Boyd et al v. Home Depot, Inc., The

Filing 50

ORDER denying 18 Motion to Strike by Magistrate Judge Kristen L. Mix on 01/25/13.(jjhsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 11-cv-03129-WYD-KLM
PETER BOYD, and
CORDELIA GILLIS
Plaintiffs,
v.
THE HOME DEPOT, INC.,
Defendant.
_____________________________________________________________________
ORDER
_____________________________________________________________________
ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX
This matter is before the Court on Defendant’s Motion to Strike Plaintiffs’ Expert
Disclosures [Docket No. 18; Filed September 24, 2012] (the “Motion”). Plaintiffs submitted
a Response in opposition to the Motion on October 12, 2012 [#23], and Defendant filed a
Reply on October 18, 2012 [#27]. The Motion is ripe for review and referred to this Court
for disposition. See [#19]. For the reasons stated below, the Court DENIES the Motion.
I.

Background
This lawsuit arises from Plaintiffs’ allegations that on May 4, 2010, Plaintiff Boyd fell

in a wheelchair accessible bathroom stall at a Home Depot store in Colorado Springs while
attempting to move from his wheelchair to the toilet. Complaint [#1] at 2-3. Plaintiffs allege
that the stall’s support bar, which Plaintiff Boyd leaned on to move to the toilet, gave way,
causing him to fall and sustain serious injuries. Id. In the instant Motion, Defendant
requests that the Court strike Plaintiffs’ expert witness disclosures because Plaintiffs
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disclosed three more experts than the Scheduling Order permitted. [#18] at 3. Defendant
asserts that Plaintiffs disclosed a total of eight experts, three retained and five non-retained.
[#18] at 2. Alternatively, Defendant requests that the five non-retained expert disclosures
be stricken because, according to Defendant, expert reports should have been produced
for these experts pursuant to Fed. R. Civ. P. 26(a)(2)(B) but were not. Defendant also
contends that even if expert reports are not required, Plaintiffs failed to provide the subject
of and a summary of the non-retained experts’ testimony as required by Rule 26(a)(2(C).
In Response, Plaintiffs first contend that Defendant’s counsel failed to properly
confer with Plaintiffs’ counsel before filing the Motion. [#23] at 1. Plaintiffs’ counsel further
contends that before the Motion was filed, he spoke with Defendant’s counsel and informed
him that in addition to the three retained experts, only two of the five previously identified
non-retained experts, Drs. Rauzzino and Hodulik, would be called. Id. Plaintiffs’ counsel
states that by the end of the conversation he believed that all the expert disclosure issues
had been resolved. Id. at 2. Thus, when the Motion was filed, Plaintiffs’ counsel claims he
called Defendant’s counsel and asked him to withdraw the Motion. Id. Additionally,
Plaintiffs’ counsel acknowledges in the Response that Drs. Rauzzino and Hodulik will testify
to matters beyond their treatment of Plaintiff Boyd, including causation and impairment.
Id. at 4. Plaintiffs’ counsel therefore indicated that he was disclosing Dr. Rauzzino’s expert
report simultaneously with the Response and that Dr. Hodulik’s expert report would be
disclosed as soon as it was received. Id. at 5.
In the Reply, Defendant’s counsel disputes the version of events stated by Plaintiffs’
counsel in the Response. [#27] at 2-6. Defendant’s counsel states that he spoke with
Plaintiffs’ counsel more than a week after the Motion was filed, on October 2, 2012, to
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discuss other discovery issues. Id. at 4.1 During this call, according to Defendant’s
counsel, Plaintiffs’ counsel for the first time stated that he would only be calling five expert
witnesses at trial, including Drs. Rauzzino and Hodulik. Id. He further states that Plaintiffs’
counsel never even mentioned the Motion, let alone asked defense counsel to withdraw
it. Id. at 5. Regardless, in light of the modifications to Plaintiffs’ expert disclosures,
Defendant now seeks only the exclusion of the expert designations of Drs. Rauzzino and
Hodulik. [#27] at 2. Defendant explains that it did not receive Dr. Rauzzino’s expert report
until October 12, 2012, more than a month after the September 4, 2012 deadline and that,
as of the date of the Reply, it had not received Dr. Hodulik’s expert report. [#27] at 6, 13.2
Defendant argues that it has been prejudiced by the untimely disclosure of the reports and
that the two experts should therefore be excluded. Id. at 8-17.
II.

Analysis
Although Fed. R. Civ. P. 26(a)(2)(D) governs the timing of expert report disclosures,

Fed. R. Civ. P. 37(c)(1) prescribes the Court’s authority to strike expert testimony based
on an untimely disclosure. E.g., Jacobsen v. Deseret Book Co., 287 F.3d 936, 952 (10th
Cir. 2002) (holding that “[r]ule 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

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Defendant’s counsel also explains that he sent two letters to Plaintiffs’ counsel
regarding the expert witness issues before filing the Motion but received no response to either
letter. See [#18-2, #18-3]. Thus, Defendant argues that Plaintiffs’ failure to confer argument is
without merit. [#27] at 18.
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In light of the representation made by Plaintiff’s counsel in the Response, the Court
assumes that Dr. Hodulik’s expert report was disclosed to Defendant soon after the Reply was
filed. If that is not the case and Dr. Hodulik’s report has not yet been disclosed, the Court will,
pursuant to a motion, reconsider its ruling on the instant Motion as to Dr. Hodulik.

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is justified or harmless.”). Rule 37(c)(1) provides that a 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.” “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).

The Court must consider four factors in

determining whether the failure to timely disclose is substantially justified or harmless: (1)
the prejudice or surprise to the impacted party, (2) the ability to cure the prejudice, (3) the
potential for trial disruption, and (4) the erring party's bad faith or willfulness. Woodworker's
Supply, Inc., 170 F.3d at 993. “‘The burden of establishing substantial justification and
harmlessness is upon the party who is claimed to have failed to make the required
disclosures.’” See Contour PAK, Inc. v. Expedice, Inc., No. 08-cv-01091-PAB-KMT, 2009
WL 2490138, at *1 (D. Colo. Aug. 14, 2009) (quoting Nguyen v IBP, Inc., 162 F.R.D. 675,
680 (D.Kan. 1995)).
Plaintiff contends that Defendant has not been prejudiced by the late expert reports
from Drs. Rauzzino and Hodulik. [#23] at 6. Plaintiff argues that no trial date has been set
in this matter and that ample time exists for Defendant to depose Drs. Rauzzino and
Hodulik. Id.
Defendant argues that the factors set forth in Woodworker’s Supply weigh in favor
of striking the untimely reports and, in turn, the two experts’ testimony. [#27] at 8-17.
Defendant argues that it has been prejudiced because “the discovery period has closed,
the deadline for Home Depot to designate experts has expired, and the deadline to file
Daubert motions and dispositive motions is November 1, 2012.” [#27] at 14. Defendant
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further claims that Plaintiffs cannot cure the prejudice, that allowing the late reports would
disrupt trial in this matter, and that Plaintiffs have offered no excuse for failing to comply
with Rule 26(a)(2)(B) and the Scheduling Order. [#27] at 10-13, 15-17.
Applying the four Woodworker’s Supply factors here, the Court finds that Plaintiffs’
failure to timely provide expert reports for Drs. Rauzzino and Hodulik was harmless.
Regarding the first factor, prejudice to the impacted party, the Court finds minimal prejudice
to Defendant as a result of the late disclosures. As Plaintiffs noted, no trial date has been
set in this matter. The District Judge just recently issued a Minute Order [#49] stating that
because the motion for partial summary judgment was not fully briefed until a few weeks
ago, this matter is not ripe for a trial setting. Additionally, the parties agree that Dr.
Rauzzino’s report was disclosed on October 12, 2012, approximately five weeks after the
deadline. As noted above, presumably Dr. Hodulik’s report was disclosed soon thereafter.
Although the Court recognizes the importance of complying with expert report disclosure
deadlines, Defendant had ample time after the disclosures to request modifications of other
case deadlines that were affected by the late disclosures. In fact, the parties requested
and received an extension of the dispositive motions deadline to complete other expert
depositions. See [#22]. Defendant could have made the same request for the purpose of
deposing Drs. Rauzzino and Hodulik.
Further, Defendant’s contention that the late disclosures prevented it from filing
timely Daubert motions is no longer true in light of the Court’s November 9, 2012 Order
[#36] vacating the Rule 702 motions deadline. As the Order stated, the District Judge has
instructed the parties that they may file Rule 702 or Daubert motions once the case is
scheduled for a final trial preparation conference and jury trial. See [#33]. For these
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reasons, the Court finds that the late disclosures of the expert reports have resulted in
minimal prejudice to Defendant.
Regarding the second factor, the Court finds that the minimal prejudice caused by
the late disclosures can be cured. As explained above, because a trial date will not be set
until after a ruling on the motion for partial summary judgment, there appears to be
sufficient time to depose Drs. Rauzzino and Hodulik, and, if warranted by their deposition
testimony, file Rule 702 or Daubert motions to preclude their testimony. Additionally, the
Court would be willing to entertain a motion by Defendant to supplement its own rebuttal
expert disclosures, if necessary, based on the deposition testimony of Drs. Rauzzino and
Hodulik. Thus, the Court finds that any prejudice resulting from the late disclosures can be
cured.
With respect to the third factor, there appears to be very little potential for trial
disruption as a result of the untimely disclosures. As explained above, there is no trial
setting in this matter and there is sufficient time to conduct depositions and do what is
necessary to avoid any potential disruption of the trial.
Finally, with regard to the fourth factor, the Court finds that there is insufficient
evidence of bad faith or willfulness surrounding Plaintiffs’ untimely disclosures of the expert
witness reports. Although Plaintiffs fail in their Response to provide an explanation for the
late disclosures, the Court finds no basis to conclude it was done willfully or in bad faith.
The Court notes that Plaintiffs have identified Drs. Rauzzino and Hodulik as non-retained
experts, which ordinarily are exempt from the requirement to issue a report. See Silver v.
Shapiro, No. 10-cv-01856-CMA-KLM, 2011 WL 1321798, at *2 (D.Colo. April 5, 2011).
Because the two doctors intend to offer opinions regarding causation and impairment, in
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addition to testimony regarding their treatment of Plaintiff Boyd, Plaintiffs acknowledge that
the doctors must issue written reports in conformity with Rule 26(a)(2)(B). See id. This
distinction between report requirements for retained and non-retained experts may account
for the fact that Plaintiffs timely disclosed written reports from their retained experts but
failed to do so with respect to their non-retained experts. Regardless, the Court finds that
Defendant’s arguments that Plaintiffs acted with bad faith and willfulness are unavailing.
Considering the four Woodworker’s Supply factors together, the Court finds that
Plaintiffs’ untimely disclosures of the expert reports by Drs. Rauzzino and Hodulik are
“harmless” such that the reports should not be stricken pursuant to Rule 37(c)(1). Although
Rule 37(c)(1) authorizes other sanctions for late disclosures besides striking the
information, Defendant has not requested an alternative sanction here.
III.

Conclusion
For the foregoing reasons,
IT IS HEREBY ORDERED that the Motion [#18] is DENIED.
Dated: January 25, 2013

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