Moreno et al v. Ross Island Sand & Gravel, Co. et al

Filing 110

ORDER signed by Judge Kimberly J. Mueller on 5/22/15 GRANTING 106 Motion to Amend the court's status pretrial scheduling order. Ross Island may conduct the deposition of Dr. Toby Johnson, M.D. before the final pretrial conference, currently set for 7/16/15. (Manzer, C)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MICHAEL MORENO, et al.,

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Plaintiffs,

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No. 2:13-cv-00691-KJM-KJN

v.

ORDER

ROSS ISLAND SAND & GRAVEL CO.,
et al.,
Defendants.

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This matter is before the court on plaintiff Jared Mitchell’s motion to modify the

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scheduling order. ECF No. 106. The motion was submitted without a hearing, and is now

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GRANTED.

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I.

BACKGROUND

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Jared Mitchell and Michael Moreno were injured in a boating accident. In this

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action they seek to recover damages from Ross Island Sand & Gravel, Co., the only remaining

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defendant. Mitchell’s injuries included damage to his right hand, for which he has received

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treatment from a plastic surgeon and physical therapy. See MacLaughlin Decl. Ex. A, at 4–5, 6,

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9. ECF No. 106-2. He continues to receive treatment for pain and limitations in his hand. See id.

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Ex. A, at 12–14.

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By previous order, “[a]ll expert discovery” was to be “completed by October 24,

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2014.” Status (Pretrial Sched.) Order, Sept. 11, 2013, at 4, ECF No. 50 (emphasis omitted). That

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order provided “that pursuant to Rule 16(b) of the Federal Rules of Civil Procedure, the Status

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(Pretrial Scheduling) Order shall not be modified except by leave of court upon a showing of

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good cause.” Id. at 10. The same order also noted the consequences of neglecting the expert

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disclosure schedule, warning the parties that a “[f]ailure . . . to comply with the disclosure

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schedule . . . in all likelihood will preclude that party from calling the expert witness at the time

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of trial,” id. at 3, and required a party seeking to offer testimony of an unlisted expert witness to

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show “(a) that the necessity for the witness could not have been reasonably anticipated at the time

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the list was proffered; (b) that the court and opposing counsel were promptly notified upon

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discovery of the witness; and (c) that the witness was promptly made available for deposition,” id.

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In January 2015, Mitchell’s attorney learned for the first time that Mitchell had

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sought treatment from Dr. Toby Johnson, M.D. MacLaughlin Decl. ¶ 4. On January 29, 2015,

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counsel submitted plaintiffs’ third supplemental disclosure of expert testimony, adding Dr.

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Johnson to the list of potential witnesses. Id. Ex. B. Counsel avers Dr. Johnson is serving solely

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as Mitchell’s treating physician, that his office played no role in the decision to seek treatment

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from Dr. Johnson, and that his office’s sole communication with Dr. Johnson was to obtain the

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physician’s file in February 2015. Id. ¶ 5. Ross Island did not agree to submit a stipulated

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request to amend the scheduling order, and Mitchell filed the current motion. Id. ¶ 6. Ross Island

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filed an opposition, ECF No. 107, and Mitchell replied, ECF No. 108.

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II.

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LEGAL STANDARD
A pretrial scheduling order may be modified if a party, despite its diligence, cannot

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reasonably be expected to meet the order’s deadlines. Johnson v. Mammoth Recreations, Inc.,

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975 F.2d 604, 609 (9th Cir. 1992). When a party requests changes to the scheduling order, the

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court’s inquiry focuses on that party’s honest attempt to comply; he must demonstrate his

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“diligence,” the common antonym for carelessness, questionable strategy, and delay. See, e.g.,

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Calderon v. Target Corp., No. 12-1781, 2013 WL 4401430, at *7 (S.D. Cal. Aug. 15, 2013);

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Alibaba.com H.K. Ltd. v. P.S. Prods., 2012 U.S. Dist. LEXIS 36749, at *5–6 (N.D. Cal. Mar. 19,
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2012); Eckert Cold Storage, Inc. v. Behl, 943 F. Supp. 1230, 1233 (E.D. Cal. 1996). Prejudice to

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another party may reinforce the court’s decision to deny leave to amend, but Rule 16’s standard

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“primarily considers the diligence of the party seeking the amendment.” Johnson, 975 F.3d at

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609. The court’s decision is one of discretion. Miller v. Safeco Title Ins. Co., 758 F.2d 364, 369

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(9th Cir. 1985).

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Although Mitchell’s motion is one to modify the court’s status (pretrial

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scheduling) order, he also argues Dr. Johnson should be allowed to testify at trial despite his

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omission from the original witness list. See Mot. Am. 3–5 (citing Roberts v. Roadway Exp., Inc.,

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149 F.3d 1098, 1108–09 (10th Cir. 1998) (reviewing an order denying a motion for mistrial;

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determining whether the district court abused its discretion in allowing testimony not specified in

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a pretrial order)). Here no final pretrial conference has been conducted. The court therefore

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evaluates Mitchell’s request for good cause.

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Mitchell’s counsel disclosed Dr. Johnson’s treatment and forwarded Mitchell’s file

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soon after learning Mitchell had sought additional treatment. No evidence suggests strategic

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delay, an attempt at surprise, carelessness, or even that Mitchell’s decision to see Dr. Johnson was

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connected to this lawsuit at all. Ross Island suggests Mitchell “is ‘picking and choosing’ which

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doctors to disclose,” Opp’n 7; far more plausibly Mitchell saw a new doctor after receiving a

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referral, and didn’t think to tell his lawyer, see id. (citing Mitchell’s medical records). In any

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event, trial is several months away, the pending motions for summary judgment do not address

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damages or the extent of Mitchell’s injuries, and Ross Island may mitigate any disadvantage by

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deposing Dr. Johnson if it chooses, as ordered below.

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III.

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CONCLUSION
The motion is GRANTED. Ross Island may conduct the deposition of Dr. Toby

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Johnson, M.D., before the final pretrial conference, currently set for July 16, 2015. This order

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disposes of ECF No. 106.

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IT IS SO ORDERED.
DATED: May 22, 2015.

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UNITED STATES DISTRICT JUDGE
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