United States District Court, D. Colorado
KRISTEN L. MIX UNITED STATES MAGISTRATE JUDGE.
matter is before the Court on Defendant's Motion
to Strike Plaintiff's Non-Retained Expert
Disclosures [#36] (the “Motion”). Plaintiff
filed a Response [#38] in opposition to the Motion and
Defendant filed a Reply [#41]. Pursuant to 28 U.S.C. §
636(b)(1) and D.C.COLO.LCivR 72.1(c), the Motion has been
referred to the undersigned for disposition. See
[#37]. For the reasons set forth below, the Motion [#36] is
GRANTED in part and DENIED without
prejudice in part.
initiated this 42 U.S.C. § 1983 lawsuit on February 24,
2016, asserting a Fourth Amendment claim for use of excessive
force and a Fourteenth Amendment claim for deliberate medical
indifference stemming from a December 6, 2014 physical
altercation with Defendant that occurred while Plaintiff was
housed in the Adams County, Colorado detention facility.
See Compl. [#1]; Am. Compl. [#10]. On March
5, 2018, the Chief Judge entered summary judgment in favor of
Defendant on both of Plaintiff's claims. Order
[#74]. The Court's Order [#74] effectively closed this
case, rending the present Motion [#36] moot at the time. On
April 8, 2018, Plaintiff appealed the Court's summary
judgment ruling to the Tenth Circuit Court of Appeals.
Notice of Appeal [#79]. On October 30, 2018, the
Tenth Circuit issued its Order and Judgment [#86], which
affirmed summary judgment in favor of Defendant on
Plaintiff's deliberate indifference claim but reversed
summary judgment as to Plaintiff's excessive force claim,
remanding the case for further proceedings. [#86] at 19. The
Tenth Circuit's Mandate [#88] was issued on December 4,
2018. Pursuant to the Court's December 13, 2018 Minute
Order [#89], Defendant requested a ruling on the instant
Motion [#36]. See Def.'s Status Report [#90] at
1. Accordingly, the Court reinstated the Motion [#36] on
February 5, 2019. Minute Order [#93]. This matter is
currently set for a five-day jury trial beginning on October
7, 2019. Minute Order [#96].
factual background relevant to the Motion [#36] is as
follows. On June 23, 2016, the Court entered a Scheduling
Order governing this case. See generally Sched.
Order [#23]. Among other things, the Scheduling Order
limited the number of expert witnesses to three experts per
side. Id. at § 9(d)(2) (“The parties
propose that the number of expert witnesses be limited to 3
per side.”). The Scheduling Order also set deadlines
for the disclosure of expert witnesses and related
disclosures required pursuant to Rule 26. Id. at
§ 9(d)(3)-(4). The deadline for disclosing affirmative
experts was subsequently extended to January 20, 2017,
pursuant to a request by the parties. See Minute
January 20, 2017 deadline, Defendant was served with
Plaintiff's Expert Witness Disclosures [#36-2] (the
“Expert Disclosures”). Plaintiff's Expert
Disclosures list the following four treating physicians as
non-retained expert witnesses pursuant to Rule 26(a)(2)(C):
(1) Dr. Mark Engelstad (“Engelstad”); (2) Dr.
Arif Rohilla (“Rohilla”); (3) Dr. Martin Yussman
(“Yussman”); and (4) Roy Theriot, D.D.S.
(“Theriot”). Expert Disclosures [#36-2]
at 1-6. Additionally, Plaintiff discloses Dan Montgomery
(“Montgomery”) and Dr. Stephanie Chiu
(“Chiu”) as specially retained expert witnesses
pursuant to Rule 26(a)(2)(B). Id. at 8-9. Thus,
Plaintiff disclosed six experts in total.
March 3, 2017, Defendant filed the present Motion [#36]. In
the Motion, Defendant generally seeks to strike all four of
Plaintiff's non-retained expert disclosures and to
preclude these experts from testifying at trial. [#36] at 15.
Defendant first argues that Plaintiff's non-retained
experts should be precluded from testifying pursuant to Rule
37(c) because each disclosure fails to comply with Rule
26(a)(2)(C) and because Plaintiff's non-retained experts
should have been designated as retained experts, requiring a
written report pursuant to Rule 26(a)(2)(B). Id. at
3-12. Separately, Defendant argues that at least three of
Plaintiff's experts should be stricken pursuant to Rule
16(f) because Plaintiff has disclosed six experts in total
which doubles the limit set forth in the Scheduling Order.
Id. at 12.
Response [#38], Plaintiff concedes in part by agreeing to
withdraw Dr. Yussman's disclosure completely and to
strike Dr. Theriot's disclosure to the extent that it
contains opinions as to the cause of Plaintiff's dental
injury. [#38] at 12-13. In light of Plaintiff's
concession to withdraw Dr. Yussman's disclosure in its
entirety, the Court grants the Motion [#36]
to the extent that Defendant seeks to strike this disclosure
and preclude Dr. Yussman from testifying at trial as an
respect to Dr. Engelstad and Dr. Rohilla, Plaintiff contends
that their disclosures fully comply with Rule 26(a)(2)(C),
that their opinions are within the proper scope of
non-retained experts, and that therefore, these experts
should not be precluded from testifying. [#38] at 5-12.
Response, however, fails to even acknowledge Defendant's
Rule 16(f) argument: that Plaintiff is in violation of the
Scheduling Order for exceeding his limit of expert witnesses.
See generally id. Even with Plaintiff's
concession to withdraw Dr. Yussman, Plaintiff appears to
assume that he can name Dr. Theriot, Dr. Engelstad, and Dr.
Rohilla as expert witnesses in addition to Mr. Montgomery and
Dr. Chiu, without seeking to amend the Scheduling Order to
increase the number of experts permitted. The Court notes
that, pursuant to the Final Pretrial Order [#59] and
Plaintiff's Supplement [#63] thereto, Plaintiff appears
to have subsequently removed Dr. Theriot's designation as
an expert witness but continues to name Mr. Montgomery, Dr.
Chiu, Dr. Engelstad, and Dr. Rohilla as expert witnesses who
may be present at trial. Pl.'s Supplement to Final
Pretrial Order [#63] at 5-6. Thus, Plaintiff continues
to exceed his limit on expert witnesses.
left unadressed in Plaintiff's Response [#38], Defendant
states in the Motion [#36] that counsel for the parties have
conferred on this issue. Motion [#36] at 12.
Defendant attaches a conferral letter, dated February 27,
2017, from Plaintiff's counsel in which counsel merely
states: “The Scheduling Order does not limit the number
of experts to 3 per side. That was merely a proposal.”
Conferral Letters [#36-1] at 5.
numerous courts have noted, a “[s]cheduling [o]rder is
not a frivolous piece of paper, idly entered, which can be
cavalierly disregarded by counsel without peril.”
Washington v. Arapahoe Cty. Dep't of Soc.
Servs., 197 F.R.D. 439, 441 (D. Colo. 2000) (citations
omitted). While the Scheduling Order in this case states that
“[t]he parties propose that the number of expert
witnesses be limited to 3 per side[, ]” this is the
language that was provided by the parties in their Proposed
Scheduling Order [#21]. Compare Sched. Order [#23]
at § 9(d)(2) with Proposed Sched. Order [#21]
at § 9(d)(2). The parties jointly proposed to the Court
that they be limited to disclosing three expert witness per
side, which the undersigned adopted and made binding when the
Scheduling Order was issued as an order of the Court.
scheduling order plays an important role in the management of
a case and should not be unnecessarily amended.
Washington, 197 F.R.D. at 441 (noting that a
“scheduling order is an important tool necessary for
the orderly preparation of a case for trial”); see
Rent-a-Center, Inc. v. 47 Mamaroneck Ave. Corp., 215
F.R.D. 100, 101 (S.D.N.Y. 2003) (“scheduling orders are
designed to offer a degree of certainty in pretrial
proceedings, ensuring that at some point both the parties and
the pleadings will be fixed and the case will
proceed”). Accordingly, a scheduling order “may
be modified only for good cause and with the judge's
consent.” Fed.R.Civ.P. 16(b) (emphasis added).
“The good cause standard ‘primarily considers the
diligence of the party seeking the amendment.'”
Anderson v. Seven Falls Co., No. 12-cv-01490-RM-CBS,
2013 WL 3771300, at *7 (D. Colo. July 18, 2013) (quoting
Dag Enterprises, Inc. v. Exxon Mobil Corp., 226
F.R.D. 95, 105 (D.D.C. 2005)).
Plaintiff has not even attempted to show good cause for
amending the Scheduling Order to increase the limit on expert
witnesses. Therefore, Defendant's request to strike
Plaintiff's disclosed experts pursuant to Rule 16(f) is
appropriate. Rule 16(f) provides: “On motion or on its
own, the court may issue any just orders . . . if a party or
its attorney . . . fails to obey a scheduling or other
pretrial order.” Fed.R.Civ.P. 16(f). As the Tenth
Circuit Court of Appeals has explained, “there can be
no doubt that [Rule 16(f)] indicates the intent to give
courts very broad discretion to use sanctions where necessary
to insure not only that lawyers and parties refrain from
contumacious behavior, already punishable under the various
other rules and statutes, but that they fulfill their high
duty to insure the expeditious and sound management of the
preparation of cases for trial.” Mulvaney v. Rivair
Flying Serv., Inc., 744 F.2d 1438 at 1440 (10th Cir.
1984) (en banc). “The primary purpose of sanctions in
this context is to insure reasonable management requirements
for case preparation. The secondary purpose is to compensate
opposing parties for inconvenience and expense incurred
because of any noncompliance with the reasonable management
orders of the court.” Id. at 1441.
Court agrees with Defendant that there is no reasonable basis
for allowing Plaintiff to unilaterally increase the number of
experts after the fact “[g]iven that [Plaintiff's]
own treating doctors should have been readily known to him
and his attorneys at the time of initial disclosures and the
preparation of the Scheduling Order.” Motion
[#36] at 12. Moreover, it is clear that Defendant has been
inconvenienced, if not ...