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Mishler v. Dillon Companies, Inc.

United States District Court, D. Colorado

May 9, 2018

DILLON COMPANIES, INC., d/b/a King Soopers, Inc., Defendant.


          Michael E. Hegarty United States Magistrate Judge.

         Defendant asks me to strike Hans Coester, M.D's expert report as untimely and inadequate. I find that Plaintiff's failure to timely disclose Dr. Coester's report, or at least request an extension of the expert disclosure deadline, is not substantially justified. However, because I can cure any prejudice to Defendant, I will not exercise my discretion to strike Dr. Coester's report. Accordingly, I grant in part and deny in part Defendant's Motion to Strike.


         Plaintiff filed this case in state court on May 13, 2016. Compl., ECF No. 3. Plaintiff alleges that one of Defendant's employees “ran into [her] Achilles tendon on her left ankle with [a] cart” while she was shopping at Defendant's grocery store. Id. at ¶ 5. According to Plaintiff, “[t]he blow to the ankle caused [her] to fall to the ground, where she hit her head on the concrete.” Id. Plaintiff asserts one claim for landowner's liability to invitees under Colo. Rev. Stat. § 13-21-115. Id. at ¶¶ 10-14.

         Defendant subsequently removed the case to this Court. Notice of Removal, ECF No. 1. On August 19, 2016, I entered a Scheduling Order, which set an expert witness disclosure deadline of December 12, 2016, and a rebuttal expert disclosure deadline of January 23, 2017. Scheduling Order 5, ECF No. 15. I subsequently extended the rebuttal expert deadline to January 30, 2017, and I moved the discovery deadline to April 6, 2017. ECF Nos. 22, 25.

         On April 20 2017, Dr. Coester performed a cervical spine fusion on Plaintiff. Def.'s Mot. to Strike 2, ECF No. 46. Staff in Dr. Coester's office saw Plaintiff for follow-up appointments in May and July 2017. ECF No. 47-2.

         On November 29, 2017, Plaintiff disclosed Dr. Coester's opinion letter, which is dated October 24, 2017. ECF No. 47-1. Dr. Coester's letter first reviews Plaintiff's medical history and Dr. Coester's pre-surgery discussions with Plaintiff. Id. Then, Dr. Coester opines that “the patient's history of being asymptomatic prior to the accident leaves me with the conclusion that the accident caused her to become symptomatic . . . .” Id. Further, Dr. Coester states that Plaintiff's “options for treatment would be ongoing pain management, injections, physical therapy and traction or a 1 or 2 level anterior cervical discetomy and fusion . . . .” Id.

         On March 14, 2018, Defendant filed the present Motion to Strike Dr. Coester's Opinion, ECF No. 46. Defendant contends Plaintiff disclosed the opinion almost one year after the initial expert disclosure deadline, and the untimely disclosure is not substantially justified or harmless. Id. In response, Plaintiff argues the late disclosure is substantially justified, because Dr. Coester could not develop his opinions as to causation and prognosis until six months after he treated Plaintiff. Resp. to Mot. to Strike 2-4, ECF No. 47. Additionally, Plaintiff asserts the late disclosure is harmless, because Defendant already prepared an expert report rebutting Dr. Coester's findings. Id. at 4-5. Defendant subsequently filed a reply brief. Reply in Supp. of Mot. to Strike, ECF No. 50.


         Federal Rule of Civil Procedure 26(a)(2) requires parties to disclose the identity of any witness the party intends to use at trial. If the “witness is one retained or specially employed to provide expert testimony in the case, ” Rule 26(a)(2)(B) requires that the disclose be accompanied by a written report containing:

(i) a complete statement of all opinions the witness will express and the basis and reasons for them; (ii) the facts or data considered by the witness in forming them; (iii) any exhibits that will be used to summarize or support them; (iv) the witness's qualifications, including a list of all publications authored in the previous 10 years; (v) a list of all other cases in which, during the previous 4 years, the witness testified as an expert at trial or by deposition; and (vi) a statement of the compensation to be paid for the study and testimony in the case.

Fed. R. Civ. P. 26(a)(2)(B).

         “A party must make these disclosures at the times and in the sequence that the court orders.” Fed.R.Civ.P. 26(a)(2)(D). If a party fails to timely make expert disclosures, “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). “The determination of whether a Rule 26(a) violation is justified or harmless is entrusted to the broad discretion of the district court.” Woodworker's Supply, Inc. ...

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