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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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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VERNON WAYNE MCNEAL,

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Plaintiff,

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No. 2:05-cv-0441-GEB-EFB

v.

ORDER GRANTING DEFENDANTS’
MOTION TO MODIFY THE PRETRIAL
ORDER

EVERT, et al.,

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Defendants.

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On

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February

8,

2017,

Defendants

filed

a

motion

to

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modify the portion of the Pretrial Order filed on February 24,

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2015, concerning the expert witnesses listed therein.

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Mot.

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following

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(“Plainer”) (regarding use of force policies and procedures . .

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.”), and Chief Medical Executive Dr. D. Swingle “or her designee

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(regarding

plaintiff’s

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Swingle”).

Pretrial Order (“PO”)(Emphasis added), 15:24–27, ECF

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No. 180.

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justify the modification they seek:

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(“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],
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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.

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Mot. 1:28–2:8, ECF No. 281.

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following [Dr. Swingle’s] retirement, attempts had been made to

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contact

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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

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Rule

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16(e)

of

the

Federal

Rules

of

Civil

Procedure

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prescribes that a final pretrial order may be modified “only to

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prevent manifest injustice.”

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exclusive

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modification is justified under the manifest injustice standard:

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factors

are

Fed. R. Civ. P. 16(e).

considered

when

determining

Four nonwhether

a

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(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].

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United States v. First Nat’l Bank of Circle, 652 F.2d 882, 887

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(9th Cir. 1981).

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The movants for modification have “the burden
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of showing that an amendment to the pretrial order [is] necessary

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to prevent ‘manifest injustice.’”

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1015, 1020 (9th Cir. 2005).

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Galdamez v. Potter, 415 F.3d

DISCUSSION

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A. Dr. Swingle

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Defendants contend they “will be greatly prejudiced in

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the event they are not permitted to substitute [a medical expert

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named] Dr. Galen Church for Dr. Swingle.”

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2:13–14, ECF No. 283.
has

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since the PTO authorizes an expert “designee [change] regarding

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plaintiff’s

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should . . . be liberally construed to permit evidence . . . at

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trial

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language.”

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Therefore, this modification is granted.

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been

that

shown

However, the manifest injustice standard

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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

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witness] designation [in the Pretrial Order] from non-retained to

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retained expert.”

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identifies Plainer only as “Expert Witness Correctional Captain

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R. Plainer (regarding use of force policies and procedures at

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[High Desert State Prison]).”

Reply 1:24, ECF No. 283.

The Pretrial Order

PO 15:24–25, ECF No. 180.

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However, Defendants specific designation of Plainer as

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a retained expert in their motion triggers additional disclosure

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obligations under Rule 26(a)(2)(B) of the Federal Rules of Civil

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Procedure.

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addition to providing Plainer’s identity, Defendants’ retained

This

rule

prescribes

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in

pertinent

part

that

in

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expert witness “disclosure [for Plainer] must be accompanied by a

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written report — prepared and signed by the witness.”

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include in their motion a declaration that “[a]

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Plainer’s report was served on Plaintiff on February 8, 2017,

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Anderson Decl. ¶ 6, ECF No. 281, and Defendants state in their

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motion that they have “offer[ed] to make . . . Plainer available

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for deposition[] prior to trial.” Mot. 3:25–26, ECF No. 281.

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Since

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Plainer’s expert status from non-retained to retained, and have

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made the required additional disclosure obligations under Rule

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26(a)(2)(B) of the Federal Rules of Civil Procedure, the Pretrial

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Order is modified as Defendants request and Plainer is therefore

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Defendants’ retained expert witness.

Defendants

have

shown

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for

changing

For the foregoing reasons, Defendants’ Motion to Modify
the Pretrial Order is GRANTED.

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necessity

copy of Mr.

CONCLUSION

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their

Defendants

IT IS SO ORDERED.
Dated:

April 21, 2017

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