United States District Court, D. Nebraska
NATASHA CARRIZALES, individually and on behalf of Nina Carrizales, a Minor, as her guardian and next friend; and NINA CARRIZALES, by and through her mother, guardian and next friend Natasha Carrizales; Plaintiffs,
UNITED STATES OF AMERICA, Defendant.
R. ZWART UNITED STATES MAGISTRATE JUDGE
complaint alleges an action under the Federal Tort Claims Act
against the United States. Plaintiffs' complaint alleges
federal employees provided negligent medical care and
treatment to Plaintiffs, resulting in damages. (Filing No.
before the court is the government's motion to strike the
Declaration of Fred Duboe, M.D., (Filing No. 35-1), which was
filed by Plaintiffs in response to the government's
motion for summary judgment. (Filing No. 36). The government
argues that Plaintiffs failed to timely and properly disclose
Dr. Duboe's expert opinions as required under Federal
Rule of Civil Procedure 26(a)(2)(B), and the opinions must
therefore be stricken.
have not responded to the motion to strike and the deadline
for doing so has passed. The motion is deemed fully
submitted. For the reasons explained below, it will be
to the court's case management order, the deadlines for
serving complete expert disclosures for all experts expected
to testify at trial, (both retained experts, (Fed. R. Civ. P.
26(a)(2)(B)), and non-retained experts, (Fed. R. Civ. P.
plaintiffs: March 9, 2018.
defendant: June 11, 2018.
plaintiffs' rebuttal: July 2, 2018.
No. 26, at CM/ECF p. 1, ¶ 2). Plaintiffs never requested
a continuance of these expert disclosure deadlines, and the
court did not extend the deadlines.
March 12, 2018, and on March 19, 2018, counsel for the
government reminded Plaintiffs' counsel that
Plaintiffs' expert reports were overdue. (Filing No.
37-1, at CM/ECF pp. 5, 6). Plaintiffs' counsel responded
on March 20, 2018 by leaving a voicemail at 7:07 a.m.,
explaining he had the reports and they should be sent to the
government that day. (Filing No. 37-1, at CM/ECF p. 2, ¶
6, and p. 8). The government never received a Rule 26(a)(2)
expert witness disclosure for Fred Duboe, M.D. (Filing No.
37-1, at CM/ECF p. 2, ¶ 7).
government moved for summary judgment on April 24, 2018.
(Filing No. 27). Plaintiffs' response to that motion,
which was filed on June 1, 2018, included Dr. Duboe's
affidavit. That affidavit includes Dr. Duboe's medical
expert standard of care and causation opinions, along with
his curriculum vitae. (Filing No. 35-1).
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
movant's level of diligence and the degree of prejudice
to the parties are both factors to consider when assessing if
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). “‘A
party that . . . fails to disclose information required by
Rule 26(a) . . . shall not be permitted to use [the
nondisclosed information] as evidence at a trial, at a
hearing, or on a motion' ‘unless such failure is
harmless' or there was ...