Nosewicz v. Janosco

Filing 98

ORDER by Magistrate Judge Kristen L. Mix on 03/27/19 GRANTING in part and DENYING without prejudice, in part 36 Defendant's Motion to Strike Plaintiff's Non-Retained Expert Disclosures. (nmarb, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 16-cv-00447-PAB-KLM
EDWARD JOHN NOSEWICZ,
Plaintiff,
v.
JEFFREY JANOSKO,
Defendant.
_____________________________________________________________________
ORDER
_____________________________________________________________________
ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX
This matter is before the Court on Defendant’s Motion to Strike Plaintiff’s NonRetained Expert Disclosures [#36]1 (the “Motion”). Plaintiff filed a Response [#38] in
opposition to the Motion and Defendant filed a Reply [#41]. Pursuant to 28 U.S.C. §
636(b)(1) and D.C.COLO.LCivR 72.1(c), the Motion has been referred to the undersigned
for disposition. See [#37]. For the reasons set forth below, the Motion [#36] is GRANTED
in part and DENIED without prejudice in part.
Plaintiff initiated this 42 U.S.C. § 1983 lawsuit on February 24, 2016, asserting a
Fourth Amendment claim for use of excessive force and a Fourteenth Amendment claim
for deliberate medical indifference stemming from a December 6, 2014 physical altercation
with Defendant that occurred while Plaintiff was housed in the Adams County, Colorado

1

“[#36]” is an example of the convention the Court uses to identify the docket number
assigned to a specific paper by the Court's case management and electronic case filing system
(CM/ECF). This convention is used throughout this Order.

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detention facility. See Compl. [#1]; Am. Compl. [#10]. On March 5, 2018, the Chief Judge
entered summary judgment in favor of Defendant on both of Plaintiff’s claims. Order [#74].
The Court’s Order [#74] effectively closed this case, rending the present Motion [#36] moot
at the time. On April 8, 2018, Plaintiff appealed the Court’s summary judgment ruling to the
Tenth Circuit Court of Appeals. Notice of Appeal [#79]. On October 30, 2018, the Tenth
Circuit issued its Order and Judgment [#86], which affirmed summary judgment in favor of
Defendant on Plaintiff’s deliberate indifference claim but reversed summary judgment as
to Plaintiff’s excessive force claim, remanding the case for further proceedings. [#86] at
19. The Tenth Circuit’s Mandate [#88] was issued on December 4, 2018. Pursuant to the
Court’s December 13, 2018 Minute Order [#89], Defendant requested a ruling on the
instant Motion [#36]. See Def.’s Status Report [#90] at 1. Accordingly, the Court reinstated
the Motion [#36] on February 5, 2019. Minute Order [#93]. This matter is currently set for
a five-day jury trial beginning on October 7, 2019. Minute Order [#96].
The factual background relevant to the Motion [#36] is as follows. On June 23,
2016, the Court entered a Scheduling Order governing this case. See generally Sched.
Order [#23]. Among other things, the Scheduling Order limited the number of expert
witnesses to three experts per side. Id. at § 9(d)(2) (“The parties propose that the number
of expert witnesses be limited to 3 per side.”). The Scheduling Order also set deadlines
for the disclosure of expert witnesses and related disclosures required pursuant to Rule
26.2 Id. at § 9(d)(3)-(4). The deadline for disclosing affirmative experts was subsequently
extended to January 20, 2017, pursuant to a request by the parties. See Minute Order

2

Unless otherwise noted, “Rule 26” and all similar citations refer to the Federal Rules of
Civil Procedure.

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[#33].
On the January 20, 2017 deadline, Defendant was served with Plaintiff’s Expert
Witness Disclosures [#36-2] (the “Expert Disclosures”). Plaintiff’s Expert Disclosures list
the following four treating physicians as non-retained expert witnesses pursuant to Rule
26(a)(2)(C): (1) Dr. Mark Engelstad (“Engelstad”); (2) Dr. Arif Rohilla (“Rohilla”); (3) Dr.
Martin Yussman (“Yussman”); and (4) Roy Theriot, D.D.S. (“Theriot”). Expert Disclosures
[#36-2] at 1-6. Additionally, Plaintiff discloses Dan Montgomery (“Montgomery”) and Dr.
Stephanie Chiu (“Chiu”) as specially retained expert witnesses pursuant to Rule
26(a)(2)(B).3 Id. at 8-9. Thus, Plaintiff disclosed six experts in total.
On March 3, 2017, Defendant filed the present Motion [#36]. In the Motion,
Defendant generally seeks to strike all four of Plaintiff’s non-retained expert disclosures and
to preclude these experts from testifying at trial. [#36] at 15. Defendant first argues that
Plaintiff’s non-retained experts should be precluded from testifying pursuant to Rule 37(c)
because each disclosure fails to comply with Rule 26(a)(2)(C) and because Plaintiff’s nonretained experts should have been designated as retained experts, requiring a written
report pursuant to Rule 26(a)(2)(B). Id. at 3-12. Separately, Defendant argues that at least
three of Plaintiff’s experts should be stricken pursuant to Rule 16(f) because Plaintiff has
disclosed six experts in total which doubles the limit set forth in the Scheduling Order. Id.
at 12.
In his Response [#38], Plaintiff concedes in part by agreeing to withdraw Dr.

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Defendant raises no objection to Mr. Montgomery or Dr. Chiu in the present Motion [#36].
Accordingly, the Court does not address Plaintiff’s disclosure of Mr. Montgomery or Dr. Chiu in this
Order.

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Yussman’s disclosure completely and to strike Dr. Theriot’s disclosure to the extent that it
contains opinions as to the cause of Plaintiff’s dental injury. [#38] at 12-13. In light of
Plaintiff’s concession to withdraw Dr. Yussman’s disclosure in its entirety, the Court grants
the Motion [#36] to the extent that Defendant seeks to strike this disclosure and preclude
Dr. Yussman from testifying at trial as an expert witness.
With respect to Dr. Engelstad and Dr. Rohilla, Plaintiff contends that their disclosures
fully comply with Rule 26(a)(2)(C), that their opinions are within the proper scope of nonretained experts, and that therefore, these experts should not be precluded from testifying.
[#38] at 5-12.
Plaintiff’s Response, however, fails to even acknowledge Defendant’s Rule 16(f)
argument: that Plaintiff is in violation of the Scheduling Order for exceeding his limit of
expert witnesses. See generally id. Even with Plaintiff’s concession to withdraw Dr.
Yussman, Plaintiff appears to assume that he can name Dr. Theriot, Dr. Engelstad, and Dr.
Rohilla as expert witnesses in addition to Mr. Montgomery and Dr. Chiu, without seeking
to amend the Scheduling Order to increase the number of experts permitted. The Court
notes that, pursuant to the Final Pretrial Order [#59] and Plaintiff’s Supplement [#63]
thereto, Plaintiff appears to have subsequently removed Dr. Theriot’s designation as an
expert witness but continues to name Mr. Montgomery, Dr. Chiu, Dr. Engelstad, and Dr.
Rohilla as expert witnesses who may be present at trial. Pl.’s Supplement to Final Pretrial
Order [#63] at 5-6. Thus, Plaintiff continues to exceed his limit on expert witnesses.
While left unadressed in Plaintiff’s Response [#38], Defendant states in the Motion
[#36] that counsel for the parties have conferred on this issue. Motion [#36] at 12.
Defendant attaches a conferral letter, dated February 27, 2017, from Plaintiff’s counsel in
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which counsel merely states: “The Scheduling Order does not limit the number of experts
to 3 per side. That was merely a proposal.” Conferral Letters [#36-1] at 5.
As numerous courts have noted, a “[s]cheduling [o]rder is not a frivolous piece of
paper, idly entered, which can be cavalierly disregarded by counsel without peril.”
Washington v. Arapahoe Cty. Dep’t of Soc. Servs., 197 F.R.D. 439, 441 (D. Colo. 2000)
(citations omitted). While the Scheduling Order in this case states that “[t]he parties
propose that the number of expert witnesses be limited to 3 per side[,]” this is the language
that was provided by the parties in their Proposed Scheduling Order [#21]. Compare
Sched. Order [#23] at § 9(d)(2) with Proposed Sched. Order [#21] at § 9(d)(2). The parties
jointly proposed to the Court that they be limited to disclosing three expert witness per side,
which the undersigned adopted and made binding when the Scheduling Order was issued
as an order of the Court.
The scheduling order plays an important role in the management of a case and
should not be unnecessarily amended. 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”); see Rent-a-Center, Inc. v. 47 Mamaroneck Ave. Corp., 215 F.R.D. 100, 101
(S.D.N.Y. 2003) (“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”). Accordingly, a scheduling order “may be modified only for
good cause and with the judge’s consent.” Fed. R. Civ. P. 16(b) (emphasis added). “The
good cause standard ‘primarily considers the diligence of the party seeking the
amendment.’”

Anderson v. Seven Falls Co., No. 12-cv-01490-RM-CBS, 2013 WL

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3771300, at *7 (D. Colo. July 18, 2013) (quoting Dag Enterprises, Inc. v. Exxon Mobil
Corp., 226 F.R.D. 95, 105 (D.D.C. 2005)).
Here, Plaintiff has not even attempted to show good cause for amending the
Scheduling Order to increase the limit on expert witnesses. Therefore, Defendant’s request
to strike Plaintiff’s disclosed experts pursuant to Rule 16(f) is appropriate. Rule 16(f)
provides: “On motion or on its own, the court may issue any just orders . . . if a party or its
attorney . . . fails to obey a scheduling or other pretrial order.” Fed. R. Civ. P. 16(f). As the
Tenth Circuit Court of Appeals has explained, “there can be no doubt that [Rule 16(f)]
indicates the intent to give courts very broad discretion to use sanctions where necessary
to insure not only that lawyers and parties refrain from contumacious behavior, already
punishable under the various other rules and statutes, but that they fulfill their high duty to
insure the expeditious and sound management of the preparation of cases for trial.”
Mulvaney v. Rivair Flying Serv., Inc., 744 F.2d 1438 at 1440 (10th Cir. 1984) (en banc).
“The primary purpose of sanctions in this context is to insure reasonable management
requirements for case preparation. The secondary purpose is to compensate opposing
parties for inconvenience and expense incurred because of any noncompliance with the
reasonable management orders of the court.” Id. at 1441.
The Court agrees with Defendant that there is no reasonable basis for allowing
Plaintiff to unilaterally increase the number of experts after the fact “[g]iven that [Plaintiff’s]
own treating doctors should have been readily known to him and his attorneys at the time
of initial disclosures and the preparation of the Scheduling Order.” Motion [#36] at 12.
Moreover, it is clear that Defendant has been inconvenienced, if not prejudiced, by the fact

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that Plaintiff has proceeded in this case as if the terms of the Scheduling Order do not
apply to him.
Accordingly, the Court grants the Motion [#36] to the extent that Defendant seeks
to strike the number of Plaintiff’s experts necessary to enforce the Scheduling Order’s
expert limitation. However, given the fact that Plaintiff now appears to name only four
expert witnesses pursuant to the Final Pretrial Order [#59] and Plaintiff’s Supplement [#63]
thereto, the Court will provide Plaintiff the opportunity to choose between Dr. Engelstad or
Dr. Rohilla as Plaintiff’s third and final expert. In reaching this determination, the Court is
mindful of the procedural posture of this case, the fact that over two years have elapsed
since the instant Motion [#36] was filed, and the fact that Plaintiff is proceeding to trial with
one claim remaining.
Finally, in light of the above determination, the Court declines to address the merits
of Defendant’s arguments pursuant to Rule 37(c) until after Plaintiff has notified Defendant
whether Dr. Engelstad or Dr. Rohilla will serve as Plaintiff’s third and final expert. Once
Plaintiff has disclosed to Defendant which of these two experts Plaintiff intends to use at
trial, Defendant may file a renewed motion to strike that expert’s disclosure pursuant to
Rule 37(c) if such objections remain.
Based on the foregoing,
IT IS HEREBY ORDERED that the Motion [#36] is GRANTED in part and DENIED
without prejudice in part. The Motion is granted to the extent that Defendant seeks to
strike the disclosure of Dr. Yussman, preclude this witness from testifying as an expert at
trial, and enforce the Scheduling Order’s limit of three experts per side. The Motion is

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denied without prejudice to the extent that Defendant seeks to strike the disclosures of
Dr. Engelstad, Dr. Rohilla, and Dr. Theriot and preclude these witnesses from testifying at
trial pursuant to Rule 37(c).
IT IS FURTHER ORDERED that, on or before April 11, 2019, Plaintiff shall serve
Defendant with a Rule 26(e) supplement to the Expert Disclosures identifying whether
Plaintiff intends to name Dr. Engelstad or Dr. Rohilla as his third and final expert witness.
If Defendant has an objection to Plaintiff’s disclosure, he may file a renewed motion to
strike that expert pursuant to Rule 37(c) no later than fourteen days after Defendant is
served with Plaintiff’s Rule 26(e) supplement.
Plaintiff is advised that, if he fails to submit his Rule 26(e) supplement
identifying his third and final expert witness on or before April 11, 2019, the Court
will invite Defendant to file a motion seeking to preclude Dr. Engelstad and Dr.
Rohilla from testifying.
Dated: March 27, 2019

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