Cox v. Wilson

Filing 68

ORDER by Magistrate Judge Nina Y. Wang on 12/23/15. Defendant's Motion for Contempt 60 is GRANTED IN PART and DENIED IN PART. Defendant's Motion for Extension 61 is GRANTED IN PART and DENIED IN PART. A Final Pretrial Conference is set for 4/22/2016 10:00 AM in Courtroom C204 before Magistrate Judge Nina Y. Wang. A proposed Final Pretrial Order is due no later than seven days prior to the Final Pretrial Conference, and in addition to being filed, must be submitted in Word format to [e-mail].(bsimm, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 15-cv-00128-WJM-NYW
CODY WILLIAM COX,
Plaintiff,
v.
DON WILSON,
Defendant.

ORDER
Magistrate Judge Nina Y. Wang
This civil action is before the court on Defendant’s Motion for Contempt [#60, filed
December 11, 2015] and Defendant’s Motion for Extension [#61, filed December 11, 2015],
which seeks additional time to propound Defendant’s rebuttal expert reports, which were
referred to the undersigned Magistrate Judge pursuant to 28 U.S.C. § 636(b), the Order of
Reference dated the Order of Reference dated January 27, 2015 [#7], the Reassignment dated
February 10, 2015 [#10], and the memoranda dated December 14, 2015 [#64, #65]. The Motion
for Contempt is unopposed by Plaintiff Cody William Cox (“Plaintiff” or “Mr. Cox”). Having
reviewed the Motion for Contempt and its attached exhibits, and having received no response
from Swedish Medical Center, the recipient of the subpoena at issue, this court DENIES IN
PART and GRANTS IN PART Defendant’s Motion for Contempt and Defendant’s Motion for
Extension.

BACKGROUND
This action arises from an officer-involved shooting involving Defendant Don Wilson
(“Defendant” or “Officer Wilson”) that injured Plaintiff. As discussed in a prior order of the
court, Plaintiff has been hospitalized since his injury and claims the cost of long-term care as part
of his damages. [#67]. Mr. Cox is currently hospitalized at Swedish Medical Center, and on or
about November 10, 2015, Officer Wilson subpoenaed Swedish Medical Center for Plaintiff’s
medical records. [#60-1]. According to defense counsel, no documents relating to Mr. Cox’
latest hospitalization which began on November 11, 2014. [#60 at ¶¶ 7-9]. Defendant also seeks
an additional 45 days, after receiving the Swedish Medical Center documents, to propound a
rebuttal damages expert report. 1 [#61].
Plaintiff opposes the extension of time for Defendant to propound his rebuttal expert
report, arguing that Defendant has had access to a significant amount of medical information
from Plaintiff, Defendant fails to establish why the Swedish Medical Center records from Mr.
Cox’s November 11, 2014 hospitalization should delay his ability to designate and provide a
rebuttal damages report, and to the extent that Defendant cannot simply propound a report and
supplement as necessary, he has not been diligent in seeking the medical records from Swedish
Medical Center. [#66, filed December 16, 2015]. Plaintiff further contends that the Swedish
Medical Records at issue were produced on December 15, 2015. [Id. at 1 n.1]. Defendant,
however, has not withdrawn his Motion for Contempt nor has he alerted the court of the status of
the Swedish Medical Center documents.

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Defendant also identified a potential Independent Medical Examination (“IME”) of Plaintiff as
a basis for the requested extension, but this court denied Defendant’s Motion for an IME by
Order dated December 16, 2015. [#67].
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ANALYSIS
Non-parties, like Swedish Medical Center, are subject to subpoenas under Rule 45 of the
Federal Rules of Civil Procedure. Fed. R. Civ. P. 45. In this case, a subpoena issued from the
District of Colorado, as the district in which the production or inspection was to be made. [#601]. While Rule 45(e) provides that “[f]ailure by any person without adequate excuse to obey a
subpoena served upon that person may be deemed a contempt of the court from which the
subpoena issued,” a finding of contempt requires the Court to “find the party violated a specific
and definite court order and the party had notice of the order.” Lucre Management Group, LLC
v. Schempp Real Estate, LLC, 365 F.3d 874, 875 (10th Cir.2004) (citation omitted).
In this case, there was no prior order compelling Swedish Medical Center to
produce the documents associated with Mr. Cox’s hospitalization beginning on November 11,
2014. There is also no indication that Defendant served a copy of the Motion for Contempt on
Swedish Medical Center. [#60].

Therefore, holding Swedish Medical Center in contempt of

court is simply not appropriate (nor within this Magistrate Judge’s independent authority), and
this court DENIES Defendant’s request for entry of contempt. See T&H Landscaping, LLC. v.
Colorado Structures, Inc., No. 06C-cv-00891-REB-MEH, 2007 WL 485229, at *1 (D. Colo.
Feb. 12, 2007) (noting that Plaintiffs' first motions for contempt were denied for failure to serve
the motions on the respective non-parties). To the extent that Defendant’s Motion for Contempt
is construed as a Motion to Compel Swedish Medical Center to produce documents, and Swedish
Medical Center has not produced such documents on December 15, 2015, this court GRANTS
such Motion and ORDERS Swedish Medical Center to object to and/or comply with November
11, 2015 subpoena duces tecum served on its registered agent, no later than January 4, 2016.

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Defense counsel must also serve a copy of this Order upon Swedish Medical Center’s registered
agent no later than December 24, 2015, unless the subpoenaed documents have already been
produced. Swedish Medical Center is specifically warned that a failure to comply with this
Order and the subpoena may result in the possible imposition of sanctions, including a
certification of facts to the Honorable William J. Martinez pursuant to 28 U.S.C. §
636(e)(6) that Swedish Medical Center should be held in contempt of court.
In addition, the court is persuaded that Defendant has adequate information, even without
full review of the records from Mr. Cox’s latest hospitalization at Swedish Medical Center, to
propound his rebuttal damages expert report. Plaintiff propounded his opening damages report
on October 15, 2015, as provided by the Scheduling Order in this case. [#66 at 1]. This court
extended Defendant’s deadline to designate a damages expert and propound a report from
November 13, 2015, until December 14, 2015 and provided that Defendant would “supplement
his disclosure,” if necessary. [#48]. Discovery closes in this case on January 19, 2016, and any
dispositive motions are due no later than February 22, 2016. [Id.]
A further 45-day extension of Defendant’s deadline to propound his rebuttal damages
report would necessarily jeopardize the remaining deadlines in this case, without an adequate
explanation by Defendant as to why the court’s order that specifically contemplated
supplementation, if necessary, was untenable. Nor has Defendant provided adequate justification
as to why his identified damages expert would need 45 days after the production of the Swedish
Medical Center documents to complete a rebuttal damages expert report, particularly given his
access to other information. Nor has Defendant explained why he waited until the eleventh hour
on December 11, 2015, to file for an extension when his rebuttal damages expert report was due

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on December 14, 2015 – essentially unilaterally securing an extension of time through his
timing.
Accordingly, IT IS ORDERED that:
(1)

Defendant’s Motion for Contempt [#60] is DENIED IN PART, insofar as it

seeks contempt, and GRANTED IN PART, insofar as it is construed as a Motion to Compel;
(2)

To the extent that Swedish Medical Center has not produced records associated

with Plaintiff’s hospitalization commencing on November 11, 2014, Swedish Medical Center is
COMPELLED to do so no later than January 4, 2016;
(3)

Counsel for Defendant will serve a copy of this Order on Swedish Medical Center

no later than December 24, 2015, unless the subpoenaed documents have already been
produced;
(5)

Defendant’s Motion for Extension [#61] is DENIED IN PART and GRANTED

IN PART;
(6)

The deadline for designation of Defendant’s rebuttal damages expert and

propounding a report compliant with Rule 26(a)(2)(B) is January 8, 2016;
(7)

The deadline for overall discovery remains set for January 19, 2016;

(8)

The deadline for dispositive motions remains set for February 22, 2016; and

(9)

A Final Pretrial Conference is set for April 22, 2016 at 10:00 a.m. before the

undersigned Magistrate Judge. A proposed Final Pretrial Order is due no later than seven (7)
days prior to the Final Pretrial Conference, and in addition to being filed, must be submitted in
Word format to [e-mail].

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Counsel and Parties are reminded that

anyone seeking access to the Byron G. Rogers United States Courthouse must present valid
identification. D.C.COLO.LCivR 83.2(b).

DATED: December 23, 2015

BY THE COURT:
s/ Nina Y. Wang
United States Magistrate Judge

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