Bryant v. Safeco Insurance Company of America

Filing 48

ORDER by Magistrate Judge Kristen L. Mix on 1/21/16. Defendant's Motion to Modify Scheduling Order # 33 is GRANTED.(lgale, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 15-cv-00193-RM-KLM
ROBERT W. BRYANT,
Plaintiff,
v.
SAFECO INSURANCE COMPANY OF AMERICA,
Defendant.
______________________________________________________________________
ORDER
______________________________________________________________________
ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX
This matter is before the Court on Defendant’s Motion to Modify Scheduling
Order [#33]1 (the “Motion”). The Motion is referred to this Court for disposition [#36].
Plaintiff filed a Response to the Motion [#43]2 and Defendant filed a Reply [#44]. The
Motion is now fully briefed and ripe for resolution. The Court has reviewed the Motion, the
Response, the Reply, the entire docket, and the applicable law, and is sufficiently advised
in the premises. For the reasons set forth below, the Motion [#33] is GRANTED.
I. Background
On March 23, 2015, the Court held a Scheduling Conference and entered the

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“[#33]” is an example of the convention I use to identify the docket number assigned to
a specific paper by the Court’s case management and electronic case filing system (CM/ECF). I
use this convention throughout this Order.
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The Court notes that the Response does not comply with D.C.COLO.LCivR 10.1(e), which
requires that all documents be double spaced. Nevertheless, in the interests of expedience, the
Court considers the arguments raised in the Response rather than requiring Plaintiff to file a version
that complies with the Local Rules.

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Scheduling Order governing this case. See generally Courtroom Minutes [#16]; Sched.
Order [#17]. Among other things, the Scheduling Order limited the number of retained
expert witnesses to two experts per side. Sched. Order [#17] at § 9(d)(2). In the
Scheduling Order, the parties described the expert witnesses they intended to retain as
follows:
Plaintiff anticipates retaining an expert witness in the fields of insurance bad
faith and insurance claim handling, as well as designating Plaintiff’s medical
providers as expert witnesses.
Defendant anticipates retaining an expert witness in the fields of medicine
(including orthopedics and rehabilitation), insurance claims handling, and any
expert to rebut any expert endorsed by Plaintiff.
Id. at § 9(d)(1). The Scheduling Order also set deadlines for disclosure of expert witnesses
and related disclosures required pursuant to Fed. R. Civ. P. 26. Id. at § 9(d)(3)-(4). These
deadlines were subsequently amended pursuant to a request from the parties. See
generally Minute Order [#27]. Ultimately, affirmative expert designations were due on
September 30, 2015, and rebuttal expert designations were due on October 30, 2015. Id.
at 1.
Plaintiff endorsed one retained affirmative expert to opine regarding insurance
claims issues. Motion [#33] at 3. Defendant endorsed two retained experts: one to offer
opinions regarding Plaintiff’s alleged dental injuries and one to offer opinions regarding
Plaintiff’s alleged orthopedic injuries. Id. Plaintiff attended separate Rule 35 examinations
with each of Defendant’s affirmative experts. Id. at 2. On October 30, 2015, Defendant
endorsed and disclosed Dale Crawford as a rebuttal witness. Id. at 3. Defendant notes
that Mr. Crawford is an insurance industry expert. Id. On November 12, 2015, the parties
filed a joint motion requesting that the Court extend the discovery deadline. See generally
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The Parties’ Joint Motion to Extend Deadlines [#35].3 The parties argued that good cause
existed for the requested extension. Id. at 1. Specifically, they explained: “The Parties
require this additional time in order to conduct the depositions of Plaintiff’s expert Bradley
A. Levin and Defendant’s expert Dale C. Crawford.” Id. The Court granted the motion and
extended the discovery deadline through December 16, 2015. Minute Order [#37] at 1.
In its Motion, Defendant requests that the Court amend the Scheduling Order
pursuant to Fed. R. Civ. P. 16(b)(4) to allow it three retained experts, the three experts
discussed above who were disclosed to Plaintiff through discovery. Motion [#33] at 9.
Defendant argues that good cause exists for the requested relief. Id. at 4-6. Defendant
also argues that the factors discussed in Smith v. United States, 834 F.2d 166, 169 (10th
Cir. 1987), favor amendment of the two-expert limit imposed by the Scheduling Order. Id.
at 6-8.
In his Response, Plaintiff argues that he will be prejudiced if Defendant is allowed
to present the testimony of three retained experts at trial.

Response [#43] at 2.

Specifically, he maintains that he “is now in the untenable position of not being able to
respond to all three of these experts.” Id. He further argues that “[b]y adding a third
retained expert at the time of rebuttal disclosures and moving to amend the scheduling
order only after the three retained experts were endorsed, Plaintiff has been deprived of
the opportunity to present a thoroughly prepared case.” Id.
In its Reply, Defendant argues that the “endorsement of one additional expert will
not result in any prejudice to Plaintiff.” Reply [#44] at 1. Defendant further argues that:

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The parties initially filed an incomplete version of this motion on November 10, 2015 [#31].

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Plaintiff has been on notice for more than four months that Safeco would be
presenting medical expert testimony at trial. Safeco timely endorsed Drs.
McBride and Palmer as affirmative experts on September 30, 2015, which
gave Plaintiff the opportunity to endorse rebuttal experts under the
Scheduling Order until October 30, 2015. Plaintiff elected not to do so, and
should not now be permitted to argue that Safeco is precluded from
presenting Drs. McBride and Palmer as witnesses at trial. In addition, as to
Safeco’s third expert, Dale Crawford, he was endorsed as a rebuttal expert
after Plaintiff designated Brad Levin, Esq. as an affirmative expert to opine
on claim handling standards.
Id. at 1-2 (emphasis in original). Because Plaintiff alludes to the arguments raised in his
Motion to Strike the Testimony of Defense Experts John T. McBride Jr. M.D. and Ronald
Palmer D.D.S. [#28], Defendant also analyzes the arguments made in the parties’ briefing
of that motion. Notably, that motion is not pending before the undersigned and invokes a
different legal standard and issue. The instant Motion seeks amendment of the Scheduling
Order pursuant to Fed. R. Civ. P. 16. The other motion asks the Court to strike expert
testimony. That issue is not addressed in this Order and this Order is not intended to
address that motion in any way. As a result, the Court does not summarize that portion of
Defendant’s Reply.
II. Standard of Review
As an initial matter, numerous courts have noted, and the undersigned agrees, that
a “Scheduling Order is not a frivolous piece of paper, idly entered, which can be cavalierly
disregarded by counsel without peril.” See, e.g., Washington v. Arapahoe Cnty. Dep't of
Soc. Servs., 197 F.R.D. 439, 441 (D. Colo. 2000) (citations omitted). Scheduling Order
deadlines “may be modified only for good cause and with the judge's consent.” Fed. R.
Civ. P. 16(b). The decision to modify the Scheduling Order “is committed to the sound
discretion of the trial court.” Smith v. United States, 834 F.2d 166, 169 (10th Cir. 1987);
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see also Anderson v. Seven Falls Co., No. 2013 WL 3771300, at *8 (D. Colo. July 18,
2013) (“this court unquestionably has the authority to re-open discovery to allow Plaintiff
to designate a rebuttal expert”); Benton v. Avedon Eng’g, Inc., No. 10-cv-01899-RBJ-KLM,
2013 WL 1751886, at *1 (D. Colo. April 23, 2013).4 While “the [Scheduling Order] defines
a lawsuit’s boundaries in the trial court and on appeal, ‘total inflexibility is undesirable.’”
Summers v. Mo. Pac. R.R. Sys., 132 F.3d 599, 604 (10th Cir. 1997) (citations omitted).
However, the Court notes that a scheduling order plays an important role in the
management of a case and should not be unnecessarily amended. Cf. Washington, 197
F.R.D. at 441 (noting that a “scheduling order is an important tool necessary for the orderly
preparation of a case for trial”); Rent-a-Center, Inc. v. 47 Mamaroneck Ave. Corp., 215
F.R.D. 100, 101 (S.D.N.Y. 2003) (stating that “scheduling orders are designed to offer a
degree of certainty in pretrial proceedings, ensuring that at some point both the parties and
the pleadings will be fixed and the case will proceed”).
III. Analysis
It is clear from the Scheduling Order that Defendant intended to disclose a medical
expert because of the injuries alleged by Plaintiff and that it anticipated that it might retain
an expert regarding the insurance industry.

Further, Defendant made clear in the

Scheduling Order that it anticipated that it might need to disclose a rebuttal witness. Here,
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As summarized above, Defendant argues both that good cause exists and that the Court
should grant the requested relief under Smith. Smith concerned reopening or extending discovery.
Smith, 834 F.2d 166, 169. Here, Defendant seeks to amend the Scheduling Order to allow it to
designate one rebuttal expert in excess of the number allowed under the Scheduling Order. After
carefully considering Smith, the Court finds that it is not directly on point because Defendant is not
asking the court to reopen discovery. Discovery of the expert witness was conducted in
accordance with the relevant deadlines. As a result, the Court simply considers whether good
cause for the amendment has been shown. See EEOC v. JBS USA, LLC, No. 10-cv-02103-PABKLM, 2014 WL 2922625, at *5 n.3 (D. Colo. June 27, 2014).

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the insurance industry expert was designated as a rebuttal witness because Plaintiff
designated an expert in this field as an affirmative witness. Defendant notes that through
discovery it learned “of records of Plaintiff’s significant pre-existing dental problems . . . .”
Motion [#33] at 5. That resulted in Defendant requesting Plaintiff to attend a Rule 35
examination conducted by Dr. Palmer, a dentist who was disclosed as an affirmative expert
witness by Defendant. Id. Plaintiff has had the benefit of discovery relating to all three
experts Defendant retained. As a result, Plaintiff cannot now claim that he is surprised or
prejudiced by Defendant’s retention of three experts. Further, the discovery of a need for
a dental expert only arose through the course of discovery. The Court finds this to be good
cause to increase the number of expert witnesses Defendant may retain from two to three.
See Wilson v. City of Lafayette, Nos. 07-cv-01844-EWN-KLM, 07-cv-02248-EWN-BNB,
2008 WL 3211288, at *2 (D. Colo. Aug. 6, 2008) (granting motion for leave to disclose two
additional expert witnesses).
IV. Conclusion
For the foregoing reasons,
IT IS HEREBY ORDERED that the Motion [#33] is GRANTED. Accordingly,
IT IS FURTHER ORDERED that the Scheduling Order [#17] is amended to allow
Defendant to designate up to three expert witnesses.
Dated: January 21, 2016

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