United States District Court, W.D. Missouri, St. Joseph Division
ORDER GRANTING IN PART MOTION TO AMEND THE SCHEDULING
KAYS, CHIEF JUDGE UNITED STATES DISTRICT COURT
lawsuit arises from a slip-and-fall accident at an
Applebee's restaurant in St. Joseph, Missouri. Now before
the Court is Defendant's Motion to Bar Plaintiff's
Expert Dr. Ray Cunningham (Doc. 58) and Plaintiffs'
Motion for an Amended Scheduling Order (Doc. 60) to
substitute medical experts. Plaintiffs seek to amend the
scheduling order to name a new medical expert, Dr.
Cunningham, M.D., because their present medical expert
suffered a serious illness and is no longer able to testify.
Defendant opposes the request, arguing that allowing
substitution will irrevocably prejudice it because its expert
has already submitted his report criticizing the previous
expert's work for inaccuracies and inconsistencies, and
that the new expert should be barred because he was named
after the deadline to disclose expert witnesses.
as here, a party seeks to name a new expert after the
deadline to disclose expert witnesses has expired, it must
show good cause under Rule 16(b). See Sherman v. Winco
Fireworks, Inc., 532 F.3d 709, 715 (8th Cir. 2008). Rule
16 provides a scheduling order “may be modified only
for good cause and with the judge's consent.”
Fed.R.Civ.P. 16(b)(4); Sherman, 532 F.3d at 715.
“The primary measure of good cause is the movant's
diligence in attempting to meet the order's
requirements.” Rahn v. Hawkins, 464 F.3d 813,
822 (8th Cir. 2006).
events leading up to the pending motions are as follows.
Under the original scheduling order, the deadline for
Plaintiffs to designate an expert witness was May 25, 2017.
On that date, Plaintiffs named Dr. Garth Russell, M.D., as
their medical expert.
24, 2017, the Court granted the parties' joint motion to
amend the scheduling order to give them more time to conduct
discovery because of Plaintiff Marvin Chrisman's ongoing
hospitalization and health problems.
September 14, 2017, Defendant moved to amend the scheduling
order to give it more time to designate its expert medical
witness and to depose Plaintiffs' expert. Plaintiff
opposed the request on the ground that Defendant had simply
failed to pursue discovery diligently throughout the summer
and early fall.
sometime in the latter part of October, Plaintiff learned
that Dr. Russell had become seriously ill and would probably
not be available to testify. On October 27, 2017, Plaintiffs
notified Defendant of this development via email.
October 27, the Court granted Defendant's request to
amend the scheduling order. In granting the request, the
Court noted that “while the Court agrees Defendant
could have been more diligent in pursuing discovery, ”
the proposed extension was reasonable given Mr.
Chrisman's worsening medical condition and lengthy
hospitalization. Order at 2 (Doc 42). The Court set November
15, 2017, as the deadline for Defendant to designate its
expert; December 15, 2017, as the deadline for both parties
to depose the opposing party's expert; and December 8,
2017, as the deadline to file discovery motions.
in November or December of 2017, the parties dispute exactly
when, Plaintiffs informed Defendant that Dr. Russell would be
replaced by Dr. Cunningham, Dr. Russell's partner, and
that Dr. Cunningham generally concurred with Dr.
Russell's report. They did not, however, provide any
expert report from Dr. Cunningham.
December 19, 2017, Defendant filed the pending motion to bar
Dr. Cunningham's testimony. That same day, Plaintiff
emailed Defendant Dr. Cunningham's expert report along
with a list of dates he was available to be deposed. The next
day, December 20, 2017, Plaintiffs moved to amend the
scheduling order to allow them to substitute Dr. Cunningham
for Dr. Russell.
respect to Rule 16, the Court notes there is no dispute that
Dr. Russell unexpectedly became seriously ill and that he
will not be available to testify, thus the Court finds there
is good cause to amend the scheduling order to allow
Plaintiff to substitute a new expert. Under the
circumstances, Dr. Cunningham is a reasonable substitution.
As for prejudice to Defendant, the Court finds any potential
prejudice it faced will be cured by amending the scheduling
order and ...