Ferrugia v. City of Steamboat Springs, et al
Filing
78
ORDER denying 76 Defendants' Motion to Designate Rebuttal Non-Retained Expert Disclosures Out of Time, by Magistrate Judge Kathleen M. Tafoya on 5/29/14.(sgrim)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Magistrate Judge Kathleen M. Tafoya
Civil Action No. 13BcvB00747BWYDBKMT
JOHN FERRUGIA,
Plaintiff,
v.
CITY OF STEAMBOAT SPRINGS, COLORADO,
RICHARD BROWN, in his official capacity as a City of Steamboat Springs police officer and
in his individual capacity,
EVAN DRISCOLE, in his official capacity as a City of Steamboat Springs police officer and
in his individual capacity,
GERARD GEIS, in his official capacity as a City of Steamboat Springs police officer and in
his individual capacity, and
ROSS BLANK, in his official capacity as a City of Steamboat Springs police officer and in
his individual capacity,
Defendants.
ORDER
This matter is before the court on “Defendants’ Motion to Designate Rebuttal
Non-Retained Expert Disclosures Out of Time” [Doc. No. 76].
On December 16, 2013, Plaintiff disclosed former detective David Kleiber, as a
non-retained expert pursuant to Fed. R. Civ. P. 26(a)(2)(C). Defendants opposed the disclosure
based on their allegations that the description of Mr. Kleiber’s anticipated testimony was deficient
and because the disclosure was late. [Doc. No. 36]. Plaintiff filed a Reply to Defendants’
opposition which included an amended description of Mr. Kleiber’s anticipated testimony. [Doc.
No. 37]. On February 24, 2014, this Court granted Plaintiff’s motion for leave to disclose expert
David Kleiber out of time. [Doc. No. 43].
Fed. R. Civ. P. 26(a)(2)(D)(ii) provides “Absent a stipulation or a court order, the [expert]
disclosures must be made: . . . (ii) 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), within 30
days after the other party’s disclosure.” At the latest, Plaintiff’s disclosure of David Kleiber
could be deemed to have occurred on February 24, 2014, the day the court overruled Defendants’
objections and allowed the disclosure of David Kleiber as Plaintiff’s affirmative, non-retained
expert. Therefore, at the latest, the time for Defendants to have disclosed rebuttal experts to
David Kleiber’s proposed testimony was on or before March 26, 2014.
There has been no explanation why Defendants waited ninety-four days, sixty-four days
past their deadline, to disclose that three non-retained experts – each an officer with the Steamboat
Springs Police Department – would be called as rebuttal experts to David Kleiber. The fact that
Defendants did not take Mr. Kleiber’s deposition until April 21, 2014, thirty-eight days before the
motion was filed, is not substantial justification for their request, especially since discovery in the
case has long been closed.
It is ORDERED
“Defendants’ Motion to Designate Rebuttal Non-Retained Expert Disclosures Out of
Time” [Doc. No. 76] is DENIED.
Dated this 29th day of May, 2014.
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