Ramos Injury Law Firm, LLC, The v. Petrushka

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 25-cv-00036-NYW-CYC
THE RAMOS INJURY FIRM, LLC,
Plaintiff,
v.
DAVID PETRUSHKA, individually and as Personal Representative of Estate of Naomi
Petrushka,
Defendant.
______________________________________________________________________________
MINUTE ORDER
______________________________________________________________________________
Entered by Cyrus Y. Chung, United States Magistrate Judge, on April 10, 2026.
Plaintiff The Ramos Injury Firm, LLC seeks leave to disclose a reply expert report,
contending that it is necessary to combat a rebuttal expert report disclosed by defendant David
Petrushka containing many opinions that were, in reality, untimely affirmative expert opinions.
ECF No. 52.
“A party must make” expert “disclosures at the times and in the sequence that the court
orders.” Fed. R. Civ. P. 26(a)(2)(D). Here, the Scheduling Order contemplated initial affirmative
expert disclosures and rebuttal expert disclosures. See ECF No. 28 at 12. It did not contemplate
reply expert disclosures. Such disclosures are therefore not permitted. See, e.g., Mayer v. ADCS
Clinics, LLC, No. 21-cv-5303, 2026 WL 789085, at *3 (E.D. Pa. Mar. 20, 2026) (“The Court’s
Scheduling Order did not contemplate ‘reply’ expert reports because they are not permitted.”);
Francoforte v. Graco Children’s Prods., Inc., No. 2:20-CV-00137-LMM, 2025 WL 4479145, at
*2 (N.D. Ga. Sep. 29, 2025) (“Because the Court’s original and amended Scheduling Orders did
not allow for reply reports, the Court holds that Weir and Gaskin’s Supplemental Reports [168-
60, 180-3] are improper and should be struck from consideration.”); Stoyas v. Toshiba Corp., No.
2:15-cv-04194 DDP-JC, 2022 WL 19406, at *2 (C.D. Cal. Jan. 3, 2022) (“The Scheduling Order
. . . do[es] not appear to contemplate ‘reply’ expert reports. . . . The court therefore finds that the
Reply Report is an improper expert report under Rule 26(a)(2)(D).”).
The plaintiff contends that the defendant’s rebuttal report contained improper affirmative
opinions, but “[e]ven if true, Plaintiff’s remedy was to seek to strike the offending portions of the
reports . . . , or seek other relief from the Court, rather than assume that a reply report may be
served.” Shinsedai Co. v. Nintendo Co. Ltd., No. 11-cv-2799-CAB (MDD), 2014 WL 11955595,
at *1 (S.D. Cal. June 10, 2014); see Mayer, 2026 WL 789085, at *3 (“Nor is the Court persuaded
by” the “argument that the [reply] Report is necessary to rebut the ‘new theories’ presented in”
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other reports). Indeed, that is the relief afforded by the cases in the plaintiff’s reply. See ECF No.
60 ¶ 3; see, e.g., Rehberg v. City of Pueblo, 281 F.R.D. 620, 627 (D. Colo. 2012); Home Design
Servs., Inc. v. Hibiscus Homes of Fla., Inc., No. 6:03-CV-1860-ORL-19KRS, 2005 WL
2465020, at *8 (M.D. Fla. Oct. 6, 2005). But it is not what the plaintiff seeks to do.
Nor is a reply report a supplemental report permissible under Rule 26(a)(2)(E). That rule
indicates that parties “must supplement” expert “disclosures when required under Rule 26(e).”
Fed. R. Civ. P. 26(a)(2)(E). Rule 26(e), in turn, requires supplementation “if the party learns that
in some material respect the disclosure or response is incomplete or incorrect, and if the
additional or corrective information has not otherwise been made known to the other parties
during the discovery process or in writing.” But reply reports designed to respond to allegedly
new material in rebuttal reports are not correcting incomplete or incorrect information in the
initial disclosure. See Francoforte, 2025 WL 4479145, at *2; Shinsedai Co., 2014 WL
11955595, at *2. Rule 26(a)(2)(E) therefore does not justify a reply report here.
In sum, the Scheduling Order does not contemplate a reply report. Even if the defendant
improperly disclosed new opinions in his rebuttal expert report, the plaintiff cites no case holding
that a reply expert report is the remedy, and a number of cases hold that it is not. Accordingly,
the plaintiff’s Motion for Leave to Disclose Supplemental/Reply Expert Witness Opinions, ECF
No. 52, is DENIED.
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