Bagher v. Auto-Owners Insurance Company

Filing 61

ORDER granting in part and denying in part 56 Motion for Limited Extension ofDiscovery Regarding New Evidence. On or before 10/25/2013, Plaintiff may designate up to three additional affirmative expert witnesses relating to Plaintiff's allege d bodily injury damages. On or before 11/15/2013, Defendant may designate up to three additional rebuttal expert witness. Thediscovery deadline is extended to 12/6/2013 for the sole purpose of deposing anynewly designated expert witnesses, should the parties so choose. By Magistrate Judge Kristen L. Mix on 9/26/2013.(klyon, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 12-cv-00980-REB-KLM
HOSSEIN BAGHER, doing business as Cherry Creek Oriental Rugs,
Plaintiff,
v.
AUTO-OWNERS INSURANCE COMPANY,
Defendant.
_____________________________________________________________________
ORDER
_____________________________________________________________________
ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX
This matter is before the Court on Plaintiff’s Motion for Limited Extension of
Discovery Regarding New Evidence [Docket No. 56; Filed July 25, 2013] (the “Motion”).
On August 19, 2013, Defendant filed a Response in opposition to the Motion [#58]. On
September 4, 2013, Plaintiff filed a Reply [#59]. The Court has reviewed the Motion, the
Response, the Reply, the entire docket, and the applicable law, and is sufficiently advised
in the premises.
I. Background
In short, in this lawsuit Plaintiff seeks payment from his insurance company for
damages resulting from two water leaks, one in 2009 and one in 2011, at Plaintiff’s rug
store. See Compl. [#13]. On June 27, 2012, the Court entered a Scheduling Order [#17]
in this matter. In that Order, the Court set the following deadlines: (1) Affirmative Expert
Disclosure Deadline of February 26, 2013; (2) Rebuttal Expert Disclosure Deadline of

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March 28, 2013;1 (3) Discovery Deadline of April 26, 2013; and (4) Dispositive Motions
Deadline of May 24, 2013. At Plaintiff’s request, the discovery deadline was later extended
from April 26, 2013 to May 24, 2013. Motion for Extension of Time [#31]; Minute Order
[#33].
A primary focus of discovery in this litigation revolved around damages sustained
by Plaintiff’s store, including the growth of mold. However, Plaintiff avers that after the
instigation of this litigation, he began having breathing problems and sought hospital
treatment. Motion [#56] at 2. Although Plaintiff was provided with treatment, his physicians
were uncertain as to what was causing this problem. Id. It was not until May 15, 2013 that
one of Plaintiff’s physicians determined that scarring on Plaintiff’s lung was likely due to
mold exposure. Id. at 2-3. The following week, Defendant moved for and was granted an
extension of the discovery deadline from May 24, 2013 to June 28, 2013, based on the
need to depose witnesses after mediation proved unsuccessful. Motion for Extension of
Time [#41]; Minute Order [#44]. Plaintiff avers that he also used the extension sought by
Defendant to request and compile medical records to verify Plaintiff’s diagnosis.2 Motion
[#56] at 3. On June 28, 2013, Defendant again sought and received an extension of the
discovery deadline from June 28, 2013 to July 31, 2013, in order to complete depositions
of witnesses who had run into scheduling problems. Motion for Extension of Time [#51];
Minute Order [#53]. The Court warned the parties at that time that no further extensions

1

The expert disclosure deadlines were later extended by two weeks, to March 12, 2013 and
April 11, 2013, respectively. Minute Order [#30].
2

Plaintiff asserts that there were approximately 1,100 pages of medical records to compile
and review. Motion [#56] at 3.

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of time would be permitted. Minute Order [#53]. Meanwhile, Defendant had also sought
and received a continuance of the Jury Trial set before the District Judge, from August 19,
2013 to March 31, 2014. Orders [#15, #46, #47]. The extension was sought in part for
Defendant’s counsel’s personal reasons and in part based on Defendant’s acknowledgment
of the ongoing research into Plaintiff’s newly-diagnosed medical issue. Motion to Continue
[#46].
On July 25, 2013, before the discovery deadline passed, Plaintiff filed the present
Motion seeking a limited extension of the discovery deadline for the purpose of designating
expert witnesses.3 Motion [#56]. Plaintiff points out that he could not have sought
extensions of the expert disclosure deadlines before they passed because Plaintiff’s
diagnosis relating to mold exposure had not occurred until approximately two months after
the affirmative expert disclosure deadline passed in this case. As a result, Plaintiff seeks
a modification of the Scheduling Order to extend the affirmative expert designation deadline
for the limited purpose of designating one additional retained expert witness and up to three
non-retained expert witnesses, and for unspecified additional discovery. Motion [#56] at
3.
I. Analysis
The Court may modify its scheduling orders on a showing of good cause. See Fed.
R. Civ. P. 16(b)(4); D.C.COLO.LCivR 16.1. Whether to modify a scheduling order “to
extend or reopen discovery is committed to the sound discretion” of the Court. Smith v.

3

Plaintiff’s request necessarily involves three different deadlines: the deadline to designate
affirmative experts, the deadline to designate rebuttal experts, and the discovery deadline. Plaintiff
fails to specify what type of additional discovery is sought.

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United States, 834 F.2d 166, 169 (10th Cir. 1987). When exercising its discretion, the
Court considers the following factors: (1) whether trial is imminent; (2) whether the request
to reopen or extend discovery is opposed; (3) whether the non-moving party would be
prejudiced; (4) whether the moving party was diligent in obtaining discovery within the
guidelines established by the Court; (5) the foreseeability of the need for additional
discovery in light of the time allowed for discovery by the Court; and (6) the likelihood that
the discovery will lead to relevant evidence. Id. (citations omitted).
With regard to the first Smith factor, trial is currently set to begin on March 31, 2014.
Order [#47]. Defendant argues that “[g]iven the complexity of the causation issues that this
new damages theory would inject into the case, the current trial date would almost certainly
need to be vacated.” Response [#58] at 11. Plaintiff replies that, “the issue of Plaintiff’s
bodily injury damages is not nearly as complicated as [Defendant] makes it out to be. The
parties have more than enough time to endorse a handful of expert witnesses and depose
Plaintiff’s medical providers without affecting the current trial date.” Reply [#59] at 3.
Although allowing additional discovery at this stage of the proceedings would create tight
deadlines, the Court cannot find that trial is so imminent as to weigh against reopening
discovery for the limited purpose sought by Plaintiff. Therefore, the Court finds that there
is adequate time to complete discovery on this limited topic. Accordingly, the first Smith
factor weighs in favor of reopening discovery.
With regard to the second factor, Defendant “strongly” opposes Plaintiff’s request
to reopen discovery. Response [#59] at 11. Accordingly, the second Smith factor weighs
against reopening discovery.
With regard to the third factor, Defendant asserts that reopening discovery would
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cause it “undue prejudice.” Id. With no specificity, Defendant asserts that it “believes that
reopening discovery would cause undue prejudice to the defense in the form of additional
unwarranted delay in the resolution of this case and the additional time and expense
related to litigating this newly raised issue.” Id. Defendant has not adequately explained
to the Court why further delay in this case would be prejudicial, especially considering that
Defendant has previously sought and been granted a continuance of the trial date. Motion
to Continue Jury Trial [#46]; Order [#47]. In fact, on May 28, 2013, Defendant argued on
Plaintiff’s behalf that “if a continuance is denied, Plaintiff would be unable to pursue a
potential element of his damages” and that a continuance would “not cause any prejudice
to any party.” Id. at 5. Defendant has not explained how circumstances have changed
since that time. Further, as to the additional time and expense raised by Defendant, “[t]his
Court has noted on multiple occasions that the ordinary burdens associated with litigating
a case do not constitute undue burden” when considering prejudice to Defendant under the
Smith factors. Lord v. Hall, No. 10-cv-02695-PAB-KLM, 2011 WL 3861569, at *2 n.2 (D.
Colo. Sept. 1, 2011). The Court therefore agrees with Plaintiff and finds that Defendant will
not be unduly prejudiced if discovery is reopened on a limited basis. Accordingly, the third
Smith factor weighs in favor of reopening discovery.
With regard to the fourth factor, based on the pleadings filed in this case, it appears
to the Court that Plaintiff was diligent in his attempt to obtain information on the issue of
damages before the expiration of the deadline for the completion of discovery. The Court
of Appeals for the Tenth Circuit has explained that “[d]emonstrating good cause under
[Rule 16(b)(4)] ‘requires the moving party to show that it has been diligent in attempting to
meet the deadlines, which means it must provide an adequate explanation for any delay.’”
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Strope v. Collins, 315 F. App’x 57, 61 (10th Cir. 2009) (quoting Moothart v. Bell, 21 F.3d
1499, 1504 (10th Cir. 1994)). Plaintiff avers that the first physician to diagnose that
Plaintiff’s condition was caused by mold did so in mid-May 2013. Motion [#56] at 2-3.
Defendant responds that, “as early as May 2011, Plaintiff was seeking medical treatment
for his lung condition and repeatedly advised his treatment providers of his belief that he
had been exposed to mold as a result of the January 2011 incident.” Response [#58] at
10. Plaintiff sagely replies that, “[s]imply put, there is a world of difference between a lay
person’s suspicions of what is causing his symptoms and a medical doctor’s diagnosis of
that cause.” Reply [#59]. The Court finds Plaintiff’s argument compelling. However, even
more compelling is Defendant’s statement in favor of its prior request to continue trial:
[T]he parties have diligently developed their respective claims and defenses
in preparation for trial. However, the request for a continuance was
precipitated by very recent and unforeseen issues. . . . Plaintiff just learned
of the potential correlation between his current medical problems and
exposure to mold [the week before May 24, 2013]. Therefore, although a
continuance may be properly denied when it is necessitated by the parties’
lack of diligence, this is not such a case.
This assertion weighs heavily in favor of finding that Plaintiff has been diligent in this matter.

Plaintiff does not specifically address why he previously did not seek an extension
of expert deadlines when other deadlines were extended. However, the Court notes that
while Plaintiff sought and received the first extension of the discovery deadline from April
26, 2013 to May 24, 2013, Motion for Extension of Time [#31], Defendant sought the
second two extensions of the discovery deadline. Motion for Extension of Time [#41]
(seeking and obtaining an extension of the discovery deadline from May 24, 2013 to June
28, 2013); Motion for Extension of Time [#51] (seeking and obtaining an extension of the
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discovery deadline from June 28, 2013 to July 31, 2013). Plaintiff asserts that he used this
time to request and compile records and then to review them and obtain verification of
Plaintiff’s diagnosis. Motion [#56] at 3. Although Plaintiff certainly could have been more
diligent about seeking a resetting of the affirmative expert designation deadline, it appears
that he was not idle after Plaintiff’s diagnosis. In light of this review of the record, the Court
finds that the fourth Smith factor weighs in favor of reopening discovery.
With regard to the fifth factor, the Court finds that because Plaintiff did not receive
a diagnosis from his physician that his lung condition was related to mold, and therefore
related to this lawsuit, until mid-May 2013, long after the expert disclosure deadlines had
passed, Plaintiff could not have anticipated the need for the additional requested discovery
within the time allowed by the Court. As a result, the Court finds that the fifth Smith factor
weighs in favor of reopening discovery.
Finally, with regard to the sixth factor, the Court finds that reopening discovery
regarding the limited topic of Plaintiff’s alleged lung damage is likely to lead to relevant
evidence. Defendant argues at length that “Plaintiff will be unable to form a cognizable
medical causation theory linking the conduct of [Defendant] in handling his property
damage claim in 2011 and his alleged present medical condition.” Response [#58] at 12.
Defendant further decries Plaintiff’s theory because “the alleged causal connection . . . is
incredibly convoluted, complicated, and attenuated.” Id. at 11. In essence, Defendant asks
the Court to pre-judge Plaintiff’s contention without the benefit of additional discovery.
Doing so would be improper. Moreover, relevance is a broad concept. Fed. R. Civ. P.
26(b)(1) permits discovery “regarding any matter, not privileged, that is relevant to the claim
or defense of any party” and discovery of any information that “appears reasonably
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calculated to lead to the discovery of admissible evidence.” See Williams v. Bd. of Cnty.
Comm'rs, 192 F.R.D. 698, 702 (D. Kan. 2000) (request for discovery should be considered
relevant if there is any possibility the information sought may be relevant to a claim or
defense). Considering that “[l]imitations on the discovery process necessarily conflict with
the ‘fundamental principle that the public ... has a right to every man's evidence,’“ the
Federal Rules broadly define the scope of discovery. Simpson v. Univ. of Colo., 220 F.R.D.
354, 356 (D. Colo. 2004) (citing Trammel v. United States, 445 U.S. 40, 50 (1980)). Here,
Plaintiff already has provided at least some evidence that his lung condition may have been
caused by mold from his store. See Ex. [#56-1] at 7. While the Court does not comment
on the ultimate admissibility or weight of this evidence, the Court finds that it is enough to
demonstrate that further discovery may reveal facts relevant to Plaintiff’s damages.
Accordingly, the Court finds that the sixth Smith factor weighs in favor of reopening
discovery.
Plaintiff specifically seeks “additional and limited discovery concerning his bodily
injury damages, including the designation of one additional retained expert and up to three
additional non-retained experts.” Motion [#56] at 7. Because five of the six Smith factors
weigh in favor of reopening discovery on the limited topic of Plaintiff’s medical damages,
the Court concludes that reopening discovery for the limited purpose of allowing Plaintiff
to explore this topic is appropriate. However, the Court finds that Plaintiff has not been
specific enough regarding the type of discovery he seeks and why he needs it.
Accordingly, the Motion is granted only to the extent outlined below.
III. Conclusion

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For the foregoing reasons,
IT IS HEREBY ORDERED that the Motion [#56] is GRANTED in part as follows: On
or before October 25, 2013, Plaintiff may designate up to three additional affirmative expert
witnesses relating to Plaintiff’s alleged bodily injury damages. On or before November 15,
2013, Defendant may designate up to three additional rebuttal expert witness. The
discovery deadline is extended to December 6, 2013 for the sole purpose of deposing any
newly designated expert witnesses, should the parties so choose. Further, given the tight
schedule contemplated for the remainder of this lawsuit,
IT IS FURTHER ORDERED that any party seeking additional amendment of the
Scheduling Order shall file a motion not exceeding five pages, all inclusive except for the
certificate of service. If opposed, the opposing party may file a response of the same
length within seven (7) calendar days. No reply will be permitted.4
IT IS FURTHER ORDERED that all other requested relief is denied without
prejudice.

Dated: September 26, 2013

4

The undersigned’s discovery dispute procedures shall still be followed for all disputes that
fall within its scope. See Scheduling Order [#17] at 10 (including language from Order [#7] at 2).

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