Burgess v. Delta Air Lines, Inc.

Filing 48

ORDER. Defendants Motion for Leave to Designate Nonparties at Fault 33 is DENIED. By Magistrate Judge Craig B. Shaffer on 4/28/2011.(sah, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 10-cv-00927-LTB-CBS
CHARLES BURGESS,
Plaintiff,
v.
DELTA AIRLINES, INC.
f/n/a NORTHWEST AIRLINES, INC., and
JOHN AND JANE DOES 1-8,
Defendants.

ORDER ON MOTION FOR LEAVE TO DESIGNATE NONPARTIES AT FAULT

Magistrate Judge Craig B. Shaffer
This matter is before the court on the Motion for Leave to Designate Nonparties at Fault by
Defendant Delta Air Lines, Inc. (doc # 33), filed February 11, 2011 and referred to me in a memorandum
(doc # 36) entered February 15, 2011. Plaintiff Charles Burgess filed his Response in Opposition to
Defendants’ Motion to Designate Nonparty at Fault (doc # 40) on February 28, 2011. This court heard
argument on the motion during proceedings held March 23, 2011. After reviewing the entire case file, the
applicable law, and the parties’ arguments in briefing and oral argument, this court will deny Defendant’s
Motion.
FACTUAL BACKGROUND
Plaintiff filed his Complaint in state court on March 23, 2010, and Defendant Delta Air Lines
removed this action to federal court on April 23, 2010. In his Complaint, Plaintiff alleged that Defendant

Delta Airlines and Defendants John and Jane Does 1-8, current and/or former employees of Delta,1
negligently caused Plaintiff injury by failing to recognize that he was having a stroke at the Detroit airport
on December 28, 2007 and provide timely aid and emergency medical care, thereby exacerbating the
damage caused by his stroke. (Doc # 1-3). Defendant’s Answer, filed April 27, 2010, asserted among
other things that unnamed third parties were wholly or partially responsible for Plaintiff’s claimed injuries
and damages. (Doc # 4 at 4).
Under Colorado law, Defendant had 90 days from commencement of the action, or until June 21,
2010, to file notice that a nonparty was wholly or partially at fault. Colo. Rev. Stat. § 13-21-111.5(3)(b).
On June 22, 2010, Defendant filed its Unopposed Motion for Extension of Time to Designate Nonparties
at Fault (doc # 5), which was referred to me on June 24, 2010. In that motion, Defendant requested a new
deadline of August 23, 2010 for designating nonparties at fault, stating, “[A]t this time, Delta does not have
adequate information to properly designate potential nonparties at fault . . . The requested 60-day extension
will allow the parties to obtain and review information and documents basic to this case. . . .” Id. at 2.
This court issued a minute order on June 30, 2010 granting the extension to August 23, 2010.
Thereafter, discovery proceeded at a sluggish pace. The parties conferred under FED. R. CIV. P.
26(f) on May 27, 2010, but claim they did not complete their Rule 26(f) conference until October 8, 2010.
Plaintiff served his initial disclosures under FED. R. CIV. P. 26(a)(1) on June 21, 2010, but Rule 26(a)
disclosures were not completed until August 25, 2010. Rather than actively pursuing discovery, the parties
appear to have focused their attention on Plaintiff’s Motion for Determination of Question of Law
Regarding Statute of Limitations, filed August 13, 2010, and Defendant’s Motion for Summary Judgment,

1

To date, no individual employees have been named in this action. Thus, the court refers herein to
“Defendant,” meaning Delta Air Lines, Inc.
2

filed September 2, 2010. Defendant did not serve its first set of interrogatories and requests for production
until October 26, 2010. Meanwhile, the August 23 deadline for Defendant to file its nonparty designations
quietly passed.
Plaintiff responded to Defendant’s first set of interrogatories and requests for production on
December 13, 2010, 48 days after service. Asked in interrogatory 18 whether he had “filed an action or
made a written claim or demand for compensation for personal injuries” in the last ten years, Plaintiff
answered “No.” (Doc # 33-2 at 9). However, when Defendant deposed Mr. Burgess on January 11, 2011,
he testified that he was involved in a class action lawsuit against SmithKline Beecham Corporation, d/b/a
GlaxoSmithKline (“GlaxoSmithKline”), the manufacturer of the medication Avandia, and that the same
attorneys represented him in that class action and this case. (Doc # 33-3 at 5-6; doc # 33 at 3) (identifying
the class action as Multidistrict Litigation 1871, consolidated as In re Avandia Marketing, Sales Practices
and Products Liability Litigation in the United States District Court for the Eastern District of
Pennsylvania). Mr. Burgess further testified that he and one of his doctors believed that Avandia was
responsible for the blood clot that caused his stroke and led to the alleged injuries forming the basis of the
current action against Delta. (Doc # 33-3 at 3, 4-5). Defendant claims that this deposition testimony was
its first indication that Avandia and GlaxoSmithKline might be wholly or partially responsible for
Plaintiff’s alleged injuries. (Doc # 33 at 1-2).
Even after learning about the possible responsibility of Avandia and GlaxoSmithKline, Delta did
not file the instant motion to designate nonparties until February 11, 2011, a full month later. Defendant’s
motion was referred to me on February 15, 2011, and Plaintiff filed his response on February 28, 2011.
This court heard oral argument on the motion on March 23, 2011. At oral argument, Plaintiff’s counsel
represented that although Mr. Burgess had at first declined to sign the medical releases Defendant had

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served with its October 26, 2010 requests for production, he had since provided signed medical releases
and all the information he had in connection with his potential claim against GlaxoSmithKline.
ANALYSIS
Colorado’s pro rata liability statute provides that “[n]egligence or fault of a nonparty may be
considered . . . if the defending party gives notice that a nonparty was wholly or partially at fault within
ninety days following commencement of the action unless the court determines that a longer period is
necessary.” Colo. Rev. Stat. § 13-21-111.5(3)(b) (emphasis added). This action commenced on March
23, 2010 with the filing of Plaintiff’s Complaint, and the 90-day period for designating nonparties at fault
expired on June 21, 2010. Thus, Defendant’s June 22, 2010 Unopposed Motion for Extension of Time to
Designate Nonparties at Fault was untimely. Nevertheless, this court granted Defendant’s requested
extension to August 23, 2010. The question is whether it was necessary for Delta to wait until February
11, 2011 to designate GlaxoSmithKline as a nonparty at fault.
The burden of showing the necessity of a longer period for designating nonparties at fault logically
falls on Defendant. See Redden v. SCI Colo. Funeral Servs., Inc., 38 P.3d 75, 83-84 (Colo. 2001) (en
banc) (discussing a defendant’s failure to justify an untimely nonparty designation). Delta’s necessity
argument rests on its contention that it could not have identified GlaxoSmithKline’s possible responsibility
for Plaintiff’s injuries prior to the January 11, 2011 deposition because of (1) Plaintiff’s misleading
response to Defendant’s interrogatories and (2) Plaintiff’s refusal to execute releases for his medical
records.2 (Doc # 33 at 3-5).

2

Under FED. R. CIV. P. 34, Defendant did not have the right to compel Mr. Burgess to produce
records which were held by medical providers and therefore outside his control. See, e.g., Neal v. Boulder,
142 F.R.D. 325 (D. Colo. 1992); Shaw v. Mgmt. & Training Corp., No. 04-2394-KHV-DJW, 2005 WL
375666 at *2 (D. Kan. 2005).
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As incomplete as Plaintiff’s discovery responses may have been, they do not establish the
“necessity” for Defendant to delay its nonparty designations for nearly a year after commencement of the
action. The statutory allowance for an extension based on necessity recognizes that “[t]he natural course of
litigation may prevent a defendant from developing a well-founded designation until after the 90-day
period has run.” Watters v. Pelican Int’l, Inc., 706 F. Supp. 1452, 1457 (D. Colo. 1989). Defendant’s
Answer evinced its awareness of potential nonparty liability and the 90-day deadline as early as April 27,
2010. (See doc # 4 at 4). Nevertheless, Defendant made no significant effort to identify potential
nonparties on a timely basis. Even assuming that Defendant was unlikely to have identified the possible
fault of GlaxoSmithKline or Avandia without Plaintiff’s help, we must consider whether Defendant took
action reasonably calculated to unearth the needed information.
At oral argument, Defendant’s counsel represented that it had conducted early informal discovery
to identify potential nonparties at fault. However, these efforts fell far short of what would have been
needed to provide the basis for designating nonparties by the August 23, 2010 deadline Defendant itself
had requested. Delta could have commenced formal discovery after the parties first conferred under FED.
R. CIV. P. 26(f) on May 27, 2010, but did not serve its interrogatories until October 26, 2010. Fed. R. Civ.
P. 26(d). Had Defendant served its interrogatories before the deadline it proposed, it would be in a much
stronger position to complain that Plaintiff’s deficient response prevented a timely designation. Delta was
not prejudiced by the August 23, 2010 deadline, but rather by its complete failure to pursue formal
discovery of any kind.
Even after Plaintiff’s deposition revealed the possible role of Avandia in causing his injuries,
Defendant waited another month before filing its motion seeking to designate GlaxoSmithKline as a
nonparty at fault. At oral argument, defense counsel contended that his client did not have sufficient

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information to make the designation before the date it filed the instant motion. However, the statute
requires only that the designation contain the “nonparty’s name and last-known address, or the best
identification of such nonparty which is possible under the circumstances, together with a brief statement
of the basis for believing such nonparty to be at fault.” Colo. Rev. Stat. § 13-21-111.5(3)(b). Colorado
state courts have held that the designation need not prove negligence, but must “connect[] alleged facts
with the established elements of negligence,” specifically, “the existence of a duty, a breach of that duty,
causation, and damages.” Redden, 38 P.3d at 81, 80 (citing Sandoval v. Archdiocese of Denver, 8 P.3d
598, 606 (Colo. Ct. App. 2000) and Observatory Corp. v. Daly, 780 P.2d 462, 465 (Colo. 1989)). Here,
Defendant had everything it needed after Mr. Burgess’s deposition. (See doc # 33-3 at 3-6).
Essentially, Defendant would have the court read the word “necessary” out of the pro rata liability
statute. Having granted Defendant’s requested extension to designate nonparties by August 23, 2011, the
court was entitled to expect that Delta would work diligently either to meet that date or to make a timely
showing why a further extension was necessary. To the extent that any adverse consequences flow from
Delta’s failure to act, they should be borne by Defendant.

Accordingly, IT IS HEREBY ORDERED that Defendant’s Motion for Leave to Designate
Nonparties at Fault (doc # 33) is DENIED.
DATED at Denver, Colorado, this 28th day of April, 2011.
BY THE COURT:

s/Craig B. Shaffer
Craig B. Shaffer
United States Magistrate Judge

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