Harrison v. American Family Mutual Insurance Company et al.

Filing 78

MINUTE ORDER denying 67 Plaintiffs' Motion to Allow Expert Novotny to Withdraw and Re-Designate Valuation Expert, as set forth in the order, by Magistrate Judge Michael J. Watanabe on 3/11/2015.(emill)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-00328-PAB-MJW
JACK D. HARRISON, an Individual, and
NAOMA HARRISON, an Individual,
Plaintiff(s),
v.
AMERICAN FAMILY MUTUAL INSURANCE COMPANY, a Wisconsin Corporation,
Defendant(s).
MINUTE ORDER
Entered by Magistrate Judge Michael J. Watanabe
It is hereby ORDERED that Plaintiffs’ Motion to Allow Expert Novotny to
Withdraw and Re-Designate Valuation Expert (docket no. 67) is DENIED for the
following reasons. Each party shall pay their own attorney fees and costs for this
motion.
In the subject motion (docket no. 67), plaintiffs seek an Order from this court
allowing plaintiffs to re-designate a rebuttal valuation expert for William Novotny
due to Mr. Novotny’s medical condition.
Here, the court finds that the Final Pretrial Order (docket no. 61) was
approved and made an Order of Court on February 4, 2015. Defendant American
Family has withdrawn its disclosures of Enservio witnesses as non-retained experts
and does not intend to offer Enservio witnesses to provide expert testimony on any
subject at trial, including value of Plaintiff’s claimed losses. See bottom paragraph
on page 5 in Response (docket no. 77). See also Defendant’s expert witness
section of the Final Pretrial Order (docket no. 61) in paragraph 6.b. Defendant i & ii
on page 10. Rebuttal experts are those intended solely to contradict or rebut
evidence on the same subject identified by another party under Fed. R. Civ. P.
26(a)(2)(B) or (C). Individuals designated only as rebuttal experts cannot testify in a
plaintiffs’ case-in-chief and are not to be allowed to testify unless and until the
experts they were designated to rebut testified at trial. Lindner v. Meadow Gold
Dairies, Inc., 249 F.R.D. 625, 636 (D. Hawaii 2008) (cited by E.E.O.C. v. JBS USA,
LLC, 2014 WL 2922625, at *8 (D. Colo. June 27, 2014)). Accordingly, Plaintiffs’
Motion to Allow Expert Novotny to Withdraw and Re-Designate Valuation Expert
(docket no. 67) is MOOT and therefore should be DENIED.
Date: March 11, 2015