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McMahon v. Robert Bosch Tool Corp.

United States District Court, E.D. Missouri, Eastern Division

October 16, 2019




         This is a products liability case in which plaintiff Jeffrey McMahon alleges he suffered injuries on April 28, 2016 when the auxiliary handle of a RotoZip Model RZ20 hand-held saw he was using detached from the body of the saw, causing plaintiff to drop the saw while the blade was still in motion. Plaintiff asserts claims under theories of negligent and strict products liability for design defect, failure to warn, and negligent supply of a dangerous instrumentality.

         The case is before the Court on plaintiff's Motion for Continuance of Trial Setting. Plaintiff's motion does not identify its procedural basis. Defendants Robert Bosch Tool Corporation (“Bosch”) and Lowe's Home Centers, LLC oppose the motion. Plaintiff did not file a reply memorandum and the time to do so has passed, so the motion is ready for ruling.

         Plaintiff's Motion

         The motion seeks a continuance of the December 9, 2019 trial date on the basis that defendant Bosch produced 568 pages of new documents on September 13, 2019 in accordance with the Court's Order of August 14, 2019. Plaintiff states his expert requires time to review and comment on the newly produced documents and issue a supplemental report as necessary to address the new information. Plaintiff seeks to “briefly continue the existing trial setting in order to permit [plaintiff's] expert to conduct the review described above and to afford Defendants ample time to respond to any such supplemental report.” (Doc. 85 at 1.) Plaintiff makes a conclusory assertion he will be prejudiced if his expert is not permitted to comment on the newly discovered information but does not explain how he will suffer prejudice or indicate what his expert might say. (Id. at 2.)

         Defendants object to a continuance. They argue plaintiff has not asserted the necessary good cause to continue the trial and assert no good cause exists because the request stems solely from lack of diligence by plaintiff's counsel. Defendants assert that plaintiff's request for a continuance is “nothing more than a late attempt to inject new expert opinions into the case to sway an imminent Daubert[1] ruling in favor of Plaintiff” by allowing a supplemental expert report. (Doc. 86 at 7.) Defendants assert they would be prejudiced by a trial continuance because if the Court allows a supplemental expert report they likely will have to “challenge whether the report actually constitutes supplementation, ” id., re-depose plaintiff's expert, bring a new Daubert motion, and amend their pending motion for summary judgment.

         The motion for continuance will be denied because plaintiff has not shown good cause to modify the scheduling order. See Rule 16(b)(4), Federal Rules of Civil Procedure.

         Legal Standard

         The Eighth Circuit Court of Appeals recently reiterated that a party seeking to modify a scheduling order must always show good cause for the modification under Rule 16(b), and the measure of good cause is the party's diligence in attempting to meet the existing deadlines:

Under Rule 16, a court “must issue a scheduling order” and such an order “must limit the time to . . . complete discovery[] and file motions.” Fed.R.Civ.P. 16(b)(1), (3)(A). “The scheduling order may . . . modify the timing of disclosures under Rule 26(a) . . . [and] set dates for pretrial conferences and for trial[.]” Fed.R.Civ.P. 16(b)(3)(B)(i), (vi). A “district court has broad discretion in establishing and enforcing the deadlines.” Marmo v. Tyson Fresh Meats, Inc., 457 F.3d 748, 759 (8th Cir. 2006). However, “[a] schedule may be modified only for good cause and with the judge's consent.” Fed.R.Civ.P. 16(b)(4); Marmo, 457 F.3d at 759. In other words, the “good-cause standard is not optional.” Sherman, 532 F.3d at 716. “To establish good cause, a party must show its diligence in attempting to meet the progression order.” Marmo, 457 F.3d at 759.

Petrone v. Werner Enters., Inc., No. 18-1647, 2019 WL 5075973, at *3, __ F.3d __(8th Cir. Oct. 10, 2019) (holding district court erred in granting plaintiff leave to file a late, revised expert report where plaintiff failed to show good cause to extend the expert disclosure deadline).

         Here, although plaintiff asks only for a trial continuance, the relief sought in plaintiff's motion would likely require that the applicable case management order's deadlines for Daubert motions and dispositive motions be extended in addition to the trial date. Defendants' Daubert motion to exclude plaintiff's expert Philip Buckley and motion for summary judgment are fully briefed.


         Because plaintiff's motion seeks to amend the scheduling order in this case, the Court must determine whether he has shown good cause to do so, i.e., whether he has been diligent in attempting to meet the scheduling order's deadlines. Rule 16(b)(4), Fed. R. Civ. ...

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