Nosewicz v. Janosko

          RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

          KRISTEN L. MIX UNITED STATES MAGISTRATE JUDGE

         This matter is before the Court on Defendant's Renewed Motion to Strike Portions to Dr. Engelstad's Expert Disclosure [#100]^[1] (the “Motion”). Inexplicably, Plaintiff's counsel did not file a response to the Motion. Ordinarily, where a party fails to file a response, the Court may treat the motion as unopposed. See Walter v. HSM Receivables, No. 13-cv-00564-RM-KLM, 2014 WL 5395197, at *1 (D. Colo. Oct. 23, 2014) (“The Motion is essentially unopposed as no response has been filed by Defendants.”); Armstrong v. Swanson, No. 08-cv-00194-MSK-MEH, 2009 WL 1938793, at *1 (D. Colo. July 2, 2009) (noting that Plaintiff did not file a response to the motion for sanctions and “deem[ing] the Plaintiff to have defaulted on th[e] motion.”). However, given that the Motion [#100] raises identical arguments found in Defendant's March 3, 2017 Motion to Strike Plaintiff's Non-Retained Expert Disclosures [#36] (the “First Motion”), to which Plaintiff did file a Response [#38], the Court considers Plaintiff's arguments contained in that Response when analyzing the instant Motion [#100]. The Court also considers Defendant's Reply [#41] in further support of the First Motion [#36] to the extent necessary. Pursuant to 28 U.S.C. § 636(b)(1) and D.C.COLO.LCivR 72.1(c), the Motion [#100] has been referred to the undersigned for disposition. See [#101]. The Court has reviewed the Motion [#100], Plaintiff's prior Response [#38], Defendant's prior Reply [#41], the exhibits, the entire case file, and the applicable law, and is fully advised in the premises. For the reasons set forth below, the Court respectfully RECOMMENDS that the Motion [#100] be GRANTED.^[2]

         I. Background ^[[3]]

         Plaintiff initiated this 42 U.S.C. § 1983 lawsuit on February 24, 2016. Compl. [#1]. Plaintiff presently asserts a Fourth Amendment claim for use of excessive force stemming from a December 6, 2014 physical altercation with Defendant that occurred while Plaintiff was housed in the Adams County, Colorado Detention Facility (“ACDF”). See Am. Compl. [#10]; Order and Judgment [#86]; Mandate [#88]. This matter is currently set for a five-day jury trial beginning on October 7, 2019. Minute Order [#96].

         On the parties' deadline to disclose affirmative experts, Plaintiff disclosed the following four treating physicians as non-retained expert witnesses pursuant to Rule 26(a)(2)(C):^[4] (1) Dr. Mark Engelstad (“Engelstad”); (2) Dr. Arif Rohilla (“Rohilla”); (3) Dr. Martin Yussman (“Yussman”); and (4) Roy Theriot, D.D.S. (“Theriot”). Order [#98] at 3. In addition, Plaintiff disclosed Dan Montgomery and Dr. Stephanie Chiu as specially retained expert witnesses pursuant to Rule 26(a)(2)(B). Id. Thus, Plaintiff initially disclosed six experts in total.

         On March 3, 2017, Defendant filed the First Motion [#36] which sought to strike all four of Plaintiff's non-retained expert disclosures and to preclude those experts from testifying at trial. Id. In summation, Defendant argued that Plaintiff's expert disclosures had failed to comply with Rule 26(a)(2)(C), that Plaintiff's non-retained experts should have been designated as retained experts, and that at least three of Plaintiff's experts should be stricken because Plaintiff had exceeded the limit of three experts per side as set forth in the Scheduling Order [#23]. Id. Plaintiff filed his Response [#38] to the First Motion agreeing to withdraw Dr. Yussman's disclosure and strike Dr. Theriot's disclosure to the extent that it contained causation opinions. Id. at 3-4. Plaintiff contested Defendant's arguments with respect to the disclosures of Dr. Engelstad and Dr. Rohilla but, in doing so, failed to even acknowledge the fact that he had exceeded his limit of expert witnesses. Id.

         In light of Plaintiff's failure to address the expert limitation issue, the Court granted Defendant's First Motion [#36] on March 27, 2019, to the extent that Defendant sought to strike the number of Plaintiff's experts necessary to enforce the Scheduling Order. See Id. at 4-7. However, given the procedural posture of the case and Plaintiff's indication at the time that he wished to name only four expert witnesses, the Court provided Plaintiff the opportunity to comply with the limitation on experts by selecting either Dr. Engelstad or Dr. Rohilla as Plaintiff's third and final expert. Id. at 7. Accordingly, the Court denied Defendant's First Motion [#36] without prejudice to the extent that it sought to strike the disclosures of Dr. Engelstad, Dr. Rohilla, and Dr. Theriot and preclude those witnesses from testifying at trial; and ordered Plaintiff to serve Defendant with a Rule 26(e) supplement which identified whether Plaintiff intended to name Dr. Engelstad or Dr. Rohilla as his third and final expert witness. Id. at 7-8.^[5] In light of this holding, the Court declined to address the merits of Defendant's arguments pertaining to Rules 26(a)(2) and 37(c) until after Plaintiff had notified Defendant whether Dr. Engelstad or Dr. Rohilla would serve as Plaintiff's third and final expert. Id. at 7. However, the Court invited Defendant to file a renewed motion to strike Plaintiff's expert disclosures pursuant to Rule 37(c) once Plaintiff had disclosed which of these two experts he intended to use at trial and if such objections remained. Id.

         Following the Court's Order [#98], Defendant filed the instant Motion [#100] on April 18, 2019. In the Motion, Defendant advises the Court that Plaintiff has selected Dr. Engelstad as his third and final expert, thus abandoning the expert designation of Dr. Rohilla. [#100] at 1. Accordingly, Defendant renews his request from the First Motion [#36] that the Court issue an order (1) striking subparagraphs (b) through (e) of Plaintiff's expert disclosure of Dr. Engelstad and (2) precluding Dr. Engelstad from testifying on those topics at trial. Id. As grounds for this request, Defendant first argues that Plaintiff's disclosure of Dr. Engelstad violates Rule 26(a)(2)(C) by failing to adequately identify the factual basis for his opinions set forth in subparagraphs (b) through (e). Id. at 3-4. Second, Defendant argues that Dr. Engelstad intends to proffer opinions that go beyond the scope of his role as Plaintiff's treating physician. Thus, according to Defendant, Plaintiff must designate Dr. Engelstad as a “retained or specially employed” expert and provide a written expert report that complies with Rule 26(a)(2)(B). Id. at 5.

         Although Plaintiff did not respond to the instant Motion [#100], he did address these arguments in his Response [#38] to the First Motion [#36], contending that Dr. Engelstad should not be precluded from testifying at trial because his disclosure fully complied with Rule 26(a)(2)(C) and because his opinions are within the proper scope of a non-retained expert. Response [#38] at 5-12.

         II. Legal Standard

         Rule 26(a) requires a party to disclose the identity of any expert witness it may use at trial. Fed.R.Civ.P. 26(a)(2)(A). If such a witness is “one retained or specially employed to provide expert testimony in the case or one whose duties as the party's employee regularly involve giving expert testimony, ” the disclosure of the expert's identity must be accompanied by a written report prepared and signed by him. Fed.R.Civ.P. 26(a)(2)(B). The written report must contain the following:

(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)(i)-(vi). In contrast, if an expert witness is not “retained or specially employed, ” the disclosure of his identity need only contain “(i) the subject matter on which the witness is expected to present evidence under Federal Rule of Evidence 702, 703, or 705; and (ii) a summary of the facts and opinions to which the witness is expected to testify.” Fed.R.Civ.P. 26(a)(2)(C). “The purpose of expert disclosures is ‘to eliminate surprise and provide opposing counsel with enough information . . . to prepare efficiently for deposition, any pretrial motions and trial.'” Carbaugh v. Home Depot U.S.A., Inc., No. 13-cv-02848-REB-MEH, 2014 WL 3543714, at *2 (D. Colo. July 16, 2014) (quoting Cook v. Rockwell Int'l Corp., 580 F.Supp.2d 1071, 1121-22 (D. Colo. 2006)).

         While Rule 26(a)(2) addresses the sufficiency of the disclosure, Rule 37(c)(1) provides that failure to comply with Rule 26(a) precludes the use of the expert information at issue “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); see also Jacobsen v. Deseret Book Co., 287 F.3d 936, 952 (10th Cir. 2002) (“Rule 37(c) permits a district court to refuse to strike expert reports and allow expert testimony even when the expert report violates Rule 26(a) if the violation is justified or harmless.”). Thus, the Court must first determine whether the expert disclosure was sufficient under Rule 26(a) and, if not, then must analyze whether the insufficient disclosure was nonetheless “substantially justified or . . . harmless” under Rule 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. v. Principal Mut. Life Ins. Co., 170 F.3d 985, 993 (10th Cir. 1999) (quoting Mid-Am. Tablewares, Inc. v. Moqi Trading Co., 100 F.3d 1353, 1363 (7th Cir. 1996)). “A district court need not make explicit findings concerning the existence of a substantial justification or the harmlessness of a failure to disclose.” Id. (citing United States v. $9, 041, 598.68, 163 F.3d 238, 252 (5th Cir. 1998)). However, the Tenth Circuit has enumerated four factors the Court should use to guide its discretion in determining whether a Rule 26(a) violation is substantially justified or harmless: “(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. (citations omitted). The non-moving party has the burden of showing that it was substantially justified in failing to comply with Rule 26(a) and that such failure was harmless. Seeley v. Home Depot U.S.A., Inc., No. 17-cv-00584- PAB-NYW, 2018 WL 4275375, at *5 (D. Colo. Sept. 7, 2018) (citing Skarda v. Johnson & Johnson, 2014 WL 12792345, at *1 (D.N.M. June 30, 2014)). In analyzing these factors, the Court notes that the Tenth Circuit has stated that “[t]he decision to exclude evidence is a drastic sanction.” Summers v. Missouri Pac. R.R. Sys., 132 F.3d 599, 604 (10th Cir. 1997).

         III. Analysis

         In the Motion [#36], Defendant challenges only subparagraphs (b) through (e) of Plaintiff's Expert Witness Disclosures [#100-1] regarding Dr. Engelstad. Motion [#100] at 1. Those subparagraphs state that Dr. Engelstad will testify:

b. As a direct result of the incident at the Adams County Jail on December 6, 2014, where a jail guard used physical force and violence against Plaintiff, which was a traumatic event, his preexisting OCD and generalized anxiety disorder were triggered and aggravated, which caused him to have increased anxiety and emotional stress, including his believing, at the time of the above-mentioned incident, that he was having a heart attack that might cause his death. This would have been ...