Moller v. Safeway, Inc. et al

Filing 25

ORDER: granting in part and denying in part Plaintiff's Motion to Modify Due Dates for Expert Reports 22 (see order for full details). Signed by Judge Sharon L. Gleason on 04/20/2018. (AEM, CHAMBERS STAFF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA

ANDREW MOLLER,
Plaintiff,
v.
SAFEWAY, INC. and EKATERINA
YUVASHEVA,

Case No. 4:17-cv-00031-SLG

Defendants.

ORDER
Before the Court is Plaintiff’s Motion to Modify Due Dates for Expert Reports
(Docket 22), Defendants’ opposition (Docket 23), and the reply (Docket 24).
Based on the Court’s review of the parties’ filings, the Court will modify the
scheduling order to require that the reports of experts with respect to liability will be
simultaneously exchanged, whereas the reports of experts with respect to damages will
remain staggered. Preliminarily, the Court disagrees with Defendants’ assertion that “the
regular practice in Alaska Federal District Court” is to order staggered expert reports. 1
The district’s Scheduling and Planning Conference Report allows the parties to select
either option: staggered or simultaneous. The undersigned judge has entered many
scheduling orders that stagger the reports and many orders that make the exchange
simultaneous. Indeed, in negligence cases such as this that have been removed based
on diversity, and depending on the particular facts of the case, the undersigned judge has

1

Docket 23 (Opp’n) at 1.

leaned toward ordering simultaneous reports when there is a dispute, given the state
court practice on this issue.
In this case, the Court initially ordered staggered reports because in the parties’
Scheduling and Planning Conference Report, Defendants asserted, “[t]he issue in this
case is damages, which will require expert testimony.

Staggered reports will allow

defendants’ experts to focus their reports on the damages plaintiff’s experts claim were
caused by the misfilled prescription.” 2 Based on that statement, the Court had assumed
that disputed expert testimony would only be presented on the issue of damages. In the
undersigned judge’s view, and again depending on the nature of the particular case, the
staggered production of reports on damages may often be more appropriate than
simultaneous production on that topic.
However, Plaintiff has asserted that there are liability issues as well—specifically,
whether Defendants were reckless in filling the prescription. Moreover, Defendants do
not dispute that these liability issues also exist. 3

Based on the Court’s current

understanding of the disputed issues, the Court finds that Plaintiff has demonstrated good
cause to modify the scheduling order with respect to liability experts. 4 In addition, in light

2

Docket 12 at 5.

3

See Docket 23 at 4.

4

See Fed. R. Civ. P. 16(a)(4) (“A schedule may be modified only for good cause and with the
judge’s consent.”). The modification of the schedule to provide for simultaneous liability expert
exchange is not being ordered as a “sanction” for the delayed discovery production. See generally
Fed. R. Civ. Pro. 37(b)(2)(A) (listing available sanctions) and Rule 37(d)(3) (sanctions available
for failure to respond). Rather, the modification is being made because when the Court entered
the initial scheduling order, it assumed that there were no disputed liability issues in this case.
Now, after considering such disputed issues, the Court finds that the simultaneous production of
liability expert reports is warranted in this particular case.
Order re Motion to Modify Due Dates
Moller v. Safeway, et al., 4:17-cv-00031-SLG
Page 2 of 3

of Defendants’ delay in responding to Plaintiff’s discovery requests, the parties agree that
all of the expert report deadlines should be moved back.
Based on the foregoing, the Court modifies the expert witness disclosure deadlines
as follows:
Liability Experts:
By both parties: on or before August 15, 2018
Rebuttal reports: on or before 30 days of the report after service of the report
being rebutted

Damages Experts:
By Plaintiff: on or before August 15, 2018
By Defendants: on or before September 12, 2018
Rebuttal Report(s): by Plaintiff on or before September 26, 2018
Accordingly, the motion at Docket 22 is GRANTED in part and DENIED in part as
set forth herein.
DATED this 20th day of April, 2018 at Anchorage, Alaska.

/s/ Sharon L. Gleason
UNITED STATES DISTRICT JUDGE

Order re Motion to Modify Due Dates
Moller v. Safeway, et al., 4:17-cv-00031-SLG
Page 3 of 3