*1 This is a relatively simple truck-car car accident case. The accident occurred in Boulder, Colorado when Defendant Arthur Carroll, who was driving an 18-wheel tractor trailer, took a left turn too sharply and collided with the passenger car being driven by Plaintiff Juliet Getzel (“Plaintiff” or “Ms. Getzel”). Ms. Getzel suffered a broken wrist and has endured a series of surgeries as a result. The truck driver, Mr. Carroll, received a traffic citation. These facts do not appear to be in dispute.

Liability remains an issue because Defendants argue that Ms. Getzel could have taken steps to avoid the collision. Defendants therefore raise contributory negligence as a defense. Damages also remain an issue. Ms. Getzel's medical bills for the multiple surgeries will be substantial, and she makes claims about permanent disability, potential loss of wages, and potential future medical treatment (including future surgeries).

Despite the remaining issues in dispute, this is, at base, a simple vehicle accident case with the claimed injury limited to one person's wrist. While damages and liability and damages remain to be decied—this is far from the IBM anti-trust case. Unfortunately, the discovery process in this case appears to have devolved into endless sniping about things that, in the end, likely will not matter. As the Court has articulated, this case could probably be tried, very thoroughly and completely and on very short notice, with the information already discovered to date. Nevertheless, the parties insist on asking for more discovery. In the face of these continued disputes, the Court takes seriously its mandate to impose rational limits on discovery. Such limits are proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, and the importance of the discovery in resolving the issues. See Fed. R. Civ. P. 26(b)(1).

On March 6, 2023, the Court heard argument on a variety of outstanding discovery issues, taking most of them under advisement. See Dkt. #98. The Court now makes this Order to resolve some of these remaining disputes.

I. Plaintiff's Motion to Clarify/Modify Scheduling Order Regarding Written Discovery and to Compel Responses to Plaintiff's Second Set of Written Discovery (Dkt. #93)

On January 3, 2023, Plaintiff served a second set of written discovery upon the truck driver, Defendant Carroll, and a separate single set upon corporate Defendants ATS Specialize and ATS jointly. Defendants objected to every single request of Plaintiff on the ground that the number of requests exceeded the number allowed in the Scheduling Order. Plaintiff Getzel says that Defendants have misconstrued the limitations on discovery set forth in the Scheduling Order and she has not exceeded the limit that the Order imposed.

The dispute comes from the fact that the Scheduling Order (Dkt. #25) imposes a limit on the number of depositions, interrogatories, requests for production, and requests for admission on a per side basis, rather than per party. Plaintiff argues that because there are three defendants, “The only reasonable construction of the limitation on ‘each side’ means that each side is limited as to each adverse party.”

*2 Plaintiff is wrong. There may be three defendants, but there are two sides to this dispute: Plaintiff and Defendants. Defendants—the driver, the trucking company, and the trucking company's affiliate—are generally, if not completely, aligned in their positions. Plaintiff was given a specified limited number of discovery requests and she was entitled to allocate them among the three defendants as she saw fit. Given what is at issue in this case, and the stakes of the litigation, the discovery limits were intentionally limited on a “per side” basis. Indeed, the number of requests for production was increased to 35, from the normal 25, precisely because of the presence of three defendants.

It should be noted that the “per side” limitation also benefits Plaintiff because she cannot be the target of treble the number of discovery requests from Defendants. If Plaintiff's counsel were unclear as to the meaning of the words “per side”, then the Scheduling Conference was the time to seek clarification of that wording. Plaintiff has provided no persuasive argument for why the limits in the Scheduling Order should be modified, or why, for this relatively simple auto-truck collision case, the number of discovery requests specified in the Scheduling Order are inadequate. Plaintiff does not dispute that she has used the number of discovery requests specified in the Scheduling Order and does not give examples of the supposedly critical additional information that she seeks via the requested additional discovery requests.

Therefore, Plaintiff's Motion to Clarify/Modify Scheduling Order Regarding Written Discovery and to Compel Responses to Plaintiff's Second Set of Written Discovery (Dkt. #93) is GRANTED to the limited extent that the Court has explained what “per side” means in the context of the Scheduling Order. However, the request to exceed the number of discovery requests is DENIED and the request to compel responses to a second set of discovery is DENIED. To the extent Defendants refused to answer prior discovery requests on the basis that they were “premature,” Plaintiff is entitled to seek to compel answers to those prior requests. But no new requests exceeding the numbers specified in the Scheduling Order will be allowed.

II. Motion to Strike and Exclude Untimely Affirmative Opinions of Sherry Young (Dkt. #82)

Defendants move to strike and exclude parts of the alleged untimely Plaintiff's expert rebuttal report of Occupational Therapist Sherry Young because it contains information about a previously undisclosed vocational assessment. Defendants contend this is an affirmative expert report, not a rebuttal report.

The deadline to disclose affirmative expert reports was January 16, 2023. The deadline for rebuttal reports was March 7, 2023.

Ms. Young performed a functional capacity on Ms. Getzel on November 23, 2021, resulting in a report dated February 21, 2022. This report was disclosed to Defendants on January 16, 2023.

Then, on January 26, 2023, ten days after the deadline for affirmative expert opinions, Ms. Young re-evaluated Ms. Getzel for three and a half hours. Ms. Young then authored a second expert report dated February 8, 2023 (more than three weeks after the disclosure deadline) titled “FUNCTIONAL CAPACITY RE-EVALUATION AND SUPPLEMENTAL AND REBUTTAL REPORT.” See Dkt. #82-1. This report contains a detailed chart comparing Ms. Getzel's performance results of the original 2021 evaluation against the new January 2023 evaluation. See Dkt.82-1 at 5. The new report also includes Ms. Young's rebuttal of Defendants’ vocational assessment. See Dkt. #82-1 at 6–8 (“Review of Kristine Harris, M.S, C.R.C Vocational Assessment 1/12/23”). Yet, even in this “rebuttal” section, Ms. Young refers to her second functional capacity evaluation of Ms. Getzel.

*3 On February 21, 2023, Ms. Getzel disclosed a third report prepared for litigation by Dr. Master, a hand, wrist, elbow, and shoulder surgeon, which was addressed to her counsel. Ms. Getzel plans to offer retained expert opinion testimony from Dr. Master beyond the scope of his treatment and based on materials provided to him by Plaintiff's counsel. In his latest report, Dr. Master purports to adopt, endorse, and repeat Ms. Young's recently disclosed opinions based upon her second functional capacity evaluation. See Dkt. #82-5 at 3 (“Regarding Mrs. Getzel's level of impairment, I have endorsed and adopted the findings, recommendations, and opinions of the initial Functional Capacity Examination. I also endorse and adopt the findings, recommendations, and opinions of the more recent Functional Capacity re-evaluation which demonstrated an even higher level of functional impairment. As indicated in this re-evaluation, even if Mrs. Getzel is successful in working full-time, her work life expectancy will most likely be substantially reduced as a result of ongoing symptoms.”).

Defendants argue that there was nothing that prevented Ms. Young from conducting a second functional evaluation prior to the date specified for affirmative expert disclosures. In addition, Ms. Getzel never moved the Court to extend the January 16, 2023 disclosure deadline for affirmative opinions nor attempted to show good cause for such an extension.

Defendants do not object to the portion of Ms. Young's February 8, 2023 report which could be fairly characterized as rebuttal, but do object to the untimely addition to her case-in-chief of new affirmative opinions from Ms. Young and Dr. Master in disregard of the affirmative expert disclosure deadline.

Defendants argue that supplemental expert reports that seek to strengthen opinions in the expert's original report, state additional opinions or rationales for the expert's opinions, or address the same subject matter as an opposing expert's report without directly contradicting or rebutting its contents, do not qualify as rebuttal but are affirmative opinions. See Cook v. Rockwell Int'l Corp., 580 F. Supp. 2d 1071, 1169 (D. Colo. 2006). Such opinions must be disclosed no later than the affirmative expert deadline. Olivero v. Trek Bicycle Corp., 291 F. Supp. 3d 1209, 1216 (D. Colo. 2017). The default sanction for late disclosure is exclusion. See Fed. R. Civ. P. 37(c)(1) (if a party fails to provide information or identify a witness as required by Rule 26(a) or (e), “the party is not allowed to use that information or witness to supply evidence ... at a trial, unless the failure was substantially justified or is harmless”).

For her part, Plaintiff acknowledges that the supplemental expert report of Ms. Young was late because it “reflects a follow-up Functional Capacity Examination, performed just 10 days after the parties[’] expert disclosures.” Dkt. #100 at 1. As justification, Plaintiff argues, “No expert depositions had yet been sought or taken and the timing of the supplement is therefore without prejudice. The results of the follow-up FCE underscored the validity of the first FCE and documented the predicted increase in physical impairment as a result of the injuries.” Id. Plaintiff also insists that the follow-up examination helps refute the opinions of Defendants’ experts that Ms. Getzel would be able to return to her pre-accident occupation. Plaintiff also points to Rule 26(e) of the Federal Rules of Civil Procedure which imposes a duty to supplement an expert report. Per Plaintiff, Ms. Young's supplemental/rebuttal report both supplements the original report “timely submitted 22 days earlier with additional test results, as well as refut[ing] the opinions of Ms. Harris submitted just 22 days earlier.” Plaintiff also says that since Ms. Young's deposition has not yet been taken, the fact that the supplementation was not made 22 days earlier is harmless and there is no unfair prejudice from the late supplementation. Dkt. #100 at 4.

Rule 26(a) requires a party to disclose the identity of any expert witness it may use at trial. Fed. R. Civ. P. 26(a)(2)(A). A party must make this disclosure “at the times and in the sequence that the court orders.” Fed. R. Civ. P. 26(a)(2)(D). As is the case here, the court most often sets forth the time and sequence for disclosing experts in a scheduling order, with extensions of the dates occurring as modifications to the scheduling order. Fed. R. Civ. P. 16(b)(1).

*4 Rule 16(f) states “the court may issue any just orders, including those authorized by Rule 37 (b)(2)(A)(ii)–(vii), if a party or its attorney ... fails to obey a scheduling or other pretrial order.” As the Tenth Circuit has explained,

Mulvaney v. Rivair Flying Serv., Inc., 744 F.2d 1438, 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.

Rule 16(b) provides a scheduling order “may be modified only for good cause and with the judge's consent.” Fed. R. Civ. P. 16(b)(4). Rather than focusing on bad faith of the movant or prejudice to the opposing party, the “good cause” inquiry focuses on the diligence of the party seeking amendment. Gorsuch, Ltd., B.C. v. Wells Fargo Nat. Bank Ass'n, 771 F.3d 1230, 1240 (10th Cir. 2014) (citing Pumpco, Inc. v. Schenker Int'l, Inc., 204 F.R.D. 667, 668 (D. Colo. 2001)); Colo. Visionary Acad. v. Medtronic, Inc., 194 F.R.D. 684, 687 (D. Colo. 2000).

The court may sanction a party, including but not limited to striking the subject disclosure, when a party fails to abide by the court's scheduling order. Fed. R. Civ. P. 16(f); 37(b)(2)(A)(ii)–(vii). Similarly, Rule 37(c) provides that if “a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless.” Fed. R. Civ. P. 37(c). The determination of whether a Rule 26(a) violation is justified or harmless is entrusted to the broad discretion of the district court. Woodworker's Supply, Inc. v. Principal Mut. Life Ins. Co., 170 F.3d 985, 993 (10th Cir. 1999). “A district court need not make explicit findings concerning the existence of a substantial justification or the harmlessness of a failure to disclose.” Id. (citing United States v. $9,041,598.68, 163 F.3d 238, 252 (5th Cir. 1998)).

An affirmative expert serves to establish a party's case-in-chief. Rebuttal reports, by contrast, are not the proper place for presenting new arguments. In a rebuttal report, an expert is precluded from putting forth their own theories; they must restrict their testimony to attacking the theories offered by the adversary's experts. Spring Creek Exploration and Prod. Co. v. Hess Bakken Inv. II, No. 14-cv-00134-PAB-KMT, 2016 WL 1597529, *3 (D. Colo. April 21, 2016).

First, there is no doubt that the second evaluation of Ms. Getzel (and the opinion supported by that evaluation) was disclosed after the deadline for affirmative expert disclosures. It was late. Plaintiff does not argue otherwise, except to suggest that 22 days is not really that late.

*5 Second, although there are aspects of the late report that qualify as rebuttal, the portion that relies on the second functional evaluation is an affirmative report. It is not a rebuttal report. As noted, a proper rebuttal expert opinion is one offered “solely to contradict or rebut evidence on the same subject matter identified by another party” through that party's affirmative expert disclosures. Fed. R. Civ. P. 26(a)(2)(D)(ii).

Third, there is no justification or excuse given for why the follow-up functional capacity examination was not conducted, or could not have been conducted, within the time allotted for disclosure of affirmative expert reports and been included in Ms. Young's original report. Plaintiff failed to show adequate diligence in timely completing this second evaluation. Plaintiff tries to explain why the delayed second evaluation was conducted after the affirmative expert disclosure deadline by suggesting that injuries may improve or get worse over time, that it was appropriate to do a follow up evaluation, and the disclosure rules require an expert to supplement her report. But none of this explains why the second evaluation was not done before the deadline. Plaintiff's main argument is that the supplemental report is harmless because the deposition of Ms. Young has not yet occurred and no trial date is set, so there is no real prejudice to Defendants.

But there is harm and prejudice here, if not directly to Defendants, then to the legal system as a whole. Scheduling orders are contemplated and designed to offer a degree of certainty in pretrial proceedings, ensuring that, at some point, the claims and evidence are fixed so that parties may proceed to trial. See Home Design Servs., Inc. v. Trumble, No. 09-cv-00964-WYD-CBS, 2010 WL 1435382, *6 (D. Colo. Apr. 9, 2010). They are not “optional deadlines that can simply be ignored or amended on a whim.” Dedmon v. Continental Airlines, Inc., 13-cv-0005-WJM-NYW, 2015 WL 4639737 (D. Colo. Aug. 8, 2015). Deadlines exist for a reason. The adverse party should be entitled to rely on the limits and deadlines imposed in the scheduling order, which are to be modified only for good cause. Disclosing a new affirmative expert report after the deadline (and without permission) creates uncertainty, anxiety, and imposes unnecessary costs on the adverse party—prompting either more briefing (as in this case) or, if such late disclosures are allowed, more cost because the adverse party must then re-engage its own experts for new rebuttal reports.

Plaintiff's counsel has demonstrated a distressing proclivity to ignore the limits and deadlines imposed in the Scheduling Order. See Dkt. #99 (Order of March 9, 2023, denying Plaintiff's Motion to exceed the number of retained experts, which had been filed after the excessive number of experts had been disclosed). The approach seems to be to ask for forgiveness, rather than permission, and to do whatever Plaintiff's counsel feels might be good for the case—without regard to the limits and deadlines—rather than putting together the best case possible within the constraints imposed by the Scheduling Order. In any lawsuit, even the simplest one, there are an almost infinite number of avenues that can be explored, depositions to be taken, discovery requests to be generated, and expert opinions to be elicited. That is why the limits exist: to control and constrain the urges of trial counsel to seek to discover and disclose more and more information, ad infinitum.

*6 As noted above, the determination of whether a Rule 26(a) violation is justified or harmless is entrusted to the broad discretion of the Court. Woodworker's Supply, 170 F.3d at 993. There are four factors the Court should use to guide its discretion in determining whether a Fed. R. Civ. P. 26(a) violation is substantially justified or harmless: “(1) the prejudice or surprise to the party against whom the testimony is offered; (2) the ability of the party to cure the prejudice; (3) the extent to which introducing such testimony would disrupt the trial; and (4) the moving party's bad faith or willfulness.” Id. (citations omitted).

As to the first factor, Defendants were surprised by the new information and there is prejudice because Defendants did not have the information in advance of preparing their own rebuttal report. As to the second factor, the prejudice could arguably be cured by having Defendants prepare a sur-rebuttal report and deposing Ms. Young about her second report. But then Defendants would incur additional costs. Regarding the third factor, this testimony arguably would not disrupt the trial because, in this district, a trial date is not usually set until after discovery is completed. Thus, the third factor would not favor exclusion of the evidence. With respect to the fourth factor, the Court does find that the late disclosure was willful. Ms. Getzel's counsel knew about the affirmative expert disclosure report and could have obtained a follow up evaluation prior to that date, but chose to wait until after the deadline had passed. Considering all the factors, including the scope of this case, the Court finds the sanction of exclusion to be appropriate.

For the foregoing reasons, but especially because Sherry Young's February 8, 2023 “Supplemental and Rebuttal Report” contains affirmative opinions that should have been disclosed as of the affirmative expert disclosure deadline, it is further ORDERED that Defendants’ Motion to Strike and Exclude Untimely Affirmative Opinions of Sherry Young (Dkt. #82) is GRANTED. The Court will strike from Plaintiff's disclosures the untimely affirmative opinions in Ms. Young's February 8, 2023, report (including all references to and opinions based on Ms. Young's second functional capacity evaluation of Ms. Getzel). Ms. Young's rebuttal opinions shall be limited to those directly responding to affirmative opinions of Kristine Harris. The Court will further preclude expert opinions in which one expert repeats or purports to endorse or adopt another's untimely, affirmative opinions.

III. Motion for Protective Order by Plaintiff Regarding Employment Records and Depositions (Dkt. #90)

Plaintiff has moved for a protective order under Rule 26(c) to stop discovery into Plaintiff's employment records and to stop the depositions of the owners and chief financial officer of the business which currently employs her. Plaintiff argues that depositions were noticed and a subpoena for documents was issued without giving advance notice to Plaintiff in violation of Rule 30.1 of the Local Rules of Practice of the United States District Court for the District of Colorado-Civil, Federal Rule of Civil Procedure 45(a)(4), and the Court's prior admonitions. Ms. Getzel argues that repeated, short-notice and burdensome demands on Ms. Getzel's employers are part of a pattern intended to “harass, embarrass, and intimidate Plaintiff at her place of employment.” Dkt. #90 at 3. At issue are two deposition subpoenas (one for Eric Kareus [supervisor] and one for Donna Galland [employer]) and a subpoena for the production of Ms. Getzel's employment records and personnel file.

*7 The Court has reviewed the timing of the issuance of the subpoenas and does not find sufficient evidence of substantive rule violations to justify any sanction.

Ms. Getzel's wrist on her dominant arm was injured in the accident. Defendants argue that that Ms. Getzel is seeking damages for alleged future lost wages and impairment of her earning capacity, in part because her wrist injury will not let her spend a significant amount of time keying into computer keyboards. In the face of this damages claim, there is evidence suggesting that Ms. Getzel has the potential to be promoted to a position that may pay her up to $200,000 annually. Yet, her impaired earning capacity claim is based on a forecast of future work of only 3–4 hours per day, 15–20 hours per week. A retained vocational rehabilitation expert opines that Ms. Getzel “is clearly unable to return to her past job [as a sales assistant with Asia Transpacific Journeys], or other similar forms of employment where repetitive use of the dominant upper extremity, repetitive keyboarding, etc., is required.” Ms. Getzel's vocational rehab expert places her wage losses at between $100,000 and $200,000 on the assumption that her wrist injury will prevent her from successfully maintaining her job as a sales manager.

Defendants argue that Plaintiff's wage-loss and earning-impairment claims make her employment records, performance, and earnings relevant and discoverable. The Court agrees in part.

Employment records and wage information may be obtained when the information is relevant and probative of the disputed issues of actual damages in a case. See Madera v. Wal-Mart Stores, Inc., Case No. 10-cv-01507-MSK-MJW, 2011 WL 2292207 (D. Colo., June 8, 2011) (allowing discovery of personnel and wage information from plaintiff's current and former employer as relevant and probative on the issue of damages).

Here, Ms. Getzel has put her employment, and the impact the injury will have on her future employment, at issue. Therefore, discovery of her employment records and a deposition of someone she works with would be appropriate to either confirm or dispute the opinions likely to be offered about the impairment of her future earnings. That said, taking the depositions of two people from her workplace is unnecessary and enters into the territory of harassment of Ms. Getzel and her employer.

Therefore, Plaintiff's Motion for Protective Order (Dkt. #90) is GRANTED in part and DENIED in part. The Court will permit discovery of Ms. Getzel's employment documents from Ms. Getzel's employer, but such documents are to be covered by the protective order issued in this case and should be deemed “confidential.” As to deposition testimony from Ms. Getzel's supervisor and employer, the Court finds that one deposition from a colleague at her job is proportionate to the needs of the case and potentially relevant to her claimed future wage loss. Therefore, Defendant shall be permitted to take the deposition of either Eric Kareus or Donna Galland (not both), and the deposition shall not exceed more than three hours in length.

IV. Remaining Deadlines

In light of the time required for the Court to address these discovery issues, the Court believes it prudent to set a Status Conference to discuss deadlines within which the remaining discovery in the case can take place, including expert depositions. Therefore, the Court will hold a telephonic Status Conference on Monday, April 24, 2023 at 11:00 a.m. Five minutes before the time for the conference, the Parties are to call the teleconference line, 888-398-2342, Passcode #5755390.

*8 SO ORDERED.