United States District Court, D. Colorado
ROBERT W. BRYANT, Plaintiff,
SAFECO INSURANCE COMPANY OF AMERICA, Defendant.
Kristen L. Mix United States Magistrate Judge.
This matter is before the Court on Defendant’s Motion to Modify Scheduling Order [#33] (the “Motion”). The Motion is referred to this Court for disposition [#36]. Plaintiff filed a Response to the Motion [#43] and Defendant filed a Reply [#44]. The Motion is now fully briefed and ripe for resolution. The Court has reviewed the Motion, the Response, the Reply, the entire docket, and the applicable law, and is sufficiently advised in the premises. For the reasons set forth below, the Motion [#33] is GRANTED.
On March 23, 2015, the Court held a Scheduling Conference and entered the Scheduling Order governing this case. See generally Courtroom Minutes [#16]; Sched. Order [#17]. Among other things, the Scheduling Order limited the number of retained expert witnesses to two experts per side. Sched. Order [#17] at § 9(d)(2). In the Scheduling Order, the parties described the expert witnesses they intended to retain as follows:
Plaintiff anticipates retaining an expert witness in the fields of insurance bad faith and insurance claim handling, as well as designating Plaintiff’s medical providers as expert witnesses.
Defendant anticipates retaining an expert witness in the fields of medicine (including orthopedics and rehabilitation), insurance claims handling, and any expert to rebut any expert endorsed by Plaintiff.
Id. at § 9(d)(1). The Scheduling Order also set deadlines for disclosure of expert witnesses and related disclosures required pursuant to Fed.R.Civ.P. 26. Id. at § 9(d)(3)-(4). These deadlines were subsequently amended pursuant to a request from the parties. See generally Minute Order [#27]. Ultimately, affirmative expert designations were due on September 30, 2015, and rebuttal expert designations were due on October 30, 2015. Id. at 1.
Plaintiff endorsed one retained affirmative expert to opine regarding insurance claims issues. Motion [#33] at 3. Defendant endorsed two retained experts: one to offer opinions regarding Plaintiff’s alleged dental injuries and one to offer opinions regarding Plaintiff’s alleged orthopedic injuries. Id. Plaintiff attended separate Rule 35 examinations with each of Defendant’s affirmative experts. Id. at 2. On October 30, 2015, Defendant endorsed and disclosed Dale Crawford as a rebuttal witness. Id. at 3. Defendant notes that Mr. Crawford is an insurance industry expert. Id. On November 12, 2015, the parties filed a joint motion requesting that the Court extend the discovery deadline. See generally The Parties’ Joint Motion to Extend Deadlines [#35]. The parties argued that good cause existed for the requested extension. Id. at 1. Specifically, they explained: “The Parties require this additional time in order to conduct the depositions of Plaintiff’s expert Bradley A. Levin and Defendant’s expert Dale C. Crawford.” Id. The Court granted the motion and extended the discovery deadline through December 16, 2015. Minute Order [#37] at 1.
In its Motion, Defendant requests that the Court amend the Scheduling Order pursuant to Fed.R.Civ.P. 16(b)(4) to allow it three retained experts, the three experts discussed above who were disclosed to Plaintiff through discovery. Motion [#33] at 9. Defendant argues that good cause exists for the requested relief. Id. at 4-6. Defendant also argues that the factors discussed in Smith v. United States, 834 F.2d 166, 169 (10th Cir. 1987), favor amendment of the two-expert limit imposed by the Scheduling Order. Id. at 6-8.
In his Response, Plaintiff argues that he will be prejudiced if Defendant is allowed to present the testimony of three retained experts at trial. Response [#43] at 2. Specifically, he maintains that he “is now in the untenable position of not being able to respond to all three of these experts.” Id. He further argues that “[b]y adding a third retained expert at the time of rebuttal disclosures and moving to amend the scheduling order only after the three retained experts were endorsed, Plaintiff has been deprived of the opportunity to present a thoroughly prepared case.” Id.
In its Reply, Defendant argues that the “endorsement of one additional expert will not result in any prejudice to Plaintiff.” Reply [#44] at 1. Defendant further argues that:
Plaintiff has been on notice for more than four months that Safeco would be presenting medical expert testimony at trial. Safeco timely endorsed Drs. McBride and Palmer as affirmative experts on September 30, 2015, which gave Plaintiff the opportunity to endorse rebuttal experts under the Scheduling Order until October 30, 2015. Plaintiff elected not to do so, and should not now be permitted to argue that Safeco is precluded from presenting Drs. McBride and Palmer as witnesses at trial. In addition, as to Safeco’s third expert, Dale Crawford, he was endorsed as a rebuttal expert after Plaintiff designated Brad Levin, Esq. as an affirmative expert to opine on claim handling standards.
Id. at 1-2 (emphasis in original). Because Plaintiff alludes to the arguments raised in his Motion to Strike the Testimony of Defense Experts John T. McBride Jr. M.D. and Ronald Palmer D.D.S. [#28], Defendant also analyzes the arguments made in the parties’ briefing of that motion. Notably, that motion is not pending before the undersigned and invokes a different legal standard and issue. The instant Motion seeks amendment of the Scheduling Order pursuant to Fed.R.Civ.P. 16. The other motion asks the Court to strike expert testimony. That issue is not addressed in this Order ...