 29-30 (W.D.N.Y. 2014) (quoting Ritchie Risk—Linked Strategies Trading (Ir.), Ltd. v. Coventry First LLC, 280 F.R.D. 147, 157 (S.D.N.Y. 2012)). The examination of these factors demonstrates that preclusion of Plaintiff's claims regarding physical and emotional distress damages is the appropriate sanction for Plaintiffs failure to comply with the Court’s April 21, 2015 discovery order and failure to provide medical information that bear directly on her damages claims under Rule 26(a)(iii). A. Rule 37(b) Factors for Failure to Comply With Court Order 1. Plaintiff’s actions were willful “Noncompliance with discovery orders is considered willful when the court's orders have been clear, when the party has understood them, and when the party's non-compliance is not due to factors beyond the party's control.” Davidson v. Dean, 204 F.R.D. 251, 255 (S.D.N.Y. 2001) (citing Davis v. Artuz, 96 Civ. 7699(GBD), 2001 WL 50887 at *3 (S.D.N.Y. Jan. 19, 2001)). The Court’s Order at the April 21, 2016 hearing was entirely clear — Plaintiff was required to fully respond to the Interrogatory identifying all of her medical providers from 1999 to present, including the dates of treatment, reasons for treatment, and costs of treatment, as well as providing records relating to her treatment. Menninger Decl., Ex. E. For avoidance of doubt, undersigned counsel sent a confirming letter to Plaintiffs counsel setting forth the precise information required, and requesting that it be produced in advance of Plaintiffs deposition to so that Plaintiff could be fully examined on these issues. Menninger Decl., Ex. L. 8