Harmon v. Green-Taylor Water District et al

Filing 24

MEMORANDUM OPINION AND ORDER by Magistrate Judge H. Brent Brennenstuhl on 8/13/2018 denying 20 Motion to Amend Scheduling Order cc: Counsel(JWM) Modified to edit text on 8/13/2018 (JWM).

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
BOWLING GREEN DIVISION
CIVIL ACTION NO. 1:17-CV-00071-GNS
DEWAYNE HARMON

PLAINTIFF

VS.
GREEN-TAYLOR WATER DISTRICT, et al.

DEFENDANTS

MEMORANDUM OPINION
AND ORDER
Before the Court is the motion of Plaintiff Dewayne Harmon for an extension of time in
which to identify an expert witness, DN 20. Defendants have responded in opposition at DN 21
and Harmon has replied at DN 22.
Nature of the Case
On April 4, 2017 Harmon filed his complaint in state court. His complaint alleges that he
was an employee of Defendant Green-Taylor Water District and that his termination from
employment violated 42 U.S.C. § 1983, his rights under the First Amendment to freedom of speech
and Kentucky’s Whistleblower Act (DN 1-2). On April 19, 2017 the Defendants removed the
action to this court.
On June 20, 2017 the parties jointly submitted their Rule 26 meeting report and proposed
case scheduling deadlines (DN 11). Following a telephonic conference with the parties during
which they discussed the schedule, the Court entered the scheduling order as proposed (DN 12).
The order established a January 1, 2018 deadline for Harmon’s identification of expert witnesses.

The Defendants were to identify their experts on March 1, 2018 and all discovery, both fact and
expert, was to be concluded no later than August 1, 2018.
Harmon’s Motion
On June 19, 2018, some five and one-half months after the deadline for his identification
of expert witnesses, Harmon filed the subject motion requesting an extension of the deadline.
Harmon states that it was his “intent to testify concerning his damages related to the lost retirement
benefit and the early retirement he was required to take. This was the basis of plaintiff’s calculation
and thus, no expert was identified prior to the deadline of January 2, 2018 per the Scheduling
Order” (DN 20, p. 1). Harmon goes on to explain that he participated in a settlement conference
with the undersigned on April 24, 2018, at which time “the computation of plaintiff’s
compensatory damages, including his lost wages and early retirement buyout were called into
question” (Id.). Harmon states that he subsequently consulted with David Anderson, Ph.D., an
expert on lost wage calculation, and obtained a report. The report attached as an exhibit to the
motion is dated June 19, 2018, the same day the motion was filed (DN 20-2). Harmon asks that
the scheduling order be amended to allow him to identify Dr. Anderson as an expert on damages.
Defendants’ Response
Defendants note that Harmon’s complaint includes a claim for lost retirement benefits
associated from his termination from employment. They state that Harmon’s retirement benefits
are governed by the Kentucky Retirement Systems and his computation of damages includes the
economic loss associated with an early buyout as well as the difference in benefits due to early
retirement. They contend the calculation requires reduction to present value, a matter usually
requiring expert opinion. Defendants argue that “the need for an expert to identify retirement
benefits has also been clear from the outset of the case” (DN 21, p. 4). Defendants state that the

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case has now been pending for over a year, yet Harmon has not taken any depositions. Although
Harmon claims to have learned that he would need an expert because of the settlement conference
in April, Defendants note that he waited an additional two months to request an extension of the
expired expert identification deadline. This, Defendants contend, fails to demonstrate diligence in
Harmon’s pursuit of the case.
Harmon’s Reply
Harmon appears to fault the Defendants for not providing him with responses to written
discovery “which includes a request for plaintiff’s entire personnel file, board minutes, and other
documents identified in the defendants’ initial disclosure which would greatly impact whether the
plaintiff will need to take any additional fact discovery or depositions” (DN 22, p. 2).
Harmon next appears to fault the scheduling order for setting the deadline for his
identification of experts before the deadline for discovery, arguing that “as the case progressed
through seven months of discovery [following the expert identification deadline] . . . the need for
expert testimony, even while exercising due diligence, could become apparent during the seven
months of fact discovery following the expert witness deadline” (DN 22, p. 3).
Harmon argues that these factors demonstrate that he could not, in the exercise of diligence,
determine the need for an expert before the identification deadline expired.
Discussion
Harmon seeks to have the scheduling order amended so as to extend his date for identifying
an expert witness. Fed. R. Civ. P. 16(b)(4) provides that a schedule “may be modified only for
good cause and with the judge’s consent.” “‘The primary measure of [Civil] Rule 16’s ‘good
cause’ standard is the moving party’s diligence in attempting to meet the case management order’s
requirements,’ though courts may also consider prejudice to the nonmoving party.” Smith v.

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Holston Med. Grp., P.C., 595 F. App’x 474, 478 (6th Cir. 2014) (quoting Inge v. Rock Fin. Corp.,
281 F.3d 613, 625 (6th Cir. 2002)). The Court must first find that the moving party proceeded
diligently before considering whether the nonmoving party is prejudiced, and only then to ascertain
if there are any additional reasons to deny the motion. Id. at 479. The “good cause” standard
“primarily considers the diligence of the party seeking the amendment. In other words, in order
to demonstrate ‘good cause’ a party must show that despite their diligence the time table could not
reasonably have been met.” Woodcock v. Kentucky Dept. of Corr., No. 5:12-CV-00135-GNSLLK, 2016 WL 3676768, at *2 (W.D. Ky. July 6, 2016) (quoting Tschantz v. McCann, 160 F.R.D.
568, 571 (N.D. Ind. 1995)).
Here, Harmon has failed to demonstrate that he was unable to meet the deadline established
in the scheduling order for identifying an expert witness. On October 23, 2017, prior to his
deadline for identifying experts, he responded to Defendants’ interrogatory asking for a calculation
of his damages claims. He provided a calculation as “Future lost wages - $98,920.80: $421.17 per
month in retirement benefits for a period of 20 years ($4,946.04 per year x 20 years = $98,920.80).
Which does not include the cost of living increase” (DN 21-1, p. 3). Yet, when asked to identify
his expert witnesses, he simply responded “Will supplement” (Id. at p. 2). When asked to produce
any file maintained by any retained expert, Harmon responded “None” (Id. at p. 8). He concedes
in his motion that, from the outset of the case, it was his intention to personally provide the
testimony in support of his lost wage and retirement benefits claims (DN 20, p. 1).
Harmon complains that the deadline for his identification of expert witnesses preceded the
discovery deadline. As an initial observation, the schedule the Court implemented was the
schedule to which the parties agreed between themselves during the Rule 16 conference and which
they jointly proposed to the Court. Harmon cannot now complain that he is dissatisfied with the

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schedule which he proposed, and the Court adopted. See Bazini v. Advanced Adhesive Techs.,
No. 3:95-CV-22RM, 1996 U.S. Dist. LEXIS 16806, at *7-8 (N.D. Ind. June 27, 1996) (Party
cannot agree to early deadline for identification of expert witness and then argue that the deadline
was too early.). Moreover, Harmon has not demonstrated that he learned anything in discovery
conducted since the expert identification deadline expired which revealed the need for an expert
witness. He states in his reply that the need to identify an expert could become apparent in
discovery after the deadline expired. He does not establish, however, that discovery after the
deadline did cause the need for an expert to become apparent. To the contrary, he admits that
discussions with the undersigned during the settlement conference caused him to question the
prudence of relying solely on his own testimony to establish his economic damages in the case.
This is a belated change in strategy, not newly discovered evidence.
Harmon’s complaint that he is still owed discovery from the Defendants also fails to
provide a basis upon which to justify amending the scheduling order. While he contends that the
information he requested “would greatly impact whether the plaintiff will need to take any
additional fact discovery or depositions” (DN 22-2), he has not demonstrated that the absence of
this discovery prevented him from securing an expert before the identification deadline expired.
To the contrary, he was able to provide a damages calculation in his answers to interrogatories and
provide sufficient information to Dr. Anderson for him to prepare a report without the documents
requested from the Defendants. Moreover, Harmon never asked the Court for assistance in
obtaining the information by way of a motion to compel and never asked for an extension of the
expert identification deadline until the same day he obtained Dr. Anderson’s report over five
months after the deadline expired.

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In sum, Harmon’s failure to identify an expert witness prior to the deadline is not due to
any inability to obtain information or discovery, nor is it the result of any newly obtained
information since the deadline expired. Harmon made a tactical decision to forego utilizing an
expert to establish his economic damages and to rely on his own testimony. Based upon
conversations at the settlement conference, it appears he now second-guesses the wisdom of that
decision. Whether this was or was not a sound decision remains to be seen but waiting five months
to change course does not demonstrate reasonable diligence.
ORDER
IT IS HEREBY ORDERED that Plaintiff’s motion to amend the scheduling order, DN
20, is DENIED.

August 13, 2018

Copies to:

Counsel of Record

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