Mayhew v. STATE FARM MUTAL AUTOMOBILE INSURANCE COMPANY

Filing 30

ORDER Denying Pla's 23 motion to amend the scheduling order. Signed by CHIEF JUDGE M CASEY RODGERS on July 22, 2011. (tll)

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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF FLORIDA
PENSACOLA DIVISION
STEVEN M. MAYHEW,
Plaintiff,
v.

Case No.: 3:10cv511/MCR/EMT

STATE FARM MUTUAL AUTOMOBILE
INSURANCE COMPANY,
Defendant.
__________________________________/
ORDER
This lawsuit stems from an automobile accident in which the plaintiff allegedly was
injured. The plaintiff has filed a motion to amend the scheduling order to extend the expert
designation deadline, which expired on March 1, 2011, so that he may designate Donna
Archer, a life care planner and occupational therapist, as an expert witness to testify to the
cost of anticipated future medical treatment (doc. 23). In support of his request, the
plaintiff states that his treating physician has opined that, at some point in the future, the
plaintiff will need to undergo spinal fusion surgery as a result of injuries he sustained in the
automobile accident at issue in this case. In his deposition, however, the plaintiff’s treating
physician was unable to testify to the cost of that surgery or post-surgical treatment. The
surgeon who is to perform the procedure also was deposed. Although plaintiff’s counsel
anticipated that the surgeon would be able to testify to all costs associated with the
procedure, the surgeon testified during his deposition that he can provide only the amount
of his fee and that of his assistant and has no knowledge of other costs associated with the
surgery, such as hospital charges, ancillary medical services, or post-surgery treatment.
The plaintiff maintains that, without expert testimony from a life care planner regarding the
costs of his anticipated future medical treatment, he will not be able to prove a significant
portion of his damages claim. The plaintiff thus urges the court to amend the scheduling
Case No: 3:10cv511/MCR/EMT

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order and extend the expert designation deadline. The defendant opposes the motion.
Under Fed. R. Civ. P. 16(b)(4), the court’s scheduling order “may be modified only
for good cause and with the judge’s consent.” Fed. R. Civ. P. 16(4)(b).1 Good cause
requires a showing that the schedule cannot ‘be met despite the diligence of the party
seeking the extension.’” Sosa v. Airprint Sys., Inc., 133 F.3d 1417, 1418 (11th Cir. 1998)
(quoting Fed. R. Civ. P. 16 Advisory Committee’s Note). Mere “‘carelessness is not
compatible with a finding of diligence and offers no reason for a grant of relief.’” Will-burn
Recording & Pub. Co. v. Universal Music Group Records, No. 08-0387, 2009 WL 1118944,
at *2 (S.D. Ala. 2009) (slip op.) (quoting Johnson v. Mammoth Recreations, Inc., 975 F.2d
604, 609 (9th Cir. 1992)). In other words, the moving party cannot establish the diligence
necessary to show good cause if it had full knowledge of the information before the
scheduling deadline passed or if the party failed to seek the needed information before the
deadline. See S. Grouts & Mortars, Inc. v. 3M Co., 575 F.3d 1235, 1241-42 n.3 (11th Cir.
2009). “A finding of lack of diligence on the part of the party seeking modification ends the
good cause inquiry.” Lord v. Fairway Elec. Corp., 223 F. Supp. 2d 1270, 1277 (M.D. Fla.
2002); see also Beauregard v. Continental Tire North America, Inc., 2009 WL 464998, at
*2 (M.D. Fla. Feb. 24, 2009) (slip op.) (quoting Sosa and the Advisory Committee’s Notes
for the proposition that “[a] finding of good cause is reserved for situations in which the
schedule cannot be met despite the diligence of the party seeking the extension”) (internal
marks omitted). As the court noted in Moyer v. Disney World Co., 146 F. Supp. 2d 1249,
1252 (M.D. Fla. 2000), “[a] Scheduling Order ‘is not a frivolous piece of paper, idly entered,
which can be cavalierly disregarded by counsel without peril.’” Id. (quoting Payne v. Rider
Sys., Inc. Long Term Disability Plan, 173 F.R.D. 537, 540 (M.D. Fla. 1997)). “The object
of Rule 16(b) is to ‘assure that at some point . . . the pleadings will be fixed.’” Vazquez v.
LCM Inv. Group, Inc., 2006 WL 4835922, at *2 (M.D. Fla. Aug. 24, 2006) (citing Fed. R.
Civ. P. 16 Advisory Committee’s Note). “Recognizing the perils of disorderly litigation, ‘[t]he

1

Rule 6.1 of this court’s Local Rules also requires good cause for an extension of the expert
designation deadline.
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Eleventh Circuit has consistently held that motions filed after a deadline imposed by a court
should be denied as untimely.’” Moyer, 146 F. Supp. 2d at 1252 (quoting Payne, 173
F.R.D. at 540).
The court considers three factors when deciding whether a party has been diligent
in following a scheduling order, including (1) whether the party neglected to determine facts
before filing pleadings or within discovery; (2) whether the subject matter of the motion for
extension was readily available to the party, and (3) whether the party delayed filing the
motion. See Lord, 223 F. Supp. 2d at 1277. As good cause for his failure to timely
designate Archer, the plaintiff states that he has diligently pursued his claim, having
designated both a vocational expert and a financial expert, and could not reasonably have
foreseen that the plaintiff’s physicians would be unable to testify to the costs associated
with his anticipated future medial treatment.2 As the defendant points out, however, the
defendant’s treating physician is not a surgeon. The plaintiff thus should have anticipated
that he would not be able to testify to the costs associated with the spinal fusion surgery
and consulted with the surgeon who was to perform the procedure in advance of the expert
designation deadline. Had the plaintiff done so, he would have determined that the
surgeon does not have such information at hand and either requested that the surgeon
obtain the information, designated another expert witness to provide the information, or
prepared to present the testimony of non-expert witnesses, which he still may do on leave
of court. In short, the plaintiff simply failed to determine whether his treating physician or
surgeon could testify to the costs of his anticipated spinal fusion surgery in advance of the
expert designation deadline despite the fact that such information should have been readily
available to him. Although the plaintiff filed the instant motion soon after discovering the
oversight, given the facts of the case, the court cannot find good cause for the plaintiff’s
2

The plaintiff also argues that the defendant will not be prejudiced by the am endm ent because it has
retained a vocational rehabilitation expert witness who is a certified life care planner and can testify as to the
cost of future m edical treatm ent. According to the plaintiff, even if the defendant’s vocational expert was not
qualified to testify in response to Archer, under the deadlines he proposes, the defendant would be granted
sufficient tim e in which to retain another expert witness if it chose to do so. Finally, the plaintiff argues that
the denial of his request would result in a m anifest injustice because he would be unable to prove a significant
portion of his dam ages claim .
Case No: 3:10cv511/MCR/EMT

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failure to timely designate Archer.

Accordingly, the plaintiff’s motion to amend the

scheduling order (doc. 23) is DENIED.
DONE AND ORDERED this 22nd day of July, 2011.

s/

M. Casey Rodgers

M. CASEY RODGERS
CHIEF UNITED STATES DISTRICT JUDGE

Case No: 3:10cv511/MCR/EMT