Greene-McCann v. Ogle County et al

Filing 265

MEMORANDUM Opinion and Order; Plaintiff's motion for extension of time 239 and Defendants' motion to bar experts 229 are granted in part. REPORT AND RECOMMENDATIONS; It is the Court's Report and Recommendation that the Motion for Voluntary Dismissal 236 be granted. It is the Court's Report and Recommendation that the Summary Judgment Motion 261 be denied as moot. All objections to any aspect of this order due by 7/29/2015. Telephonic status hearing set for 8/4/20 15 at 9:00 AM. By 7/31/2015, counsel shall provide telephone numbers for the status hearing to the Courts operations specialist, who will initiate the call. (See attachment for full detail.) Signed by the Honorable Iain D. Johnston on 7/14/2015: (yxp, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
WESTERN DIVISION
VALERIE R. McCANN, Special Administrator
of the Estate of Patrick McCann,
Plaintiff,
v.
STEPHEN A. CULLINAN, M.D., et al.,
Defendants.

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No. 11 CV 50125
Judge Iain D. Johnston

MEMORANDUM OPINION AND ORDER AND
REPORT AND RECOMMENDATION
SUMMARY OF RULINGS
Currently pending before the Court is a raft of motions:
•
•
•

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Plaintiff’s motion for an extension of time. Dkt. 239. (“Motion to
Extend”);
OSF Healthcare System’s motion to bar expert witnesses, which
was joined by all other defendants in the case. Dkts. 229, 23235. (“Motion to Bar”);
Plaintiff’s motion to voluntarily dismiss defendants OSF
Healthcare System, Edward Pyun, Stathis Poulakidas, and
Perryville Surgical Associates, S.C. (“Healthcare Defendants”).
Dkt. 236. (“Motion for Voluntary Dismissal”); and
The Healthcare Defendants’ motion for summary judgment. Dkt.
261. (“Summary Judgment Motion”).

For the reasons, below, the Court enters the following orders.
First, the Motion to Extend and the Motion to Bar are both granted, in part,
and denied, in part. Plaintiff is not barred from using the identified expert
witnesses. However, plaintiff may only use those expert witnesses if he pays the
fees and costs identified in this order.
Second, it is the Court’s Report and Recommendation that the Motion for
Voluntary Dismissal be granted. The dismissal is without prejudice, but
conditioned upon plaintiff’s payment of all fees and costs incurred as of February
10, 2015, in defending this case, if the plaintiff refiles against any of the Healthcare

Defendants. Plaintiff is given until July 29, 2015, to accept this condition. If
plaintiff fails to object to this condition, then the Court will assume that plaintiff
accepts this condition under Rule 41.
Third, it is the Court’s Report and Recommendation that the Summary
Judgment Motion be denied as moot.
All objections to any aspect of this order must be filed by July 29, 2015. The
case is set for telephonic status on August 4, 2015 at 9:00 a.m. By July 31, 2015,
counsel shall provide telephone numbers for the status hearing to the Court’s
operations specialist, who will initiate the call.
INTRODUCTION
This four-year old case has been problematic, and unnecessarily so for many
reasons – most attributable to plaintiff’s side. The latest round of briefing has cost
all parties substantial time and money, required the Court to hold multiple
hearings and write this lengthy opinion, and caused other litigants, who were
patiently complying with orders and deadlines, to have their matters delayed while
the Court tends to the issues in this case. These consequences were all caused by
the failure of plaintiff (seemingly both plaintiff herself and her counsel) to meet
explicit, but reasonable, deadlines. The Court believes that one or more parties will
file objections to this order; thereby leading to more delay, as well as additional
expense in this case. All this was avoidable.
Blowing deadlines is not unique to this case, unfortunately. Counsel miss
deadlines all too often. On occasion, deadlines need to be adjusted for a variety of
valid reasons, including, but not limited to, illness, mishaps, electronic discovery
snags, true emergencies and the recalcitrance of non-party individuals and
corporations. But more often than not, deadlines are missed for frivolous reasons.
The Court routinely excuses the former, but not the later. The Court even
occasionally forgives calendaring errors, as those happen in life. The Court
understands. But, frankly, the Court is shocked as to how cavalierly some members
of the bar take deadlines. These attorneys view court ordered deadlines as nothing
more than mere suggestions, which, if the feeling strikes them, they can choose to
accept – like a server’s suggestion as to which dinner special to order at a
restaurant. When the Court enters a case management order under Federal Rule of
Civil Procedure 16, it is not spit balling ideas around a conference room table.
Instead, the Court is entering dates (that, by the way, the parties had substantial
input in determining) to help ensure the orderly proceeding of the matter within a
very busy district court. See Rule 16 1983 Advisory Committee Notes (“[A]t some
point both the parties and pleadings will be fixed.”); Forstmann v. Culp, 114 F.R.D.
83, 85 (M.D.N.C. 1987) (scheduling order is not a frivolous piece of paper, idly
entered, which can be cavalierly disregarded by counsel without peril).
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An easy solution exists. Counsel must calendar and meet dates. And if
counsel is going to miss a deadline, then counsel should file a motion seeking an
extension before the deadline has passed. See, e.g., Keeton v. Morningstar, Inc., 667
F.3d 877, 883 (7th Cir. 2012); Johnson v. Gudmondsson, 35 F.3d 1104, 1111 (7th
Cir. 1994); Ammons-Lewis v. Metropolitan Water Reclamation District, 2012 U.S.
Dist. LEXIS 170976, at *4-5 (N.D. Ill. Nov. 30, 2012) (filing before expiration of
deadline entitles movant to proceed under more lenient standard of Rule 6(b)(1)(A)).
Counsel is far more likely to receive the extension by seeking it before the
expiration. 1 Moore’s Federal Practice, §6.06[2], p. 6-32 (Matthew Bender 3. ed.
2013). Indeed, this concept is contained in the Federal Rules of Civil Procedure.
Compare Fed. R. Civ. P. 6(b)(1)(A) with Fed. R. Civ. P. 6(b)(1)(B). The old adage
that it is better to beg for forgiveness than to plead for permission was rejected by
the Federal Rules of Civil Procedure. Id.; see Gray v. U.S. Steel Corp., 2012 U.S.
Dist. LEXIS 31834, at *11-12 (N.D. Ind. Mar. 9, 2012). Failure to follow this simple
solution inevitably leads to additional delay, which is a scourge of modern civil
litigation. Geiserman v. MacDonald, 893 F.2d 787, 791 (7th Cir. 1990). It behooves
litigants, counsel and courts to remember a purpose of the Federal Rules of Civil
Procedure is to seek a speedy resolution. Fed. R. Civ. P. 1.
This solution should not be a shocking revelation. Indeed, attorneys should
be and presumably are some of the brightest people. After all, they have at least
one undergraduate and graduate degree and passed a bar examination. Somewhere
along that journey, one would expect that the importance of meeting deadlines was
instilled.
The Seventh Circuit has repeatedly warned counsel about the importance of
meeting deadlines. See, e.g., Spears v. City of Indianapolis, 74 F.3d 153, 157-58 (7th
Cir. 1996). And a cavalcade of court cases can be captured with a simple search on
the subject. See, e.g., Moore v. Pipefitters Ass’n, 2014 U.S. Dist. LEXIS 83934, at
*20-21 (N.D. Ill. June 20, 2014); Loeffel Steel Prods. v. Delta Brands, Inc., 2013 U.S.
Dist. LEXIS 169157, at *20-21 (N.D. Ill. Dec. 2, 2013), Finwall v. City of Chicago,
239 F.R.D. 494 (N.D. Ill. 2006). 1 According to the Seventh Circuit, “A good judge
sets deadlines, and the judge has the right to assume that deadlines will be
honored. The flow of cases through a busy district court is aided, not hindered, by
adherence to deadlines.” Spears, 74 F.3d at 157. In fact, the Seventh Circuit has
gone further. According to the Seventh Circuit, district courts are not only entitled
to enforce deadlines, they must do so. Raymond v. Ameritech Corp., 442 F.3d 600,
605 (7th Cir. 2006). Of course, courts should not mindlessly enforce deadlines.
Wong v. Regents of the University of California, 410 F.3d 1052, 1060 (9th Cir. 2005).
The Seventh Circuit’s admonitions are not theoretical. Setting and maintaining
pretrial schedules is critical to the functioning of a court, and all the litigants that
The Court freely admits to being somewhat partial to Magistrate Judge Cole’s opinions on
this subject.
1

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use it. Kourlis & Singer, Managing Toward the Goals of Rule 1, 4 The Federal
Courts Law Review 1, 8-12 (2009). Secondary sources echo the importance of
meeting deadlines. See, e.g., Schrier & Torres, Before Midnight: Deadlines,
Diligence, and the Practice of Law, 68, The Federal Lawyer (December 2014).
The origin of the term “deadline” dates to the Civil War. As Chief Judge
Edenfield of the Southern District of Georgia tells it, “The word ‘deadline’ was
coined by Union soldiers held at the Andersonville prison camp during the War of
Northern Aggression. Confederate guards summarily executed any prisoner
crossing a preordained line on the camp grounds; thus, the term ‘deadline.’” Brown
v. McCabe & Pietzsch, P.A., 180 B.R. 325, 326 n.1 (S.D. Ga. 1995). Missing
deadlines can have similar consequences to a case. Federal courts are empowered
and, at times, required to impose harsh sanctions when deadlines are missed. See,
e.g., Fed. R. Civ. P. 37 (requiring the exclusion of documents and witnesses that
were not timely produced and identified absent substantial justification or harm).
FACTS
This case involves the death of Patrick McCann. Mr. McCann suffered
horrific burns while allegedly setting his mother’s house ablaze after trying to
strangle her. Mr. McCann was first treated at St. Anthony Medical Center, and
then discharged and transported to the Ogle County Correctional Center, where he
was administered methadone for pain and eventually died.
On September 9, 2014, this Court set deadlines for expert disclosures,
including an October 14, 2014, deadline for any reports from expert witnesses
retained by plaintiff. Dkt. 225. On the status call on September 9, 2014, plaintiff’s
counsel never mentioned any concerns about a lack of funds, difficulty with his
client, sickness, busyness or anything else that would prevent him from meeting the
October 14, 2014 deadline. Indeed, the exchange between the Court and plaintiff’s
counsel led the Court to believe that no problems were in the offing and that the
deadline would be easily met. For example, counsel stated that he had consulted
with several experts who were “ready to go.” Likewise, counsel informed the Court
that if he were given 30 days, he would have his reports ready. In response, the
Court gave just over 30 days to provide a slight cushion, to which counsel responded
“Great.” At the very end of the status hearing, the Court gave all counsel –
including plaintiff’s counsel – the opportunity to add anything to the record or
inform the Court of anything they thought the Court should know. Plaintiff’s
counsel informed the Court that he had “nothing to add.” After establishing the
deadlines, the Court announced that it was “very disinclined” to move any of the
dates. Plaintiff’s counsel said that he understood. At the conclusion of the status,
the Court stated that it was available if any issues regarding the experts were to
arise. In the October 14, 2014 order, the Court set the case over for a status

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hearing on March 31, 2015, to allow the parties time to serve their reports and
depose each other’s experts.
The Court heard nothing about expert discovery until January 22, 2015 – six
months later. At that time, defendant OSF Healthcare System filed a motion to bar
plaintiff from disclosing expert witnesses (the “Motion to Bar”) because none had
been disclosed and the October 14, 2014, deadline had long-passed. Dkt. 229.
Indeed, three months had passed without plaintiff serving retained expert reports.
OSF Healthcare noticed the Motion to Bar for presentment on January 27, 2015, at
10:00 a.m., with electronic notice going to all parties, including plaintiff’s counsel.
This notice satisfied both Local Rule 5.3(b) regarding noticing motions for
presentment, as well as the Court’s standing order requiring three business days’
notice. Dkt. 230. According to the Motion to Bar, plaintiff’s counsel had e-mailed
defense counsel on October 22, 2014, asking them to agree to an extension of the
October 14, 2014, deadline to disclose plaintiff’s experts. The space-time continuum
establishes that the request occurred after the deadline had already passed. Dkt.
229 at 2. According to the e-mail, counsel needed the extension because of “many
conflicts appear[ed] which . . . caused some delay” including “sickness followed by a
difficult schedule.” However, counsel stated that “[He] [had] all of [his] witnesses
and retainer checks [were] going out [that] week.” Dkt. 229 Ex. B. By the following
day, all defense counsel had declined the request. Dkt. 229 Ex. C. Between October
22, 2014 and January 22, 2015, defense counsel – and more importantly, the Court
– heard nothing from plaintiff’s counsel. Dkt. 229 at 2.
The Court’s standing order allows respondents to discovery motions to file
written responses to motions before the matter is heard, but does not require a
written response. Before the presentment of the motion, plaintiff did not file a
written response.
On the morning of January 27, 2015, the date set for presentment of the
Motion to Bar, plaintiff’s counsel contacted the Court, asking to appear on the
motion telephonically. Dkt. 241. The request was denied because, as all are
advised by the Court’s standing order, only status hearings are conducted
telephonically and only by order of the Court. When the Motion to Bar was called
as scheduled during the 10:00 a.m. motion call, plaintiff’s counsel was not present.
Id. Defense counsel reported that they had heard nothing from plaintiff’s counsel.
Id. Suspecting counsel was still en route, the Court passed the case and then
recalled it at 10:57 a.m. Plaintiff’s counsel was still not present. Given plaintiff’s
counsel’s failure to appear to oppose the Motion to Bar, in the absence of any
written response in opposition, the length of time that had passed since the
deadline to disclose retained experts, and plaintiff’s inaction after defense counsel
opposed any extension, the Court entered a Report and Recommendation that the
Motion to Bar be granted. Id. The deadline to object was February 11, 2015. Id.

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Later the same day (January 27, 2015), plaintiff’s counsel filed a motion to
dismiss the Healthcare Defendants (the “Motion for Voluntary Dismissal”). Dkt.
236. According to this motion, plaintiff alleged only state law claims of medical
negligence against those defendants that “should not be tried in this Federal Court.”
Id. at 3. Plaintiff’s counsel sought dismissal without prejudice because “this state
cause of action may be re-filed in State Court within the one year limitation period
in Illinois for re-filing claims.” Id. The Motion for Voluntary Dismissal was noticed
for presentment on February 12, 2015.
The following day (January 28, 2015), after the Court had announced its
decision on the Motion to Bar, but before the Report and Recommendation had
issued, plaintiff’s counsel filed a motion to extend the deadline to disclose expert
witnesses (the “Motion to Extend”). Dkt. 239. According to this motion, plaintiff’s
counsel realized sometime in October 2014 that he would not meet the October 14,
2014, deadline to disclose experts. The Motion to Extend did not state when this
realization occurred. However, the realization must have occurred sometime
between October 1 and October 13, 2014. According to the Motion to Extend,
plaintiff lacked funds to hire any retained experts until December 2014. Id. at 2-3.
But three of the anticipated four experts had been paid; the fourth was checking for
conflicts; and counsel anticipated receiving their reports by the presentment of the
Motion to Extend. Like the Motion for Voluntary Dismissal, the Motion to Extend
was also set for February 12, 2015. Id. at 3-5.
On February 12, 2015, all parties’ counsel argued the Motion for Voluntary
Dismissal and the Motion to Extend. Plaintiff’s counsel argued that he sought to
dismiss the medical defendants because his expert reports revealed that Mr.
McCann had died from an overdose of methadone administered at the jail, not
because he had been prematurely discharged from the hospital. Although the
motion sought dismissal without prejudice, plaintiff’s counsel stated “it is not my
intention to refile this action.” Dkt. 259 at 8:24-25. Counsel for the Healthcare
Defendants sought either a dismissal with prejudice or a dismissal without
prejudice, but with payment of fees and costs. Id. at 7:25-8:5.
As for the Motion to Extend, plaintiff’s counsel expanded upon the reasons he
gave earlier for missing the deadline. During the hearing, in addition to the lack of
funds, counsel asserted that plaintiff and all family members are “suffering from
some form of mental depression or mental deficiency,” which made communication
difficult, and counsel did not know whether he was still employed. Dkt. 259 at
18:15-16, 39:7-8. He also argued that defendants would suffer no prejudice because
they already had the experts’ names; counsel served three of the four anticipated
expert reports that morning; and that fourth would be served within 14 days. Id. at
21:16-17, 23:16-18. Defense counsel argued that the Motion to Extend should be
denied because plaintiff’s counsel had not been diligent and that defendants would
be prejudiced by even further delay. See, e.g., id. at 31:1-16. They also noted that
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although in the Motion to Extend plaintiff anticipated receiving reports from the
four experts by the February 12, 2015, hearing, plaintiff had produced reports from
only three experts, and only one of the reports disclosed the information required
under Federal Rule of Civil Procedure 26(a)(2)(B)(i) – (vi). The Court took the
matters under advisement until the next status hearing set for March 10, 2015.
Dkt. 252.
In the meantime, District Judge Kapala ruled on the Report and
Recommendation this Court had made on January 27, 2015, barring plaintiff’s
experts. Dkt. 253. In light of plaintiff counsel’s absence from the January 27, 2015,
hearing and the resulting lack of any adversarial exchange about the factors
relevant to modifying scheduling orders and barring evidence as a sanction for
discovery violations, Judge Kapala recommitted the outstanding motions to this
Court for additional argument and/or briefing, and preparation of another Report
and Recommendation. Id. at 2. Judge Kapala’s order specifically referenced both
Rule 16 and Rule 37. Dkt. 253, p. 2. The Court ordered additional briefing on the
issues Judge Kapala raised. Dkt. 254. The Court explicitly asked the parties to
address which Federal Rule of Civil Procedure applied: Rule 6, Rule 16 or Rule 37.
The briefing is now complete. 2
ANALYSIS
Motion to Extend and Motion to Bar
The two primary motions pending before the Court are the Motion to Extend
and Motion to Bar. Dkts. 229, 232-35, 239. The Court will first address these
motions together in the context of the various possible applicable rules.
Analytical Framework for this Order
Three possible rules relating to deadlines are at play here: Rule 6, Rule 16
and Rule 37. But the standards under each rule differ, possibly resulting in a
different determination depending on which rule is applied. Like many questions in
life, the starting point is often outcome determinative. 3 The parties have further
complicated matters by switching the respective rule upon which they rely. In the
Motion to Bar, defendants rely on Rule 37. Dkt. 229. However, after Judge Kapala
recommitted the matter and after the Court’s ordered briefing, defendants sought to
rely on the stricter standard of Rule 16. Recording of May 12, 2015 Hearing.
Plaintiff had still not produced all of the expert reports as of the filing of defendants’
briefs, but the reports were attached to plaintiff’s brief filed later that day. As a result, the
Court does not yet know defendants’ position on whether the reports now comply with Rule
26(a)(2)(B).
3
See, e.g., Everlast, What It’s Like (1998 Tommy Boy Records) (“You know where it ends:
Yo, it usually depends: On where you start.”).
2

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Similarly, plaintiff flipped positions. In the Motion to Extend, plaintiff relied on
Rule 16. Dkt. 239. But later plaintiff asserted the more forgiving standard of Rule
37 applied. Recording of May 12, 2015 Hearing. Adding to the analytical difficulty
is that if the Court were to determine that Rule 16 applied and the Motion to
Extend were denied, there would be no logical reason to address the Motion to Bar,
as it would be moot. But the Motion to Bar was filed before the Motion to Extend.
Additionally, Judge Kapala’s order recommitted the matter to address, among other
things, both Rule 16 and Rule 37. Dkt. 253, p. 2.
And as noted above, the undersigned fully expects that at least one party will
object to this order. As a result, to prevent any further briefing before the
undersigned, to fully address the issues that may come before Judge Kapala on an
objection, and to save Judge Kapala from having to recommit the matter again, the
undersigned will analyze the issue under each rule and then determine whether
that rule applies. The undersigned fully recognizes that this approach will result in
a substantial amount of dicta, which is undesirable. But the undersigned would
rather fully address all issues, even with dicta, for Judge Kapala’s benefit.
Burdens Imposed by the Rules
As mentioned, three different rules have possible application under these
circumstances. Wright, Miller & Steinman, 4B Federal Practice & Procedure: Civil,
§1166, 682 (4th ed. 2013) (“Rule 6(b) is not the only provision in the Federal Rules of
Civil Procedure that authorizes the extension of a stated time period. As a result,
questions inevitably arise as to the interrelationship between Rule 6(b) and the
specific time extension provisions that appear elsewhere in the rules.”). But each
rule uses different language and, as a result, to some extent, the case law has
developed different standards. 4
Federal Rule of Civil Procedure 6
Rule 6 is all about time, with Rule 6(b) addressing extensions of time. Rule
6(b) provides the following: “When an act may or must be done within a specified
time, the court may, for good cause extend the time . . . with or without motion or
notice if the court acts, or if a request is made, before the original time or its
extension expires, or . . . on motion made after the time has expired if the party
failed to act because of excusable neglect.” Fed. R. Civ. P. 6(b).

As shown by the differing analyses below, this Court disagrees with the Ninth Circuit’s
view that the standards are substantially the same. Malone v. U.S. Postal Service, 833
F.2d 128, 130 (9th Cir. 1987) (standards governing dismissal for failure to obey a court
order are basically the same under Rule 16, 37 and 41). If the view were correct, then this
order would have been substantially shorter and the Court would have saved much time.
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Consequently, under Rule 6, when a party seeks an extension of time, the
court may extend the time if good cause is shown. Fed. R. Civ. P. 6(b)(1). But Rule
6 differentiates between requests for extensions made before the time has expired
and requests made after the time has expired. If the request is made before the
time has expired, then only good cause must be shown. Under Rule 6, “good cause”
is not a high standard. Ahanchian v. Xenon Pictures, Inc., 624 F.3d 1253, 1259 (9th
Cir. 2010) (good cause is a non-rigorous standard). 5
In contrast, after the deadline has expired, Rule 6 permits an extension only
on a showing of both good cause and excusable neglect. Fed. R. Civ. P. 6(b)(1)(B);
Brosted v. Unum Life Ins. Co. of Am., 421 F.3d 459, 464 (7th Cir. 2005) (affirming
district court’s denial of motion for extension of discovery deadline filed one month
after the deadline had passed). In determining whether excusable neglect exists,
courts are guided by the factors the Supreme Court identified in Pioneer Investment
Services Co. v. Brunswick Associates, Ltd., 507 U.S. 380, 395 (1993): (1) the danger
of prejudice to the non-movant, (2) the length of the delay and its impact on the
judicial proceedings, (3) the reason for the delay (including whether the delay was
within the control of the movant), and (4) the movant's good faith. See Raymond v.
Ameritech Corp., 442 F.3d 600, 605 (7th Cir. 2006) (applying Pioneer factors to Rule
6). These factors are not weighted equally: the reason for the delay is the most
important factor. Graphic Communications Int’l v. Quebecor Printing Providence,
Inc., 270 F.3d 1, 6 (1st Cir. 2001) (citing Lowry v. McDonnell Douglas Corp., 211
F.3d 457, 463 (8th Cir. 2000)). Moreover, context matters in determining excusable
neglect, including whether the movant was previously dilatory. Blue v. Hartford
Life & Accident Ins. Co., 698 F.3d 587, 593-94 (7th Cir. 2012). The burden is on the
movant to show excusable neglect. In re Dahlgren Int’l, Inc., 147 B.R. 393, 406
(N.D. Tex. 1992) (“A tardy Rule 6(b) movant bears the burden of establishing
excusable neglect.”); see also 1 Moore’s Federal Practice, §6.06[3][a], p. 6-33
(Matthew Bender 3d ed. 2013) (“the moving party must show good cause and
demonstrate that the failure to act was the result of ‘excusable neglect’”). Thus, the
As shown later, as developed by case law, “good cause” under Rule 16 – as opposed to
under Rule 6 – is a much higher standard. And as shown throughout this order, “good
cause” under Rule 6(b)(1) is a very different standard compared to “good cause” under Rule
16(b)(4). Certainly, a well-recognized rule of construction holds that the same words in the
same statute or rule should be given the same meaning. Envtl. Def. v. Duke Energy Corp.,
549 U.S. 561, 584 (2007) (stating that there is a general presumption that identical words
used in different parts of the same statute have the same meaning (citing Atlantic Cleaners
& Dyers, Inc. v. United States, 286 U.S. 427, 433 (1932)). However, the same words, when
used in the same statute can be interpreted very differently. See Johnston, Problems in
Imposing Extended-Term Sentences Under Section 5-5-3.2(b)(2) of the Unified Code of
Corrections, 25 J. Marshall L. Rev. 491, 520 n. 207 (1992) (“Thus, the same statutory
language, namely, ‘exceptionally brutal or heinous behavior indicative of wanton cruelty,’
means two different things depending on the punishment allowed by statute.”); see also
Scott v. Fischer, 616 F.3d 100, 105-07 (2d Cir. 2010) (distinguishing between “clearly
established” for purposes of qualified immunity compared to habeas corpus).
5

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movant’s ability to obtain an extension after blowing a deadline is more onerous.
Ammons-Lewis, 2012 U.S. Dist. LEXIS 170976, at *4-5 (filing before expiration of
deadline entitles movant to proceed under more lenient standard of Rule 6(b)(1)(A)).
If this Court were to apply Rule 6, plaintiff would not prevail. She has not
established excusable neglect under the factors set out in Pioneer, 507 U.S. at 395.
First, defendants would suffer some, but not substantial, prejudice. Granting
an extension would create additional delay for defendants, who would be entitled to
depose the experts and secure their own experts months later than originally
contemplated by the Court’s scheduling order. Consequently, there would be a
delay in their ability to file summary judgment motions. The prejudice caused by
further delay is greater here than in most cases. The Court already delayed
summary judgment motions to allow plaintiff time to disclose liability experts by
October 14, 2014. Even by that date, defendants were already “chomping at the bit”
to file dispositive motions. Recording of September 9, 2014 Status Hearing.
Nevertheless, they will ultimately be given that opportunity – albeit delayed
somewhat.
Second, the length of delay – about three months – is significant. This Court
has previously found significant a delay of two weeks, both because of the length
and the cascading effect of such a delay on the Court’s other business. Postle v.
Bath & Body Works, LLC, No. 13 CV 50374, 2015 WL 521365, at *5 (N.D. Ill. Feb. 9,
2015) (noting other cases in which similar delays established a lack of diligence).
This Court’s decision in that case was based on established Seventh Circuit case
law. See, e.g., Keeton v. Morningstar, Inc., 667 F.3d 877 (7th Cir. 2012) (affirming
denial of motion for leave to file summary judgment response instanter 20 days
after it was due); Raymond v. Ameritech Corp., 442 F.3d 600 (7th Cir. 2006); Dean v.
Chicago Transit Authority, 2005 U.S. App. LEXIS 1510 (7th Cir. 2005) (affirming
denial of motion for leave to file summary judgment response instanter two weeks
after deadline).
Third, although counsel’s proffered reasons for the delay have evolved, none
are particularly compelling. For example, in his e-mail to defense counsel dated
October 22, 2014, plaintiff’s counsel attributed the delay to an unspecified
“sickness” that complicated his already “difficult schedule.” Dkt. 229 Ex. B. But
busyness is not a valid excuse. Keeton v. Morningstar, Inc., 667 F.3d 877, 883 (7th
Cir. 2012); Harrington v. Chicago, 433 F.3d 542, 548 (7th Cir. 2006). Later counsel
began citing plaintiff’s lack of funds. Courts are split on whether lack of funds
excuses a party’s failure to comply with deadlines. Compare Allen Russel
Publishing, Inc. v. Levy, 109 F.R.D. 315, 318 (N.D. Ill. 1985) (finding lack of funds to
hire attorney good cause to vacate default judgment) with Rinieri v. News Syndicate
Co., 385 F.2d 818, 823 (2d Cir. 1967) (“If a party lacks funds it is not given to him to
decide ex parte that he is justified in not prosecuting his suit and is thus free to
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ignore the rules of the Courts.”). But even if a lack of funds can support a finding of
excusable neglect, the factor does not weigh heavily in plaintiff’s favor because
counsel’s representations on the issue are inconsistent. In his supplemental brief,
counsel states that he “began to realize that he was on a very tight budget as he had
no funds” before he sent the October 22, 2014, e-mail to defense counsel. Dkt. 257
at p. 5. However, in the e-mail itself, he states that “retainer checks are going out
this week.” Dkt. 229 Ex. B. As stated above, plaintiff’s counsel failed to inform the
Court of a funding problem – or any other problem – just a month earlier when it
set the October 14, 2014 deadline. In fact, plaintiff’s counsel led the Court to
believe that the deadline would easily be met because he had consulted with several
experts who were “ready to go” and needed about three weeks to provide their
reports. And, as mentioned, even if counsel lacked funds, he could and should have
sought to extend the deadline to disclose experts before the deadline had passed, or
certainly before defendants moved to bar plaintiff’s experts three months later.
Turning to good faith, although plaintiff’s counsel does not explicitly address
this element of the excusable neglect analysis, he seems to touch upon it when he
contends that he “did not immediately file a motion with this court because there
were several complications that had arisen” including that he “did not know if he
was discharged by Plaintiff,” “did not possess the necessary funds,” that he thought
it more appropriate to wait until he had expert reports in hand before alerting the
Court to his missed deadline, and that he “was placed in a no win situation and he
acted as he thought appropriate.” Dkt. 257 at p. 13. The Court acknowledges that
there is no evidence counsel proceeded with ill-will or concealed funds to cause
delay. But there is also no evidence of any good-faith attempt to address the
complications he purportedly faced by alerting the Court or obtaining a timely
extension. And again, there was no mention of any possible complications at the
September 9, 2014 status hearing when the Court entered the October 14, 2014
deadline. Moreover, counsel did not even attend the hearing on defendants’ Motion
to Bar, which was the Court’s first inkling of any difficulties with expert discovery.
Finally, the Court addresses context. Plaintiff’s counsel has established a
history of failing to comply with Court deadlines and orders. As noted, counsel
missed both the disclosure deadline and the presentment of and hearing on the
Motion to Bar. These missed dates and deadlines followed plaintiff’s counsel’s
failure to appear for a status hearing scheduled on February 13, 2014. Dkt. 203.
Furthermore, during the February 12, 2015, hearing on plaintiff’s Motion to Extend,
counsel stated that he had served three of four reports, and all reports would be
filed within fourteen days or February 26, 2015. But as defense counsel reported at
the hearing, two of the reports did not include the information required by Rule
26(a)(2)(B), and counsel did not produce all four reports by February 26, 2015, but
rather they were attached to plaintiff’s April 13, 2015 supplemental brief. Plaintiff
also missed deadlines to respond to requests to admit, see Dkts. 225-26, and

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plaintiff’s counsel’s efforts to obtain a guardianship for the decedent’s brother has
been protracted and incomplete. Dkt. 238.
These motions are even more disturbing when viewed in the context of the
September 9, 2014 status hearing when the deadline was set. Plaintiff’s counsel
repeatedly led the Court to believe that the deadlines were extremely reasonable
and could be easily met. But being cautious, the Court warned plaintiff’s counsel
that it was “very disinclined” to move any dates in a “2011 case,” to which plaintiff’s
counsel responded, “I understand.” This Court barks before it bites. Here,
plaintiff’s counsel heard the bark, but he chose to ignore it.
Moreover, in a way, although Rule 6 requires a showing of excusable neglect,
many of plaintiff’s counsel’s asserted reasons are not neglect. They are intentional
decisions. Indeed, plaintiff’s counsel asserted that he thought it was more
appropriate to wait until he possessed the reports before he sought the extension.
Dkt. 257 at p. 13. Additionally, if plaintiff’s counsel believed he was terminated,
then he should have moved to withdraw. 6 But again, he chose not to do so. These
are not negligent acts. Instead, they are just bad, affirmative decisions.
For these reasons, if the Court were to apply Rule 6, plaintiff’s Motion to
Extend would be denied, and defendant’s Motion to Bar would be granted.
However, the Court does not believe Rule 6 applies under the circumstances
presented here. 7
Rule 6 is a rule of general applicability; it is a gap filler that allows for
extensions when other more specific rules do not apply. When more than one
Federal Rule of Civil Procedure could apply to a circumstance, federal courts should
apply the specific provision over the general provision. See, e.g., Societe
Internationale v. Rogers, 357 U.S. 197, 206-07 (1958) (applying Rule 37 over Rule 41
with regard to discovery sanctions); Lucien v. Breweur, 9 F.3d 26, 28 (7th Cir. 1993)
(“[W]e think the specific provision . . . should govern, rather than the general one.”);
Neighbors Law Firm, P.C. v. Highland Capital Management, L.P., 2011 U.S. Dist.
LEXIS 6195, at *4 (E.D.N.C. Jan. 24, 2011) (specific provision under Rule 16(b)(4) to
modify a scheduling order takes precedence over Rule 6’s generally applicable
extension provisions); Pritchard v. Dow Agro Sciences, 255 F.R.D. 164, 171-72 (W.D.
The Court does not contest that plaintiff may be a difficult client, as evidenced by the
withdrawal of her previous counsel and her demeanor when she appeared in court.
7
The Seventh Circuit’s recent decision in Flint v. City of Belvidere, 2015 U.S. App. LEXIS
11194, at *7-8 (7th Cir. 2015) is distinguishable. Although the Seventh Circuit cited to and
relied on Rule 6, the parties did not brief and the Seventh Circuit did not address whether
Rule 6 or Rule 16 applied. As the issue was not addressed, the Flint court’s reliance on
Rule 6 is not controlling. United States v. L.A. Tucker Truck Lines, Inc., 344 U.S. 33, 38
(1952). Moreover, the Flint court was not addressing a failure to timely disclose expert
witnesses, which is specifically discussed in Rule 26 and Rule 37.
6

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Pa. 2009) (Rule 36’s extension provisions for requests to admit apply rather than
Rule 6’s general provision); Finwall v. City of Chicago, 239 F.R.D. 494, 501 n.5 (N.D.
Ill. 2006) (“Here, there is a precise standard woven into Rule 37(c)(1) which would
trump Rule 6.”). In this case, the Court entered a specific scheduling order by
which plaintiff was to provide her retained expert reports. Accordingly, the more
specific rule – either Rule 16(b)(4) or even Rule 37(c)(1) – would be the appropriate,
applicable rule. 8
Federal Rule of Civil Procedure 16
Rule 16(b)(3)(A) grants this Court the power to set discovery deadlines. In
certain cases (including cases like this), a court is required to issue a scheduling
order. Fed. R. Civ. P. 16(b)(1) (district judge or magistrate judge “must issue a
scheduling order”). The scheduling order is required to address the time to (a) join
other parties, (b) amend the pleadings, (c) complete discovery and (d) file motions.
Fed. R. Civ. P. 16(b)(3)(A). But the court can include other deadlines, including the
time to (a) make disclosures under Rule 26(a), (b) supplement discovery responses
and (c) “other appropriate matters.” Fed. R. Civ. P. 16(b)(3)(B).
Once the district court has entered a scheduling order, Federal Rule of Civil
Procedure 16(b)(4) provides that “[a] schedule may be modified only for good cause
and with the judge's consent.” The proper method to seek an extension of discovery
deadlines is to file a motion under Rule 16(b)(4) before the deadline has passed. See
Naud v. City of Rockford, No. 09 CV 50074, 2013 WL 4447028, at *5 (N.D. Ill. Aug.
16, 2013).

The Court recognizes that courts are split on the issue of whether Rule 6 or Rule 16
applies when a movant seeks to modify a scheduling order. Numerous cases hold that Rule
16(b)(4) applies, in part, because it is the more specific rule. Barker v. Goorich, 2012 U.S.
Dist. LEXIS 5810, at *7 (S.D. Ohio Jan. 13, 2011) (“Defendant’s arguments appear not to
recognize the significance of the fact that the deadline which they are seeking to extend was
established in a pretrial order issued under Rule 16, and that the Rule 16(b) standard – not
the excusable neglect standard set out in Rule 6(b) – applies.”); Carpenter v. Churchville
Greene Homeowner’s Ass’n, 2011 U.S. Dist. LEXIS 115948, at *10-11 (W.D.N.Y. Sept. 29,
2011); Richardson v. United States, 2010 U.S. Dist. LEXIS 104443, at *10 (E.D.N.C.
Sept. 30, 2010); Sorrels v. MBNA America Bank, N.A., 2004 U.S. Dist. LEXIS 18857, at *3
(D. Alaska Jan. 23, 2004). However, other cases hold that Rule 6(b)(1)(B) applies, in part,
because, according to these cases, it is the more specific rule. Johnson v. Murphy, 2011
U.S. Dist. LEXIS 80513, at *11-12 n. 3 (D.S.C. July 22, 2011); Anderson v. Caldwell County
Sheriff’s Office, 2011 U.S. Dist. LEXIS 7768, at *3 (W.D.N.C. Jan. 20, 2011) (“While the
court agrees that it can enlarge time contained in a pretrial order for good cause as
provided by Rule 16, the more specific requirements of Rule 6(b)(1)(B) apply where, as here,
the deadline has already run.”). The Court believes that applying Rule 16(b)(4)’s “good
cause” standard is the better approach. However, as shown by this Court’s analysis,
regardless of whether Rule 6 or Rule 16 applies, plaintiff has failed under both standards.

8

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As mentioned previously, under Rule 6(b)(1), as interpreted by case law, the
term “good cause” imposes a light burden. 1 Moore’s Federal Practice §6.06[2] p. 632 (Matthew Bender 3d ed. 2013); Wright, Miller & Steinman, 4B Federal Practice
and Procedure: Civil §1165, p. 602-08 (4th ed. 2013). In contrast, when used in Rule
16(b)(4), case law establishes that the term “good cause” imposes a much heavier
burden. In fact, Rule 16(b)(4)’s “good cause” requirement, which focuses on
diligence, is more onerous than Rule 6(b)(1)(B)’s “excusable neglect” requirement.
Auto-Owners Ins. Co. v. Ace Electrical Service, Inc., 648 F. Supp. 2d 1371, 1375
(M.D. Fla. 2009) (“Rule 16 provides a more stringent standard than Rule 6’s
excusable neglect standard.”); see Carpenter, 2011 U.S. Dist. LEXIS 115948, at *11
(citing Grecco Photography, Inc. v. Everett Collection, Inc., 2008 U.S. Dist. LEXIS
82426, at *2 (S.D.N.Y. Oct. 15, 2008) (“’[g]ood cause’ requires a greater showing
than ‘excusable neglect’”)); see also In re Kirkland, 86 F.3d 172, 175 (10th Cir. 1996)
(Rule 4(m)’s “’[good cause]’ requires a greater showing than ‘excusable neglect’”). 9
In the Seventh Circuit, the court’s primary inquiry is the diligence of the
party seeking the extension. Alioto v. Town of Lisbon, 651 F.3d 715, 720 (7th Cir.
2011). The Seventh Circuit has not addressed whether prejudice to a non-movant is
The Court is aware that, yet again, there is a case-law split as to which standard is more
stringent. In contrast to the cases cited above, other cases state that Rule 6’s “excusable
neglect” standard is more onerous. Dryden v. City of Hays, 2012 U.S. Dist. LEXIS 100790,
at *7 (D. Kan. July 20, 2012); Richardson, 2010 U.S. Dist. LEXIS 104443, at *13 (Rule 6 is
more rigorous standard). In other contexts involving other rules, “excusable neglect” is
often considered to be a higher standard than “good cause.” See, e.g., Perez v. Wells Fargo
N.A., 774 F.3d 1329, 1337 (11th Cir. 2014) (Rule 55); Colleton Prepatory Academy, Inc. v.
Hoover Universal, 616 F.3d 413, 420 (4th Cir. 2010) (Rule 60); Bailey v. Carter, 2000 U.S.
App. LEXIS 18082, at *5 (7th Cir. 2000) (Federal Rule of Appellate Procedure 4(a)(5)(A)).
Some courts believe that the distinction is difficult to even discern. Birch v. Polaris Indus.
Inc., 2015 U.S. Dist. LEXIS 35357, at *10 n.3 (D. Utah Mar. 19, 2015); Peche v. Keller, 2012
U.S. Dist. LEXIS 80865, at *17 (M.D.N.C. June 12, 2012). Other courts just gloss over the
issue and find that the standards are essentially the same. See, e.g. AZ DNR, Inc., LLC v.
Luxury Travel Brokers, Inc., 2014 U.S. Dist. LEXIS 154881, at *10 n.25 (D. Kan. Sept. 3,
2014). Without doubt, “excusable neglect” under Rule 6(b)(1)(B) is a more stringent
standard than “good cause” under Rule 6(b)(1). Abraham v. WPX Energy Prod., LLC, 2013
U.S. Dist. LEXIS 156743, at *16 (D.N.M. Oct. 21, 2013). The Court believes that Rule
16(b)(4)’s good cause standard is more onerous – at least in the Seventh Circuit because the
focus is solely on diligence. The Court also believes that an important distinction exists
between “excusable neglect” under Rule 6 and “good cause” under Rule 16(b)(4). This
distinction can be case dispositive – again, at least in the Seventh Circuit. As discussed
later, “good cause” under Rule 16(b)(4) looks to the movant’s diligence. But “excusable
neglect” includes other factors, including the prejudice to the non-movant, which provide an
escape hatch for the movant. A movant could dawdle during discovery (evidencing a lack of
diligence) but that slothfulness may not harm the non-movant (lack of prejudice). As a
result, in this Court’s view, although Rule 6’s “excusable neglect” standard incorporates
more factors, those factors give the movant more wiggle room to obtain relief from
deadlines.
9

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a proper consideration under Rule 16(b)(4)’s “good cause” standard. Most other
circuits agree with the Seventh Circuit. These circuits likewise focus on the
movant’s diligence. See, e.g., Race Tires America, Inc. v. Hoosier Racing Tire Corp.,
614 F.3d 57, 84 (3rd Cir. 2010) (“Rule 16(b)(4) focuses on the moving party’s burden
to show due diligence.”); Steir v. Girl Scouts of the USA, 383 F.3d 7, 12 (1st Cir.
2004) (focus on diligence of movant rather than prejudice to non-movant); Parker v.
Columbia Pictures, Indus., 204 F.3d 326, 339-40 (2nd Cir. 2000); Sosa v. Airprint
Systems, Inc., 133 F.3d 1417, 1419 (11th Cir. 1998); Johnson v. Mammoth
Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992) (“If [a] party was not diligent,
the [good cause] inquiry should end.”). Although some circuits also consider the
prejudice to the non-moving party, that consideration is secondary. See, e.g.,
Sherman v. Winco Fireworks, Inc., 532 F.3d 709, 716-17 (8th Cir. 2008) (only if
movant meets diligence standard does court consider prejudice to non-movant);
Leary v. Daeschner, 349 F.3d 888, 906 (6th Cir. 2003) (primary focus is diligence but
prejudice to non-movant is a “relevant consideration”). The movant bears the
burden to establish its diligence. Trustmark Ins. Co. v. Gen. & Cologne Life, 424
F.3d 542, 553 (7th Cir. 2005); Graham v. Progressive Direct Ins. Co., 271 F.R.D. 112,
118 (W.D. Pa. 2010) (“Rule 16(b)(4) requires that the moving party demonstrate
‘good cause’ prior to the Court amending its scheduling order. . .”); see also 360
Mortgage Group, LLC v. Stonegate Mortgage Corp., 2015 U.S. Dist. LEXIS 65956, at
*6 (E.D.N.C. May 20, 2015); Mt. Mktg. Group, LLC v. Heimerl & Lammers, 2015
U.S. Dist. LEXIS 56056, at *6 (D. Minn. Apr. 29, 2015); Grasso v. Consolidated Rail
Corp., 2013 U.S. Dist. LEXIS 86738, at *9 (D.N.J. June 20, 2013).
If the Court were to apply Rule 16(b)(4), plaintiff would not prevail. She has
not shown diligence and, thereby, has not established diligence.
To begin, plaintiff’s counsel voiced no concern on September 9, 2014, when
the Court set the October 14, 2014, deadline. In fact, plaintiff’s counsel implied that
the deadline would be met without much difficulty. Diligent counsel would have
known of possible problems at that time; and if problems existed, diligent counsel
would have brought those problems to the attention of the Court before the
expiration of the deadline. Sometime between September 9 and October 14, 2014,
plaintiff’s counsel realized he would be unable to meet the October 14, 2014,
deadline to disclose expert witnesses. But he waited until more than a week later to
raise the issue with defense counsel. After they rejected his requests to seek an
agreed extension, plaintiff’s counsel then did nothing to alert the Court until nearly
a week after defendants’ Motion to Bar – filed months later. A party cannot
establish diligence where that party has failed to timely alert the Court when it
knows it will be unable to meet the deadline. See Tetzlaff v. Educ. Credit Mgt.
Corp., 521 B.R. 875, 8790 (E.D. Wisc. 2014). Counsel’s excuses for not timely
disclosing experts – lack of funds and poor communications with his clients – did
not prohibit him from seeking an extension before the deadline had already passed
and, in fact, should have been the basis for such a motion. Plaintiff’s lack of
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diligence continued when counsel did not attend the presentment of the Motion to
Bar on January 27, 2015, or in any other way apprise the Court of any argument
against the motion.
Moreover, a party cannot establish diligence based solely on its conduct after
being alerted that it missed a deadline. See Beauchamp v. City of Dixon, No. 11 CV
50121, 2014 WL 901437, at *3 (N.D. Ill. Mar. 7, 2014) (“a party cannot establish
diligence based solely on its conduct after being alerted to its failure to meet a court
deadline.”). Although counsel describes efforts to procure experts before and in the
months following the disclosure deadline, such as engaging search firms, seeking
loans, and hiring three of the experts, he has presented no evidence in the form of
documents or affidavits to support those assertions. And his own exhibits
demonstrate that the earliest any expert began working was on January 21, 2015,
when Dr. Gourang Patel billed for 2.5 hours of research on the day before defense
counsel filed the Motion to Bar. Dkt. 257 Ex. 4 at 7. The only other invoice
submitted shows that Dr. Vinaya Puppala started working March 7, 2015. Dkt. 257
Ex. B at 7. Furthermore, plaintiff counsel’s frenetic efforts following the Motion to
Bar are inconsistent with counsel’s representations to the Court when it set the
deadlines. In addition, the Motion to Extend demonstrates the lack of diligence in
its preparation. As Judge Kapala noted, the motion made no effort to explain the
90-day delay in seeking an extension, counsel’s failure to attend the January 27,
2015, hearing, or to set out any discussion of the pertinent legal requirements to
modify a scheduling order. Dkt. 253, p. 2.
The Court does not address prejudice under Rule 16(b)(4) for at least two
reasons. First, the Seventh Circuit has never held that prejudice is a proper
consideration under this rule. Second, even in those circuits where prejudice can be
considered, it is a secondary issue. Even if this Court were to consider prejudice, as
shown throughout this order, the Court would find that defendants suffered at least
some prejudice based on plaintiff’s lack of diligence.
For these reasons, if the Court were to apply Rule 16(b)(4), plaintiff’s Motion
to Extend would be denied, and defendants’ Motion to Bar would be granted.
However, the Court does not believe that Rule 16(b)(4) applies under the
circumstances here; namely, the failure to disclose a retained expert witness under
Rule 26(a).
The Court chooses to rely on Rule 37(c) for four reasons. First, the text of
Rules 26 and 37 suggest that Rule 37 is the more applicable rule. Rule 26(a)(2)(D)
provides the time for disclosing retained expert opinions: “A party must make these
disclosures at the times and in the sequence that the court orders.” Fed. R. Civ. P.
26(a)(2)(D). Building upon Rule 26(a)(2)(D), Rule 37(c)(1) states that if a party fails
to identify a witness as required by Rule 26(a) – which is what happened here – the
party cannot use the witness, absent substantial justification or lack of harm. Fed.
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R. Civ. P. 37(c)(1). Second, Rule 37 is the more specific provision. Rule 37(c)(1)
specifically addresses the failure to identify a witness as required by Rule 26(a),
precisely the issue here. Fed. R. Civ. P. 37(c)(1). Third, case law supports reliance
on Rule 37(c) as the basis for the sanctions. These cases often cite to, and to some
extent rely upon Rule 16, but their primary focus and ultimate rationale is Rule 37.
See, e.g., Wong v. Regents of the University of California, 410 F.3d 1052, 1062 (9th
Cir. 2005); Schardine v. Fleming, 2014 U.S. Dist. LEXIS 88046, at *5-8 (D. Mon.
June 26, 2014) (relying on Wong); Ratcliff v. City of Red Lodge, 2013 U.S. Dist.
LEXIS 155021, at *7-9 (D. Mon. Oct. 29, 2013) (relying on Wong); see also
Firefighters’ Institute for Racial Equality v. City of St. Louis, 220 F.3d 898, 902 (8th
Cir. 2000); Trost v. Trek Bicycle Corp., 162 F.3d 1004, 1008-09 (8th Cir. 1998).
Fourth, no case law exclusively relies on Rule 16’s “good cause” standard under
these circumstances. Defendants did not cite to any case involving the failure to
timely disclose an expert witness that relied exclusively on Rule 16, and the Court
was unable to locate any case. See Carrillo v. Schneider Logistics Inc., 2013 U.S.
Dist. LEXIS 173178, at *26 n.1 (C.D. Cal. Dec. 6, 2013) (explicitly refusing to rely
upon Rule 16(b)(4) and instead relying upon Rule 26(a) and Rule 37(c)(1)).
Federal Rule of Civil Procedure 37
Under Federal Rule of Civil Procedure 37(c), if “a party fails to provide
information or identify a witness as required by Rule 26(a) or (e), the party is not
allowed to use that information or witness to supply evidence on a motion, at a
hearing, or at trial unless the failure was substantially justified or is harmless.”
Fed. R. Civ. P. 37(c). The party seeking relief from Rule 37(c)’s presumed preclusion
bears the burden of establishing that the failure was substantially justified or
harmless. Finwall v. Chicago, 239 F.R.D. 494, 503 (N.D. Ill. 2006).
The determination whether a Rule 26(a) violation is justified or harmless is
left to the discretion of the district court. See David v. Caterpillar, Inc., 324 F.3d
851, 857 (7th Cir. 2003). That another court faced with the same facts might have
selected a lesser or greater sanction does not mean that the sanctioning court
abused its discretion. Harriman v. Hancock County, 627 F.3d 22, 32 (1st Cir. 2010).
The Seventh Circuit has identified the following relevant factors to use when
evaluating whether a failure to disclose was substantially justified or harmless: “(1)
the prejudice or surprise to the party against whom the evidence is offered; (2) the
ability of the party to cure the prejudice; (3) the likelihood of disruption to the trial;
and (4) the bad faith or willfulness involved in not disclosing the evidence at an
earlier date.” Tribble v. Evangelides, 670 F.3d 753, 760 (7th Cir. 2012). 10
The Court notes that Rule 37(c) speaks of “harmless,” whereas the factors discuss
“prejudice.” But “harmless” and “prejudice” are just two different sides of the same coin.
These concepts are the same, just viewed from a different perspective. Cf. U.S. v. Olano,
507 U.S. 725, 734-35 (1993) (holding that under plain error review, the question of
prejudice is the same as the harmless error analysis); Byrd v. Workman, 645 F.3d 1159,

10

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There is no doubt that the Seventh Circuit has repeatedly articulated these
factors for determining whether to bar evidence under Rule 37(c). See, e.g., David v.
Caterpillar, Inc., 324 F.3d 851, 857 (7th Cir. 2003); Keach v. U.S. Trust Co., 419
F.3d 626, 640 (7th Cir. 2005). And, not surprisingly, the district courts have applied
these factors. See, e.g., Patel v. Menard, Inc., 2011 U.S. Dist. LEXIS 100826, at *6
(S.D. Ind. Sept. 7, 2011); Rowe Int’l Corp. v. Ecast, Inc., 586 F. Supp. 2d 924, 934-35
(N.D. Ill. 2008). But this Court notes that these factors focus on the
harmless/prejudice component of Rule 37(c), not the “substantially justified”
component. Perhaps these factors have simply developed because movant’s more
often assert a lack of harm rather than substantial justification.
In this case, plaintiff’s counsel has not established that his failure was
substantially justified. Counsel offers a blunderbuss of reasons why his failure was
substantially justified: plaintiff’s mental state; the lack of funds to hire experts; and
plaintiff counsel’s busyness, purported illness and belief that he might have been
terminated. In the context of this case, these reasons do not establish substantial
justification. Initially, as noted repeatedly throughout this order, plaintiff’s counsel
failed to mention any of these issues to the Court either when it set the schedule or
at any time before the deadlines expired. Indeed, plaintiff’s counsel represented to
the Court that the experts would be disclosed in a timely manner, and he recognized
that the Court stated it was not inclined to extend the dates. When the Court set
the schedule, counsel knew of plaintiff’s mental state, his own workload and the
availability of funds (or lack thereof). Furthermore, context matters in at least two
ways. First, plaintiff did not miss the deadline by a few days or weeks; plaintiff
missed the deadline by months. And during those two months, plaintiff never once
informed the Court of these issues. It appears that plaintiff knew that the deadline
would be missed before it expired. However, plaintiff failed to file a motion before
the deadline, contrary to this Court’s standing orders requiring motions for
extensions to be filed before the expiration of a deadline. Second, throughout the
course of the litigation, plaintiff has been less than diligent, and has failed to meet
other deadlines and comply with other court orders.
Turning to the harmless/prejudice component of Rule 37(c), the Court finds
some prejudice to not only defendants, but also to the Court and the other litigants
who have had their cases delayed because of plaintiff’s failure to meet deadlines.
The Court addresses the four factors identified by the Seventh Circuit in turn, and
then addresses the sanction of preclusion when it may be case dispositive.
Prejudice or Surprise to the Non-moving Party

1167 n. 9 (10th Cir. 2011) (“Strickland prejudice and Brecht harmless error are essentially
the same standard.”).

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Defendants contend that they will be prejudiced if plaintiff is allowed to use
her expert witnesses because (1) the time to file dispositive motions will be delayed
even further, and (2) they will now be forced to depose plaintiff’s experts and obtain
their own when “[h]ad Plaintiff complied with the Court’s schedule, such costs
would have been avoided.” Dkt. 256. As noted above, the Court delayed summary
judgment briefing that defendants sought to accommodate plaintiff’s plan to
disclose experts. Because of plaintiff’s failure, the dispositive motion date will be
further delayed.
As for defendants’ argument that they will also be prejudiced by the need to
evaluate plaintiff’s experts and hire their own, that argument is not overly
persuasive. Plaintiff made no secret of her intent to hire expert witnesses as
evidenced by the fact that the Court delayed dispositive motions and instead set a
schedule for expert discovery, including the disclosure and deposition of both
plaintiffs’ and defendants’ experts. Had plaintiff timely disclosed her experts,
defendants would still have faced the decision whether to depose those experts and
obtain their own. Defendants note that in Yeoman v. Ikea USA West, Inc., No. 11
CV 701, 2013 WL 3467410 (S.D. Cal. July 10, 2013), the court barred expert
witnesses because it would force the defendants to review the plaintiff’s expert
reports, depose the expert, and obtain their own experts. Id. at *5. But Yeoman is
distinguishable because in that case, the plaintiff’s desire for more experts came as
a surprise six months after the expert disclosure deadline. Id.. Here, as mentioned
above, defendants have long known that plaintiff intended to disclose numerous
expert witnesses.
The Ability of the Party to Cure the Prejudice
The Court must consider plaintiff’s ability to cure the prejudice faced by
defendants. As noted above, the Seventh Circuit urges district courts to consider
alternate sanctions under Rule 37(c), such as a monetary sanction when exclusion
could be outcome determinative. Musser v. Gentiv Health Servs., 356 F.3d 751, 760
(7th Cir. 2004); Beauchamp, 2014 WL 901437, at *7-8 (awarding fees and costs
rather than excluding expert witnesses). In addition to the delay in filing
dispositive motions, defendants argue they were also prejudiced by the expenses
necessitated by briefing and appearing in court on defendants’ Motion to Bar and
plaintiff’s Motion to Extend (as the Court explained above, defendants faced the
costs to review the plaintiff’s expert reports, depose the experts, and to obtain their
own even if plaintiff timely disclosed her experts, and therefore are not within the
prejudices suffered). Plaintiff’s counsel argues that because exclusion would be
outcome determinative, the appropriate sanction “would be to allow the case to be
decided on its merits and to order Plaintiff to pay reasonable expenses and
attorney’s fees to Defense counsel for the time it took to prepare the motion and the
time it took to appear in Court.” Dkt. 257, p. 15. Defendants do not address the
Court’s need to consider sanctions short of exclusion, and therefore offer no
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argument that an award of costs and fees would be an inadequate sanction or fall
short of curing their prejudice.
Likelihood of Disruption of the Trial
Plaintiff musters up much temerity with regard to the disruption of the trial
factor. Plaintiff argues “the trial date of this case will not be disrupted because no
trial date nor summary judgement motion dates have been set and Defendants will
have all the time that they seek to prepare their defense and against Plaintiff’s
expert witnesses.” Dkt. 257, p. 11. It is technically true that no trial date and no
summary judgment date have been established. But what plaintiff fails to
recognize is that no trial date and dispositive motion date have been set because
plaintiff has failed to meet the Court’s deadlines. It is common knowledge, a matter
of local rule and established practice that in the Western Division of the Northern
District of Illinois the magistrate judge handles all pretrial matters and that upon
completion of discovery and the final pretrial conference, the case is transferred to
the district judge who sets a trial date. Thus, the trial date is contingent upon
meeting the discovery dates established by the magistrate judge. Similarly, the
summary judgment date is likewise contingent on the parties meeting the discovery
cut-off dates. Meeting discovery dates is a necessary precondition to setting a trial
date. Moreover, asserting that defendants will have all the time they need is very
presumptuous, particularly coming from a litigant with a habit of failing to meet
deadlines. Further, the lack of a trial date is not a good reason for failing to comply
with court ordered deadlines. Hard Surface Solutions, Inc. v. Sherwin-Williams
Co., 271 F.R.D. 612, 617 (N.D. Ill. 2010) (“It is no answer to say the trial date has
not been set.”). This factor weighs against plaintiff.
Bad Faith or Willfulness in Failing to Meet Deadline
As discussed earlier, the Court has no basis for concluding that plaintiff
purposefully withheld disclosing experts to disrupt the case. However, plaintiff’s
counsel did not advise the Court when he first learned he could not timely disclose
plaintiff’s experts or their reports and, rather, waited months until defendants
raised the issue. Moreover, the Court relies on counsel to be forthright when it
schedules deadlines. When this Court set the October 14, 2014 date to disclose
experts, plaintiff’s counsel indicated that the deadline would be met and that the
experts would be “ready to go.” Those representations are difficult to square with
the representations now presented to the Court for missing the deadline by months.
Accordingly, the Court’s evaluation of the good faith factor weighs in favor of
barring plaintiff’s use of the expert witnesses.
Dispositive Nature of Preclusion Order

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In exercising its extraordinary discretion to impose sanctions, courts must
adhere to the doctrine of proportionality, and sound legal principles. Cleversafe,
Inc. v. Amplidata, Inc., 2014 U.S. Dist. LEXIS 79278, at *6 (N.D. Ill. June 11, 2014);
New Medium Technologies LLC v. Barco N.V., 242 F.R.D. 460, 463 (N.D. Ill. 2007).
Moreover, the Court must also be mindful that justice is best served by resolving
cases on their merits. Musser, 356 F.3d at 759.
Accordingly, the Seventh Circuit case law has added another factor for courts
to consider if a preclusion order would essentially be outcome determinative.
When barring a witness would deny a party the ability to prove its case, the
sanction “must be one that a reasonable jurist, apprised of all the circumstances,
would have chosen as proportionate to the infraction.” Sherrod v. Lingle, 223 F.3d
605, 612 (7th Cir. 2000) (quoting Salgado v. General Motors Corp., 150 F.3d 735,
740 (7th Cir. 1998)). Therefore, the Seventh Circuit urges courts to consider “the
alternate sanctions available [under Rule 37(c)] when imposing exclusionary
sanctions that are outcome determinative.” Musser, 356 F.3d at 760.
Plaintiff contends that if this Court were to preclude the experts, he would
not be able to prevail, arguing that a preclusion order would be tantamount to a
dismissal order. Dkt. 257, p. 11. Cases involving deliberate indifference,
particularly against medical professionals, often – but not always – require expert
testimony. Here, defendant Dr. Cullinan seems to recognize that without expert
testimony, plaintiff’s claim against him would be doomed. Dkt. 255, p. 10. One of
plaintiff’s late identified experts opines against defendant Mongan, a nurse. Dkt.
257, Ex. E. Without that opinion, summary judgment in favor of defendant Mongan
seems likely. Although an expert opinion is not as critical to the remaining
defendants (Ogle County, Wendy Kerwin, and Gregory A. Beitel), plaintiff’s claim
against these defendants is substantially less likely to survive summary judgment.
After carefully balancing the factors relevant to whether the failure to timely
disclose experts was substantially justified or harmless, including the preference for
sanctions proportionate to the harm and for deciding cases on the merits, and in an
exercise of discretion, the Court reluctantly will not preclude plaintiff’s use of the
identified experts. Instead, this Court finds that in this case, an award of fees and
costs would be the more appropriate sanction for plaintiff’s discovery violation.
The Court pauses to acknowledge three matters. First, the Court recognizes
that its recommendation has changed from the sanction of exclusion originally
proposed to the district court. See Dkt. 241. However, the original recommendation
was made after plaintiff’s counsel failed to appear to express any opposition to
defendants’ Motion to Bar and in the absence of any report when or if expert reports
would be filed or even whether plaintiff still intended to proceed with expert
witnesses. In light of Judge Kapala’s recommittal of the original Report and
Recommendation, the Court makes this revised recommendation with the benefit of
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plaintiff’s views and after counsel has now attached the expert reports to the
supplemental brief. Second, the Seventh Circuit’s added consideration that courts
be especially cautious when precluding expert witnesses causes odd results and
perverse incentives. By considering this factor, courts are more likely to forgive
parties and attorneys who commit extreme blunders compared to other litigants
who commit less egregious errors. 11 Third, relying upon Rule 37 – rather than Rule
16(b)(4) – runs contrary to the host of case law stating the importance of scheduling
orders and meeting the dates contained in those orders. But this Court is not at
liberty to re-write the Federal Rules of Civil Procedure.
Accordingly, it is this Court’s Report and Recommendation that the district
court enter the following: (1) plaintiff may proceed with the expert witnesses whose
reports are attached to plaintiff’s supplemental brief, Dkt. 257; (2) plaintiff is
restricted to the reports previously served and the Court expresses no opinion as to
whether the reports satisfy the requirements of Rule 26(a)(2)(B); (3) plaintiff must
make her experts available to be deposed by defendants no later than August 26,
2015; (4) all of this is conditioned on plaintiff paying the fees and costs incurred by
all defense counsel in doing the following: (a) filing, briefing, and appearing in court
on defendants’ Motion to Bar; (b) briefing and appearing in court on plaintiff’s
Motion to Extend; and (c) briefing the supplemental briefs filed after the district
court recommitted the Report and Recommendation to this Court. Failure to pay by
August 19, 2015, risks establishing that an award of fees and costs is an inadequate
sanction. By July 29, 2015, defendants shall provide to plaintiff’s counsel the billing
records for the costs and fees they seek. Counsel are strongly urged to work
together to resolve any disputes over fees. If disputes cannot be resolved, by August
7, 2015, the parties shall file a joint statement identifying only those portions of the
requests for fees and costs that cannot be resolved and detailing each party’s
position supported by citations to authority.
Motion for Voluntary Dismissal
Also before the Court is plaintiff’s Motion for Voluntary Dismissal. Dkt. 236.
The Court heard argument on the motion during its presentment on February 12,
2015, and the only dispute is over whether the dismissal is without or with
prejudice. The Court proposed that the dismissal be without prejudice conditioned
on plaintiff’s payment of fees and costs those defendants incurred here if plaintiff
See Esposito v. Home Depot U.S.A., Inc., 590 F.3d 72, 86 (1st Cir. 2009) (Woodcock, J.,
dissenting) (“Ironically, under the majority’s formulation, the sanction of exclusion will end
up being applied only when it does not really matter and not imposed when it does. It
would seem the obverse should be the case: If the witness is critical, the proponent has a
compelling incentive to comply with the deadlines precisely because the exclusion will mean
more.”). This Court is not at liberty to disregard the Seventh Circuit’s admonition to
consider a lesser sanction when preclusion would be case determinative, but tends to agree
with Judge Woodcock.

11

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refiles elsewhere. Defense counsel responded “[t]hat would probably be acceptable
to us,” and plaintiff’s counsel responded, “I would concur.” Accordingly, it is this
Court’s further Report and Recommendation that the claims against the Healthcare
Defendants be dismissed without prejudice on the condition that plaintiff pay those
defendants’ reasonable fees and costs incurred in defending this action if the claims
against them are refiled, and that defendants may petition the Court to enforce this
order. Plaintiff must file an objection to this condition with the Court by July 29,
2015 if it rejects this condition. If plaintiff fails to file an objection to this condition
by that date, the Court will assume that plaintiff has no objection and the claims
against the Healthcare Defendants will be dismissed without prejudice.
Motion for Summary Judgment
On May 5, 2015, the Healthcare Defendants filed the gratuitous Summary
Judgment Motion, while this Court was still determining the other motions. Dkt.
261. The filing of the Summary Judgment Motion was bizarre. The Court is baffled
why the Summary Judgment Motion was filed. The Court had not yet established
dispositive motion dates, plaintiff had already filed her Motion for Voluntary
Dismissal, and during the February 12, 2015, argument plaintiff essentially agreed
to pay their fees and costs if she re-filed the claims against them. The Summary
Judgment Motion was unnecessary, and only served to complicate this case and add
to the Court’s work load. The Court recommends that the Summary Judgment
Motion be denied without prejudice. The Court will also not require plaintiff to pay
any fees the Healthcare Defendants incurred in filing this motion.
CONCLUSION
The Motion to Extend and the Motion to Bar are both granted, in part, and
denied, in part. Plaintiff is not barred from using the identified expert witnesses.
However, plaintiff may only use those expert witnesses if he pays the fees and costs
identified in this order.
It is the Court’s Report and Recommendation that the Motion for Voluntary
Dismissal be granted. The dismissal is without prejudice, but conditioned upon
plaintiff’s payment of all fees and costs incurred as of February 10, 2015, in
defending this case, if plaintiff refiles against any of the Healthcare Defendants.
Plaintiff is given until July 29, 2015, to accept this condition. If plaintiff fails to
object to this condition, then the Court will assume that plaintiff accepts this
condition under Rule 41.
It is the Court’s Report and Recommendation that the Summary Judgment
Motion be denied as moot.

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All objections to any aspect of this order must be filed by July 29, 2015.
The case is set for telephonic status on August 4, 2015 at 9:00 a.m. By July 31,
2015, counsel shall provide telephone numbers for the status hearing to the Court’s
operations specialist, who will initiate the call.

Date: July 14, 2015

By: _______________________________
Iain D. Johnston
United States Magistrate Judge

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