McDaniel-Sharp v. Wal-Mart Stores, Inc.

Filing 54

MEMORANDUM AND ORDER that Wal-Mart Stores, Inc.'s Motion for a Modification of the Scheduling Order and Extension of Time for the Designation of Dr. Bernhardt's Deposition 49 is granted. IT IS FURTHER ORDERED that the scheduling order is modified to reflect an extension of time for the designation of Dr. Bernhardt's deposition testimony to February 26, 2013, and the deadline for counter-designations and objections to March 1, 2013. Signed by District Judge Carlos Murguia on 2/8/2013. (mh)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
BARBARA McDANIEL-SHARP,

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Plaintiff,
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v.
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WAL-MART STORES, INC.,
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Defendant.
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__________________________________________)

Case No. 11-2518-CM

MEMORANDUM AND ORDER
This matter is before the court on defendant Wal-Mart Stores, Inc.’s motion for a modification
of the scheduling order and extension of time for the designation of Dr. Bernhardt’s deposition (Doc.
49). Defendant asks that the time for designation of Dr. Berhnardt’s deposition be extended to
February 26, 2013, and the deadline for counter-designations and objections be extended to February
28, 2013. Plaintiff filed a response opposing defendant’s motion.
This case is set for trial on the court’s March 4, 2013 trial docket. Defendant’s designated
expert, Dr. Bernhardt, was expected to be at trial and to testify regarding plaintiff’s physical condition,
injuries, causation, and damages. Defendant’s motion states that Dr. Bernhardt is a material witness
and has an unexpected and unavoidable conflict with the week of March 4, 2013. This conflict will
force defendant to be out of the country and will preclude him from testifying in court.
Under the current scheduling order (Doc. 20), the deadline for completion of discovery in this
case was May 14, 2012. The scheduling order also states that deposition designations must be
completed and filed by twenty-one days before trial, or February 11, 2013. Counter-designations and
objections are due by fourteen days before trial, or February 18, 2013. Defendant states that Dr.
Bernhardt is available for videotaped trial deposition on February 22, 2013. Defendant thus asks to

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depose Dr. Bernhardt pursuant to Local Rule 30.3, and asks for an extension of the deadlines for
designations, counter-designations, and objections to Dr. Bernhardt’s deposition testimony.
Plaintiff’s counsel argues that defendant’s proposed extension—and the fact that plaintiff’s
counsel would have only two days to review the transcript and the designations to make counterdesignations and objections—imposes a hardship upon plaintiff’s counsel.
Local Rule 30.3 states the general rule that “[t]he deposition of a material witness not subject
to subpoena should ordinarily be taken during the discovery period.” Under Federal Rule of Civil
Procedure 16(b)(4), the court may modify a scheduling order only for good cause. Under Local Rule
30.3, there is a presumption of good cause for altering a deadline on depositions. Sithon Maritime Co.
v. Holiday Mansion, No. 96-2262-KHV, 1999 WL 66216, at *2 (D. Kan. Feb. 8, 1999). This
presumption arises when a material witness has agreed to appear for trial, but later becomes
unavailable or refuses to attend. Id. Further, “[a] party can generally show good cause to modify a
scheduling order . . . when it is ‘necessary to depose a potential witness whose testimony may not
otherwise be obtainable for trial.’” Id. (quoting Dixon v. Certainteed Corp., No. 94-2310-GTV, 1996
WL 635781, at *1 (D. Kan. Oct. 29, 1996)).
In this case, Dr. Bernhardt is a material witness, had agreed to attend trial to testify, and is now
unavailable to do so. Thus, the presumption of good cause applies and defendant’s motion to modify
the scheduling order and for an extension of time is granted. The court does not find that plaintiff’s
counsel will suffer any hardship by this decision. However, the court will extend the deadline for
designation of Dr. Berhnardt’s deposition to February 26, 2013, and give plaintiff an extra day beyond
the extension requested by defendant, to March 1, 2013, to make counter-designations and objections.

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IT IS THEREFORE ORDERED that Wal-Mart Stores, Inc.’s Motion for a Modification of
the Scheduling Order and Extension of Time for the Designation of Dr. Bernhardt’s Deposition (Doc.
49) is granted.
IT IS FURTHER ORDERED that the scheduling order is modified to reflect an extension of
time for the designation of Dr. Bernhardt’s deposition testimony to February 26, 2013, and the
deadline for counter-designations and objections to March 1, 2013.
Dated this 8th day of February, 2013, at Kansas City, Kansas.
_s/ Carlos Murguia______________________
CARLOS MURGUIA
United States District Judge

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