United States District Court, D. Nebraska
R. Zwart United States Magistrate Judge
FELA complaint alleges he suffered heat exhaustion and a
cerebellar stroke while working for the railroad on July 26,
2015. Plaintiff has now moved to extend the deadline for
filing the medical causation expert report of Francis G.
O'Connor, M. D. (Filing No. 72). Plaintiff
refers to Dr. O'Connor as a proposed rebuttal expert
whose report, under the court's scheduling order, was due
on or before November 30, 2016.
deadlines within a final progression order “may be
modified only for good cause and with the judge's
consent.” Fed.R.Civ.P. 16(b)(4). A party who moves to
extend a court-ordered case progression deadline must show
good cause to modify the schedule. Sherman v. Winco
Fireworks, Inc., 532 F.3d 709, 716 (8th Cir.
2008)(quoting Popoalii v. Corr. Med. Servs., 512
F.3d 488, 497 (8th Cir. 2008)). “The primary measure of
good cause is the movant's diligence in attempting to
meet the [scheduling] order's requirements . . . Our
cases reviewing Rule 16(b) rulings focus in the first
instance (and usually solely) on the diligence of the party
who sought modification of the order.” Harris v.
FedEx Nat. LTL, Inc., 760 F.3d 780, 786 (8th Cir. 2014).
If due diligence is shown, the movant must then show
prejudice will result if the requested continuance is denied.
Sherman, 532 F.3d at 716.
motion to extend the rebuttal expert deadline was filed on
the date the rebuttal disclosure itself was due. As defined
in the Federal Rules, rebuttal experts are experts who
present evidence “intended solely to contradict or
rebut evidence on the same subject matter identified by
another party under Rule 26(a)(2) (B) or (C).”
Rebuttal expert testimony must relate to and rebut evidence
or testimony on the same subject matter identified by another
party under Rule 26(a)(2)(B) or (C). Such evidence is not
tied to any particular witness; it is tied to whether the
party with the affirmative burden has presented evidence
and/or testimony from a duly disclosed expert on the same
subject matter as that which will be rebutted by the
disclosed rebuttal expert.
Bleck v. City of Alamosa, Colo., 2012 WL 695138, *4
(D. Colo. March 5, 2012); see also Plumbers &
Pipefitters Local 572 Pension Fund v. Cisco Systems,
Inc., 2005 WL 1459572, *2 (N.D. Cal. June 21,
2005)(“Plaintiffs will have an opportunity to respond
to Defendants' expert reports in their rebuttal reports,
including theories relied upon by Defendants['] experts
with respect to their affirmative defenses.”).
permitted to testify, Dr. O'Connor would provide opinion
testimony on the issue of whether Plaintiff's exposure to
hot environmental temperatures and heavy exertion caused him
to suffer a right cerebellar stroke. This medical causation
issue has been relevant, and Plaintiff's burden to prove,
from the outset of this case. As such, Dr. O'Connor's
opinions are buttressing the opinions disclosed by
Plaintiff's treating physician, Bennett Machanic, M.D.,
as to an essential element of Plaintiff's case. Dr.
O'Connor is not offered to rebut a reasonably unforeseen
issue raised by Defendant's expert, or to respond to
expert testimony on any affirmative defense raised by
Defendant. As such, Dr. O'Connor's opinions are
offered to reinforce the opinions of Plaintiff's already
disclosed medical expert, not to rebut Defendant's
responsive medical expert.
Plaintiff is arguing that Dr. O'Connor's disclosure
should be permitted as supplemental expert testimony.
Although parties are permitted to supplement expert
disclosures, Leviton Mfg. Co., Inc. v. Nicor, Inc.,
245 F.R.D. 524, 528 (D.N.M. 2007) (citing Beller v.
United States, 221 F.R.D. 696, 701 (D.N.M. 2003)),
A supplemental expert report that states additional opinions
or rationales or seeks to “strengthen” or
“deepen” opinions expressed in the original
expert report exceeds the bounds of permissible
supplementation and is subject to exclusion under Rule
37(c)(1). “To rule otherwise would create a system
where preliminary [expert] reports could be followed by
supplementary reports and there would be no finality to
expert reports, as each side, in order to buttress its case
or position, could ‘supplement' existing reports
and modify opinions previously given. This result would be
the antithesis of the full expert disclosure requirements
stated in Rule 26(a).
Cook v. Rockwell Int'l Corp., 580 F.Supp.2d
1071, 1169 (D. Colo. 2006).
court finds that Dr. O'Connor's proposed expert
testimony is not rebuttal testimony, but rather testimony
offered to buttress the opinions of Plaintiff's timely
disclosed medical causation expert. Dr. O'Connor would
provide additional medical expert testimony on an essential
element of Plaintiff's FELA claim. Plaintiff has failed
to show good cause for extending the court's case
progression deadlines to permit disclosure of an additional
medical causation expert-either in terms of due diligence by
Plaintiff, or resulting prejudice to Plaintiff if the motion
to continue is denied.
IT IS ORDERED that Plaintiff's Motion to Extend Time for
Plaintiff to File Rebuttal Expert ...