Arrington v. Born-n-Raised, Inc. et al

Filing 173

ORDER granting 155 Defendant's Motion to Strike Plaintiff's Untimely Disclosures Pursuant to Fed. R. Civ. P. 37(c). By Judge Lewis T. Babcock on 5/9/2014.(klyon, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Lewis T. Babcock, Judge
Civil Action No. 12-cv-00172-LTB-KLM
TROY R. ARRINGTON, II,
Plaintiff,
v.
TIMOTHY R. CHAVEZ,
Defendant.
______________________________________________________________________________
ORDER
______________________________________________________________________________
This case is before me on Defendant’s Motion to Strike Plaintiff’s Untimely Disclosures
Pursuant to Fed. R. Civ. P. 37(c) [Doc # 155]. After consideration of the motion, all related
pleadings, and the case file, I grant Defendant’s motion.
I. Background
This action arises out of an automobile accident that occurred on March 19, 2009 in
Durango, Colorado. Plaintiff’s Complaint asserts a negligence claim against Defendant for
causing the accident, and liability, causation, and damages are disputed. The initial discovery
cutoff date in this case was set for January 13, 2013 [Doc # 13]. On joint motion by the parties,
this date was extended to May 15, 2013 [Doc # 73]. Plaintiff did not seek any further extensions
of the discovery cutoff date.
The subject of Defendant’s motion to strike are (1) a July 9, 2013 supplemental report
from Dr. Robert Cowan that was provided to Defendant with Plaintiff’s 20th Supplemental
Disclosures dated July 15, 2013 and (2) Plaintiff’s identification of four additional witnesses in

his 23rd Supplemental Disclosures dated October 1, 2013. None of these disclosures were
included in the parties May 14, 2013 Proposed Pretrial Order, and the time for objection set forth
in Fed. R. Civ. P. 26(a)(3)(B) is therefore inapplicable. See D.C. Colo. LCivR 26.1B (“The
tendering of a proposed final pretrial order ... shall satisfy the requirement of Fed. R.Civ.P.
26(a)(3) that pretrial disclosures be filed with the court”).
II. Legal Standard
Under Rule 26(e)(1)(A), a party must supplement its disclosures under Rule 26(a) “in a
timely manner if the party learns in some material respect the disclosure or response is
incomplete or incorrect, and if additional or corrective information has not otherwise been made
known to the other party during the discover process or in writing.” “If a party fails to disclose
information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use
that information or witness 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).
It is in my discretion to determine whether a violation of Rule 26 was substantially
justified or harmless. Woodworker’s Supply, Inc. v. Principal Mut. Life Ins. Co., 170 F.3d 985,
993 (10th Cir. 1999). In making this determination, I consider “(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. “The burden of establishing substantial justification and
harmlessness is upon the party who is claimed to have failed to make the required disclosure.”
Nguyen v. IBP, Inc., 162 F.R.D. 675, 680 (D. Kan. 1995).

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II. Analysis
A. Dr. Cowan’s Supplemental Report
Dr. Cowan’s Supplemental Report lists a number of documents that he reviewed “in [his]
original evaluation” and states that he performed a second review of the records. Dr. Cowan
cites notes from a November 21, 2011 neurological examination of Plaintiff that is listed with the
documents that he originally reviewed and opines that this examination reflects “anxiety
symptoms.”
There can be no question that all of the information contained in Dr. Cowan’s July 9,
2013 Supplemental Report could have been disclosed well prior to the discovery cutoff date of
May 15, 2013 and that Defendant will be prejudiced by even further delay and expenses in this
case which has already had its original trial date of July 8, 2013 vacated. This report is therefore
stricken, and Plaintiff may not present any new information it contains as evidence at trial.
B. Additional Witnesses Identified by Plaintiff
1. Dr. Roussel Clement
On his 23rd Supplemental Disclosures, Plaintiff stated that “[he] is being treated by
Roussel Clement, M.D.” with no supporting records or description of the treatment being
provided. Apparently, Dr. Clement did not begin treating Plaintiff until after the discovery
cutoff date following the death of his previous treating physician. These circumstances
demonstrate the problems created by protracted litigation such as this case.
Although Plaintiff may have been substantially justified by the timing of his disclosure of
Dr. Clement, Defendant is prejudiced by it particularly in light of the lack of information
provided with this disclosure or since. Plaintiff has indicated that he does not intend to call Dr.

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Clement as a witness at trial. Under these circumstances, I conclude that the interests of this
case are best served by striking Dr. Clement as a witness and barring Plaintiff from introducing
evidence regarding his treatment at trial.
2. Laura Bourque and Janice Pelissier
Plaintiff asserts that these witnesses are relatives of his who began helping with his care
after the discovery cutoff. Plaintiff does not specify either in his disclosures or his response to
the motion what type of help they are providing or exactly when they began to do so. Thus,
Plaintiff has not satisfied his burden of establishing substantial justification for failure to disclose
these witnesses prior to October 1, 2013.
Even if Plaintiff may have been substantially justified by the timing of his disclosure of
these witnesses, Defendant is prejudiced by it since the discovery cutoff date has passed and
there is no good cause to extend it as required by Rule 16(b). I therefore conclude that the
interests of this case are best served by striking these witnesses and barring Plaintiff from
introducing evidence regarding their care of him at trial.
3. Julie Barnes-Romero
Plaintiff asserts that Ms. Barnes-Romero is the only eyewitness to the accident and that
he began trying to locate her after receiving dispatch records from the Durango Police
department in which she was identified on May 9, 2013. This timeline fails to explain why
Plaintiff failed to disclose Ms. Barnes-Romero as a potential witness prior to May 15, 2013 or
why he failed do so until almost 5 months after he first discovered her identity. Thus, Plaintiff
has not satisfied his burden of establishing substantial justification for his failure to timely
disclose Ms. Barnes–Romero as a potential witnesses. Although Defendant received the same

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dispatch records on May 9, 2013, I conclude that was insufficient notice to Defendant that
Plaintiff could seek to elicit her testimony at trial.
I further conclude that Defendant is prejudiced by the late disclosure of Ms. BarnesRomero as a potential witness since the discovery cutoff date has passed and there is no good
cause to extend it as required by Rule 16(b). I therefore conclude that the interests of this case
are best served by striking Ms. Barnes-Romero as a potential witness and barring Plaintiff from
introducing evidence regarding her observations of the accident at trial.
Accordingly, IT IS HEREBY ORDERED that:
1. Defendant’s Motion to Strike Plaintiff’s Untimely Disclosures Pursuant to Fed. R.
Civ. P. 37(c) [Doc # 155] is GRANTED;
2. Dr. Robert Cowan’s July 9, 2013 supplemental report is STRICKEN, and Plaintiff is
barred from presenting any new information it contains at trial;
3. Plaintiff’s disclosure of Dr. Roussel Clement, Laura Borurque, Janice Pelissier, and
Julie Barnes-Romero as potential witnesses is STRICKEN and Plaintiff is barred from calling
these witnesses at trial; and
4. This case shall be re-set for trial following the parties’ forthcoming settlement
conference with the magistrate judge.

Dated: May

9

, 2014 in Denver, Colorado.

BY THE COURT:
s/Lewis T. Babcock
LEWIS T. BABCOCK, JUDGE

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