Doll et al v. Kaz USA, Inc. et al

Filing 182

ORDER :denying 159 Motion to Strike ; granting 164 Motion for Leave to amend Scheduling Order; granting in part and denying in part 167 Motion to Strike Plaintiff Shirley Doll Kochs SupplementalAnswer to Defendants First Set of Interrogatories, by Magistrate Judge Boyd N. Boland on 6/23/11.(bnbcd, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Magistrate Judge Boyd N. Boland
Civil Action No. 09-cv-02976-LTB-BNB
SHIRLEY DOLL KOCH, and
JIMMIE KOCH,
Plaintiffs,
v.
KAZ USA, INC., and
KAZ, INC.,
Defendants.
______________________________________________________________________________
ORDER
______________________________________________________________________________
This matter arises on the following:
(1)

Defendants’ Motion to Strike the Letters Produced With Plaintiffs’ Sixteenth

and Nineteenth Supplemental Rule 26(a)(1) Disclosures [Doc. # 159, filed 5/23/2011] (the
“Motion to Strike Expert Letters”);
(2)

Defendants’ Motion to Take the Depositions of Shannon Doll and Tara Smith

[Doc. # 164, filed 5/26/2011] (the “Motion to Amend Scheduling Order”); and
(3)

Defendants’ Motion to Strike Plaintiff Shirley Doll Koch’s Supplemental

Answer to Defendants’ First Set of Interrogatories [Doc. # 167, filed 6/2/2011] (the “Motion
to Strike Supplemental Interrogatory Answer”).
This case was removed to this court on December 21, 2009. A scheduling conference
was held on February 18, 2010. The discovery cut-off was December 1, 2010, Scheduling Order
[Doc. # 21], which was later extended to December 17, 2010. Minute Order [Doc. # 89]. Trial

is scheduled to commence on October 3, 2011.
Several last minute events have thrown the case into turmoil.
First, on January 5, 2011, (after the close of discovery) the plaintiffs served their
Sixteenth Supplemental Disclosure which included a letter from Dr. Durairaj, one of Mrs.
Koch’s treating physicians, which states:
Shirley will continue to need ophthalmology examinations at least
on a monthly basis for the next several years. Potential future
surgeries include eyelid reconstruction and facial reconstruction to
help protect her left eye. There is a possibility that she may need a
corneal transplant in the future to help correct her scarred cornea
from previous exposure. Although it is difficult to estimate the
cost of future treatment and rehabilitation, it is my estimate that
each surgery will entail at least $10,000-$20,000 in costs and each
examination will incur approximately $100 per visit. I anticipate
that she will need, at the minimum, 4-5 surgeries in the future.
Motion to Strike Expert Letters [Doc. # 159] at ¶4.
On February 28, 2011, (also after the close of discovery) the plaintiffs served their
Nineteenth Supplemental Disclosure which included a letter from Dr. Krutsch, another of Mrs.
Koch’s treating physicians, which states:
[The plaintiff] will most likely always have pain and will need to
be followed by a pain specialist monthly. She will also probably
need opoid and/or analgesic therapy indefinitely. It may also be
necessary to do interventional procedures, such as nerve blocks to
the face and head periodically to help manage the intensity of her
pain.
Id. at ¶ 6.
Based on these letters and the additional treatments which they identify, the plaintiffs
served their Twentieth and 21st Supplemental Disclosures on March 2 and 7, 2011, respectively,
increasing their claimed damages by more than $300,000. Id. at ¶¶7-8.

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Second, on April 7, 2011, Mrs. Koch produced (belatedly) her telephone records which
showed that in the hours immediately following her injury, a 15-minute telephone call was
placed from Mrs. Koch’s land line to her daughter, Shannon Doll. In addition, in January 2011
Mrs. Koch’s other daughter, Tara Smith, disclosed that Mrs. Koch stayed at her home shortly
after the accident.
Third, on May 11, 2011, (long after the close of discovery) Mrs. Koch served a
supplemental interrogatory answer in response to an inquiry to “describe with specificity how
the incident occurred.” Motion to Strike Supplemental Interrogatory Answer [Doc. # 167] at p.
2. Previously, Mrs. Koch had responded:
Other than hearing a “popping sound” coming from the heater, I
cannot remember anything from the day of the incident.
Id. at p. 2. In her supplemental answer of May 11, however, Mrs. Koch claimed to have
recovered certain memories and stated:
Recently I regained additional memory about the day of the
accident and what happened. In addition to my previous answer I
now remember the following: I recall sitting down to eat breakfast
the day of my accident and then I started doing laundry about 6:30
a.m. I was doing about 14 loads, which included clothes, curtains,
and bedding. At approximately 2:45 p.m. I went to lay down on
the bed in my bedroom because I was planning on watching
Oprah. I fell asleep before Oprah came on and woke up when I
heard a bang, like something popping open. There was smoke in
the room and the smell was horrific. I started scooting towards the
bottom of the bed to slide off. I saw the clock on the wall and it
was something before 4:00. I was thinking I needed to open a
window, but no I need to get out the door. I have no memories
after that for the day of the accident.
Id. at ¶7.
As to the recovered memories, plaintiffs’ counsel made a compelling argument at the

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hearing on the motions. He argued that recovered memories are not constrained by a discovery
schedule, even one set by a federal court; Mrs. Koch now asserts that she has additional
recollection of the events surrounding her injury; and these facts must be presented to the jury so
that it may consider all the evidence in its search for the truth.
1. Motion to Strike Expert Letters
The full relief sought by the defendants with respect to the treating physicians is an order
striking the letters and precluding plaintiffs “from offering evidence at trial with respect to the
recommendations made in the letters and the estimated costs associated therewith.” Motion to
Strike Expert Letters [Doc. # 159] at p. 6.
The Tenth Circuit Court of Appeals has described the exclusion of evidence as “a drastic
sanction.” Summers v. Missouri Pacific Railroad System, 132 F.3d 599, 604 (10th Cir. 1997).
Factors to be considered in deciding whether to exclude testimony include:
(1) the prejudice or surprise in fact of the party against whom the
excluded witnesses would have testified, (2) the ability of that
party to cure the prejudice, (3) the extent to which waiver of the
rule against calling unlisted witnesses would disrupt the orderly
and efficient trial of the case or of other cases in court, and (4) bad
faith or willfulness in failing to comply with the court’s order.
Id.; Washington v. Arapahoe County Dept. of Social Services, 197 F.R.D. 439 (D. Colo. 2000).
Although the treating physicians’ letters provide greater detail concerning the proposed
future treatment of Mrs. Koch and associated costs, the general nature and extent of Mrs. Koch’s
injuries are well known to the defendants and are generally documented in her medical records,
including those of Drs. Durairaj and Krutsch, which have been previously disclosed. Although
the recent letters no doubt create some surprise, in view of the plaintiffs’ previous disclosures I
find that the degree of surprise is not substantial. There is adequate time to cure the surprise, and
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I will allow the defendants, at their option, to depose Drs. Durairaj and Krutsch about their
opinions concerning Mrs. Koch’s injuries, future treatment of the injuries, and associated costs
of treatment. None of this will disrupt the orderly and efficient trial of the case, and there is no
evidence of bad faith or willfulness by Mrs. Koch or her counsel.
Applying the factors set out in Summers leads me to conclude that the Motion to Strike
Expert Letters must be denied.
2. Motion to Amend Scheduling Order
Although not so captioned, the defendants’ request to depose Mrs. Koch’s daughters
seeks to amend the case schedule to reopen discovery to allow two additional depositions. A
scheduling order may be amended only upon a showing of good cause. Fed. R. Civ. P. 16(b)(4).
In this regard:
Rule 16(b) does not focus on the bad faith of the movant, or the
prejudice to the opposing party. Rather, it focuses on the diligence
of the party seeking leave to modify the scheduling order to permit
the proposed amendment. Properly construed, “good cause”
means that the scheduling deadlines cannot be met despite a
party’s diligent efforts. . . . Carelessness is not compatible with a
finding of diligence and offers no reason for a grant of relief.
Colorado Visionary Academy v. Medtronic, Inc., 194 F.R.D. 684, 687 (D. Colo. 2000)(internal
quotation and citation omitted).
Here, due to the late disclosure of Mrs. Koch’s telephone records and the defendants’
determination after the close of discovery that Mrs. Koch stayed with her daughter following her
injury, I find that the need to depose the daughters could not have been known prior to the close
of discovery. Consequently, good cause exists to reopen discovery to allow the depositions of
Shannon Doll and Tara Smith, and the Motion to Amend Scheduling Order to allow those

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depositions should be granted.
3. Motion to Strike Supplemental Interrogatory Answer
Through the Motion to Strike Supplemental Interrogatory Answer, the defendants seek an
order striking the supplemental discovery response and precluding the plaintiffs from offering
evidence at trial regarding the recovered memories or, in the alternative, an opportunity to
reopen the deposition of Mrs. Koch. Motion to Strike Supplemental Interrogatory Answer [Doc.
# 167] at p. 4. The plaintiffs concede that the defendants should be allowed to question Mrs.
Koch about her recovered memories, but argue that the deposition should be limited to the new
memories only and should not exceed one hour. Response [Doc. # 174] at pp. 3-4.
Applying the factors set out in Summers, I find that the defendants’ request to exclude
testimony about the recovered memories must be denied. Although the defendants are surprised
by the recovered memories, that surprise may be cured by reopening Mrs. Koch’s deposition.
Allowing additional questioning of Mrs. Koch will not disrupt the trial of the case, and I find that
there is no bad faith or willfulness involved in the recovered memories.
The recovered memories permeate the factual bases of the plaintiffs’ claims.
Consequently, I will not impose either a topical or a time limit on Mrs. Koch’s reopened
deposition, other than the presumptive seven hours. If the plaintiffs perceive that abuse is
occurring in connection with the defendants’ questioning during the reopened deposition (which
I do not anticipate), they may seek relief pursuant to D.C.COLO.LCivR 30.3A(3).
IT IS ORDERED:
(1)

The Motion to Strike Expert Letters [Doc. # 159] is DENIED;

(2)

The Motion to Amend Scheduling Order [Doc. # 164] is GRANTED;

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(3)

The Motion to Strike Supplemental Interrogatory Answer [Doc. # 167] is

DENIED insofar as it seeks to exclude evidence but is GRANTED to allow the deposition of
Mrs. Koch to be reopened; and
(4)

Discovery is reopened solely to allow the following depositions or reopened

depositions: (i) Dr. Vikram Durairaj; (ii) Dr. Jason Krutsch; (iii) Shannon Doll; (iv) Tara Smith;
and (v) Shirley Doll Koch. Each deposition shall not exceed one day of seven hours. The
depositions shall occur at the dates and times as the parties may agree, but must be concluded no
later than July 29, 2011.
Dated June 23, 2011.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge

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