United States District Court, D. Colorado
Michael E. Hegarty United States Magistrate Judge.
seek to quash Plaintiffs' deposition notices, which set
videotaped trial depositions for three of Plaintiffs'
medical experts-Dr. Carlson, Dr. Torell, and Dr. Arias. Mot.
to Quash Dep. Notices, ECF No. 65. According to Defendants,
Plaintiffs cannot establish that the experts are unavailable,
and Plaintiffs do not identify any testimony they seek to
elicit that was not discussed during the experts' initial
depositions. Id. Plaintiffs respond that their
experts are unavailable under the Federal Rules, because they
live and work in Nebraska. Resp. to Mot. to Quash Dep.
Notices, ECF No. 68. Additionally, Plaintiffs assert they
have not had the opportunity to depose the witnesses
concerning the scope of testimony they wish to present at
trial. Id. at 11. The Court heard oral argument on
October 31, 2017. See Courtroom Minutes, ECF No. 71.
in this District have considered the following four factors
in determining whether to permit trial preservation
(1) the prejudice or surprise in fact of the party against
whom the excluded witnesses would have testified, (2) the
ability of that party to cure the prejudice, (3) the extent
to which waiver of the rule against calling unlisted
witnesses would disrupt the orderly and efficient trial of
the case or of other cases in court, and (4) bad faith or
willfulness in failing to comply with the court's order.
Estenfelder v. Gates Corp., 199 F.R.D. 351, 356 (D.
Colo. 2001); Prince Lionheart, Inc. v. Halo
Innovations, Inc., No. 06-cv-00324-WDM-KLM, 2007 WL
2935818, at *2-3 (D. Colo. Oct. 5, 2007); Antero Res.
Corp. v. S. Jersey Res. Grp., LLC, No.
17-cv-00656-REB-MEH, 2017 WL 1176414, at *1 (D. Colo. Mar.
30, 2017). Accordingly, courts generally perform "a
balancing of interests, with a requirement of a showing of
surprise, prejudice, and attempts to cure such
prejudice." Odellv. Burlington N. RR Co., 151
F.R.D. 661, 663-64 (D. Colo. 1993).
Court finds that a balancing of the Estenfelder
factors favors permitting Plaintiffs to take the preservation
depositions. First, although Defendants will certainly suffer
some prejudice as a result of having to participate in the
depositions nine weeks before trial, Plaintiffs did not act
unreasonably in waiting to notice the depositions. Indeed,
Plaintiffs did not want to require both parties to incur the
costs of the depositions until they knew whether this case
would proceed to trial. The Honorable Philip A. Brimmer ruled
on Defendants' Motion for Summary Judgment on September
27, 2017, see ECF No. 62, and Plaintiffs conferred
with Defendants regarding the depositions on October 16,
2017. Mot. to Quash Dep. Notices 1. Furthermore, Defendants
will not be surprised as to the subject matter of the
depositions, as Defendants have already deposed the experts,
and Plaintiffs do not intend to take the depositions to
establish additional factual information.
the Court finds that it can tailor its ruling to cure any
substantial prejudice to Defendants. Regarding prejudice
Defendants will suffer due to having less than one week to
prepare for the depositions, the Court will permit the
parties to reschedule the depositions to a date on or before
November 22, 2017 that is convenient for defense counsel.
Furthermore, to the extent Defendants will suffer prejudice
from having to travel to Nebraska to cross-examine the expert
witnesses, the Court will require Plaintiffs to pay
Defendants' costs incurred in traveling to and from
Nebraska (not including attorney's fees) and any costs
associated with obtaining either a hard copy, electronic
copy, or video copy of the testimony. See Antero Res.
Corp., 2017 WL 1176414, at *2 (requiring that the party
noticing a trial preservation deposition pay the opposing
party's travel costs).
the Court does not find that permitting the trial
preservation depositions will disrupt the orderly and
efficient trial of this case. The parties will complete the
depositions by November 22, 2017, and the trial will begin on
January 8, 2018. See ECF No. 60. Therefore, after
the parties take the depositions, they will have over six
weeks to prepare for trial. Fourth, the Court does not find
any evidence that Plaintiffs have acted in bad faith.
addition to the preceding four factors, Plaintiffs have a
substantial interest in preserving this testimony for trial.
See Odell, 151 F.R.D. at 663-64 (stating that courts
should balance the interests of both parties in determining
whether trial preservation depositions are appropriate). If
the Court were to prohibit Plaintiffs from taking the
preservation depositions, Plaintiffs' opportunity to seek
evidence from their experts may be significantly limited.
Although the experts have previously been deposed, their
depositions were taken a year ago, and the depositions were
not taken for the purpose of establishing evidence for trial.
Furthermore, Defendants, not Plaintiffs, noticed the
discovery depositions (although Plaintiffs' counsel
conducted material examinations as well during the
depositions). The testimony Plaintiffs will elicit from their
experts in preparation for trial may be significantly
different than that which was obtained by either side during
discovery. Additionally, Plaintiffs' counsel informed the
Court at oral argument that the experts, who work and reside
in Nebraska, have expressed misgivings about traveling to
Denver for trial, particularly given their respective active
medical care practices. Courts have traditionally honored
medical professionals' need to avoid disruption in their
practices, and the Court finds that a trial preservation
deposition is the appropriate mechanism to ensure the jury
hears their testimony at trial in the most efficient and
effective manner possible under the circumstances.
reliance on Merlin v. Crawford, No.
14-cv-01150-REB-NYW, 2016 WL 814580 (D. Colo. Mar. 2, 2016)
does not convince the Court to the contrary. In
Merlin, the court denied the defendants' motion
to take trial preservation depositions, primarily because the
defendants took the witnesses' depositions during
discovery. Id. at *3. Here, however, Plaintiffs did
not notice their own experts' depositions. Although the
experts' did undergo discovery depositions, the Court has
already found that the testimony Plaintiffs will elicit from
their experts may be different from that which occurred a
year prior. Additionally, the court in Merlin relied
on the prejudice to the opposing party from having to
participate in the deposition less than five weeks before
trial. Id. at *3. Here, in contrast, because the
jury trial is not set to commence until January 8, 2018, ECF
No. 60, Defendants have approximately nine weeks to prepare
for the depositions and subsequently for trial.
Defendants assert the preservation depositions are not
appropriate, because Plaintiffs have not demonstrated the
experts' unavailability for trial. However, the Court
need not determine at this stage whether the experts are
unavailable. Indeed, whether the experts may testify by
deposition transcript or video is ultimately an issue of
admissibility to be resolved by Judge Brimmer. See
Fed R. Civ. P. 32(a)(4); Odell, 151 F.R.D. at 664
("At this juncture, this Court need only determine if
the depositions should be precluded. The ultimate decision of
admissibility of testimony at trial rests with the assigned
District Judge. To make a decision at this point precluding
the taking of the depositions in their entirety would be
the Court finds that Plaintiffs may take videotaped trial
preservation depositions of Dr. Carlson, Dr. Torell, and Dr.
Arias. However, to cure any prejudice to Defendants, the
Court will allow the parties to reschedule the depositions to
a date not later than November 22, 2017. Additionally, the
Court will permit Defendants to recover their costs attendant
to the depositions. Accordingly, Defendants' Motion to
Quash Plaintiffs' Deposition Notices, Motion for
Protective Order, and Motion for Immediate Hearing [filed
October 26, 2017; ECF No. 65] is granted in part
and denied in part.
the parties represented to the Court at oral argument that
their deadline for designation of trial deposition testimony
is November 22, 2017. In light of the Court's order that
the depositions may take place on or before November 22,
2017, the Court respectfully recommends that the District
Court extend the deadline for designation of the three
experts' testimony at issue in ...