Boyd et al v. Home Depot, Inc., The
Filing
57
ORDER granting 51 Motion for Reconsideration. ORDERED that Plaintiffs' disclosure of Dr. Hodulik as an expert witness is STRICKEN by Magistrate Judge Kristen L. Mix on 03/01/13.(jjhsl, )
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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 11-cv-03129-WYD-KLM
PETER BOYD, and
CORDELIA GILLIS
Plaintiffs,
v.
THE HOME DEPOT, INC.,
Defendant.
_____________________________________________________________________
ORDER
_____________________________________________________________________
ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX
This matter is before the Court on Defendant’s Motion for Reconsideration of
Order Denying Motion to Strike Plaintiffs’ Expert Disclosures as to Dr. Hodulik
[Docket No. 51; Filed January 28, 2013] (the “Motion”). Plaintiff has not filed a Response
and the deadline to do so has passed. The Motion is therefore ripe for review.
On January 25, 2013, the Court issued an Order [#50] denying Defendant’s Motion
to Strike Plaintiffs’ Expert Disclosures [#18]. The Court found that Plaintiffs’ failure to timely
provide expert reports for two non-retained expert witnesses, Drs. Rauzzino and Hodulik,
was harmless. [#50] at 5. The Court found, among other things, that the late disclosure of
Dr. Rauzzino’s report, which occurred on October 12, 2012, approximately five weeks after
the disclosure deadline, caused minimal prejudice to Defendant given that no trial date has
been set by the District Judge and a motion for partial summary judgment is pending. Id.
The Court made the same finding with respect to Dr. Hodulik based on the assumption that,
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pursuant to the representation of Plaintiff’s counsel, Dr. Hodulik’s report would be disclosed
soon after Dr. Rauzzino’s was disclosed. Id. at 2, 5. The Court inserted a footnote in the
Order addressing this assumption:
In light of the representation made by Plaintiff’s counsel in the Response, the
Court assumes that Dr. Hodulik’s expert report was disclosed to Defendant
soon after the Reply was filed. If that is not the case and Dr. Hodulik’s report
has not yet been disclosed, the Court will, pursuant to a motion, reconsider
its ruling on the instant Motion as to Dr. Hodulik.
[#50] at 3 n.2.
Based on this footnote, Defendant seeks reconsideration of the Court’s Order.
Defendant explains in the Motion that Plaintiffs have never furnished a report from Dr.
Hodulik. [#51] at 2. Defendant therefore requests that the Court reconsider its Order as
to Dr. Hodulik and that it strike the disclosure of Dr. Hodulik as an expert in this case. Id.
A motion for reconsideration “is an extreme remedy to be granted in rare
circumstances.” Brumark Corp. v. Samson Res. Corp., 57 F.3d 941, 944 (10th Cir. 1995).
It is well established in the Tenth Circuit that grounds for a motion to reconsider are limited
to the following: “(1) an intervening change in the controlling law; (2) new evidence
previously unavailable; and (3) the need to correct clear error or prevent manifest injustice.”
Servants of Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000) (citing Brumark, 57
F.3d at 948). Therefore, a motion to reconsider is “appropriate [only] where the court has
misapprehended the facts, a party’s position, or the controlling law.” Id.
The Court finds that the high standard for reconsideration is satisfied here. The
Court denied Defendant’s motion to strike as to Dr. Hodulik based on the erroneous
assumption that Plaintiffs’ counsel had disclosed Dr. Hodulik’s expert report soon after
disclosing Dr. Rauzzino’s report. In light of the fact that Dr. Hodulik’s expert report has still
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not been disclosed, and given Plaintiffs’ failure to respond to the instant Motion, the Court
reconsiders its ruling that the failure to timely disclose the report was harmless. Upon
reconsideration of the four factors identified in Woodworker’s Supply, Inc. v. Principal Mut.
Life Ins. Co., 170 F.3d 985, 993 (10th Cir. 1999), for determining whether the failure to
timely disclose is substantially justified or harmless,1 the Court finds that the failure to
disclose Dr. Hodulik’s expert report is neither substantially justified nor harmless. The
Court finds that the factors, especially the erring party’s willfulness, weigh in favor of striking
Dr. Hodulik as an expert.
Plaintiffs acknowledged in October that they intend to call Dr. Hodulik to testify as
an expert witness to matters beyond his treatment of Plaintiff Boyd. See [#23] at 4. They
further acknowledged that, as a result, they were required to disclose an expert report from
Dr. Hodulik. See id. Despite that acknowledgment, Plaintiffs have still not disclosed the
report, nor have they even attempted to provide an explanation by responding to the instant
Motion. For these reasons,
IT IS HEREBY ORDERED that the Motion [#51] is GRANTED.
IT IS FURTHER ORDERED that Plaintiffs’ disclosure of Dr. Hodulik as an expert
witness is STRICKEN.
Dated: March 1, 2013
1
The four factors are: (1) the prejudice or surprise to the impacted party; (2) the ability to
cure the prejudice; (3) the potential for trial disruption; and (4) the erring party’s bad faith or
willfulness. Woodworker’s Supply, Inc., 170 F.3d at 993.
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