Unreported / Non-Citable
Background
Jose G. Amezquita's lawsuit against Pedro Garcia-Cortes concerns a shooting in which the parties dispute whether Garcia-Cortes fired directly at Amezquita or the round ricocheted before striking him. After several stipulated extensions, the final deadlines were July 17, 2026, for expert designations and August 7, 2026, for rebuttal experts. Garcia-Cortes disclosed Tony Diaz, whose report concluded that the shot ricocheted off the ground. Amezquita disclosed Dirk Duffner as a rebuttal expert on August 17, 2026; Duffner concluded that Amezquita could not have been struck in the chest unless Garcia-Cortes fired directly at him.
The court had denied Garcia-Cortes's two motions in limine to exclude Duffner, finding him qualified, his analyses appropriately informed, and his report confined to the subject matter of Diaz's report. At the October 16, 2026 jury instruction conference, however, Garcia-Cortes said he might not call Diaz and argued that doing so would prevent Duffner from testifying in rebuttal. Amezquita then sought to reset expert deadlines and designate Duffner for his case-in-chief or, alternatively, to call Diaz himself. The court explained that a rebuttal expert cannot testify unless the opposing expert addresses the relevant subjects, so withdrawing Diaz would otherwise eliminate Duffner's rebuttal testimony.
The Court’s Holding
The court denied the scheduling-order amendment because Amezquita did not establish the diligence required for good cause under Rule 16(b)(4). His operative complaint, filed in 2021, alleged that Garcia-Cortes shot him, while the January 2020 incident report described a shot that skipped on the ground. Amezquita also questioned Garcia-Cortes about ricochet or skip-shot training during an April 2026 deposition. Those circumstances showed that he understood the importance of the trajectory dispute, yet he did not designate an expert on that issue for his case-in-chief despite numerous extensions. Under Johnson v. Mammoth Recreations, the lack of diligence ended the inquiry without requiring further consideration of prejudice.
The alternative request produced a different result. The court held that trial courts have discretion over witness presentation and that opinions disclosed through depositions or expert reports are available for all parties to use. Applying Rule 37(c)(1)'s harmless-or-substantially-justified framework, the court found little surprise because Garcia-Cortes hired Diaz, supplied evidence for his report, and knew his opinions; Amezquita also had deposed him. Cross-examination could cure any slight prejudice, and allowing Diaz to testify in Amezquita's case-in-chief would minimally disrupt trial because Duffner would still testify afterward and remain confined to Diaz's subject matter.
The court also found no evidence that Amezquita's delayed identification of Diaz reflected bad faith or willful concealment. Instead, it was prompted by Garcia-Cortes's belated statement that he might not call Diaz; earlier disclosure of that strategy would have allowed a more timely request. The court therefore granted the administrative motion to add Diaz and call him as an expert in Amezquita's case-in-chief. Its order expressly preserved Duffner's status as a rebuttal witness and limited his testimony to the subject matter Diaz discusses.
Key Takeaways
- A party's timely designation of a rebuttal expert does not by itself establish diligence when seeking to reopen expert designations for the case-in-chief.
- The court ended its Rule 16(b)(4) analysis after finding no diligence because Amezquita had long known that the round's trajectory mattered.
- A defense expert's disclosed opinions may be used by the plaintiff, and the court allowed Amezquita to call Diaz despite Garcia-Cortes's possible decision not to call him.
- Familiarity with Diaz, prior deposition testimony, cross-examination, and minimal trial disruption supported the court's conclusion that the late identification was harmless.
- Duffner remains limited to rebuttal testimony after Diaz testifies and may address only the subject matter Diaz discusses.
Why It Matters
The order separates two distinct procedural questions: diligence needed to amend a scheduling order and harmlessness needed to use a previously unidentified witness. Amezquita lost on the first question but obtained a narrower alternative that preserved access to both experts' competing trajectory opinions without resetting discovery deadlines.
The ruling also prevents Garcia-Cortes's possible decision not to call Diaz from simply eliminating the rebuttal evidence. At the same time, it maintains the existing limits on Duffner's role rather than converting him into an affirmative case-in-chief expert.