McKeon v. Aaran Transport, LLC et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 21-cv-03264-RM-KLM
KIM MCKEON,
Plaintiff,
v.
BANK OF AMERICA,
AARAN TRANSPORT, LLC,
NUR ABDI, and
DAVID BAILEY,
Defendants.
_____________________________________________________________________
ORDER
_____________________________________________________________________
ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX
This matter is before the Court on Defendants Aaran Trucking, LLC and Nur Abdi’s
(collectively, “Aaran Defendants”) Motion to Amend the Scheduling Order to Allow
Additional Experts [#122] (“Aaran Motion”) and Defendants Bank of America and David
Baily’s (collectively, “BOA Defendants”) Renewed Motion to Amend the Scheduling
Order to Allow Additional Experts [#124] (“BOA Motion”). 	Plaintiff filed Responses
[#135, #136] in opposition to the Motions [#122, #124], and Defendants filed Replies
[#144, #145]. Pursuant to 28 U.S.C. § 636(b) and D.C.COLO.LCivR 72.1(c), the Motions
[#122, #124] have been referred to the undersigned for disposition. 	See [#123, #125].
The Court has reviewed the briefs, the entire case file, and the applicable law, and is
sufficiently advised in the premises. For the reasons set forth below, the Motions [#122,
#124] are GRANTED.
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I. Background
This matter arises from a motor vehicle accident which occurred on March 3, 2019,
on Interstate 70 in Colorado. Compl. [#1] ¶ 12. Defendant Nur Abdi (“Abdi”), a semi-truck
driver, crashed his truck into the rear of a Mazda which, as a result, collided with a Nissan.
Id. ¶¶ 19-22. The Nissan left the roadway and overturned. Id. ¶¶ 23-24. Plaintiff exited
her vehicle, which was not involved in the accident, in an attempt to render aid to the
occupants of the overturned Nissan. 	Id. ¶¶ 27-29. 	While Plaintiff was rendering aid,
Defendant David Bailey (“Bailey”) lost control of his vehicle as he approached the scene
of the accident. Id. ¶¶ 31-32. Defendant Bailey’s vehicle struck Plaintiff and crushed her
between Defendant Bailey’s vehicle and the overturned Nissan. Id. ¶¶ 34-35. As a result
of the collision, Plaintiff suffered severe injuries and accrued extensive medical bills. Id.
¶¶ 40-41. 	Plaintiff sues Defendants Abdi and Bailey under a theory of negligence and
also sues their respective employers, Defendant Aaran Transport, LLC (“Aaran”) and
Bank of America (“BOA”), under a theory of respondeat superior. Id. ¶¶ 51, 63, 67, 79.
Relevant to the present Motions [#122, #124], the BOA Defendants filed a Motion
to Amend the Scheduling Order to Allow Additional Experts [#87] on October 6, 2022,
before the discovery deadline. 	The Aaran Defendants joined that Motion [#87]. 	See
Motion to Amend the Scheduling Order [#89]. The Court denied the Motion [#87] without
prejudice on March 6, 2023, essentially for providing insufficient information. Order [#115]
at 2. The Aaran Defendants and BOA Defendants filed their respective amended Motions
[#122, #124] on March 30 and March 31, 2023. 	See Motions [#122, #124]. When the
present Motions [#122, #124] were filed, the discovery deadline was May 8, 2023, and
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the current discovery deadline was June 9, 2023. Order [#112] at 1; Order [#142] at 1.
In their Motions [#122, #124], Defendants seek to amend the Scheduling Order
[#56] to allow them additional expert witnesses. The Scheduling Order [#56] states that
“[e]ach side will be limited to seven (7) expert witnesses, with no more than one (1)
specially-retained expert in any particular subject matter.” Scheduling Order [#56] at 11.
Currently, Defendants share six retained damages experts but wish to call two additional
liability experts for each pair of Defendants, the BOA Defendants and the Aaran
Defendants. Aaran Motion [#122] at 1; BOA Motion [#124] at 1-2. This would bring the
total number of expert witnesses for the Defendants to ten. The six shared experts are:
(1) Dr. Rachel Basse (“Basse”), a physical medicine and rehabilitation specialist; (2) Dr.
David Feuer (“Feuer”), a vascular surgeon; (3) Dr. Phillip Stull (“Stull”), an orthopedic
surgeon; (4) Dr. Brian Taylor (“Taylor”), a pulmonologist; (5) Katie Montoya (“Montoya”),
a vocational consultant; and (6) Kathy Denson (“Denson”), an economist. Aaran Motion
[#122] at 6-8; BOA Motion [#124] at 5-6. 	The Aaran Defendants seek to call their two
additional liability experts: (1) Adam Mitchener (“Mitchener”), an accident reconstruction
expert; and (2) James Desmond (“Desmond”), a trucking expert. Aaran Motion [#122] at
8-9. 	In addition to those called by the Aaran Defendants, the BOA Defendants seek to
call their own liability experts: (1) Will Bortles (“Bortles”), an accident reconstruction
expert; and (2) Rose Figueroa (“Figueroa”), a human factors expert. BOA Motion [#124]
at 6.
Defendants argue that they have good cause for the amendment because of the
nature and extent of Plaintiff’s injuries and because the two pairs of Defendants have
conflicting defense theories and positions on liability. 	Aaran Motion [#122] at 1; BOA
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Motion [#124] at 1-2. 	Plaintiff argues that Defendants’ need for additional witnesses is
“untimely, the result of the defendants’ own carelessness, and without with [sic] good
cause.” Response [#135] at 1; see also Response [#136] at 1 (stating same reasoning).
II. Analysis
As an initial matter, numerous courts have noted, and the undersigned agrees,
that a AScheduling 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
orders Amay be modified only for good cause and with the judge=s consent.@ Fed. R. Civ.
P. 16(b)(4). 	A “relevant consideration is possible prejudice to the party opposing the
modification.” 	Tesone v. Empire Mktg. Strategies, 942 F.3d 979, 988 (10th Cir. 2019)
(quoting Inge v. Rock Fin. Corp., 281 F.3d 613, 625 (6th Cir. 1992)). 	“Although the
existence or degree of prejudice to the party opposing the modification might supply
additional reasons to deny a motion, the focus of the inquiry is upon the moving party’s
reasons for seeking modification.” Johnson v. Mammoth Recreations, Inc., 975 F.2d 604,
609 (9th Cir. 1992) (citing Gestetner Corp. v. Case Equip. Co., 108 F.R.D. 138, 141 (D.
Me. 1985)).
The decision to modify the Scheduling Order Ais committed to the sound discretion
of the trial court.@ 	Smith v. United States, 834 F.2d 166, 169 (10th Cir. 1987); see also
Benton v. Avedon Eng’g, Inc., No. 10-cv-01899-RBJ-KLM, 2013 WL 1751886, at *1 (D.
Colo. Apr. 23, 2013). 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 Ascheduling order is an important tool
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necessary for the orderly preparation of a case for trial@); see also Rent
Ba
BCenter, Inc. v.
47 	Mamaroneck 	Ave. 	Corp., 	215 	F.R.D. 	100, 	101 	(S.D.N.Y. 	2003) 	(stating 	that
Ascheduling 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@).
The Court first addresses Plaintiff’s argument that Defendants’ conduct concerning
the request for additional witnesses does not meet the “good cause” standard before
turning to the reasons for the additional witnesses and possible prejudice to Plaintiff.
A. 	Timeliness
Plaintiff argues that Defendants 	failed to exercise reasonable 	diligence, 	as
required by the Tenth Circuit, when seeking to amend the scheduling order and thus do
not show good cause. 	Response [#135] at 4; see Minter v. Prime Equip. Co., 451 F.3d
1196, 1205 n.4 (10th Cir. 2009) (“[Good cause] requires the moving party to show that it
has been diligent in attempting to meet the deadlines, which means it must provide an
adequate explanation for any delay.”). 	Plaintiff argues that Defendants’ Motions [#122,
#124] are untimely because Defendants were aware of the “nature, severity, and scope”
of Plaintiff’s injuries before the start of litigation. 	Response [#135] at 4. 	Plaintiff avers
that Defendants were “fully aware of the liability facts and opposing liability theories” at
the time of the Scheduling Conference on March 1, 2022. 	Id. 	Plaintiff states that she
provided medical bills and records to Defendants in Plaintiff’s initial disclosures on March
15, 2022. 	Id. 	Additionally, Plaintiff argues that Defendants have failed to show good
cause to justify the seven-month delay between entry of the Scheduling Order and their
initial request for additional experts. 	Id. 	Plaintiff further argues that the Motions [#122,
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#124] are untimely despite the fact that, before the original Motions were filed in October
2022, the disclosure deadline had been extended from September 2, 2022, to December
9, 2022. Id. The Court is not persuaded by these arguments.
First, the Court finds that the filing of these Motions [#122, #124] was timely
because they were filed before the disclosure deadline which, at the time of filing, was
May 8, 2023. 	Additionally, when the BOA Defendants filed the initial Motion to Amend
the Scheduling Order [#87] which the Aaran Defendants joined, see [#89], on October 6,
2022, the disclosure deadline was December 9, 2023. 	See Minute Order [#82].
Moreover, Defendants filed their current Motions [#122, #124] in a reasonably timely
fashion after the Court denied the first Motion to Amend the Scheduling Order [#87]
without prejudice on March 6, 2023. See Minute Order [#115].
Second, contrary to Plaintiff’s argument, Defendants may not have been fully
aware of their developing, opposing liability theories at the time of the Scheduling
Conference in March 2022. 	See Reply [#145] at 5 (“When the Scheduling Order was
entered on March 1, 2022, the parties had not even exchanged initial disclosures under
Fed. R. Civ. P. 26(a)(1). They had not served any written discovery. They had not taken
any depositions. 	They had not scheduled any IMEs. They had not disclosed any
experts.”). While it is true that the general extent of Plaintiff’s injuries was known to the
parties from the outset of this action, Defendants’ primary argument in support of their
need for additional experts is that the pairs of Defendants have adverse theories of
liability. 	See Aaran Motion [#122] at 12; BOA Motion [#124] at 8. 	Mere knowledge of
Plaintiff’s extensive injuries does not support the contention that Defendants knew of their
differing theories of liability at the time of the Scheduling Conference.
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Third, Defendants did not delay unreasonably in requesting additional witnesses.
As discussed above, the initial Motion to Amend the Scheduling Order to Allow Additional
Experts [#87] was filed two months before the then-deadline. 	Further, the parties have
moved to amend the Scheduling Order [#56] multiple times during the course of litigation.
This shows that the parties are working together to amend the Scheduling Order [#56]
when reasonably necessary to do so. 	Additionally, as the BOA Defendants state in the
Reply [#144], Defendants informed Plaintiff that they required additional experts in August
and September 2022. Reply [#144] at 3 (citing Defs.’ Ex. A [#144-1] at 1, 4). Further, as
the Aaran Defendants state, they require a trucking expert to rebut the testimony of
Plaintiff’s trucking expert, Mr. Adam Grill (“Grill”). 	Aaran Motion [#122] at 11. 	Plaintiff
disclosed Mr. Grill’s testimony on her expert disclosure deadline of November 7, 2022.
Reply [#145] at 3. 	Therefore, the Aaran Defendants may not have been aware of the
need for a specific trucking expert at the time of the Scheduling Conference in March
2022.
For all these reasons, the Court finds that Defendants’ Motions [#122, #124] were
not untimely.
B. 	Reason for the Additional Experts
Defendants seek to designate additional experts because of the conflict between
the Aaran Defendants’ defense theory and the BOA Defendants’ defense theory. Aaran
Motion [#122] at 11; BOA Motion [#124] at 6. Additionally, the Aaran Defendants argue
that they require a second liability expert to rebut the testimony of Mr. Grill, Plaintiff’s
trucking expert. 	Aaran Motion [#122] at 11. 	Because Defendants Bailey and BOA are
not involved in trucking, the testimony of Mr. Grill does not apply to them. 	Id. 	Plaintiff
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argues that Defendants have retained unnecessary expert witnesses because some of
the shared expert witnesses have overlapping expertise and opinions. Response [#136]
at 9. In their Replies [#144, #145], Defendants counter that the six retained experts are
reasonably necessary to rebut the damages Plaintiff claims due to the complex nature of
her injuries. See Reply [#144] at 4.
The Court finds that it would be prejudicial to Defendants, particularly to the Aaran
Defendants, to have Defendants share one liability expert. 	As the parties state,
Defendants 	have 	adverse 	theories 	of 	liability. 	See 	BOA 	Motion 	[#124] 	at 	6
(“Fundamentally, the BOA Defendants argue that Mr. Bailey acted reasonably while Mr.
Abdi was negligent. Of course, this position is averse to Mr. Abdi’s position.”). Further,
the Aaran Defendants show sufficient reason to require their own trucking expert as they
must rebut the testimony of Plaintiff’s trucking expert to present their defense. See Aaran
Motion [#122] at 11. To limit Defendants to only one liability witness would prohibit one
pair from presenting its defense.
As to Plaintiff’s argument that the expertise and opinions of Defendants’ six
retained damages witnesses are unnecessary and redundant, the Court is not persuaded.
See Response [#135] at 7. While the Court agrees that there is some overlap in the types
of damages that the experts address, i.e., future medical bills and lost wages, the experts
do not overlap in how they address those categories of damages. See BOA Motion [#124]
at 5-6. Here, Defendants provide sufficient cause to demonstrate their need for each of
their shared experts. 	See id. 	For example, Dr. Basse addresses Plaintiff’s muscular
injuries, 	Dr. 	Stull 	addresses 	orthopedic 	injuries, 	Dr. 	David 	Feuer 	addresses
cardiovascular trauma, and Dr. Taylor addresses pulmonary injuries. Id. Each doctor’s
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testimony rebuts the future medical costs calculated by Plaintiff’s future medical costs
expert, Dr. Matthew Hyzy (“Hyzy”), but in a specific field, not medical costs generally.
Additionally, the opinions of Ms. Montoya and Ms. Denson both address lost earnings
generally, but Ms. Montoya rebuts Plaintiff’s occupational therapist who opines that
Plaintiff should reduce her work time by half while Ms. Denson, an economist herself,
rebuts the calculations of Plaintiff’s economist. 	Id. at 6. 	Therefore, the Court finds that
Defendants have shown sufficient need for the six retained damages experts and two
additional liability experts per pair of Defendants.
C. 	Prejudice to Plaintiff
Finally, Plaintiff argues that the addition of three more retained defense experts is
unduly burdensome and unfairly prejudicial to her. Response [#135] at 6. Plaintiff argues
that the “time and expense to rebut, depose, and file Fed. R. Evid. 702 motions” is so
great as to be prejudicial to her. 	Id. 	Plaintiff asserts that it is “extremely expensive” for
her to prepare for the additional experts “five months after the defendants’ expert
disclosure deadline.” Id. at 5.
Defendants argue that ten witnesses are proportional to the needs of the case
because Plaintiff seeks “at least $15 Million” in damages. 1 Reply [#144] at 4. Defendants
further argue that the additional experts do not unduly burden Plaintiff because, as of
January 30, 2023, Plaintiff disclosed her rebuttal expert opinions by Dr. Hyzy, Mr. Guy
Barbera (“Barbera”), an accident reconstruction expert, and Mr. Grill. Reply [#145] at 7.
1 The BOA Defendants state in their Motion [#124] that “Plaintiff’s counsel has stated that
he seeks $15 million.” BOA Motion [#124] at 3. However, the BOA Defendants do not provide a
citation to that statement. The Court notes that the BOA Defendants cite to Plaintiff’s Eleventh
Supplemental Disclosures which include a calculation of damages near ten million dollars. 	Id.
(citing Ex. B [#124-2] at 12-13).
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The Aaran Defendants state that Plaintiff “addressed and/or rebutted all of the expert
opinions that the Aaran Transport Defendants had disclosed back on December 9, 2023
[sic], including those of Mr. Michener and Mr. Desmond.” Id. It is unclear from the briefs
whether Plaintiff rebutted the BOA Defendants’ liability experts which were also disclosed
at the December 9, 2022, deadline.
Moreover, as discussed above, the Motions [#122, #124] were filed in a timely
manner. 	The Aaran Defendants state in their Reply [#144], which was filed on May 8,
2023, that Plaintiff had deposed their liability experts, Mr. Michener and Mr. Desmond.
Reply [#144] at 7. Further, Plaintiff will have ample time to address the additional experts
as Plaintiff may seek leave to extend the July 19, 2023 Rule 702 motions deadline if she
requires additional time due to this Order. Plaintiff will also have adequate time to prepare
for trial as the Final Pretrial Conference is set for October 19, 2023. Id. Additionally, the
Court notes that Plaintiff may not require any additional experts to rebut the opinions of
Defendants’ liability experts, as the experts disclosed by Defendants fall into the areas of
expertise covered by Mr. Grill and Mr. Barbera. See Aaran Motion [#122] at 5. Thus, the
Court finds that Plaintiff will not incur undue prejudice given that prejudice, if any, is
curable.
In conclusion, the Court finds that Defendants have demonstrated sufficient cause
to amend the Scheduling Order [#56] to allow for three additional expert witnesses for
Defendants. Accordingly, the Motions [#122, #124] are granted.
III. Conclusion
For the reasons set forth above,
IT IS HEREBY ORDERED that the Motions [#122, #124] are GRANTED and the
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Defendants are permitted to call a total of ten expert witnesses. Defendants are permitted
six shared damages experts and each pair of Defendants, the Aaran Defendants and the
BOA Defendants, are permitted to call two additional liability experts per pair.
IT IS FURTHER ORDERED that, to the extent that Plaintiff still needs to disclose
her rebuttal expert opinions, she must do so no later than July 28, 2023.
Dated: July 7, 2023
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