Barten v. State Farm Mutual Automobile Insurance Company

Filing 463

ORDER DENYING Defendant's 423 Motion for Leave to Depose Pamela Lauer. Signed by Magistrate Judge Leslie A Bowman on 11/21/14.(BAC)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Bryan Barten, a married man,
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Plaintiff,
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vs.
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State Farm Mutual Automobile Insurance)
Company, a foreign corporation doing)
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business in Arizona,
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Defendant.
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_________________________________ )

No. CIV 12-399-TUC-CKJ (LAB)
ORDER

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Pending before the court is the defendant’s motion for leave to depose Pamela Lauer,
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filed on October 21, 2014. (Doc. 423)
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The plaintiff in this action, Bryan Barten, was covered by a personal injury protection
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(PIP) policy issued by the defendant, State Farm, when he was involved in an automobile
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accident and rendered a quadriplegic. Barten claims State Farm breached this policy by
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failing to pay benefits due and failing to inform him of the extent of his benefits.
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In the pending motion, State Farm moves that this court extend the discovery deadline
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to permit it to conduct a deposition of Nurse Practitioner Pamela E. Lauer. (Doc. 423)
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Barten filed a response opposing the motion. (Doc. 458)
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The case has been referred to Magistrate Judge Bowman for all pretrial matters
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pursuant to the local Rules of Practice. LRCiv 72.2. The court finds the motion suitable for
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decision without oral argument.
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Discussion

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This case was removed from state court on May 22, 2012. (Doc. 1) On August 29,

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2012, this court issued a scheduling order pursuant to Fed.R.Civ.P. 16(b). (Doc. 18) In that

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order, the deadline for completing discovery was set for March 29, 2013. (Doc. 18)

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Since the close of discovery, the court has resolved three motions for summary

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judgment. (Doc. 108); (Doc. 186); (Doc. 188); (Doc. 348); (Doc. 360) And the parties

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have filed their proposed pretrial order. (Doc. 406)

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On October 21, 2014, State Farm filed the pending motion for leave to extend the

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discovery deadline and depose Pamela Lauer, R.N. (Doc. 423) Lauer works at Craig

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Hospital in Englewood, Colorado, “a world-renowned facility in the Denver area for the

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treatment and rehabilitation of spinal-cord injuries.” (Doc. 423, p. 2) In February of 2014,

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approximately ten months after the close of discovery, Barten was examined at Craig

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Hospital at the behest of his treating physiatrist. Id. According to the “Team Conference

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report” authored by Lauer, Barten “should have 3 hours of skilled care in the morning 7 days

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per week and also receive 3 hours of unskilled care in the evening 7 days per week.” Id.

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This evaluation contrasts with Barten’s assertion that he needs sixteen hours per day of

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attendant care. Because the amount of attendant care that Barten needs is at issue in this

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case, State Farm moves that the discovery deadline be extended to allow it to depose Lauer.

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Barten sent State Farm the Team Conference report on February 28, 2014, identifying

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Lauer as the author of the report. (Doc. 423, p. 2) On October 21, 2014, State Farm filed

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the pending motion for leave to depose Pamela Lauer. State Farm’s motion in essence asks

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this court to modify the Rule 16 scheduling order, which governs the parties’ pretrial

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discovery practice. (Doc. 18)

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“In general, the pretrial scheduling order can only be modified upon a showing of

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good cause.” Zivkovic v. Southern California Edison Co., 302 F.3d 1080, 1087 (9th Cir.

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2002) (punctuation modified); see also Fed.R.Civ.P. 16(b)(4). The determination of good

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cause ordinarily turns on the movant’s diligence. “If the party seeking the modification was

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not diligent, the inquiry should end and the motion to modify should not be granted.” Id.

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On this record, the court cannot conclude that State Farm has been diligent. The

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motion does not explain why it took State Farm approximately eight months since it received

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Lauer’s report in February to file its motion. In fact, it appears that State Farm did not

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become interested in the report until August 25, 2014, when Barten identified Lauer as a

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possible witness. (Doc. 423, p. 3)

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Because the discovery deadline had already run when the report was disclosed, State

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Farm cannot be faulted for failing to conduct the deposition in accordance with the original

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scheduling order. State Farm’s delay, however, will prejudice the plaintiff if the motion is

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granted. The parties have already filed their proposed pretrial order, listed their witnesses

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and exhibits, and filed their motions in limine. (Doc. 406) Any discovery at this late date

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would require the parties to revisit work that has been done already. See Johnson v.

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Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992) (“[T]he existence or degree

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of prejudice to the party opposing the modification might supply additional reasons to deny

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a motion . . . .”). The discovery deadline in this case passed 19 months ago. The case should

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proceed without further delay.

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Moreover, State Farm fails to suggest a compelling need for this discovery. See

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Fed.R.Civ.P. 26(b)(2)(C). It is true that the amount of attendant care that Barten needs is at

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issue in this case. State Farm, however, has already noticed two expert witnesses who will

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testify on this issue. (Doc. 406, pp. 18-19) It therefore appears that the proposed discovery

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would be cumulative.

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State Farm suggests that Craig Hospital is a “world renowned” center for the treatment

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of spinal-cord injuries and implies that this report is entitled to special deference. (Doc. 423,

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p. 2) Assuming that is so, State Farm does not explain why it could not have arranged for

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this examination to have occurred before the discovery deadline.

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State Farm further states that the Craig Hospital report is particularly significant

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because Barten’s condition has “deteriorated.” (Doc. 423, p. 5) If so, then it would seem

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that the plaintiff, not State Farm, would be prejudiced if continued discovery were not

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allowed. If Barten’s condition has deteriorated, he would need more care in the future and

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his future medical expenses would be higher. Accordingly,

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IT IS ORDERED that the defendant’s motion for leave to depose Pamela Lauer, filed
on October 21, 2014, is DENIED. (Doc. 423)

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DATED this 21st day of November, 2014.

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