United States District Court, D. Colorado
TROY R. ARRINGTON, II, Plaintiff,
TIMOTHY R. CHAVEZ, Defendant.
LEWIS T. BABCOCK, District Judge.
This case is before me on Defendant's Motion to Strike Plaintiff's Untimely Disclosures Pursuant to Fed.R.Civ.P. 37(c) [Doc # 155]. After consideration of the motion, all related pleadings, and the case file, I grant Defendant's motion.
This action arises out of an automobile accident that occurred on March 19, 2009 in Durango, Colorado. Plaintiff's Complaint asserts a negligence claim against Defendant for causing the accident, and liability, causation, and damages are disputed. The initial discovery cutoff date in this case was set for January 13, 2013 [Doc # 13]. On joint motion by the parties, this date was extended to May 15, 2013 [Doc # 73]. Plaintiff did not seek any further extensions of the discovery cutoff date.
The subject of Defendant's motion to strike are (1) a July 9, 2013 supplemental report from Dr. Robert Cowan that was provided to Defendant with Plaintiff's 20th Supplemental Disclosures dated July 15, 2013 and (2) Plaintiff's identification of four additional witnesses in his 23rd Supplemental Disclosures dated October 1, 2013. None of these disclosures were included in the parties May 14, 2013 Proposed Pretrial Order, and the time for objection set forth in Fed.R.Civ.P. 26(a)(3)(B) is therefore inapplicable. See D.C. Colo. LCivR 26.1B ("The tendering of a proposed final pretrial order... shall satisfy the requirement of Fed. R.Civ.P. 26(a)(3) that pretrial disclosures be filed with the court").
II. Legal Standard
Under Rule 26(e)(1)(A), a party must supplement its disclosures under Rule 26(a) "in a timely manner if the party learns in some material respect the disclosure or response is incomplete or incorrect, and if additional or corrective information has not otherwise been made known to the other party during the discover process or in writing." "If a party fails to disclose information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless." Fed.R.Civ.P. 37(c)(1).
It is in my discretion to determine whether a violation of Rule 26 was substantially justified or harmless. Woodworker's Supply, Inc. v. Principal Mut. Life Ins. Co., 170 F.3d 985, 993 (10th Cir. 1999). In making this determination, I consider "(1) The prejudice or surprise to the party against whom the testimony is offered; (2) the ability of the party to cure the prejudice; (3) the extent to which introducing such testimony would disrupt the trial; and (4) the moving party's bad faith or willfulness." Id. "The burden of establishing substantial justification and harmlessness is upon the party who is claimed to have failed to make the required disclosure." Nguyen v. IBP, Inc., 162 F.R.D. 675, 680 (D. Kan. 1995).
A. Dr. Cowan's Supplemental Report
Dr. Cowan's Supplemental Report lists a number of documents that he reviewed "in [his] original evaluation" and states that he performed a second review of the records. Dr. Cowan cites notes from a November 21, 2011 neurological examination of Plaintiff that is listed with the documents that he originally reviewed and opines that this examination reflects "anxiety symptoms."
There can be no question that all of the information contained in Dr. Cowan's July 9, 2013 Supplemental Report could have been disclosed well prior to the discovery cutoff date of May 15, 2013 and that Defendant will be prejudiced by even further delay and expenses in this case which has already had its original trial date of July 8, 2013 vacated. This report is therefore stricken, and Plaintiff may not present any new information it contains as evidence at trial.
B. Additional Witnesses Identified ...