O'Bryan v. Pier 1 Imports (U.S.), Inc. et al

Filing 15

ORDER on 14 Joint Motion to Designate Expert. In this Joint Motion, Plaintiff seeks leave to designate a medical expert. Defendant opposes. As provided herein, Plaintiff's request is DENIED. Signed by Magistrate Judge Mitchell D. Dembin on 3/5/18. (Dembin, Mitchell)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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LUCY O’BRYAN,

Case No.: 17cv1027-WQH-MDD
Plaintiff,

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v.

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PIER 1 IMPORTS, (U.S.), INC.,

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Defendant.

ORDER DENYING JOINT
MOTION TO DESIGNATE
EXPERT
[ECF NO. 14]

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On February 23, 2018, a Joint Motion for Leave to Designate Expert

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was filed. (ECF No. 14). Plaintiff seeks leave to designate a medical expert;

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Defendant opposes. The motion is DENIED.

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BACKGROUND

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This is a straightforward personal injury case. (ECF No. 1). A

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scheduling order regulating discovery and other pretrial proceedings was

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issued September 11, 2017. (ECF No. 8). Among other things, initial expert

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disclosures were to be served by November 6, 2017; rebuttal expert

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disclosures were to be served December 8, 2017; and all discovery was to have

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been completed by January 16, 2018. The Final Pretrial Conference date

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currently is set before Judge Hayes on May 18, 2018. (Id.).
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17cv1027-WQH-MDD

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DISCUSSION

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Plaintiff seeks to designate Dr. Sidney Levine as an expert witness.

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Plaintiff contends that Dr. Levine was not designated as an expert witness

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due to a clerical error by his legal assistant. (ECF No. 14-1 at 3). According

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to Plaintiff, she “does not propose to designate as an expert witness a person

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with whom Defendant has no familiarity.” (Id.). “On the contrary, Defendant

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has been aware of Dr. Levine’s examination and treatment of Plaintiff, and

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has been in possession of Dr. Levine’s medical records and bills, for months.”

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(Id.). Plaintiff asserts that there is no prejudice to Defendant and also

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proposes that any potential prejudice to Defendant be cured by continuing

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the pretrial dates. (Id.).

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In response, Defendant asserts that it would be greatly prejudiced

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because “it would contradict all the evidence [Defendant] has prepared its

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entire defense on” including “Plaintiff’s verified discovery responses and

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deposition, sworn under penalty of perjury.” (ECF No. 14-5 at 6). Defendant

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also contends that Plaintiff has demonstrated a habit of disregarding the

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operative scheduling order. For example, Defendant maintains that it

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received Plaintiff’s initial disclosures sixty days late and Plaintiff served

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written discovery requests so close to the discovery cutoff that Defendant’s

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responses were due three days after the close of discovery. (ECF No. 14-5 at

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p. 3). In support of its opposition, Defendant cites Wong v. Regents of the

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University of California, 410 F.3d 1052, 1062 (9th Cir. 2005) for the

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proposition that a late expert designation is not harmless because

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“[d]isruption to the schedule of the court and other parties is not harmless.”

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(ECF No. 14-5 at 2).

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Plaintiff’s motion to designate Dr. Levine as her expert actually is a
request to amend the scheduling order and reopen discovery. Federal Rule of
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17cv1027-WQH-MDD

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Civil Procedure 16(b)(4) governs such requests. To succeed on a request to

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amend a scheduling order under Rule 16(b)(4), a movant must establish “good

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cause” for doing so. See Johnson v. Mammoth Recreations, Inc., 975 F.2d 604,

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608-09 (9th Cir. 1992). The good cause inquiry focuses primarily on the

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movant's diligence. See Coleman v. Quaker Oats Co., 232 F.3d 1271, 1294-95

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(9th Cir. 2000). “[C]arelessness is not compatible with a finding of diligence

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and offers no reason for a grant of relief.” Johnson v. Mammoth Recreations,

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Inc., 975 F.2d at 609. If the court finds a lack of diligence, “the inquiry

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should end.” (Id.).
The Court is unpersuaded that the Plaintiff has been diligent. Plaintiff

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points to an internal calendaring error for the failure to disclose Dr. Levine

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as her expert. On January 24, 2018, Plaintiff moved to continue the

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mandatory settlement conference, which had been scheduled in the original

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Scheduling Order for January 31, 2018. (ECF No. 10). That should have

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prompted a look at the schedule inasmuch as the mandatory settlement

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conference typically occurs after the close of discovery. Another four weeks

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passed before Plaintiff filed the instant motion. (ECF No. 14). The Ninth

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Circuit has stated that “courts set schedules to permit the court and the

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parties to deal with cases in a thorough and orderly manner, and they must

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be allowed to enforce them, unless there are good reasons not to.” Wong v.

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Regents of Univ. of California, 410 F.3d 1052, 1062 (9th Cir. 2005). Plaintiff

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has failed to present good reasons to grant the requested relief.

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//

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//

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//

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//

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//
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17cv1027-WQH-MDD

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CONCLUSION

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Plaintiff’s Motion to Designate Expert, as presented in the instant joint

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motion is DENIED. Although this order precludes Plaintiff from

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designating an expert witness, Plaintiff is not precluded from calling Dr.

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Levine as a percipient witness, subject to any objections by Defendant.

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IT IS SO ORDERED.
Dated: March 5, 2018

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17cv1027-WQH-MDD