Little v. Budd Company, Inc.

Filing 54

MEMORANDUM AND ORDER denying 40 Motion for Leave to Add Expert Witness and to Reopen Discovery for a Limited Purpose. Signed by Magistrate Judge Kenneth G. Gale on 1/3/18. (df)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
NANCY LITTLE, individually and as
personal representative of the
Estate of Robert L. Rabe,

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Plaintiff,
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vs.
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THE BUDD COMPANY, INC.,
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Defendant.
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___________________________________ )

Case No. 16-4170-DDC-KGG

MEMORANDUM AND ORDER
Before the Court is Defendant’s Motion for Leave to Add an Expert Witness
and to Reopen Discovery for a Limited Purpose (Doc. 40). After a careful review
of the submissions of the parties, the Court DENIES the motion.
BACKGROUND
Plaintiff, who is the daughter of decedent Robert Rabe, filed this action in
the District Court of Shawnee County , Kansas, alleging wrongful death and
personal injuries allegedly resulting from exposure to asbestos-containing
products. (See generally Doc. 1-1.) Defendant removed the case to this Court in
November 2016. (Doc. 1.)
The Scheduling Order currently in effect includes an expert disclosure
deadline of September 30, 2017, and a discovery deadline of December 29, 2017.

(Doc. 30.) Defendant served the expert report of Dr. Earl Gregory on September
25, 2017. (Doc. 35.) Defendant filed the present motion on November 15, 2017,
contending that “[i]n the course of developing its case and preparing for trial, [it]
has come to the conclusion that this action will be furthered by retention of an
expert, Louis Burgher, M.D. to discuss the medical state of the art applicable to
this asbestos personal injury action.” (Doc. 40, at 2.)
DISCUSSION
When, as in this case, a party seeks to revise a deadline contained in the
Scheduling Order that has passed, Fed.R.Civ.P. (16)(b)(4) is implicated. The Rule
provides that the Scheduling Order “may be modified only for good cause and with
the judge’s consent.” Denmon v. Runyon, 151 F.R.D. 404, 407 (D. Kan. 1993).

To establish good cause under Rule 16(b)(4), “‘the moving party must show
that the amendment deadline could not have been met even if it had acted with due
diligence.’” Camp v. Gregory, Inc., 12-1083-EFM-KGG, 2013 WL 391172, at *2
(D. Kan. Jan. 30, 2013) (citation omitted). A district court’s determination as to
whether a party has established good cause sufficient to modify a scheduling order
amendment deadline is within the Court’s discretion, and will be reviewed only for
an abuse of discretion. Id.
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The question before the Court is, therefore, whether Defendant could have
met the expert deadline set forth in the Scheduling Order with due diligence. The
deadlines set by the Court in its Scheduling Orders are not merely aspirational.
Rather, the orderly, timely and efficient management of litigation by the Court and
counsel is important to the administration of justice. See Fed.R.Civ.P. 1. Tardy
substantive changes to the Scheduling Order can be unfair, and can cause
substantial delay and expense. Thus, actions beyond those deadlines are only
allowed for good cause.
Simply stated, Defendant has not established good cause. There is no
attempt to establish that Defendant could not have met the deadline with due
diligence. The argument Defendant advances in favor of this motion – that it “has
come to the conclusion that this action will be furthered by retention of an
[additional] expert” – does nothing to assist the Court’s analysis of good cause or
due diligence. There is no showing that Defendant could not – or should not –
have reached this conclusion in a timely manner. In short, a late realization that a
party would benefit from another expert is not “good cause.” Further, “the lack of
prejudice to the nonmovant does not show ‘good cause.” Carefusion 213, LLC v.
Professional Disposables, Inc., No. 09–2616–KHV–DJW, 2010 WL 4004874, at

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*3-4 (D.Kan. Oct. 12, 2010) (internal citations omitted). Defendant’s motion to is,
therefore, DENIED.
IT IS SO ORDERED.
Dated this 3rd day of January, 2018.
S/ KENNETH G. GALE

Kenneth G. Gale
United States Magistrate Judge

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