White et al v. American Family Insurance Group

Filing 47

ORDER; Plaintiffs' 41 Motion to Amend Final Pretrial Order to Include Supplement to Expert Report is GRANTED in part and DENIED in part, by Magistrate Judge Kathleen M. Tafoya on 3/3/16.(morti, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Magistrate Judge Kathleen M. Tafoya
Civil Action No. 14–cv–02975–RM–KMT
THOMAS G. WHITE, and
LIZABETH A. WHITE,
Plaintiffs,
v.
AMERICAN FAMILY INSURANCE GROUP a/k/a AMERICAN FAMILY MUTUAL
INSURANCE COMPANY,
Defendant.

ORDER

This matter is before the court on “Plaintiffs’ Motion to Amend Final Pretrial Order to
Include Supplement to Expert Report.” (Doc. No. 41 [“Mot.”],1 filed January 15, 2016.)
Defendant filed its response in opposition on February 5, 2016 (Doc. No. 45) and Plaintiffs filed
a Reply on February 22, 2016. (Doc. No. 46.)
In November 2015, the National Institute of Standards and Technology, an agency of the
U.S. Department of Commerce, published a report concerning the Waldo Canyon fire
purportedly as “part of its ongoing programs for enhancing disaster resilience.” (Mot. at 4;
Notice of NIST publication, “National Institute of Science and Technology Study of Colorado
Wildfire Shows Actions Can Change Outcomes” dated November 9, 2015,

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For clarity, references to page numbers in the Motion are to the court’s docket number rather
than the numbers assigned by Plaintiffs.

http://www.nist.gov/el/fire_research/nist-study-colorado-wildfire-shows-actions-canchangeoutcomes.) Plaintiff seeks to add this report as a potential exhibit to the Final Pretrial
Order (“FPTO”) issued by this court on November 12, 2015. (Doc. No. 32.)
The 216 page Report, entitled “NIST Technical Note 1910. A Case Study of a
Community Affected by the Waldo Fire – Event Timeline and Defensive Action” (hereinafter
the “Report”), was downloaded and reviewed by the court on March 3, 2016, from
http://nvlpubs.nist.gov/nistpubs/TechnicalNotes/NIST.TN.1910.pdf. Plaintiffs state that they
became aware of the Report on December 8, 2015 when notified by their designated expert, Ken
Murphy. (Mot. at 4; see FPTO at 14.)
ANALYSIS
The issues confronting the court are first, whether the Final Pretrial Order should be
modified to allow the Report to be listed as an exhibit, and second, whether the Report should be
listed as a Supplemental Exhibit to the Report of Ken Murphy, currently exhibit number 15 to
the FPTO.
A.

Amendment to Final Pretrial Order

Amendments of Final Pretrial Orders are addressed by Fed. R. Civ. P. 16(e), which
provides, “[t]he order following a final pretrial conference shall be modified only to prevent
manifest injustice.” In general, allowable modifications include “new and material evidence that
was not otherwise readily accessible or known.” Cleveland v. Piper Aircraft Corp., 985 F.2d
1438, 1450 (10th Cir. 1993), abrogation on other grounds recognized by U.S. Airways, Inc. v.
O’Donnell, 627 F.3d 1318, 1326 (10th Cir. 2010).
The Tenth Circuit has recognized that “a pretrial order should be liberally construed to

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cover any of the legal or factual theories that might be embraced by [its] language.” Koch v.
Koch Indus., Inc., 203 F.3d 1202, 1220 (10th Cir. 2000) (internal quotations omitted); Trujillo v.
Uniroyal Corp., 608 F.2d 815, 818 (10th Cir.1979) (“When issues are defined by the pretrial
order, they ought to be adhered to in the absence of some good and sufficient reason.”) In Koch,
the Circuit delineated four factors to consider when deciding whether to not to allow an
amendment to prevent manifest injustice “(1) prejudice or surprise to the party opposing trial of
the issue; (2) the ability of that party to cure any prejudice; (3) disruption to the orderly and
efficient trial of the case by inclusion of the new issue; and (4) bad faith by the party seeking to
modify the order.” Id. at 2222. When considering proposed amendments to a final pretrial
order, “‘total inflexibility is undesirable.’” Summers v. Missouri Pacific R.R. Sys., 132 F.3d 599,
604 (10th Cir. 1997) (quoting Hull v. Chevron U.S.A., Inc., 812 F.2d 584, 588 (10th Cir. 1987)).
In response to Plaintiffs’ request to add the Report as an exhibit to the FPTO, American
Family argues that Plaintiffs have failed to carry their burden to show manifest injustice and that
the Report is not material evidence in this matter. None of the Koch factors involve a
requirement that the information sought to be added to a pretrial order be “relevant” under Rule
26, nor that it necessarily be “admissible.” In this case, however, under the broad auspices of
Rule 26, the Report is clearly relevant in that it concerns a government study about the
conditions surrounding the Waldo Canyon fire and the very subdivision at issue in this insurance
case. Further, the court can see that the Report might be useful at trial to impeach witnesses and
even admissible under certain circumstances, such as rebuttal evidence.
It is not contested that the Report was issued only three days before this court held its
Final Pretrial Conference. Plaintiffs did not become aware of the Report until December 8,

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2015, several weeks after the Conference. Plaintiffs immediately notified opposing counsel
about the Report and sought counsel’s agreement to amend the FPTO to include the Report as a
possible Plaintiffs’ exhibit. Trial is not set until October 17, 2016. Further, the deadline for
challenging experts pursuant to Fed. R. Evid. 702 has passed.
The court finds that there is no bad faith on the part of Plaintiffs in seeking to include the
Report as an exhibit in the FPTO given the timely disclosure to the Defendant. There is also no
prejudice to Defendants. The Report is a public document about which Defendants have known
since December 2015. As noted in Section B herein, Plaintiffs maintain that the Report will not
change any of the opinions to be rendered by its expert, Mr. Murphy. To the extent Defendants
seek discovery about the Report, there is time to request such from the court. The trial will not be
delayed or prejudiced by inclusion of the exhibit on the Plaintiffs’ FPTO exhibit list.
However, Plaintiffs seek to add the Report not just as a stand-alone numbered exhibit, but
as a supplementary exhibit to Ken Murphy’s expert report.2 This is improper.
B.

Supplemental Expert Report

The Final Pretrial Order describes Ken Murphy as “a construction expert hired by the
Plaintiffs to do an analysis and report of the damage to Plaintiffs’ home. Mr. Murphy will testify
that the Thomas [sic] home and contents sustained various damages due to the Waldo Canyon
Fire, . . . .” (FPTO at 14.) Supplementing an expert report is allowable only in certain limited
circumstances. Rule 26(a)(2) requires expert reports to be supplemented as required under Rule
26(e). Pursuant to Rule 26(e)(1) and (2), a party is required to supplement its expert’s written
report and deposition testimony when the prior information is “incomplete or incorrect, and if the
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Plaintiffs apparently withdrew this part of their request in Case No. 14-cv-2819-NYW,
however it remains an argument in this case.
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additional or corrective information has not otherwise been made known to the other parties
during the discovery process or in writing.” Id. “Specifically, that means a supplemental report
may correct inaccuracies or fill in the blanks of an incomplete report based on information that
was not available at the time of the original report.” Cook v. Rockwell Int’l Corp., 580 F. Supp.
2d 1071, 1169 (D. Colo. 2006). A party’s duty to supplement an expert report extends both to
information included in the report and to information given during the expert’s deposition. Fed.
R. Civ. P. 26(e)(2). Unless ordered by the court, any additions or changes to this information
must be disclosed at least 30 days before trial, when the parties’ pretrial disclosures under Rule
26(a)(3) are due. Id.; Fed. R. Civ. P. 26(a)(3)(B).
“A plain reading of Fed. R. Civ. P. 26(e)(1) suggests that a supplemental expert report
should be based upon additional or corrective information that was not available at the time of
the expert’s original report.” SEC v. Nacchio, No. 05–cv–00480–MSK–CBS, 2008 WL
4587240, at *3 (D. Colo. Oct.15, 2008) (citing Minebea Co. v. Papst, 231 F.R.D. 3, 6 (D.D.C.
2005) (stating that Rule 26(e)(1) “permits supplemental reports only for the narrow purpose of
correcting inaccuracies or adding information that was not available at the time of the initial
report.”)). Moreover, “a supplemental expert report that states additional opinions or rationales
or seeks to strengthen or deepen opinions expressed in the original expert report exceeds the
bounds of permissible supplementation and is subject to exclusion under Rule 37(c).” Cook, 580
F.Supp.2d at 1169 (internal quotations omitted); Scholl v. Pateder, No. 1:09-CV-02959-PAB,
2012 WL 2360542, at *3 (D. Colo. June 20, 2012).
Plaintiffs make no secret that they intend that Mr. Murphy will use the Report to
strengthen and/or deepen his own expert report and conclusions. (See e.g., Mot. at 7 (“the

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Report does not change any of Mr. Murphy’s opinions. The Report contains additional facts and
data that support Mr. Murphy’s opinions, . . . .”); Mot. at 8 (“These provisions in the Report are
consistent with Mr. Murphy’s opinion that radiant heat as well as convective heat from the fire
could melt and damage items on and inside Plaintiffs’ home.”); Mot. at 8 (“All of this
information [in the Report] will be used to support the opinions of Mr. Murphy, of which
Defendant was aware long before the Report was published.”)).
Further, it is clear that Mr. Murphy did not rely on the Report in any way in forming his
own analysis and opinions because the Report was issued after Mr. Murphy had completed his
expert report.
The court finds, therefore, that supplementing Mr. Murphy’s expert report by attaching
the Report as an exhibit is improper.
Therefore, it is ORDERED
“Plaintiffs’ Motion to Amend Final Pretrial Order to Include Supplement to Expert
Report” (Doc. No. 41) is GRANTED in part and DENIED in part. Plaintiffs’ list of exhibits
in the Final Pretrial Order (Doc. No. 32) shall be amended to include a new Exhibit 16, “NIST
Technical Note 1910. A Case Study of a Community Affected by the Waldo Fire – Event
Timeline and Defensive Action.”
Dated this 3rd day of March, 2016.

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