United States District Court, D. Nebraska
M. BAZIS, UNITED STATES MAGISTRATE JUDGE
matter is before the Court on Defendant's Motion to
Prohibit Plaintiff from Listing Expert Witnesses (Filing No.
27) and Plaintiff's Motion for an Enlargement of Time
(Filing No. 33). For the reasons set forth below,
Defendant's motion will be denied. Plaintiff's motion
will be granted.
November 13, 2018, this Court entered a final progression
order setting December 3, 2018 as Plaintiff's deadline to
identify expert witnesses and January 25, 2019 as
Plaintiff's deadline to serve expert reports. (Filing No.
23.) Defendant was to identify expert witnesses by January
25, 2019 and serve expert reports by April 1, 2019.
did not disclose his expert witnesses until January 15, 2019.
On that same date, Defendant filed its motion seeking to
preclude Plaintiff from naming expert witnesses. On February
1, 2019, Plaintiff moved to extend deadlines in the
progression order, including the deadline for expert reports.
(Filing No. 33.)
seeks to preclude Plaintiff from naming expert witnesses
because Plaintiff failed to comply with the disclosure
deadline set in the progression order. Plaintiff does not
dispute that he missed the deadline but asserts that his
untimeliness was caused by his need to find new experts.
Plaintiff contends that the experts he initially planned to
use became unavailable. Plaintiff represents that one of his
experts had a prearranged trip to India, which precluded him
from acting as the medical expert in this case. Another of
Plaintiff's planned experts, who, according to Plaintiff,
Defendant knows from similar cases, was occupied with other
Rule of Civil Procedure 16 provides that the court may
“issue any just orders, including those authorized by
Rule 37(b)(2)(A)(ii)-(vii), if a party . . . fails to obey a
scheduling or other pretrial order.” Fed.R.Civ.P. 16.
The Rule further provides that “[i]nstead of or in
addition to any other sanction, the court must order the
party, its attorney, or both to pay the reasonable
expenses-including attorney's fees-incurred because of
any noncompliance . . . unless the noncompliance was
substantially justified or other circumstances make an award
of expenses unjust.” Id. Federal Rule of Civil
Procedure 37(b)(2)(A)(ii)-(vii), referenced in Rule 16,
authorizes the imposition of the following sanctions: (1)
prohibiting the disobedient party from supporting or opposing
designated claims or from introducing designated matters in
evidence; (2) striking pleadings; (3) staying proceedings
until the order is obeyed; (4) dismissing the action; (5)
rendering default judgment against the disobedient party; or
(6) treating as contempt of court the failure to obey the
order. Fed.R.Civ.P. 37(b)(2)(A)(ii)-(vii).
admits that he missed the deadline for identifying expert
witnesses. However, Plaintiff explained that his tardiness
resulted from substitution of expert witnesses. The Court
finds that Plaintiff's noncompliance was substantially
justified. The Court further finds that an award of expenses
would be unjust.
case, Plaintiff alleges that occupational exposures he
allegedly suffered while employed by Defendant caused him to
develop bladder and lung cancer. (Filing No. 1.) In cases of
this nature, expert testimony is critical for proving a
claim. Thus, if the Court grants the relief sought by
Defendant, this case would likely not be decided on the
merits, but rather would be subject to dismissal due to
Plaintiff's lack of expert opinion. Moreover, Defendant
has not incurred any real prejudice as a result of
Plaintiff's untimeliness. Defendant contends that it was
unable to select experts without knowing the identity of
Plaintiff's experts. However, Plaintiff identified his
expert witnesses in advance of his deadline for serving
expert reports, as well as before Defendant's deadline
for identifying expert witnesses. Defendant was not required
to serve expert reports until April 1, 2019 and therefore had
ample time between Plaintiff's identification of expert
witnesses to submit expert reports. Plus, Defendant
ultimately decided to use individuals that it has relied upon
in other litigation to serve as expert witnesses in this
reasons explained above, Plaintiff has shown good cause for
modification of the progression order under Rule 16.
Fed.R.Civ.P. 16 (stating that a progression order may be
modified “only for good cause and with the judge's
consent”). Therefore, the parties will be directed to
submit a proposed case progression schedule to
email@example.com. by May 10, 2019.
IT IS ORDERED:
Defendant's Motion to Prohibit Plaintiff from Listing