McNeal v. Evert, et al

Filing 286

ORDER signed by District Judge Garland E. Burrell, Jr. on 4/21/2017 GRANTING 281 Motion to Modify the Pretrial Order. (Michel, G.)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 VERNON WAYNE MCNEAL, 12 Plaintiff, 13 14 No. 2:05-cv-0441-GEB-EFB v. ORDER GRANTING DEFENDANTS’ MOTION TO MODIFY THE PRETRIAL ORDER EVERT, et al., 15 Defendants. 16 On 17 February 8, 2017, Defendants filed a motion to 18 modify the portion of the Pretrial Order filed on February 24, 19 2015, concerning the expert witnesses listed therein. 20 Mot. 21 following 22 (“Plainer”) (regarding use of force policies and procedures . . 23 .”), and Chief Medical Executive Dr. D. Swingle “or her designee 24 (regarding plaintiff’s 25 Swingle”). Pretrial Order (“PO”)(Emphasis added), 15:24–27, ECF 26 No. 180. 27 justify the modification they seek: 28 (“Mot.”), ECF expert No. 281. witnesses: The Pretrial Correctional injuries and Order Captain their Defs.’ lists R. cause).” the Plainer (“Dr. Defendants argue as follows that changed circumstances Since [the date the Pretrial Order issued], 1 1 the trial date in this case has been set and re-set on five occasions, and Dr. Swingle has retired from [the California Department of Corrections and Rehabilitation (“CDCR”)], precluding her from participating in the trial currently scheduled to begin on October 24, 2017. Defendants request to change . . . Plainer’s designation from non-retained to a retained expert as he has also retired from CDCR. Defendants therefore request the Court to allow them to call Galen H. Church, D.O. [(“Dr. Church”)], an employee of [CDCR] as the Chief Physician and Surgeon at the Correctional Health Care Facility in Stockton, California, as a medical expert, who will render substantially the same opinions as Dr. Swingle. Defendants also request the Court change . . . Plainer’s designation from non-retained to retained expert. 2 3 4 5 6 7 8 9 10 11 12 Mot. 1:28–2:8, ECF No. 281. 13 following [Dr. Swingle’s] retirement, attempts had been made to 14 contact 15 Defendants’ motion. her and she was Defendants’ counsel declares “that not responding.” Plaintiff opposes Pl.’s Opp’n (“Opp’n”), ECF No. 282. LEGAL STANDARD 16 Rule 17 16(e) of the Federal Rules of Civil Procedure 18 prescribes that a final pretrial order may be modified “only to 19 prevent manifest injustice.” 20 exclusive 21 modification is justified under the manifest injustice standard: 22 factors are Fed. R. Civ. P. 16(e). considered when determining Four nonwhether a 26 (1) the degree of prejudice to [Defendants] from a failure to modify; (2) the degree of prejudice to [P]laintiff from a modification; (3) the impact of a modification at [this] stage of the litigation on the orderly and efficient conduct of the case; and (4) the degree of willfulness, bad faith, or inexcusable neglect on the part of [Defendants]. 27 United States v. First Nat’l Bank of Circle, 652 F.2d 882, 887 28 (9th Cir. 1981). 23 24 25 The movants for modification have “the burden 2 1 of showing that an amendment to the pretrial order [is] necessary 2 to prevent ‘manifest injustice.’” 3 1015, 1020 (9th Cir. 2005). 4 Galdamez v. Potter, 415 F.3d DISCUSSION 5 A. Dr. Swingle 6 Defendants contend they “will be greatly prejudiced in 7 the event they are not permitted to substitute [a medical expert 8 named] Dr. Galen Church for Dr. Swingle.” 9 2:13–14, ECF No. 283. has 11 since the PTO authorizes an expert “designee [change] regarding 12 plaintiff’s 13 should . . . be liberally construed to permit evidence . . . at 14 trial 15 language.” 16 Therefore, this modification is granted. 18 been that shown However, the manifest injustice standard 10 17 not Defs.’ Reply (“Reply”) injuries can applicable and fairly First their be Nat’l to cause” said Bank this to of requested and be “a modification pretrial embraced Circle, 652 order within F.2d at its 886. B. Plainer Defendants also seek to change “Plainer’s [expert 19 witness] designation [in the Pretrial Order] from non-retained to 20 retained expert.” 21 identifies Plainer only as “Expert Witness Correctional Captain 22 R. Plainer (regarding use of force policies and procedures at 23 [High Desert State Prison]).” Reply 1:24, ECF No. 283. The Pretrial Order PO 15:24–25, ECF No. 180. 24 However, Defendants specific designation of Plainer as 25 a retained expert in their motion triggers additional disclosure 26 obligations under Rule 26(a)(2)(B) of the Federal Rules of Civil 27 Procedure. 28 addition to providing Plainer’s identity, Defendants’ retained This rule prescribes 3 in pertinent part that in 1 expert witness “disclosure [for Plainer] must be accompanied by a 2 written report — prepared and signed by the witness.” 3 include in their motion a declaration that “[a] 4 Plainer’s report was served on Plaintiff on February 8, 2017, 5 Anderson Decl. ¶ 6, ECF No. 281, and Defendants state in their 6 motion that they have “offer[ed] to make . . . Plainer available 7 for deposition[] prior to trial.” Mot. 3:25–26, ECF No. 281. 8 Since 9 Plainer’s expert status from non-retained to retained, and have 10 made the required additional disclosure obligations under Rule 11 26(a)(2)(B) of the Federal Rules of Civil Procedure, the Pretrial 12 Order is modified as Defendants request and Plainer is therefore 13 Defendants’ retained expert witness. Defendants have shown 14 for changing For the foregoing reasons, Defendants’ Motion to Modify the Pretrial Order is GRANTED. 17 18 necessity copy of Mr. CONCLUSION 15 16 their Defendants IT IS SO ORDERED. Dated: April 21, 2017 19 20 21 22 23 24 25 26 27 28 4

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