Estate of Grubbs v. The Weld County Sheriff's Office

          ORDER

          PHILIP A. BRIMMER United States District Judge

         This matter is before the Court on CCS and Nurse Hernandez's Motion to Exclude the Opinions of Plaintiffs' Expert Nurse Moore Pursuant to Rule 37(c)(1) Because Plaintiffs Disclosed Nurse Moore 88 Days Late [Docket No. 174]. The Court has jurisdiction pursuant to 28 U.S.C. § 1331 and 1367.

         I. BACKGROUND

         This case arises out of the suicide of Barton Grubbs while he was in custody at the Weld County Jail. Docket No. 66 at 9, 21, ¶¶ 47, 186. The plaintiffs are Mr. Grubbs' estate and the estate's personal representative, Tanya Smith. Docket No. 1. The operative complaint, filed on July 26, 2016, asserts six claims for relief: (1) wrongful death under Colo. Rev. Stat. § 13-21-202; (2) a claim for expenses related to Mr. Grubbs' death under Colo. Rev. Stat. § 13-20-101; (3) deliberate indifference to medical needs under 42 U.S.C. § 1983; (4) adoption of an official policy under 42 U.S.C. § 1983; (5) failure to adequately train or supervise under 42 U.S.C. § 1983; and (6) common law negligence. Docket No. 66 at 22-34, ¶¶ 187-285.

         Pursuant to court order, the parties were required to make expert disclosures by May 1, 2017 and rebuttal expert disclosures by August 4, 2017. Docket Nos. 95, 102. On July 28, 2017, plaintiffs disclosed Jacqueline M. Moore, RN, Ph.D., CCHP-A, as an expert witness on “the appropriate protocols in nursing and correctional healthcare.” Docket No. 174-8 at 3. They also disclosed Dr. Moore's expert report in which she opines that Nurse Hernandez was “both negligent and deliberately indifferent” in her care of Mr. Grubbs at the Weld County jail. Docket No. 174-9 at 7-8. On August 4, 2017, plaintiffs disclosed Dr. Moore's rebuttal expert report. Docket No. 174-12.

         On April 27, 2018, defendants Correct Care Solutions, LLC (“CCS”) and Christin Hernandez filed a motion to exclude the opinions of Dr. Moore pursuant to Fed.R.Civ.P. 37(c)(1) because plaintiffs failed to disclose her as an expert witness by the May 1, 2017 deadline. Docket No. 174. Plaintiffs filed a response to the motion on May 18, 2018. Docket No. 176. Defendants filed a reply on June 1, 2018. Docket No. 180. An eight-day jury trial is currently set for July 23, 2018. Docket No. 163.

         II. ANALYSIS

         Federal Rule of Civil Procedure 26(a)(2) requires a party to “disclose to the other parties the identity of any witness it may use at trial to present evidence under Federal Rule of Evidence 702, 703, or 705.” Fed.R.Civ.P. 26(a)(2)(A). Unless otherwise ordered, such a disclosure “must be accompanied by a written report” that apprises the opposing party of “all opinions the witness will express and the basis and reasons for them.” Fed.R.Civ.P. 26(a)(2)(B). Expert witness disclosures must be made “at the time and in the sequence that the court orders.” Fed.R.Civ.P. 26(a)(2)(D).

         The court-ordered deadline for affirmative expert disclosures was May 1, 2017; however, plaintiffs did not disclose Dr. Moore as an expert witness until July 28, 2017. Although plaintiffs assert that they timely disclosed Dr. Moore as a rebuttal expert on August 4, 2017, it is evident from plaintiffs' filings that they are also offering her as an expert witness in their case-in-chief. See Docket No. 174-8 (plaintiffs' first supplemental Fed.R.Civ.P. 26(a)(2) disclosures); Docket No. 174-9 (Dr. Moore's expert report). Accordingly, plaintiffs were required to comply with both the May 1 deadline for expert disclosures and the August 4 deadline for rebuttal expert disclosures. Their failure to do so constitutes a violation of Fed.R.Civ.P. 26(a).

         Federal Rule of Civil Procedure 37(c)(1) provides that, “[i]f a party fails to provide 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.” “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. v. Principal Mutual Life Ins. Co., 170 F.3d 985, 993 (10th Cir. 1999). However, the Tenth Circuit has enumerated four factors to guide a court's analysis: “(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.

         Defendants argue that the first three Woodworker's Supply factors weigh in favor of excluding Dr. Moore's testimony. Specifically, they contend that plaintiffs' late disclosure one week before the rebuttal expert deadline was prejudicial because it gave plaintiffs a 149-day advantage in preparing their rebuttal expert reports and prevented defendants from being able to retain an expert to rebut Dr. Moore's opinions. Docket No. 174 at 10-11. As to their ability to cure the prejudice, defendants state that “[i]t is impossible to cure the 149-day strategic advantage” and that reopening of discovery to allow defendants to disclose a rebuttal expert would be inadequate due to the “nearness of trial.” Id. at 12. Finally, they argue that any attempt to cure the prejudice at this juncture would “disrupt the trial by reopening expert discovery shortly before the trial or delaying the trial.” Id. Plaintiffs respond that their disclosure was made “360 days before trial” and thus defendants created their own prejudice by waiting 273 days to respond to the late disclosure. Docket No. 176 at 5.^[1]

         Although plaintiffs disclosed Dr. Moore 88 days after the expert disclosure deadline for no good reason, the Court finds that defendants' significant and unjustified delay in seeking redress disabuses their claim of prejudice. Plaintiffs disclosed Dr. Moore as an expert witness on July 28, 2017. Defendants then had five days before the rebuttal expert disclosure deadline to attempt to comply with the deadline, to file a motion for an extension of the deadline, or to move to strike Dr. Moore as an expert.

         Defendants, however, did not take any action. Instead, they waited nearly nine months before filing their motion to exclude, all but ensuring that they would be prejudiced by plaintiffs' late disclosure.

         Defendants assert that there is no remedy for the 149-day strategic advantage gained by plaintiffs as a result of their untimely disclosure of Dr. Moore. Docket No. 174 at 12.^[2] But defendants ignore the fact that any such advantage could have easily been eliminated by an extension of the discovery and rebuttal expert disclosure deadlines at the time of plaintiffs' late disclosure. Defendants also contend that reopening discovery would disrupt the trial currently set for July 23, 2018. Docket No. 174 at 12. But the trial was not scheduled until February 28, 2018, seven months after ...