United States District Court, D. Colorado
ESTATE OF BARTON GRUBBS and TANYA SMITH, individually and as the personal representative of the Estate of Barton Grubbs, Plaintiffs,
THE WELD COUNTY SHERIFF'S OFFICE, BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF WELD, CORRECT CARE SOLUTIONS, LLC, and CHRISTIN HERNANDEZ, in her Individual and Official Capacity, Defendants.
A. BRIMMER United States District Judge
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
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,
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.
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.
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.
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).
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.
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.
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.
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'
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. 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 ...