Payne et al v. C.R. Bard, Inc.

Filing 154

ORDER granting in part and denying in part 139 Motion. Signed by Judge Roy B. Dalton, Jr. on 4/25/2014. (VMF)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
ANTHONY PAYNE; and JOHNITA
PAYNE,
Plaintiffs,
v.

Case No. 6:11-cv-1582-Orl-37GJK

C.R. BARD, INC.; and BARD
PERIPHERAL VASCULAR, INC.,
Defendants.
ORDER
This matter comes before the Court on the following:
1.

Plaintiffs’ Amended Motion Seeking Leave to Re-Open the Deadline to
Disclose Expert Witnesses, Additional Motion Seeking Leave to Possibly
Re-Open Fact Discovery (in the Event Judge Toomey Rules the Lehmann
Report is Not Privileged), and Motion Seeking to Postpone Consideration
of Defendants’ Motion for Summary Judgment and Incorporated
Memorandum of Law (Doc. 139), filed March 15, 2014;

2.

Defendants’ Response in Opposition to Plaintiffs’ Motion to Re-Open the
Deadline to Disclose Expert Witnesses and Other Included Motions
(Doc. 143), filed March 25, 2014; and

3.

Plaintiffs’ Reply to Defendants’ Response in Opposition to Plaintiffs’
Motion to Re-Open the Deadline to Disclose Expert Witnesses (and Other
Included Motions) and Incorporated Memorandum of Law (Doc. 149), filed
April 3, 2014.

BACKGROUND
In this medical device products liability action, Plaintiffs Anthony Payne and his
wife Johnita Payne assert three claims: (1) strict liability based on defective design
(Doc. 11, ¶¶ 23–31); (2) strict liability based on defective manufacturing (id. ¶¶ 32–43);
and (3) negligence (id. ¶¶ 44–55). In support of their claims—which require expert
testimony on the issues of defect and causation—Plaintiffs timely identified Drs. Hetzel
and Harward as their expert witnesses. Defendants challenged both witnesses, (see
Docs. 74, 75), and also filed a motion for summary judgment based in part on the
argument that Plaintiffs cannot establish the requisite elements of defect and causation
absent the opinion testimony of Dr. Hetzel. (Doc. 76.)
After a hearing, the Court granted the Defendants’ motion challenging the
admissibility of the opinions of Dr. Hetzel. (Doc. 136.) Plaintiffs then moved to reopen
the deadline to disclose expert witnesses, to reopen fact discovery (in the event a
discovery motion was resolved in Plaintiffs’ favor), and to postpone consideration of
Defendants’ motion for summary judgment. (Doc. 139.) Defendants opposed the motion
(Doc. 143), and Plaintiffs filed a reply. (Doc. 149.)
Pursuant to Federal Rule of Civil Procedure 26(a)(2)(D), expert witness
disclosures are required “at the times and in the sequence directed by the Court.”
Pursuant to Rule 16, deadlines set by the Court “may be modified only for good cause
and with the judge’s consent.” Fed. R. Civ. P. 16(b)(4). The Court has discretion in
deciding whether to continue any deadlines. Arabian Am. Oil Co. v. Scarfone, 939 F.2d
1472, 1479 (11th Cir. 1991); Blakely v. Safeco Ins. Co. of Ill., No. 6:13-cv-796-Orl37TBS, 2014 WL 1328516, at *2–3 (M.D. Fla. Apr. 1, 2014). A decision on scheduling
matters will not be disturbed “unless arbitrary or unreasonable.” Quiet Tech. DC-8, Inc.

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v. Hurel-Dubois UK Ltd., 326 F.3d 1333, 1351 (11th Cir. 2003); see also Anderson v.
Raymond Corp., 340 F.3d 520, 525 (8th Cir. 2003).
Here, the Plaintiffs initially complied with disclosure deadlines, and at the
evidentiary hearing on the Daubert motions, the Court invited them to seek leave to
disclose another expert witness. (Doc. 133.) In doing so, the Court specifically noted
that a dispute existed concerning Plaintiff’s disclosure of Dr. Asch as a “rebuttal”
witness. (Id.; Doc. 70.) On April 21, 2014, Magistrate Judge Gregory J. Kelly denied
Defendants’ motion to strike Plaintiffs’ disclosure of Dr. Asch and reopened the expert
discovery disclosure deadline “solely for the purposes of allowing Plaintiffs to serve
Defendants with a complete expert disclosure regarding Dr. Asch.” (Doc. 152.)
With an interest in resolving cases on the merits, it appears that Dr. Asch—who
is well-known to Defendants—might be used as an expert in Plaintiffs’ case-in-chief
without undue delay of the proceedings or prejudice to Defendants. Accordingly,
although authority exists for denying motions to reopen expert disclosure deadlines
following an adverse Daubert ruling, consistent with Magistrate Judge Kelly’s Order, the
Court will exercise its discretion to permit Plaintiffs’ late disclosure and to briefly extend
related deadlines. 1 If Plaintiffs fail to comply with the deadlines set forth in this Order
and Magistrate Judge Kelly’s Order (Doc. 152), then the Court shall immediately take
Defendants’ motion for summary judgment under advisement.
CONCLUSION
Accordingly, it is hereby ORDERED AND ADJUDGED:
1.

Plaintiffs’ Amended Motion Seeking Leave to Re-Open the Deadline to

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The Court will deny Plaintiffs’ motion to reopen fact discovery without prejudice
to its reassertion if the Court upholds Magistrate Judge Joel B. Toomey’s Order
concerning the Lehmann Report. (Docs. 145, 150.)

3

Disclose Expert Witnesses, Additional Motion Seeking Leave to Possibly
Re-Open Fact Discovery (In the Event Judge Toomey Rules the Lehmann
Report is Not Privileged), and Motion Seeking to Postpone Consideration
of

Defendants’

Incorporated

Motion

for

Summary

Judgment

and

Memorandum of Law (Doc. 139) is GRANTED IN PART

AND DENIED IN PART WITHOUT PREJUDICE.
a.

The Motion (Doc. 139) is DENIED WITHOUT PREJUDICE to the
extent that Plaintiffs request a reopening of fact discovery.

b.

The Motion (Doc. 139) is GRANTED in that the expert disclosure
deadline is reopened and extended until 5:00 p.m., Wednesday,
April 30, 2014, solely for the purposes of allowing Plaintiffs to serve
Defendants with a complete expert disclosure regarding Dr. Asch,
and to file with the Court a notice of whether Dr. Asch has been
disclosed as an expert in Plaintiffs’ case-in-chief.

2.

If Plaintiffs timely comply with Paragraph 1(b) of this Order, then:
a.

Defendants may identify a rebuttal expert on or before June 16,
2014;

b.

Expert discovery will be reopened until July 14, 2014;

c.

The parties will be permitted to supplement their summary
judgment briefing to address any new expert opinion evidence on
or before August 1, 2014;

d.

The Court will reserve ruling on Defendants’ Motion for Summary
Judgment (Doc. 76) until August 18, 2014; and

e.

The trial and pretrial dates will be rescheduled, with a new trial to

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be set no later than November 1, 2014.
3.

If Plaintiffs fail to timely comply with the requirements of this Order and
Magistrate Judge Kelly’s Order (Doc. 152), then the Court will immediately
take the Defendants’ Motion for Summary Judgment (Doc. 76) under
advisement, and all other deadlines in this action will be unchanged.

DONE AND ORDERED in Chambers in Orlando, Florida, on April 25, 2014.

Copies:
Counsel of Record

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