Davis v. Property & Casualty Insurance Company of Hartford

Filing 32

ORDER granting in part and denying in part 26 Motion for Leave to Increase the Number of Retained Experts. By Magistrate Judge Kathleen M. Tafoya on 05/02/2014. (athom, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Magistrate Judge Kathleen M. Tafoya
Civil Action No. 13BcvB01163BCMABKMT

KIMBERLY I. DAVIS,
Plaintiff,
v.
PROPERTY & CASUALTY INSURANCE COMPANY OF HARTFORD, an Indiana
corporation,
Defendant.

ORDER

This matter is before the court on Plaintiff’s Motion to Increase the Number of Retained
Experts (“Mot.”) [Doc. No. 26]. Defendant filed its Response on April 25, 2014 [Doc. No. 30]
and Plaintiff replied on April 30, 2014 (“Reply”) [Doc. No. 31].
Plaintiff seeks to increase the limitation on retained expert witnesses allowable to both
parties as memorialized in the Scheduling Order [Doc. No. 17] entered on July 24, 2013. The
Scheduling Order provides, “[e]ach side shall be limited to 5 specially retained expert witnesses,
excluding treaters, absent leave of court.” Id. at § 9(d)(2). The parties originally anticipated that
retained experts would be required in the fields of “[m]edical issues, damages, and insurance
claim standards.” Id. at § 9(d)(1) Plaintiff now seeks to endorse experts in the following areas:
1

damage to the cars involved in the collision; a neuropsychologist concerning Plaintiff’s alleged
traumatic brain injury caused by the accident; an OT functional capacity evaluator concerning
Plaintiff’s vocational related physical limitations; a vocational expert to testify about Plaintiff’s
potential to earn a living; a nurse to testify about the reasonableness of the incurred medical
expenses; an economist to testify about the present value of future damages of income loss and
medical expenses; and a standard of care expert concerning the handling of Plaintiff’s claim by
the insurance company.1 As to each type of retained expert, the Plaintiff has disclosed a
specified expert pursuant to Fed. R. Civ. P. 26(a)(2) with the exception of expert opinion about
the damage to the automobiles involved in the accident. As to that category of expert testimony,
the Plaintiff has indicated she will call either Derrick Waldfogel, an expert in collision repair or
William Mael, an expert in accident reconstruction. Plaintiff has provided the required expert
reports for both individuals.
This court finds that the categories of witnesses for which expert testimony is sought by
the Plaintiff for presentation of her case are reasonable.2 While some of the witnesses’ expertise
may overlap one another, none are clearly redundant except for Mr. Waldfogel and Mr. Mael;
Plaintiff acknowledges she intends to select and call only one of those two. The trial court will
determine during trial whether testimony by any or all of these experts will be allowed, based on
the progression of the evidence and other factors. At this stage, however, this court determines
that the information appears relevant to the issues in the case and that expert testimony on the
1

In addition to the retained experts, numerous treating medical providers have also been
identified by the Plaintiff.
2
This court, however, does not necessarily agree that each category listed by the Plaintiff
requires a separately designated expert.
2

topics would likely be of benefit to potential jurors. Therefore, there is no reason to preclude
Plaintiff from endorsing, under Rule 26, experts to render opinion testimony about the same.
As the first step, however, it is incumbent upon the Plaintiff to make an election
concerning which automobile damage expert she will call as an affirmative witness. The
defendant is entitled to the identity of the proposed witness so that it may make a determination
about whether a deposition is required of the expert, to schedule the deposition and to get back
transcripts of the testimony all before the conclusion of the discovery process on July 10, 2014.
Plaintiff may not call both witnesses in her case in chief since they each clearly would be opining
on the same topic.
As to rebuttal witnesses, Rule 26 provides, , that “[a]bsent 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), . . .” the expert must be disclosed
within 30 days after the other party’s affirmative disclosure. Fed. R. Civ. P. 26(a)(2)(D)(ii). The
court set the date for disclosure of affirmative experts as March 31, 2014 and the date for
disclosure of rebuttal experts as June 6, 2014. (Minute Order [Doc. No. 20].) The Plaintiff
apparently disclosed at least one of her proposed rebuttal experts, Bradley Gibson, MD,
neurologist, earlier than required. (Mot. at ¶ 10.) Plaintiff claims that this witness will only be
called as rebuttal to Defendant’s expert, Gregory Reichhardt, M.D., should Dr. Reichardt be
called to testify by Defendant. (Reply at ¶ 7.)
The Scheduling Order form adopted by the court and used by the parties in this case does
not distinguish between affirmative or rebuttal expert witness limitations. Scheduling Order at
3

§ 9(d)(2). However, to hold that the limitation is only applicable to affirmative experts would
invite the very abuse the limitation is designed to prohibit. As the case currently stands, the
parties collectively have been allowed a total of ten retained expert witnesses to testify at the
trial, whether in the case-in-chief or in rebuttal, in addition to Plaintiff’s numerous treating
medical providers. If the allowable number was to include only affirmative experts, that number
would expand to an extraordinary twenty or more retained experts in the trial. Even if the court
grants the plaintiff’s request for seven experts per side, the case is expanded to fourteen retained
experts.
Nonetheless, this court will grant the plaintiff leeway to present her case in the manner
she desires since she is not proceeding against a defendant of limited means and will grant the
request to expand the allowable number of retained expert witnesses, whether affirmative or
rebuttal or both, to a total of seven per side.
It is therefore ORDERED
Plaintiff’s Motion to Increase the Number of Retained Experts [Doc. No. 26] is
GRANTED in part and DENIED in part as follows:
1.

Section 9(d)(2) of the Scheduling Order is amended to allow each side up to seven

retained expert witnesses;
2.

On or before May 16, 2014, Plaintiff shall select and disclose to Defendant the

expert witnesses, picked from those previously disclosed by Plaintiff, who she is designating as
her affirmative retained experts who may be called to testify at trial.3 Plaintiff may, at her

3

The court presumes that the Defendant disclosed its affirmative witnesses on March 31, 2014 in
4

discretion, withhold designation of her rebuttal witness(es) until June 6, 2014. In no event shall
the combined total of retained expert witnesses, whether affirmative or in rebuttal, exceed seven
retained expert witnesses per side.
Dated this 2nd day of May, 2014.

accordance with the deadline previously imposed.
5