Dedmon v. Chelsea Food Services et al

Filing 118

ORDER granting 92 Motion to Strike ; denying 93 Motion for Order. By Magistrate Judge Nina Y. Wang on 8-5-2015. (nywlc2.)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 13-cv-0005-WJM-NYW
CAROLYN DEDMON,
Plaintiff,
v.
CONTINENTAL AIRLINES, INC.,
UNITED AIR LINES, INC., and
UNITED CONTINENTAL HOLDINGS, INC.,
Defendants.
______________________________________________________________________________
ORDER ON DEFENDANTS’ PENDING MOTIONS
______________________________________________________________________________
Magistrate Judge Nina Y. Wang
This matter comes before the court on Defendants’ Motion to Strike Plaintiff’s Sixth and
Seventh Supplemental Disclosures (“Defendants’ Motion to Strike”) filed on May 18, 2015
[#92] and Defendants’ Motion for Order to Deem Admitted Unanswered Requests for
Admissions (“Defendants’ Motion to Deem RFAs Admitted”) filed on May 18, 2015 [#93],
which were referred to this Magistrate Judge pursuant to the Order of Reference “to conduct
nondispositive proceedings pursuant to 28 U.S.C. § 636(b)(1)(A) and (B) and Fed.R.Civ.P.
72(a)” [#10], the Reassignment dated February 9, 2015 [#74], and the Memoranda dated May 18,
2015 [#94, #95]. The court has reviewed the pending motions, the Responses filed by Plaintiff
Carolyn Dedmon (“Plaintiff” or “Ms. Dedmon”) [#102, #103], the supporting Replies by
Defendants [#115, #116], and the exhibits thereto. The court has also considered arguments of

counsel made during the hearing on July 31, 2015; the entire case file; and the applicable law.
For the reasons discussed below, the court GRANTS Defendants’ Motion to Strike and DENIES
Defendants’ Motion to Deem Admitted.
BACKGROUND
Because the factual background of this case has been discussed in prior court orders [#80,
#90], this court will focus on the circumstances giving rise to these pending motions. This is a
personal injury case in which Ms. Dedmon alleges that she suffered serious bodily injury after a
slip and fall occurring at Denver International Airport (“DIA”). [#3, ¶ 8].

The original

complaint in this action was filed on October 22, 2012, resulting from an injury that occurred on
or about October 23, 2010. [#3 at ¶¶ 7-8]. The case was then removed to this court on January
2, 2013. [#1].
The court entered a Scheduling Order on March 11, 2013, governing pretrial matters
including discovery. [#21]. In the Scheduling Order, Plaintiff included a Computation of
Damages, in which she claimed “non-economic and economic damages including medical and
rehabilitation treatment expenses” and indicated that “[e]conomic damages for medical bills to
date, currently in excess of $300,00.00.” [Id. at 5]. The Scheduling Order set a deadline for the
completion of fact discovery for September 11, 2013. [Id. at 8 (emphasis added)].
The Parties then moved the court successively to extend the deadlines in the case. The
Parties first requested, and the court granted, an extension of discovery until December 11, 2013.
[#23, #25]. As a basis for the extension, the Parties cited the difficulty of obtaining complete
medical records from Plaintiff’s various treating physicians. [#23]. On October 28, 2013, the
Parties filed another Joint Motion to Modify the Scheduling Order, seeking a further extension to
the deadlines again based on the volume of medical records and medical providers in this case.
[#26]. The court held a hearing on the Joint Motion to Modify the Scheduling Order on
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November 19, 2013, and again extended the close of discovery until April 15, 2014. [#29]. In
granting the Joint Motion, the court indicated that it “[did] not intend to extend the schedule
again based on difficulties in obtaining medical records through the use of release forms.” [Id. at
1]. On March 12, 2014, thirty-three days prior to the April 15, 2014 close of discovery,
Defendants served a set of twenty-one Requests for Admissions. [#93-1].
On March 18, 2014, Ms. Dedmon filed her third Motion to Modify the Scheduling Order,
to which Defendants objected. The court heard argument on April 4, 2014 on the Motion to
Modify the Scheduling Order, during which it granted an extension of time to the close of all
discovery until July 14, 2014. [#44]. During the hearing, Plaintiff’s counsel represented to the
court that if discovery was extended until July 14, 2014, that he would have sufficient time to get
discovery completed. [#92-4 at 6:6-8]. In fact, he assured the court he would not seek yet
another extension. [Id. at 6:9-12].
The Parties participated in a Final Pretrial Conference on December 8, 2014 [#69], and
the court entered a Final Pretrial Order. [#70]. The court ordered the Parties to submit revised
exhibit lists on or before February 16, 2015. [Id. at 10]. Rejecting the Parties’ report that
“discovery has been substantially completed,” the court unequivocally indicated that “discovery
is closed.” [Id.]
On March 19, 2015, more than a year and a half after the close of discovery, Plaintiff
served her Sixth Supplemental Rule 26 Disclosures, identifying and producing for the first time,
a number of medical billing reports from treatment that occurred prior to July 14, 2014. [#92-5].
On May 1, 2015, Plaintiff served her Seventh Supplemental Rule 26 Disclosures, identifying and
producing for the first time, additional medical billing reports from treatment that occurred prior

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to July 14, 2014. [#92-6].

Defendants’ Requests for Admissions were unanswered until

Plaintiff filed her Response to the pending Motion to Deem RFAs Admitted. [#102-2].
Defendants now seek to have the court strike Plaintiff’s Sixth and Seventh Supplemental
Rule 26 Disclosures as untimely, and to have the twenty-one Requests for Admissions deemed
admitted by operation of law under Rule 36 of the Federal Rules of Civil Procedure.
ANALYSIS
I.

Standard of Review
A.

Sixth and Seventh Supplemental Rule 26 Disclosures

Rule 26(a)(1)(A)(iii) of the Federal Rules of Civil Procedure expressly requires a party
to:
disclose a copy—or a description by category and location—of all documents,
electronically stored information, and tangible things that the disclosing party has
in its possession, custody, or control and may use to support its claims or
defenses, unless the use would be solely for impeachment.
Fed. R. Civ. P. 26(a)(1)(A)(iii). In addition, Rule 26(a)(3)(A)(iii) requires:
an identification of each document or other exhibit, including summaries of other
evidence---separately identifying those items the party expects to offer and those
it may offer if the need arises.
Fed. R. Civ. P. 26(a)(3)(A)(iii). After rejecting the Parties’ proposed exhibit lists, the court
ordered the Parties’ exhibit lists to be filed no later than February 16, 2015. [#69]. Rule
26(e)(1)(A) allows parties to supplement prior disclosures, in a timely manner, if the prior
response is incomplete or incorrect, and if the additional or corrective information has not
otherwise been made known to the other parties during the course of discovery. Fed. R. Civ. P.
26(e)(1)(A). The Federal Rules do not define “a timely manner.” Id.
Rule 37(c) of the Federal Rules of Civil Procedure provides that if a party fails to provide
information as required by Rule 26, the party is not allowed to use that information unless the
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failure was substantially justified or is harmless. Fed. R. Civ. P. 37(c)(1). In considering
whether a sanction is appropriate, the court considers whether: (i) the prejudice or surprise to the
party entitled to receive the disclosures; (ii) the ability of that party to cure such prejudice; (iii)
the extent to which allowing the undisclosed evidence would disrupt the trial; and (iv) the
disclosing party’s bad faith or willfulness. See Woodworker’s Supply, Inc. v. Principal Mut. Life
Ins. Co., 170 F.3d 985, 993 (10th Cir. 1999).
B.

Requests for Admission

Under Rule 36 of the Federal Rules of Civil Procedure, a party may serve on any other
party a written request to admit the truth of any matters within the scope of Rule 26(b)(1)
relating to facts, the application of law to fact, or opinions about either. Fed. R. Civ. P. 36(a)(1).
A matter is admitted, unless within 30 days after being served, the party to whom the request is
directed serves on the requesting party a written answer or objection which is signed by the party
or her attorney. Fed. R. Civ. P. 36(a)(3).
However, once a matter is admitted, the court may permit the admission to be withdrawn
or amended. Fed. R. Civ. P. 36(b). Subject to Rule 16(e), the court may permit withdrawal or
amendment if (1) it would promote the presentation of the merits and if (2) the court is not
persuaded that it would prejudice the requesting party in maintaining or defending the action. Id.
The prejudice contemplated by Rule 36(b) is more than simply inconvenience to the party. See
Raiser v. Utah County, 409 F.3d 1243, 1246 (10th Cir. 2005). Instead, “the prejudice relates to
the difficulty a party may have in proving its case, e.g., caused by the unavailability of key
witnesses, because of the sudden need to obtain evidence with respect to the questions previously
deemed admitted.” Id.

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II.

Defendants’ Motion to Strike Plaintiff’s Sixth and Seventh Supplemental
Disclosures
There is, and can be no dispute, that Plaintiff’s Sixth and Seventh Supplemental

Disclosures are untimely. They were served not only well after the close of discovery, but after
the Final Pretrial Conference, the entry of the Final Pretrial Order, and the extended deadline
permitted by the court for the submission of exhibit lists for trial. [#92-5, #92-6].
A.

Substantial Justification

Ms. Dedmon argues that her late disclosures are substantially justified by arguing that it
was Defendants’ duty to produce the documents because Plaintiff provided medical releases, and
when Defendants failed to produce the billing records, Plaintiff had to undertake obtaining the
billing records herself – thus delaying the production until well after the close of discovery.
[#103 at 4]. Defendants assert in Reply that they produced all the documents received by any
source, despite not having been served with discovery requests [#116 at 3], and confirmed to the
court during the July 31 oral argument that they had, in fact, produced all billing records received
from the providers.
As of May 21, 2014 – months prior to the close of discovery – Plaintiff’s counsel was
aware that he did not possess all of the billing records that he believed necessary. [#103-1 at 10].
Yet inexplicably, it appears that Plaintiff never sought those records for herself until much later.
Instead, Plaintiff’s counsel demanded that Defendants to follow up with certain medical
providers and produce missing information in December 2014 – months after the close of
discovery; after the Parties had already participated in the Final Pretrial Conference; and after the
court had entered the Final Pretrial Order. [Id. at 21]. Plaintiff cites no case law, and this court
finds none, to support her position that somehow the burden of discovering and producing

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documents to support her claim for damages—documents that her counsel were well aware
existed and had not been produced – shifted to Defendants.1
Plaintiff’s suggestion at oral argument that Rule 26(e) somehow excuses the late
disclosures is also incorrect. The billing records at issue are not for treatment that occurred after
the close of discovery, as was identified and contemplated in the Final Pretrial Order. [#70 at
10]. Plaintiff admits that these billing records are associated with Explanation of Benefits
(“EOBs”) that were produced within the discovery period and of which Defendants were
purportedly “well-aware.”

[#103 at 5].

The plain language of Rule 26(e) requires

supplementation to be made in a “timely manner.” Timeliness must be measured in terms of a
party’s diligence in obtaining the information, and in terms of how long it takes a party to
disclose once she obtains the information. Otherwise, a party could subvert the very purpose of
Rule 26 by simply waiting to obtain relevant information, and then argue that she turned over the
information as soon as she received it.
Simply put, the court finds nothing in this record that warrants the conclusion that
Plaintiff’s late disclosures were either caused by Defendants, or otherwise substantially justified.
B.

Harmlessness

Ms. Dedmon also argues that her late disclosure of the billing records is harmless because
Defendants had the Explanation of Benefits and information about medical expenses before the
close of discovery. [#103 at 5]. She further contends that the Defendants are not prejudiced, and
that the trial, scheduled to commence in two months, will be unaffected. [Id. at 6]. Defendants

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The analysis would likely be different had Defendants actually received the billing records at
issue from the medical providers but then refused to provide them to Plaintiff. Contrary to
Plaintiff’s allegations, that does not appear to be the case.
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contend that the late disclosure prejudices them because they have been unable to take discovery
or challenge the validity of the expenses as reflected in the documents. [#92 at 7].
1.

Prejudice

The court agrees that the late disclosure of the billing records associated with Plaintiff’s
medical treatment prejudices Defendants in a few important ways. First, even if Defendants
were aware of the treatment provided by the medical providers through the EOBs, there is no
doubt that Defendants have not had an opportunity to ask specific questions with respect to the
newly produced documents. Second, to the extent that Defendants would seek to re-open
discovery due to the billing records, this court would likely deny such a request, given the
protracted history of this case to date, or in the unlikely event that discovery was reopened,
Defendants would bear additional delay and expense associated with such additional discovery.
See Jama v. City and County of Denver, 304 F.R.D. 289, 301 (D. Colo. 2014).
2.

Ability to Cure/Delay of Trial

Ms. Dedmon also suggests that any prejudice could simply be cured because the trial is
two months away. As an initial matter, scheduling orders are contemplated and designed to offer
a degree of certainty in pretrial proceedings, ensuring at some point that the claims and evidence
are fixed so that parties may proceed to trial. See Home Design Servs., Inc. v. Trumble, No. 09cv-00964-WYD-CBS, 2010 WL 1435382, *6 (D. Colo. Apr. 9, 2010). They are not, though
Plaintiff may otherwise wish, optional deadlines that can be simply ignored or amended on a
whim. In this case, Plaintiff did not even attempt to amend the Scheduling Order to account for
her late disclosure.
In this case, the Final Pretrial Order has also been entered. [#70]. A final pretrial order is
focused on formulating a plan for the impending trial that may be amended only to prevent

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manifest injustice. Fed. R. Civ. P. 16(e); Monfore v. Phillips, 778 F.3d 849, 851 (10th Cir.
2015). While not inflexible, the standard for modifying a final pretrial order is high to ensure
that the parties have a sufficient incentive to provide reasonably fair notice to the court and the
other side as to their trial intentions. Monfore, 778 F.3d at 851. Ms. Dedmon presumably
expects to offer all or some of the documents identified in her Sixth and Seventh Supplemental
Disclosures at trial, but has not sought to amend her Trial Exhibit List and it is difficult to see,
based on the record of this case, how Plaintiff could prevail in any attempt to amend the Pretrial
Order to include any of the newly offered evidence.
Ms. Dedmon fails to establish any reason why she should be permitted to essentially
unilaterally amend the court’s Scheduling Order and Final Pretrial Orders to accommodate her
eleventh hour disclosure of additional documents. Nor is the court persuaded, or impressed, by
Plaintiff’s attempt to shift responsibility to Defendants for her late disclosure. The incident at
issue occurred almost five years ago. The case has been pending in state or this court since 2012.
At every turn in this case, the court accommodated the Parties’ request for additional time. The
court denied Defendants’ Motion for Summary Judgment on February 12, 2015. [#75]. The
Parties submitted exhibit lists in February 2015. Defendants objected to Plaintiff’s Exhibit List
on March 16, 2015. [#81]. The trial is set to commence on September 28, 2015. There is not
time for the Parties and the court to account for all the potential repercussions of these additional
disclosures. It is simply time for the Parties to proceed to trial, without further delay.
3.

Plaintiff’s Bad Faith or Willfulness

Defendants do not argue Plaintiff engaged in bad faith or willfully withheld the billing
records. [#92, #116]. Therefore, the court does not consider this factor. Even without it, the
court finds that Plaintiff’s late supplementation is not substantially justified or harmless, and that

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Plaintiff’s Sixth and Seventh Supplemental Disclosures are appropriately stricken pursuant to
Rule 37(c)(1).
III.

Defendants’ Motion to Deem Requests for Admission as Admitted
Defendants also seek to have their twenty-one requests for admissions deemed admitted

due to Plaintiff’s failure to respond to them in a timely manner. [#93]. Although Defendants are
correct that under the Rule, requests for admission are automatically deemed admitted if not
responded or objected to within 30 days of service, Fed. R. Civ. P. 36(a)(3), Rule 36(b) also
specifically contemplates that the court may permit the admission to be withdrawn or amended.
Fed. R. Civ. P. 36(b). Neither party addresses the two factors that courts consider in determining
whether withdrawal or amendment should be permitted, i.e., (1) it would promote the
presentation of the merits and if (2) the court is not persuaded that it would prejudice the
requesting party in maintaining or defending the action.
In this case, the court finds that it would promote the presentation of the merits of the
case for Ms. Dedmon to be able to dispute the admissions, if appropriate. The undersigned is not
persuaded that Defendants are prejudiced if Plaintiff is permitted to proceed with her responses
to the Requests for Admissions as attached as [#102-2]. As the Tenth Circuit held, the prejudice
contemplated by Rule 36(b) is not “mere inconvenience;” more than a failure to meet deadlines
is required to deny a party relief from an admission. See Raiser, 409 F.3d at 1247.
Defendants and the record fail to establish that Defendants would be prejudiced if
Plaintiff is permitted to respond to their Requests for Admissions. As Plaintiff notes, she has
already admitted more than half of the Requests for Admissions. [#102 at 3; #102-2]. In
addition, Defendants’ filings make clear that they had an opportunity to question Ms. Dedmon
substantively on the factual topics presented by the Requests for Admissions, as they identify

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alleged contradictions.

[#115 at 2-3].

In addition, Defendants will most likely have an

opportunity to cross-examine Ms. Dedmon at trial.
Under these circumstances, the court DENIES Defendants’ Motion to Deem Admitted
Unanswered Requests for Admissions.

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CONCLUSION
Based on the court’s review of the papers and supporting evidence, the oral arguments,
and application of the pertinent case law, IT IS HEREBY ORDERED that:
(1) Defendants’ Motion to Strike Plaintiff’s Sixth and Seventh Supplemental Disclosures
filed on May 18, 2015 [#92] is GRANTED; and
(2) Defendants’ Motion for Order to Deem Admitted Unanswered Requests for
Admissions filed on May 18, 2015 [#93] is DENIED.

DATED August 5, 2015.

BY THE COURT:

s/ Nina Y. Wang
United States Magistrate Judge

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