Davies v. Seven Falls Company

Filing 106

ORDER REGARDING #71 MOTION TO PERMIT DISCLOSURE OF PLAINTIFF'S REBUTTAL EXPERT signed by Magistrate Judge Craig B. Shaffer on 7/18/13. (cbssec)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 12-cv-01490-RM-CBS
KARL T. ANDERSON, solely in his capacity
as Chapter 7 Trustee for the bankruptcy estate of
Robert Leone Davies and Amber Tracey Davies,
Plaintiff,
v.
SEVEN FALLS COMPANY, a Delaware corporation, d/b/a
THE NEW SEVEN FALLS COMPANY, d/b/a
THE COTTAGE COMPANY, d/b/a
SEVEN FALLS PIPELINE & RESERVOIR,
Defendant.

ORDER REGARDING MOTION TO PERMIT
DISCLOSURE OF PLAINTIFF’S REBUTTAL EXPERT

Magistrate Judge Shaffer
PENDING before the court is Plaintiff Karl T. Anderson’s Motion to Permit Disclosure
of Plaintiff’s Rebuttal Expert (doc. #71) filed on May 1, 2013. With the instant motion, Mr.
Anderson seeks leave to designate, out of time, an unidentified retained expert who purportedly
will rebut opinions disclosed by Defendant’s experts on February 1, 2013. Defendant Seven
Falls Company filed its Response to Plaintiff’s Motion to Permit Disclosure of Plaintiff’s
Rebuttal Expert (doc. #84) on May 22, 2013. In opposing Mr. Anderson’s Motion, Defendant
argues that Plaintiff has failed to establish the requisite “good cause” required by Fed. R. Civ. P.
16(b)(4), and seeks relief from his own dilatory actions.
By Order of Reference (doc. #4), this matter was referred to the Magistrate Judge to,

1

inter alia, “conduct non-dispositive proceedings pursuant to 28 U.S.C. § 636(b)(1)(A) and (B)
and Fed. R. Civ. P. 72(a) and (b).” The pending motion was referred to this court on May 6,
2013. The court heard oral argument during a motions hearing on July 1, 2013. I have carefully
considered the parties’ briefs, the arguments of counsel, the entire case file, and applicable case
law. For the following reasons, Plaintiff’s motion is denied.
PROCEDURAL BACKGROUND
Amber Davies commenced this action on June 8, 2012, by filing a Complaint that
asserted a claim for common law negligence, as well as statutory claims under Colorado’s
Premises Liability Statute, C.R.S. § 13-21-115.1 Ms. Davies alleged that she sustained physical
injuries as a result of stepping into a gap in a walkway located at a privately owned and operated
commercial visitor property located in or near Colorado Springs, Colorado. Ms. Davies renewed
these claims in an Amended Complaint (doc. #6) filed on June 14, 2012.2 Defendant Seven Falls
Company filed an Answer (doc. #19) to the Amended Complaint on July 19, 2012 which
generally denied the liability claims raised by Ms. Davies. Included within Defendant’s
affirmative defenses were the assertions that Ms. Davies’ injuries and damages were
“proximately caused and contributed to by the negligence and fault of Plaintiff, and other
entities,” that Ms. Davies had failed to “exercise reasonable effort and/or care” to mitigate her
alleged damages, and that Ms. Davies’ “damages were caused by intervening and superseding

1

This case originally was assigned to District Judge Christine M. Arguello, and later
reassigned to District Judge Raymond P. Moore upon his appointment to the District Court. See
Order dated May 1, 2013 (doc. #72).
2

On April 16, 2013, Ms. Davis moved For Substitution of Party Filed By Real Party In
Interest Karl T. Anderson, Solely as Chapter 7 Trustee for the Bankruptcy Estate of Robert
Leone Davies and Amber Tracey Davies (doc. #63). I granted that motion on April 18, 2013.
2

causes, events or conditions” or “caused by pre-existing or prior causes, events or conditions.”
On August 13, 2012, pursuant to an Order issued by this court, the parties submitted a
proposed scheduling order (doc. #24) that substantially departed from the numerical limits set
forth in the District Court’s Local Rules. For example, the parties proposed “no limit” on the
number of requests for production under Fed. R. Civ. P. 34, and agreed that each party could
serve on any other party 50 interrogatories, including discrete subparts, and 50 requests for
admission. The parties also contemplated an extended period for discovery. The proposed
scheduling order called for Plaintiff to disclose “Rule 26(a)(2) expert information and reports”
on March 21, 2013, Defendant to furnish “Rule 26(a)(2) expert information and reports” on May
21, 2013, and Ms. Davies to disclose “Rule 26(a)(1) rebuttal expert information and reports” on
June 21, 2013.3 The proposed scheduling order provided additional information regarding Ms.
Davies claims. Plaintiff’s counsel asserted that “[a]s a direct and proximate result of the
Defendants (sic) unreasonable failures, Plaintiff has developed Complex Regional Pain
Syndrome [CRPS], a medical condition which is a (sic) permanent and debilitating, and that
requires ongoing future care.”4

3

The parties’ proposed scheduling order contemplated that non-expert discovery would
be completed 60 days prior to trial, and that “all expert depositions, including non-retained
expert health care providers and treating physicians,” would be completed 45 days prior to trial.
These deadlines were unworkable given Judge Arguello’s practice standards. Judge Arguello
customarily sets a trial date only after the parties and the magistrate judge hold a final pretrial
conference, which typically occurs 3-4 months after the close of discovery.
4

The National Institute of Neurological Disorders and Stroke (NINDS), which is a
component within the National Institutes of Health, describes Complex Regional Pain Syndrome
as “a chronic pain condition most often affecting one of the limbs . . . usually after an injury or
trauma to that limb.” NINDS literature states that “CRPS systems vary in severity and duration”
and that “[a]nyone can get CRPS.” “Doctors aren’t sure what causes some individuals to
develop CRPS while others with similar trauma do not.” See “Complex Regional Pain
3

I held a Fed. R. Civ. P. 16(a) scheduling conference with counsel on August 21, 2013. In
an effort to establish reasonable discovery deadlines, the court asked each side to estimate the
number of expert witnesses they would be designating under Fed. R. Civ. P. 26(a)(2).
Ms. GILBERTSON [Defendant’s counsel]: At this point, Your Honor, I
don’t know who we’re going to need. We’ve just now gotten the disclosures and
need to go through those and figure out to what extent and what scope of experts
we’re going to need at this point so I can’t answer that question today. . . . I would
defer - - depending on the experts that plaintiff would be designating that was
going to be telling me how many that I’m going to have to be designating.
Mr. GEHLAUSEN [Plaintiff’s counsel]: My estimate, Your Honor,
would be five max. . . . I have a life care planner. I have a functional capacity
evaluator. I have an economist. That’s three. Because all of these physicians are
in California, I may want to hire an independent medical expert, so that’s four.
Five is caution.
See Transcript of Proceedings on August 21, 2013 (doc. #77), at 18-19. I also expressed my
disinclination to adopt the three-phased approach for designating expert witnesses incorporated
in the parties’ proposed scheduling order, preferring instead to set a date for designating
“affirmative experts” and a separate date for designating “rebuttal experts.” As the court
explained,
[U]nder 26(e) an expert has a duty to supplement their disclosures consistent with
the rule and the case law. So if – if defense experts offer new opinions that were
not anticipated then plaintiff in that instance would clearly have the right to
supplement their reports.5 But if I give you three rounds, I mean, this thing will

Syndrome Fact Sheet,”
http://www.ninds.nih.gov/disorders/reflex_sympathetic_dystrophy/detail_reflex_sympathetic_
distrophy.htm. Plaintiff’s counsel made a similar observation on August 21, 2013,
acknowledging that “there’s no set treatment for CRPS and a lot of different people suggest
different things and – and people like our client try to do anything and everything to overcome
this condition.” See Transcript of Proceedings on August 21, 2012 (doc. #77), at 6.
5

See, e.g., Cook v. Rockwell Int’l Corp., 580 F. Supp. 2d 1071, 1169 (D. Colo. 2006)
(permissible supplementation of an expert’s disclosures “means correcting inaccuracies, or
4

drag on and it’s just going to add exponentially to the costs. So the deadline for
affirmative experts is November 1. The deadline for rebuttal experts is February
1st. And I’m assuming right now unless the defendant has raised some affirmative
defenses I suspect that virtually all of defendants’ experts will be rebuttal experts,
so I would expect them to be disclosed on February 1st.6
Id. at 27. During the scheduling conference on August 21, 2012, neither side expressed any
opposition to the court’s deadlines for expert disclosures, or sought any clarification on how
those deadlines would be implemented.
On August 30, 2012, this court entered a Scheduling Order (doc. #28) that incorporated a
discovery deadline of March 30, 2013 and a dispositive motion deadline of April 30, 2013, as
well as the expert disclosure deadlines discussed during the August 21st conference. The parties
further acknowledged that “[t]his scheduling order may be altered or amended only upon a
showing of good cause.”
Plaintiff designated her expert witnesses on November 1, 2012, and Defendant
designated its “rebuttal experts” on February 1, 2013. Ms. Anderson moved to Exclude
Improperly Designated Expert Testimony (doc. #56) on March 26, 2013, arguing that the

filling the interstices of an incomplete report based on information that was not available at the
time of the initial disclosure”); In re Safeguard Scientifics, 2004 WL 2644393, at *1 (E.D. Pa.
Nov. 17, 2004) (noting that an expert is required to supplement a prior disclosure “[w]here
additional relevant information because available such [that] the initial expert report is rendered
‘incomplete or incorrect’”). But see Carter v. Finely Hospital, 2003 WL 22232844, at *2 (N.D.
Ill. Sept. 22, 2003) (“It is disingenuous to argue that the duty to supplement under Rule 26(e)(1)
can be used as a vehicle to disclose entirely new expert opinions after the deadline established by
the court.”); Coles v. Perry, 217 F.R.D. 1 (D.D.C. 2003) (noting that the objectives underlying
Rule 26(a)(2)(B) would be nullified if an expert was permitted to “supplement” an earlier report
by addressing a new matter after discovery has closed).
6

Cf. Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir. 1986) (acknowledging that a
defendant asserting an affirmative defense bears the burden of proof and “must establish beyond
peradventure all of the essential elements of the . . . defense to warrant judgment in his favor”).
5

opinions of Drs. Kevin Nagamani, Robert Kleinman, and Philip Engen, and Anthony Piana, D.C.
should have been disclosed on or before November 1, 2012 as they do not constitute “rebuttal”
evidence. Plaintiff elected not to depose Defendant’s experts prior to filing her motion to strike.
See Defendant’s Response to Plaintiff’s Motion and Brief to Exclude, at 5. In summary, the
Rule 26(a)(2)(B) reports prepared by Drs. Nagamani, Kleinman and Engen review Ms. Davies’
medical history, acknowledge the diagnoses by Plaintiff’s treating physicians, summarize the
defense expert’s findings and conclude, in pertinent part, that Ms. Davies’ diagnosis of CRPS is
not supported by sufficient objective criteria.7 Plaintiff’s Motion to Exclude argued that
If Defendant were allowed to submit the testimony of these experts, under the
current scheduling order, Plaintiff will be denied an opportunity to submit her
own rebuttal reports to rebut Defendant’s late reports. She will also be put to the
expense necessary to hire experts to rebut such reports. If, on the other hand, the
scheduling order is amended to allow Plaintiff time to respond with her own
rebuttal reports, that additional time will necessarily extend the discovery cut off
unless a trial date is scheduled now for a time in 2014.8
See Plaintiff’s Motion to Exclude Improperly Designated Expert Testimony, at 9. At the
conclusion of a hearing on April 18, 2013, this court denied Ms. Davies’ motion, believing that

7

See EEOC v. JBS USA, LLC, 2013 WL 3302429, at *6 (D. Colo. July 1, 2013) (noting
that a rebuttal expert witness “is a witness ‘intended solely to contradict or rebut evidence on the
same subject identified’ in the expert report of another party”); Bleck v. City of Alamosa, Colo.,
2012 WL 695138, at *4 (D. Colo. Mar. 5, 2012) (observing that a rebuttal expert’s testimony is
“tied to whether the party with the affirmative burden has presented evidence and/or duly
disclosed expert on the same subject matter as that which will be rebutted by the disclosed
rebuttal expert”).
8

Plaintiff’s counsel made this same argument during the hearing on April 18, 2013,
suggesting that “if the deadline of February 1st would limit the ability for the plaintiff to submit
its rebuttal, which is what happened, the plaintiff is prejudiced . . . .” See Transcript of
Proceedings on April 18, 2013 (doc. #94), at 6. Ironically, if Plaintiff had filed the pending
motion shortly after receiving Defendant’s expert disclosures and well in advance of the March
30, 2013 discovery cutoff, there would have been little, if any, threat to the pretrial deadlines set
in August 2012.
6

exclusion of the proffered opinions would constitute an extreme and unwarranted remedy.9 See
Courtroom Minutes/Minute Order (doc. #66), dated April 18, 2013.10
While declining to exclude Defendants’ experts, this court conceded that Plaintiff might
well want to respond to the opinions expressed by those witnesses.
THE COURT: [H]ave you retained an expert who speaks to this syndrome and
opines that the plaintiff has the syndrome, or are you only relying on treaters for
that?
MR. SARGENT [Plaintiff’s co-counsel]: At this point treaters and then for –
there is a functional capacity expert and – and one who looks – looked at the –
call it the economics or the damages of the matter. There is – I don’t – off the top
of my head I don’t believe there is an expert to respond to the defense.
See Transcript of Proceedings on April 18, 2013 (doc. #94), at 50. Earlier in the hearing, I had
suggested that perhaps Plaintiff could ask her previously designated experts to supplement their
opinions pursuant to Fed. R. Civ. P. 26(e). Id. at 11-12.
Rather than pursuing that option, Plaintiff’s counsel indicated that Ms. Davies might
move for leave to designate her own rebuttal expert. Counsel advised the court that “[t]he
plaintiff anticipates one more expert in light of Dr. Engen’s 74-page report, as well as reference

9

See Summers v. Missouri Pacific Railroad Co., 132 F.3d 599, 604 (10th Cir. 1997).
Compare Barnes v. District of Columbia, 289 F. R.D, 1, 13-14 (D.D.C. 2012) (after noting that
motions to strike are disfavored, the court suggested that deposing the plaintiffs’ experts ensured
the defendant “a fair opportunity to respond to” the plaintiffs’ expert reports). See also Dormu v.
District of Columbia, 795 F. Supp. 2d 7, 28 n. 16 (D.D.C. 2011) (in denying a motion to strike
plaintiff’s supplemental expert disclosure, the court concluded that any harm to the defendants
could be minimized by deposing the expert).
10

Plaintiff did not file an objection to this ruling pursuant to Fed. R. Civ. P. 72(a) or 28
U.S.C. § 636(b)(1)(A). See Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991) (noting
that the Tenth Circuit has “adopted a firm waiver rule when a party fails to object to the findings
and recommendations of the magistrate judge” pursuant to Rule 72). Cf. Wells v. Shriners
Hospital, 109 F.3d 198, 199 (4th Cir. 1997) (“If a party exercises his option not to file objections
. . . he also chooses to waive his appeal.”).
7

to Dr. Ochoa, . . . will seek to bring in an internationally recognized expert on CRPS.” Id. at 46.
Ms. Davies’ attorney indicated that this expert had not been previously disclosed “[i]n large part
because [Plaintiff’s counsel] was under the belief – misunderstanding of how the court would
treat the reports from the defense,” and for that reason, “the plaintiff hasn’t brought – or hasn’t
disclosed a – let’s say does not have a retained expert that specifically addresses CRPS . . . .” Id.
at 47 and 48. Counsel also did not know whether this proposed expert had already prepared a
written report in accordance with Rule 26(a)(2)(B). Id. at 51.
On April 18, 2013, the court emphasized that “if the plaintiff wants to file a motion
seeking leave out of time to designate a new expert, [her counsel is] certainly free to file that
motion.” Id. at 17.
But I will tell you, if you file that motion I will have no choice but to look to Rule 16(b).
In order for me to grant your motion, I am going to have to find good cause. I’m going to
have to find that despite the fact that you got [Defendant’s] disclosures on February 1st,
you’re not moving to designate a new expert until almost two months – three months
after the fact, and . . . three weeks or so after the close of discovery. That’s what you’re
going to have to demonstrate. And if you do that I’m more than happy to grant your
motion. If you can’t show good cause then its going to be somewhat problematic.
Id. at 17. The court also observed that a belated motion to designate a rebuttal expert might be
more effective if accompanied by the proposed expert’s report.
THE COURT: If you draft a motion and you say I want leave to designate a
rebuttal expert from whom I have not yet gotten a report, so all I’m doing is
asking for leave to hold open the possibility of obtaining such a report, I’m not
sure that would be the strongest argument. You’d be in a much stronger argument
if you basically said, here is the quote/unquote rebuttal report that I would like to
designate.
MR. SARGENT: Okay.
THE COURT: So then all – then the only issue is, in light of what the contents
of the reports say, am I going to allow it. But – see, here’s where it gets really
tricky. You want to designate a rebuttal report. But if your – if this expert simply
8

says I’ve looked at everything in the file and I think plaintiff’s experts are right,
I’m not sure that’s a rebuttal of anything. That’s just a me-too. So, if you want to
characterize this person as a rebuttal expert, I think it would be very interesting to
see what the report actually says.
MR. SARGENT: Noted, your honor.
Id. at 51-52.
Plaintiff filed the pending Motion to Permit Disclosure of Plaintiff’s Rebuttal Expert
(doc. #71) on May 1, 2013, almost two weeks after the hearing on April 18. Although the
motion cited Rule 16(b)(4), Plaintiff suggested that the court’s “good cause” analysis should be
guided by the 9th edition of Black’s Law Dictionary, which defines good cause as “a substantial
reason, one that affords a legal excuse; legally sufficient ground or reason.” To support a finding
of good cause, Plaintiff insisted that the March 26, 2013 motion to exclude Defendant’s experts
was timely as “[n]o cutoff date for said motion existed” in the scheduling order, and that “[u]ntil
the court denied the motion to strike the Defense experts, Plaintiff had no need for rebuttal
reports.” The motion further reasoned that
Plaintiff should not be put to the great cost of obtaining expert rebuttal reports
when the court could deny the request to allow same on some other basis.
Furthermore, Plaintiff should not under these circumstances be held to the 30 day
limit to submit rebuttal expert reports pursuant to Fed. R. Civ. P. 26(a)(2)(D)(ii)
when Plaintiff had no time limit in which to submit any motion to strike the
Defense expert endorsement. No trial date has yet been set. . . . As an equitable
matter, no party will be prejudiced by time in permitting Plaintiff to add an expert
witness.
See Motion to Permit Disclosure of Plaintiff’s Rebuttal Expert, at 4-5. In response, Defendant
argued that Mr. Anderson failed to satisfy the good cause requirement of Rule 16(b)(4).
The court heard oral argument on this motion on July 1, 2013. At that hearing, Plaintiff’s
counsel specifically asserted that his client’s motion should be granted because “there is no trial

9

date, we are going to have to extend the discovery date for the simple reason my client has not
reached maximum medical improvement11 . . . and . . . because the tactic the defense used to
submit their initial reports that you’ve already ruled on, we disagree with . . . .” See Transcript
of Proceedings on July 1, 2013 (doc. #101), at 2-3. Counsel also indicated that his client had not
provided a proposed rebuttal expert report because “[w]e’re talking about experts that cost in the
range of $500 an hour, and you could buy one of [Defendant’s] other arguments to deny our
motion and we would simply have wasted that money.” Id. at 3. While he did not explain what
those “other arguments” might be, counsel insisted that his client was “entitled to a ruling on [the
earlier motion to strike] before we would have to file such expert reports.”12 Id. at 5.
Elaborating on the scope of the proposed expert opinions, counsel explained
the defense has raised the question of what is the actual test for CRPS that the
treating physicians had diagnosed my client with. We want to put on evidence in
that regard from experts. And incidentally, we have not disclosed the reasons for
the tests, but we would like to put on at least one expert who will testify to the
reasons for the clinical tests that were adopted,13 and why other tests, so-called
objective tests, are not valid tests, and also on the issue on the impropriety of the
Colorado Workers’ Comp test that the defense, by their reports, bring into this
matter.

11

This fact has no bearing on Plaintiff’s ability to designate in a timely manner an expert
to rebut opinions that were proffered on February 1, 2013. Moreover, the Final Pretrial Order
submitted by the parties and entered by this court on July 16, 2013 specifically states that
“[d]iscovery has been completed.” See Doc. #105.
12

If I credit this argument, the court is left to wonder why Plaintiff waited until four days
before the discovery cutoff to file her motion to strike and, more importantly, why that motion
did not seek, in the alternative, leave to file a rebuttal expert report.
13

It would appear from this statement that Plaintiff proposes, in part, to present an expert
to explain why the “affirmative” experts properly used particular clinical tests in diagnosing Ms.
Davies’ condition. If the court’s understanding is correct, the proposed testimony may well
exceed the scope of proper rebuttal opinion. Of course, the court’s analysis would have been
simpler if Plaintiff had provided an actual report as I suggested on April 18, 2013.
10

Id. at 4-5. During the July 1, 2013 hearing, the court observed that Plaintiff’s motion
is silent as to whether or not you’ve identified this [rebuttal expert]. Your motion
is silent as to whether or not you’ve hired this expert. Your motion is silent as to
how long it would take to prepare such a report. You’re silent – you’re motion is
silent as to the general availability of your expert.
Id. at 20. At the conclusion of that hearing, I indicated that a written decision would follow.
ANALYSIS
Rule 26(a)(2) of the Federal Rules of Civil Procedure explicitly states that “a party shall
disclose to other parties the identity of any person who may be used at trial to present evidence
under Rule 702, 703, or 705 of the Federal Rules of Evidence.” See Fed. R. Civ. P. 26(a)(2)(A)
(emphasis added). In the case of a retained expert, “this disclosure must be accompanied by a
written report” that contains, inter alia, “a complete statement of all opinions the witness will
express and the basis and reasons for them” and “the facts or data considered by the witness in
forming them.” See Fed. R. Civ. P. 26(a)(2)(B)(i) and (ii) (emphasis added). If the disclosed
expert is a non-retained expert, such as a treating physician, the “disclosure must state” the
subject matter on which the witness is expected to present evidence under Federal Rule of
Evidence 702, 703 or 705, and “a summary of the facts and opinions to which the witness is
expected to testify.” See Fed. R. Civ. P. 26(a)(2)(C) (emphasis added). Rule 26(a)(2) plainly
contemplates that disclosure of required information must be contemporaneous with the
identification of the expert witness. Cf. Fox v. Michigan Bell Telephone Co., 2009 WL 2170178,
at *2 (E.D. Mich. July 20, 2009).
Rule 26(a)(2) disclosure obligations cannot be ignored or dismissed as a mere formality.
“Knowing the identity of the opponent’s expert witnesses allows a party to properly prepare for
trial.” Musser v. Gentiva Health Services, 356 F.3d 751, 757-58 (7th Cir. 2004) (internal
11

citations omitted). Failing to properly disclose experts may result in prejudice to an opposing
party “because there are countermeasures that could have been taken that are not applicable to
fact witnesses, such as attempting to disqualify the expert testimony . . . , retaining rebuttal
experts, and holding additional depositions to retrieve the information not available because of
the absence of a report.” Id. “The expert witness discovery rules are designed to aid the court in
its fact-finding mission by allowing both sides to prepare their cases adequately and efficiently
and to prevent the tactic of surprise from affecting the outcome of the case.” Sherrod v. Lingle,
223 F.3d 605, 613 (7th Cir. 2000). Cf. DR Systems, Inc. v. Eastman Kodak Co., 2009 WL
2982821, at *3 n. 2 (S.D. Cal. Sept. 14, 2009) (noting that the “purpose of the Rule 26(a)(2)
disclosure requirement is to prevent surprise testimony by ensuring that opposing parties are
aware of the nature of the expert opinions prior to trial”); Meyers v. National R.R. Passenger
Corp., 648 F. Supp. 2d 1032, 1042 (N.D. Ill. 2009) (“The purpose of the Rule 26(a)(2) disclosure
requirements is to ‘set forth the substance of the direct examination’ of the expert witness.”).
Rule 26(a)(2) also addresses the timing of expert disclosures, stating that “these
disclosures” must be made “at the times and in the sequence that the court orders.” The
Advisory Committee has acknowledged that “in most cases the party with the burden of proof on
an issue should disclosure its expert testimony on that issue before other parties are required to
make their disclosures with respect to that issue.” See Advisory Committee Notes to 1993
Amendments to Fed. R. Civ. P. 26. Absent a stipulation or a court order, “if the evidence is
intended solely to contradict or rebut evidence on the same subject matter identified by another
party under Rule 26(a)(2)(B) or (C),” disclosure of the rebuttal expert must occur “within 30
days after the other party’s disclosure.” See Fed. R. Civ. P. 26(a)(2)(D)(ii).

12

Although the parties disagree on what constitutes “rebuttal expert opinion,” resolution of
the pending motion turns on the narrower issue of timing. By its very terms, Rule 26(a)(2)(D)(ii)
suggests that Plaintiff’s rebuttal expert should have been disclosed on or before March 4, 2012.
Cf. Smetzer v. Newton, 2012 WL 2064507, at *1 (N.D. Ind. June 7, 2012) (“when neither the
Court nor the parties set a deadline for rebuttal expert witnesses, Rule 26(a)(2)(D)(ii) applies,
requiring a plaintiff to serve any rebuttal report no later than thirty days after the defendant’s
expert disclosures”). Having missed that deadline, it was incumbent upon Plaintiff to seek relief
from the court on a timely basis.
This court has an independent responsibility for case management. “The desirability of
some judicial control of discovery can hardly be doubted. Rule 16, as revised, requires that the
court set a time for completion of discovery and authorizes various other orders affecting the
scope, timing and extent of discovery and disclosures.” See Advisory Committee Notes to 1993
Amendments to Fed. R. Civ. P. 26(f). Cf. Beller ex rel. Beller v. United States, 221 F.R.D. 689,
693 (D.N.M. 2003) (the case management elements of Rule 16 are based on the “recognition that
cases can move efficiently through the federal system only when courts take the initiative to
impose and enforce deadlines”). As the Tenth Circuit has acknowledged,
While on the whole Rule 16 is concerned with the mechanics of pretrial
scheduling and planning, its spirit, intent and purpose is clearly designed to be
broadly remedial, allowing courts to actively manage the preparation of cases for
trial . . . [T]here can be no doubt that subsection (f), added as part of the 1983
amendments to Rule 16 indicates the intent to give courts very broad discretion to
use sanctions where necessary to insure not only that lawyers and parties refrain
from contumacious behavior . . . but that they fulfill their high duty to insure the
expeditious and sound management of the preparation of cases for trial.
Olcott v. Delaware Flood Co., 76 F.3d 1538, 1555 (10th Cir. 1996), quoting Matter of Sanction
of Baker, 744 F.2d 1438, 1440 (10th Cir. 1984).
13

As this court noted in Cassirer v. San Miguel County Board of County Commissioners,
2009 WL 1844326, *5-6 (D. Colo. June 23, 2009), Rule 16(b) provides that a scheduling order
“may be modified only for good cause and with the judge’s consent.” See Fed.R.Civ.P. 16(b)(4).
See also D.C. COLO. LCivR 16.1 ("The schedule established by a scheduling order shall not be
modified except upon a showing of good cause and by leave of court"). This “good cause”
requirement reflects the important role a scheduling order plays in the court’s management of its
docket. Cf. Washington v. Arapahoe County Department of Social Services, 197 F.R.D. 439,
441 (D. Colo. 2000) (noting that a “scheduling order is an important tool necessary for the
orderly preparation of a case for trial”). See also Rent-a-Center, Inc. v. 47 Mamaroneck Ave.
Corp., 215 F.R.D. 100, 101 (S.D.N.Y. 2003) ("scheduling orders are designed to offer a degree
of certainty in pretrial proceedings, ensuring that at some point both the parties and the pleadings
will be fixed and the case will proceed"); Deghand v. Wal-Mart Stores, Inc., 904 F. Supp. 1218,
1221 (D. Kan. 1995) (“a scheduling order is not a frivolous piece of paper, idly entered, which
can be cavalierly disregarded by counsel without peril”).
The “good cause” standard requires the moving party to show that despite his diligent
efforts, he could not have reasonably met the scheduled deadline. See Pumpco, Inc. v. Schenker
International, Inc., 204 F.R.D. 667, 668 (D. Colo. 2001). See also Advisory Committee Notes to
1983 Amendment to Fed. R. Civ. P. 16(b) ("[T]he court may modify the schedule on a showing
of good cause if it cannot reasonably be met despite the diligence of the party seeking the
extension"). The good cause standard "primarily considers the diligence of the party seeking the
amendment." Dag Enterprises, Inc. v. Exxon Mobil Corp., 226 F.R.D. 95, 105 (D.D.C. 2005)
("[m]ere failure on the part of counsel to proceed promptly with the normal processes of

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discovery and trial preparation should not be considered good cause”). Cf. New York Life
Insurance Co. v. Morales, 2008 WL 2622875, *3 n.3 (S.D. Cal. July 1, 2008) (finding that
defendant’s failure to pursue available and clearly relevant discovery undercut his claim of
reasonable diligence under Rule 16(b)(4)); Widhelm v. Wal-Mart Stores, Inc., 162 F.R.D. 591,
593 (D. Neb. 1995) (holding that parties are not entitled to relief from pretrial deadlines where
those parties have been lax in conducting discovery); Gestetner Corp. v. Case Equipment Co.,
108 F.R.D. 138, 141 (D. Me. 1985) (holding that the movant had not established “good cause”
under Rule 16(b)(4) where counsel failed to immediately undertake discovery and sought a
belated extension of pretrial deadlines).
Under the particular facts of this case, I find that Plaintiff has failed to meet the good
cause standard required by Rule 16(b)(4). It is undisputed that Defendant identified its experts
and provided Rule 26(a)(2)(B) disclosures on February 1, 2013; 58 days before the March 30,
2013 discovery cutoff. Ms. Davies and her counsel had ample time to designate a rebuttal expert
pursuant to Rule 12(a)(2)(D)(ii), or to affirmatively move to amend the scheduling order.
Plaintiff’s current dilemma stems from ill-advised tactical decisions, rather than deadlines
established by this court. Rather than invoking the 30-day window for designating rebuttal
experts provided by Rule 26(a)(2)(D)(ii), Plaintiff chose to wait until March 26, 2013, four days
before the discovery cutoff date, to file her Motion to Exclude. Counsel must have known that
briefing on that motion would not be completed until after the discovery deadline, see
D.C.COLO.LCivR. 7.1C, and that any subsequent attempt to re-open expert discovery therefore
would require a showing of good cause. But see Marmo v. Tyson Fresh Meats, Inc., 457 F.3d
748, 759-60 (8th Cir. 2006) (holding that “tactical decision[s]” do not provide good cause to

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modify case management orders); Long v. Ford Motor Co., 2009 WL 903404, at *3 (D. Ariz.
Apr 1, 2009) (“[a] tactical decision to delay does not merit good cause”); United States v.
$33,330.00 in U.S. Currency, 901 F. Supp. 2d 1354, 1359 (N.D. Ga. 2012) (while
acknowledging that the moving party had made a tactical decision to delay formally raising a
suppression issue, “[s]uch a tactical decision does not establish good cause”).
In pursuing this course of action, Plaintiff’s counsel must have understood that an
unsuccessful motion would require Ms. Davies to forego a rebuttal expert or come forward with
sufficient facts to meet the Rule 16(b)(4) good cause standard. This court made that same point
during the hearing on April 18, 2013. The pending motion is denied because Plaintiff has failed
to establish good cause under Rule 16(b)(4). Cf. Barnes v. District of Columbia, 289 F.R.D. at
15 (holding that defendant had not established “good cause” under Rule 16(b) where the
defendant failed to take advantage of the opportunity to timely designate a rebuttal expert).
As I indicated during the hearing on April 18, 2013, this court unquestionably has the
authority to re-open expert discovery to allow Plaintiff to designate a rebuttal expert.14 In Smith
v. United States, 834 F.2d 166, 169 (10th Cir. 1987), the Tenth Circuit suggested that various
factors are relevant to the court’s assessment of whether discovery should be reopened,
including:
1) whether trial is imminent, 2) whether the request 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

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As the court has not absolutely foreclosed the possibility of Plaintiff designating a
rebuttal expert upon a showing of good cause, there is no need, at this juncture, to address Fed.
R. Civ. P. 37(c)(1) (providing that a party that “fails to . . . identify a witness as required by Rule
26(a)” may not use that witness to supply evidence at trial, “unless the failure was substantially
justified or is harmless”).
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foreseeability of the need for additional discovery in light of the time allowed for
discovery by the district court, and 6) the likelihood that the discovery will lead to
relevant evidence.
Id. at 169. Applying these factors to the instant case, Plaintiff has not left himself in a strong
position.
The district court recently set a seven-day trial in this case to begin on February 18, 2014.
Given that trial date, Plaintiff will argue that the belated designation of a rebuttal expert will not
prejudice Defendant. Rule 26(a)(2) disclosures “serve[ ] primarily to require disclosure of expert
testimony early enough before trial to allow parties and counsel adequate time to prepare crossexamination, confer with their own experts, and file any supplementations.” Dixon v. The
Certainteed Corp., 168 F.R.D. 51, 54 (D. Kan. 1996). “Both the court and Defendant[ ] are
entitled to expect that by a date certain, Plaintiff’s list of testifying experts will be fixed and the
case will proceed on that basis” Fresquez v. Baldwin, 2010 WL 5934891, at *28-29 (D. Colo.
Dec. 15, 2010) (in denying plaintiff’s untimely attempt to designate an expert witness, observed
that plaintiff “should not be permitted to justify an untimely designation by implicating the
court”). It is not unreasonable to presume that Plaintiff’s belated disclosure of a rebuttal expert
will likely require Defendant to incur additional expense in deposing the newly disclosed expert,
consulting with its own experts, and supplementing their reports. Cf. Saudi v. Northrup
Grumman Corp., 427 F.3d 271, 278-79 (4th Cir. 2005) (suggesting that a party’s failure to
provide proper expert disclosures “unfairly inhibits its opponent’s ability to properly prepare,
unnecessarily prolongs litigation, and undermines the district court’s management of the case.”);
Quintana v. Edmond, 2009 WL 1798219, *2 (D. Colo. June 23, 2009) (observing that “[t]here
can be no doubt that allowing Plaintiff to take additional discovery requires Defendants to incur

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additional and unanticipated expenses, even if just limited to interviews and will impact their
ability to prepare for trial”).
But more to the point, lack of prejudice to the non-moving party does not establish “good
cause” for purposes of Rule 16(b)(4). Capital Solutions LLC v. Konica Minolta Business
Solutions USA, Inc., 2009 WL 3711574, at *8 (D. Kan. Nov. 3, 2009) (rejecting the argument
that an untimely motion to amend should be granted because the non-moving party “will have
ample time to prepare its defense”). Cf. Soo Line Railroad Co. v. Werner Enterprises, 2013 WL
2434880, at *7 (D. Minn. June 4, 2013) (“a court will not consider prejudice if the movant has
not been diligent in meeting the scheduling order’s deadlines”); Ingle v. Dryer, 2008 WL
1744337, at *1 (D. Colo. Apr. 11, 2008) (“The Rule 16(b)(4) standard ‘does not focus on the bad
faith of the movant or the prejudice to the opposing party[; r]ather, it focuses on the diligence of
the party seeking leave to modify the scheduling order to permit the proposed amendment.’”).
As previously noted, Plaintiff was not diligent in identifying and disclosing a putative
rebuttal expert within the time allowed for discovery in the scheduling order. By February 1,
2013, Plaintiff’s counsel knew the nature and scope of the opinions proffered by Defendant’s
experts and, therefore, was capable of making an informed decision regarding a rebuttal expert.
Rather than erring on the side of caution and designating a rebuttal expert before the close of
discovery, counsel chose instead to rely solely on a motion to strike Defendant’s experts. But
see Harris v. Chicago Title Insurance Co., 694 F.3d 935, 949 (8th Cir. 2012) (while a party has
the prerogative to make tactical decisions, an ill-advised decision “hardly constitutes good
cause” under Rule 16(b)).
Finally, in moving for leave to designate a rebuttal expert out of time, Plaintiff asks the

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court to rule in a vacuum, without any assurance that the proffered expert will provide proper
rebuttal opinions. It is not at all clear that Plaintiff actually has retained a rebuttal expert or
arranged for the preparation of a rebuttal report. The court is left to guess as to how much time
the expert may require to prepare a report and what opinions may appear in this phantom rebuttal
expert report.15 But see Stanfield v. Dart, 2013 WL 589222, at *3 (N.D. Ill. Feb. 14, 2013)
(holding that a proper rebuttal report is “limited to contradicting and rebutting evidence on the
same subject matter identified by another party in its expert disclosures;” “[a] party may not
offer testimony under the guise of ‘rebuttal’ only to provide additional support for his case in
chief”) (internal citations omitted); Smith v. Wal-Mart Stores, Inc., 2012 WL 4051925, at *1(D.
Nev. Sept. 13, 2012) (holding that a rebuttal expert disclosure is not intended to provide an
extension of the deadline by which a party may deliver the lion’s share of its expert’s
information); Crowley v. Chait, 322 F. Supp. 2d 530, 551 (D.N.J. 2004) (noting that expert
rebuttal testimony is not an opportunity to cure oversights in a party’s case-in-chief). It seems
reasonable to assume, based on past experience in this case, that further motion practice may
result when, and if, a rebuttal expert is disclosed. See, e.g., Noffsinger v. Valspar Corp., 2011
WL 9795, at *6-7 (N.D. Ill. Jan. 3, 2011) (limited a rebuttal expert’s opinions to his critique of
defendants’ experts and striking parts of the report that exceeded the scope of a proper rebuttal
witness). Compare EEOC v. JBS, USA, LLC, 2013 WL 3302429, at *6-8 (D. Colo. July 1, 2013)
(striking portions of plaintiff’s proffered rebuttal expert report after reviewing the actual report

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The court’s evaluation is further complicated by the fact that I have not been provided
with the Plaintiff’s initial expert disclosures, thereby making it difficult to determine whether or
to what extent the rebuttal expert may offer opinions that duplicate the testimony of Plaintiff’s
affirmative experts.
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in detail and comparing that report to the anticipated testimony of defendant’s expert); RMD,
LLC v. Nitto Americas, Inc., 2012 WL 5398345 (D. Kan. Nov. 5, 2012) (striking portions of the
proffered testimony of defendant’s rebuttal experts after reviewing the experts’ report). I can
appreciate Plaintiff’s desire to minimize litigation costs by avoid unnecessary expert fees.
However, given the close of discovery and an impending trial date, I am not prepared to grant a
motion so lacking in specific information.
Accordingly, for the foregoing reasons, Plaintiff’s Motion to Permit Disclosure of
Plaintiff’s Rebuttal Expert is denied.
Dated this 18th day of July, 2013.
BY THE COURT:

s/ Craig B. Shaffer
United States Magistrate Judge

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