KRISTEN L. MIX, Magistrate Judge.
This matter is before the Court on
On March 23, 2015, the Court held a Scheduling Conference and entered the Scheduling Order governing this case. See generally Courtroom Minutes [#16]; Sched. Order [#17]. Among other things, the Scheduling Order limited the number of retained expert witnesses to two experts per side. Sched. Order [#17] at § 9(d)(2). In the Scheduling Order, the parties described the expert witnesses they intended to retain as follows:
Id. at § 9(d)(1). The Scheduling Order also set deadlines for disclosure of expert witnesses and related disclosures required pursuant to Fed. R. Civ. P. 26. Id. at § 9(d)(3)-(4). These deadlines were subsequently amended pursuant to a request from the parties. See generally Minute Order [#27]. Ultimately, affirmative expert designations were due on September 30, 2015, and rebuttal expert designations were due on October 30, 2015. Id. at 1.
Plaintiff endorsed one retained affirmative expert to opine regarding insurance claims issues. Motion [#33] at 3. Defendant endorsed two retained experts: one to offer opinions regarding Plaintiff's alleged dental injuries and one to offer opinions regarding Plaintiff's alleged orthopedic injuries. Id. Plaintiff attended separate Rule 35 examinations with each of Defendant's affirmative experts. Id. at 2. On October 30, 2015, Defendant endorsed and disclosed Dale Crawford as a rebuttal witness. Id. at 3. Defendant notes that Mr. Crawford is an insurance industry expert. Id. On November 12, 2015, the parties filed a joint motion requesting that the Court extend the discovery deadline. See generally The Parties' Joint Motion to Extend Deadlines [#35].
In its Motion, Defendant requests that the Court amend the Scheduling Order pursuant to Fed. R. Civ. P. 16(b)(4) to allow it three retained experts, the three experts discussed above who were disclosed to Plaintiff through discovery. Motion [#33] at 9. Defendant argues that good cause exists for the requested relief. Id. at 4-6. Defendant also argues that the factors discussed in Smith v. United States, 834 F.2d 166, 169 (10th Cir. 1987), favor amendment of the two-expert limit imposed by the Scheduling Order. Id. at 6-8.
In his Response, Plaintiff argues that he will be prejudiced if Defendant is allowed to present the testimony of three retained experts at trial. Response [#43] at 2. Specifically, he maintains that he "is now in the untenable position of not being able to respond to all three of these experts." Id. He further argues that "[b]y adding a third retained expert at the time of rebuttal disclosures and moving to amend the scheduling order only after the three retained experts were endorsed, Plaintiff has been deprived of the opportunity to present a thoroughly prepared case." Id.
In its Reply, Defendant argues that the "endorsement of one additional expert will not result in any prejudice to Plaintiff." Reply [#44] at 1. Defendant further argues that:
Id. at 1-2 (emphasis in original). Because Plaintiff alludes to the arguments raised in his Motion to Strike the Testimony of Defense Experts John T. McBride Jr. M.D. and Ronald Palmer D.D.S. [#28], Defendant also analyzes the arguments made in the parties' briefing of that motion. Notably, that motion is not pending before the undersigned and invokes a different legal standard and issue. The instant Motion seeks amendment of the Scheduling Order pursuant to Fed. R. Civ. P. 16. The other motion asks the Court to strike expert testimony. That issue is not addressed in this Order and this Order is not intended to address that motion in any way. As a result, the Court does not summarize that portion of Defendant's Reply.
As an initial matter, numerous courts have noted, and the undersigned agrees, that a "Scheduling 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 Order deadlines "may be modified only for good cause and with the judge's consent." Fed. R. Civ. P. 16(b). The decision to modify the Scheduling Order "is committed to the sound discretion of the trial court." Smith v. United States, 834 F.2d 166, 169 (10th Cir. 1987); see also Anderson v. Seven Falls Co., No. 2013 WL 3771300, at *8 (D. Colo. July 18, 2013) ("this court unquestionably has the authority to re-open discovery to allow Plaintiff to designate a rebuttal expert"); Benton v. Avedon Eng'g, Inc., No. 10-cv-01899-RBJ-KLM, 2013 WL 1751886, at *1 (D. Colo. April 23, 2013).
It is clear from the Scheduling Order that Defendant intended to disclose a medical expert because of the injuries alleged by Plaintiff and that it anticipated that it might retain an expert regarding the insurance industry. Further, Defendant made clear in the Scheduling Order that it anticipated that it might need to disclose a rebuttal witness. Here, the insurance industry expert was designated as a rebuttal witness because Plaintiff designated an expert in this field as an affirmative witness. Defendant notes that through discovery it learned "of records of Plaintiff's significant pre-existing dental problems . . . ." Motion [#33] at 5. That resulted in Defendant requesting Plaintiff to attend a Rule 35 examination conducted by Dr. Palmer, a dentist who was disclosed as an affirmative expert witness by Defendant. Id. Plaintiff has had the benefit of discovery relating to all three experts Defendant retained. As a result, Plaintiff cannot now claim that he is surprised or prejudiced by Defendant's retention of three experts. Further, the discovery of a need for a dental expert only arose through the course of discovery. The Court finds this to be good cause to increase the number of expert witnesses Defendant may retain from two to three. See Wilson v. City of Lafayette, Nos. 07-cv-01844-EWN-KLM, 07-cv-02248-EWN-BNB, 2008 WL 3211288, at *2 (D. Colo. Aug. 6, 2008) (granting motion for leave to disclose two additional expert witnesses).
For the foregoing reasons,
IT IS HEREBY
IT IS FURTHER