Washington v. Arapahoe County Department of Social Services

197 F.R.D. 439, 2000 U.S. Dist. LEXIS 18629, 2000 WL 1745086
CourtDistrict Court, D. Colorado
DecidedOctober 30, 2000
DocketNo. Civ.A. 00-B-196
StatusPublished
Cited by33 cases

This text of 197 F.R.D. 439 (Washington v. Arapahoe County Department of Social Services) is published on Counsel Stack Legal Research, covering District Court, D. Colorado primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Washington v. Arapahoe County Department of Social Services, 197 F.R.D. 439, 2000 U.S. Dist. LEXIS 18629, 2000 WL 1745086 (D. Colo. 2000).

Opinion

ORDER

BOLAND, United States Magistrate Judge.

This matter is before me on defendants’ Motion to Strike Plaintiffs’ Expert Wit[440]*440nesses (the “Motion to Strike”), filed October 10, 2000. The plaintiffs have filed a response in opposition. The Motion to Strike is DENIED.

The Scheduling Order that was entered in this case on June 13, 2000, contains the following disclosure requirement with respect to plaintiffs’ experts:

Plaintiffs shall designate all experts (including all treating health care providers who will testify as experts on causation and/or prognosis) and provide opposing counsel with all information specified in Fed.R.Civ.P. 26(a)(2) on or before September 30, 2000.

Consistent with the Scheduling Order, the plaintiffs made a timely disclosure of accounting and health care experts. The accounting expert disclosure includes a resume and a list of cases in which the expert has offered testimony, but it does not include the “written report prepared and signed by the witness” required by Fed.R.Civ.P. 26(a)(2)(B). Instead, the disclosure states:

Mr. Campbell is an expert in accounting and has been retained to render opinions concerning: (1) the amount of back and future wages due to the plaintiffs, including benefits and PERA; and (2) the amount of any offset to said wages base on plaintiffs employment since her termination.
Discovery has only recently commenced, and when plaintiffs receives (sic) appropriate information from defendants confirming wage and benefit amounts, this expert will produce either a written report or a summary of his opinions, and plaintiffs will further disclose those opinions.

The plaintiffs’ disclosed four health care providers — Michael Paira, M.D.; Gary L. Post, M.D.; Kaiser Permanente; and Little-ton Health and Wellness Clinic. The disclosure states that these witnesses will provide “factual testimony as to the course of health care treatment” and “testify as to their opinions ... regarding plaintiffs’ diagnosis and prognosis.” None of the information specified in Fed.R.Civ.P. 26(a)(2) is provided, however, based on the following explanation:

The opinions expressed by these expert witnesses and the documents upon which each expert relies are fully set forth in their medical records which will be produced by plaintiffs.
Plaintiffs’ health care providers have been compensated in the course of providing health care benefits to plaintiffs by plaintiffs’ health care insurer and/or examinations, but have not been otherwise compensated by plaintiffs.
Documentation of qualifications, publications and previous testimony by these health care experts, if necessary, is available upon request.

The defendants have moved to strike all of the designated experts, arguing that the plaintiffs’ disclosure does not meet the requirements of Fed.R.Civ.P. 26(a)(2) because, among other things, there is no written report containing a complete statement of the expert’s opinions.

The Accounting Expert

The plaintiffs have failed to comply with that portion of the Scheduling Order which requires not only the designation of their experts by name on or before September 30, 2000, but also that they “provide opposing counsel with all information specified in Fed. R.Civ.P. 26(a)(2)” by that date. Scheduling Order, p. 7. Rule 26(a)(2)(B) requires, among other things, that an expert disclosure include:

[A] written report prepared and signed by the witness. The report shall contain a complete statement of all opinions to be expressed and the basis and reasons therefor; the data or other information considered by the witness in forming the opinions; any exhibits to be used as a summary of or support for the opinions; the qualifications or the witness, including a list of all publications authored by the witness within the preceding ten years; the compensation to be paid for the study and the testimony; and a listing of any other cases in which the witness has testified as an expert at trial or by deposition within the preceding four years.

Fed.R.Civ.P. 26(a)(2)(B).

Rule 16(b), Fed.R.Civ.P., provides that a deadline established in a scheduling order, [441]*441such as the deadline to designate experts and make Rule 26(a)(2) disclosures at issue here, may be extended only “upon a showing of good cause and by leave of the district judge or, when authorized by local rule, by a magistrate judge.” In this case, the plaintiff sought no such extension, and none was granted. Numerous courts have noted, and I emphasize today, that a “Scheduling Order is not a frivolous piece of paper, idly entered, which can be cavalierly disregarded by counsel without peril.” Widhelm v. Wal-Mart Stores, Inc., 162 F.R.D. 591, 593 (D.Neb. 1995) (quoting Gestetner Corp. v. Case Equipment Co., 108 F.R.D. 138, 141 (D.Me. 1985)). To the contrary, a scheduling order is an important tool necessary for the orderly preparation of a case for trial. Widhelm, 162 F.R.D. at 593. The consequence of the plaintiffs’ failure to supply the Rule 26(a)(2) information as scheduled already has been realized — defendants have filed a Motion for Extension of Time to Designate Expert Witnesses, seeking an extension of 30 days from the date plaintiffs provide a written report within which to complete their disclosure.

The plaintiffs’ remedy in the event they could not supply the information required by Rule 26(a)(2) was not unilaterally to state that they would supply the information when it became available, but to seek an extension of the expert disclosure deadline upon a showing of good cause. Then the entire schedule can be modified as necessary to assure that the ease is prepared in an orderly way.

The plaintiffs’ failure to comply with the scheduling order notwithstanding, the standard for striking an expert based upon a late designation is set out in Summers v. Missouri Pacific Railroad System, 132 F.3d 599, 604 (10th Cir.1997):

The decision to exclude evidence is a drastic sanction. Because district courts are given wide latitude in this area, we reverse only for abuse of discretion.
Even according appropriate deference, we find reversible error in this case [where an extension of time for the late designation of an expert witness was denied]. Our determination turns on four factors:

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Bluebook (online)
197 F.R.D. 439, 2000 U.S. Dist. LEXIS 18629, 2000 WL 1745086, Counsel Stack Legal Research, https://law.counselstack.com/opinion/washington-v-arapahoe-county-department-of-social-services-cod-2000.