United States District Court, D. Colorado
RECOMMENDATION OF UNITED STATES MAGISTRATE
KRISTEN L. MIX UNITED STATES MAGISTRATE JUDGE
matter is before the Court on Defendant's Renewed
Motion to Strike Portions to Dr. Engelstad's Expert
Disclosure [#100] (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
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
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): (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.
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.
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. 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.
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.
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.
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
(iii) any exhibits that will be used to summarize or support
(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.
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).
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).
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 ...