Thiele et al v. USAA Casualty Insurance Company

Filing 24

ORDER granting in part and denying in part 23 Plaintiffs' and Defendant's Joint Motion to Extend the Deadline for Disclosure of Expert Reports. See Order for details. Signed by Magistrate Judge Carol Mirando on 2/4/2016. (LS)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
MIRIAM S. THIELE and DONALD J.
THIELE,
Plaintiffs,
v.

Case No: 2:15-cv-290-FtM-29CM

USAA CASUALTY INSURANCE
COMPANY,
Defendant.
ORDER
This matter comes before the Court upon review of Plaintiffs' and Defendant's
Joint Motion to Extend the Deadline for Disclosure of Expert Reports (Doc. 23) filed
on February 2, 2016. For the reasons that follow, the motion is due to be granted in
part and denied in part.
Pursuant to the Case Management and Scheduling Order, the Plaintiffs’
deadline for disclosure of expert reports was November 30, 2015.

Doc. 19 at 1.

Defendant’s deadline for disclosure of expert reports was February 1, 2016. Id. The
instant motion was field after the passage of both deadlines. The standards for
modification of deadlines are set forth in Rules 6 and 16, Fed. R. Civ. P. Rule 6
requires a showing of excusable neglect when a party files a motion after the time for
filing such motion has expired.

Fed. R. Civ. P. 6(b)(1)(B).

Rule 16 requires a

showing of good cause for modification of a court’s scheduling order. Fed. R. Civ. P.
16(b)(4). Thus, a party must demonstrate both good cause and excusable neglect for

filing an untimely motion. Estate of Miller v. Thrifty Rent-A-Car Sys., Inc., 609 F.
Supp. 2d 1235, 1252 (M.D. Fla. 2009). When evaluating whether a party has shown
excusable neglect, the Court should consider “‘the danger of prejudice to the
nonmovant, the length of the delay and its potential impact on judicial proceedings,
the reasons for the delay, including whether it was within the reasonable control of
the movant, and whether the movant acted in good faith.’” Advanced Estimating

System, Inc. v. Riney, 130 F.3d. 996, 997-98 (11th Cir. 1997) (quoting Pioneer
Investment Services v. Brunswick Associates Ltd. Partnership, 507 U.S. 380 (1993)).
Here, Plaintiffs state that they timely complied with their Initial Mandatory
Disclosures.

Doc. 23 at 2.

On September 10, 2015, however, they served a

Supplemental Initial Disclosure Statement, listing Mark Herbst, an expert
radiologist. Id. On November 30, 2015, Plaintiff served their Disclosure of Expert
Opinion, disclosing Mark Herbst as their expert witness.

Id.

Defendant had

intended to file a motion to exclude Plaintiffs’ expert testimony; however, the parties
were able to work out the issues and file the instant stipulated motion instead. Id.
at n. 1. Though not stated in specific detail, Plaintiffs state that through discussions
with Defendant’s counsel it has come to their attention that Plaintiffs need to make
additional disclosures pursuant to Fed. R. Civ. P. 26(a)(2) and 26(e) in order to be in
full compliance with the rules and so as to not prejudice Defendant. Id. at 3.
Defendant states that it could not meet its February 1, 2015 expert disclosure
deadline despite its due diligence until Plaintiffs comply with their obligations,
pursuant to Fed. R. Civ. P. 26(a)(2) and 26(e). Defendant lists several other reasons

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for its inability to comply, such as awaiting medical records from Plaintiff Miriam
Thiele’s more recent medical visits, awaiting a response to a subpoena directed to
Neuroscience and Spine Associates so Defendant’s expert radiologist can review
Plaintiff Miriam Thiele’s medical imaging x-rays and MRIs, and Plaintiff Miriam
Thiele’s forthcoming physical examination by Defendant’s expert neurologist. Doc.
23 at 5.
The parties were able to stipulate to specific deadlines for each expert report
that they intend to produce. Additionally, the deadlines fall within the discovery
period, and the trial term is currently scheduled for May 2, 2016. Doc. 19 at 1-2.
Based on the foregoing and in light of the stipulated nature of this motion, the Court
finds that there is excusable neglect and good cause to grant the parties’ agreed-upon
requested extensions.
In addition to requesting an extension of their deadlines for disclosure of expert
reports, the parties also request the Court to
requir[e] that Neuropsychological Associates of South Florida, PA
and/or Dr. Schengber, Psy.D., deliver to Dr. Thomas Goldschmidt and/or
to Defendant’s counsel, by no later than Tuesday, February 16, 2016,
the entire file containing all of the raw data and notes for the
examination/evaluation of MIRIAM THIELE, including but not limited
to: testing material, testing notes, score sheets, score notes, grading
sheets, grading notes, battery testing, battery testing notes, medical
records, corresponding reports, memorandums, and all materials used
in consideration during the Neuropsychological Evaluation(s) of Miriam
Thiele.
Doc. 23 at 6. The parties state that Defendant’s expert, Dr. Thomas Goldschmidt,
who performed a neuropsychological exam on Plaintiff Miriam Thiele, needs these
documents so that he can render his expert opinion on Defendant’s behalf; however,

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Dr. Schengber refuses to release these necessary records. Doc. 23 at 3. Local Rule
3.01(a) requires that “in a motion or other application for an order, the movant shall
include a concise statement of the precise relief requested, a statement of the basis
for the request, and a memorandum of legal authority in support of the request.”
M.D. Fla. R. 3.01(a). While the parties explained why they need these documents,
they have failed to include any legal authority in support of their request.

For

instance, the Court is not even aware if a subpoena ever was issued to Dr. Schengber,
or under what legal authority the parties seek to compel. Moreover, the Middle
District Local Rules provide specific procedures for filing a motion to compel. See
M.D. Fla. R. 3.04. A motion to compel should not be buried in a motion for extension
of deadlines, as the parties did here.

Accordingly, the parties’ request is denied

without prejudice.
ACCORDINGLY, it is hereby
ORDERED:
1.

Plaintiffs' and Defendant's Joint Motion to Extend the Deadline for

Disclosure of Expert Reports (Doc. 23) is GRANTED in part and DENIED in part.
2.

Plaintiffs shall have up to and including February 23, 2016 to amend or

supplement their Mandatory Initial Disclosures and to provide their expert reports.
3.

Defendant shall have up to and including February 23, 2016 to provide

the expert reports of Dr. Thomas Goldschmidt and Dr. Robert Kagan. Should Dr.
Goldschmidt not be in possession of Dr. Stephen Schengber’s records, which the

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parties sought to compel through this motion, by February 16, 2016, Defendant’s
deadline to provide Dr. Goldschmidt’s report shall be extended to March 14, 2016.
4.

Defendant shall have up to and including March 14, 2016 to provide the

expert report of Dr. Brian Wolf.
5.

If Plaintiffs disclose that they intend to call Dr. Harvey Satz as a witness

to give medical opinion testimony as to an alleged TMJ injury, Plaintiffs must
cooperate with Defendant to have a defense compulsory medical examination occur
by March 2, 2016, and Defendant shall have up to and including March 16, 2016 to
provide its TMJ expert report.
6.

Plaintiffs shall have up to and including February 25, 2016 by which to

provide Defendant with the following: (1) Plaintiff Miriam Thiele’s medical reports
from her visits with Joseph Kandel, M.D. on October 29, 2015 and December 29, 2015;
(2) any additional medical records/reports not previously produced to Defendant; (3)
a copy of all of Plaintiff Miriam Thiele’s x-rays and films in their possession.
DONE and ORDERED in Fort Myers, Florida on this 4th day of February,
2016.

Copies:
Counsel of record

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