Silverstein v. Federal Bureau of Prisons et al

Filing 382

ORDER: defendants' Motion for Leave to File a Motion to Exclude Expert Witness Testimony 367 is GRANTED; defendants' Motion to Exclude Expert Witness Testimony [367-1] is accepted for filing. Plaintiff shall file a response to the motion on or before 7/29/11; defendants shall file a reply, if any, on or before 8/5/11. By Judge Philip A. Brimmer on 7/8/11.(pabsec)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Case No. 07-cv-02471-PAB-KMT
THOMAS SILVERSTEIN,
Plaintiff,
v.
FEDERAL BUREAU OF PRISONS, et al.,
Defendants.
_____________________________________________________________________
ORDER GRANTING LEAVE TO FILE MOTION TO EXCLUDE EXPERT WITNESS
TESTIMONY
_____________________________________________________________________
This matter is before the Court on defendants’ motion [Docket No. 367] seeking
leave to file a motion to exclude expert testimony pursuant to Federal Rule of Evidence
702. The original trial preparation order entered by Judge Marcia S. Krieger in February
2008 set the deadline to file Rule 702 motions as “the same as that for filing dispositive
motions” and explained that “[i]f the dispositive motion deadline is changed, the Rule
702 deadline automatically changes to match it.” Docket No. 34 at 2. The dispositive
motion deadline was extended several times, but eventually Magistrate Judge Kathleen
M. Tafoya set a deadline of January 26, 2011. See Docket No. 294. Defendant,
however, did not file any Rule 702 motions on that date.
Nonetheless, plaintiff still bears the burden of showing that his experts’ opinions
are admissible at trial and defendants’ failure to file a written motion has not waived
their Rule 702 objections. See Practice Standards (Civil cases), Judge Philip A.
Brimmer, § III.G. Plaintiff acknowledges that defendants may still move to exclude the
opinions of his experts at trial. See Docket No. 369 at 4. The Court finds that

addressing defendants’ Rule 702 objections in advance of trial will enable a more
considered and efficient assessment of those objections. Moreover, plaintiff has not
demonstrated prejudice. Accordingly, it is
ORDERED that defendants’ Motion for Leave to File a Motion to Exclude Expert
Witness Testimony [Docket No. 367] is GRANTED. It is further
ORDERED that defendants’ Motion to Exclude Expert Witness Testimony
[Docket No. 367-1] is accepted for filing. It is further
ORDERED that plaintiff shall file a response to defendants’ motion on or before
July 29, 2011. It is further
ORDERED that defendants shall file a reply, if any, to plaintiff’s response on or
before August 5, 2011.

DATED July 8, 2011.
BY THE COURT:

s/Philip A. Brimmer
PHILIP A. BRIMMER
United States District Judge

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