United States District Court, D. Nebraska
DANIEL J. KOTTAS, Plaintiff,
UNITED STATES OF AMERICA, Defendant.
MEMORANDUM AND ORDER
R. Zwart United States Magistrate Judge
counsel has moved to extend the expert disclosure deadlines
of the court's case progression order, explaining that
although he disclosed Plaintiffs medical records, due to a
mistake, he failed to calendar the expert disclosure
deadlines. Plaintiffs counsel further explains that Plaintiff
intends to call only medical treatment providers as experts,
and Plaintiff is still receiving treatment for some of his
response to Plaintiffs motion to continue, Defendant asks the
court to grant Plaintiff twenty-one (21) days from the date
of this Order to provide expert disclosures pursuant to Rule
. the testimony of Plaintiffs experts is
limited to the information and opinions expressly stated in
the medical records received before December 2, 2016,
Plaintiffs deadline for identifying experts;
. the testimony of Plaintiffs experts does
not include any opinions as to future pain and suffering,
future treatment needed, and Plaintiffs future medical
expenses Plaintiff will incur; and
. Defendant's expert disclosure
deadlines are extended to 30 days following Plaintiff s new
expert identification deadline, and 60 days following
Plaintiffs new complete expert disclosure deadline.
to Rule 16(b)(4), a case management order setting progression
deadlines “may be modified only for good cause and with
the judge's consent.” Fed. R. Civ. P.
16(b)(4). “The primary measure of Rule 16's
‘good cause' standard is the moving party's
diligence in attempting to meet the case management
order's requirements. . . ., [but the] ‘existence
or degree of prejudice to the party opposing the
modification' and other factors may also affect the
decision.” Bradford v. DANA Corp., 249 F.3d
807, 809 (8th Cir. 2001) . The movant's level of
diligence and the degree of prejudice to the parties are both
factors to consider when assessing whether good cause
warrants extending a case management deadline, with the
movant's diligence being the first consideration and the
extent of prejudice to either party considered only following
a requisite threshold finding of due diligence. Sherman
v. Winco Fireworks, Inc., 532 F.3d 709, 716-17 (8th Cir.
2008); Marmo v. Tyson Fresh Meats, Inc., 457 F.3d
748, 759 (8th Cir. 2006).
government takes no position on whether counsel's
calendaring error meets the threshold of showing due
diligence. (Filing No. 30, at CM/ECF p. 3). And the court
need not reach that issue. The record indicates that except
as to new treatment providers addressing Plaintiff's
ongoing medical issues, Plaintiff's experts were
identified before the current December 1, 2016 deadline.
Plaintiff cannot be faulted for failing to timely disclose
medical personnel who first provided treatment after December
1, 2016 or who had not expressed a medical causation opinion
or produced their requested records prior to that date. And
as to providing a full disclosure of the medical experts'
opinions, so long as Plaintiff is receiving ongoing treatment
and has not reached maximum medical improvement, any opinions
as to future pain and suffering, future treatment needed, and
anticipated future medical expenses would be premature.
the facts presented, the court finds good cause exists to
extend the expert disclosure deadlines and, as needed, other
case progression deadlines. Accordingly, IT IS ORDERED that
Plaintiff's motion to extend the expert disclosure
deadlines, (Filing No. 28), is granted and the final
progression order is amended as follows:
1) The non-jury trial of this case remains set to commence on
September 25, 2017, with a Final Pretrial Conference
scheduled for September 12, 2017.
2) A telephonic conference with the court remains scheduled
to be held on May 9, 2017 at 9:30 a.m.
Counsel shall use the conferencing instructions assigned to
this case (Filing No. 16) to participate in the conference.
3) The deadlines for identifying expert witnesses expected to
testify at the trial, (both retained experts, (Fed. R.
Civ. P. 26(a)(2)(B)), and non-retained experts,
(Fed. R. Civ. P. 26(a)(2)(C)), are:
For the plaintiff(s): February 24, ...