United States District Court, D. Colorado
ORDER ON DEFENDANT'S MOTION TO STRIKE
Michael E. Hegarty United States Magistrate Judge.
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.
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.
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.
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.
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 . . .
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.
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).
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.