Brownstein v. Custom Biogenic Systems, Inc. et al

Filing 49

MEMORANDUM OPINION AND ORDER signed by Magistrate Judge Colin H. Lindsay on 4/21/2016. For the reasons set forth, Plaintiff's 35 Motion for an Extension is DENIED WITHOUT PREJUDICE. Counsel to confer as to whether they believe a telephonic status conference and/or settlement conference would be beneficial at this time, and are to contact the case manager by 5/6/2016, to notify her of their conclusions regarding the same. cc: Counsel(RLK)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
LOUISVILLE DIVISION
CIVIL ACTION NO. 3:14-CV-306-CRS-CHL

LORI M. BROWNSTEIN,

Plaintiff,

v.
CUSTOM BIOGENIC SYSTEMS, INC., et al.,

Defendants.

MEMORANDUM OPINION AND ORDER
Before the Court is the motion of Plaintiff Lori M. Brownstein (“Brownstein”) for an
extension of time to file an expert witness report (DN 35). Defendant Custom Biogenic Systems,
Inc. (“CBS”) filed a response; Brownstein filed a reply; and, with the Court’s permission, CBS
filed a sur-reply. (DN 37, 38, 42.) This matter is ripe for review. For the following reasons,
Brownstein’s motion for an extension is denied without prejudice.
BACKGROUND
This action arises out of an accident in the workplace. Brownstein alleges that in the
course of her employment, she was struck in the head by the lid of a liquid nitrogen tank or
freezer located at an American Red Cross location in Louisville, Kentucky. CBS concedes that it
is the designer and manufacturer of the freezer.

Brownstein alleges that CBS negligently

designed and manufactured the freezer.
The existing deadline for Brownstein to file an expert report was September 24, 2015.
(See DN 30.) The Court has extended this deadline multiple times. (See DN 18, 30, 31.) The
Court entered an order on July 10, 2015 that reset the deadline for Brownstein’s expert report to
September 24, 2015 and required the parties “to perform an inspection of the premises, including
the equipment [that Brownstein] was using at the time of the alleged injury[ and] file a joint

status report advising the Court of the outcome of the inspection.” (DN 31.) On August 28,
2015, the parties filed a joint status report (DN 33), informing the Court that they conducted an
inspection of the freezer on August 18, 2015. The parties further stated, “[a]ll expert reports will
be filed in accordance with the Court’s Order of July 10, 2015.” (DN 33.) On September 24,
2015, the very day of the deadline for Brownstein to file an expert report, she instead filed the
instant motion seeking an additional extension of 90 days.
In her motion for extension, Brownstein avers that her “engineering expert,” Scott Jones,
participated in the August 18, 2015 inspection of the freezer. She states that Jones went out of
town following the inspection, and that when her counsel spoke to Jones in early September,
Jones planned to “find like models to do a comparison of freezers,” but that he was unable to do
so “due to the uniqueness of the [CBS] freezer.” (DN 35 at 1.) Brownstein states that her
counsel requested that Jones produce a report, but that Jones stated that the documentation
produced by CBS in response to Brownstein’s discovery requests was insufficient to permit him
to produce a report. (Id.) She further states that “after the inspection of the freezer, it was made
evident that Plaintiff may be in need of an additional consultant.” (Id.) Further, Brownstein
represents that CBS did not produce certain documents in response to her discovery requests
until September 23, 2015, the day before the deadline for Brownstein’s expert report.
Brownstein states that a 90-day extension is necessary in order to allow her counsel to retain a
new “consultant” and obtain a report from him or her. (Id. at 2.)
CBS filed a response in opposition (DN 37). CBS notes that it did not object to two
previous requests for extensions of this deadline. CBS contends that on July 8, 2015, more than
a month before the August 18, 2015 inspection, it produced to Brownstein discovery responses
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“that armed [her] with everything she and her expert needed 1 to conduct a productive inspection
and prepare a report by [the] September 24, 2015” deadline.

(Id. at 3.)

In response to

Brownstein’s assertion that she did not have in her possession all of the documents she needed to
produce a timely expert report, CBS concedes that it did not produce “select confidential
documents” prior to the inspection, but contends that the sole reason for the lack of production
was “Plaintiff’s failure to timely sign an agreed upon confidentiality agreement.” (Id. at 3-4.) In
any event, CBS argues, the documents that had not yet been produced were irrelevant to
Brownstein’s expert report.

Finally, CBS argues that the blueprints that it produced on

September 23, 2015, the day before Brownstein’s deadline, were not within the scope of the
discovery requests upon which Brownstein relies as evidence of having requested the blueprints.
CBS contends that Brownstein has not articulated how the absence of these documents prevented
her timely filing of an expert report.
In her reply (DN 38), Brownstein provides background information regarding the
inspection. She states that the parties previously agreed that the inspection would be arranged by
counsel in a parallel worker’s compensation action in state court, but that due to delays in those
arrangements, she agreed to the August 18, 2015 inspection date with the inspection to be
conducted by her expert, Mr. Jones. She further contends that she was unable to timely produce
an expert report because on the date of the inspection, due to the freezer’s sensitive contents, her
expert was not able to empty the container or remove allegedly defective hinges. Further,
Brownstein argues, it was not until the date of the inspection that her expert learned of the
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CBS states that it produced the following: “pictures of the freezer, manuals and brochures about the freezer,
warnings and other labels from the freezer, the names of people knowledgeable about the freezer, and confirmation
that [] (1) the freezer was sold by CBS to Red Cross, (2) the freezer had never been recalled, (3) the freezer has
never been involved in litigation regarding its safety, and (4) the freezer was functioning properly when delivered
and continues to function properly and remain in service.” (DN 37 at 3.)

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“uniqueness” of the freezer, and that uniqueness prevented him from later finding a suitable
comparator that he could “fully inspect.” (DN 38 at 2.) Brownstein claims that CBS has no way
to back up its claim that the blueprints and the documents that it produced on the eve of the
inspection were immaterial to her expert’s report.
After receiving permission from the Court (DN 41), CBS filed a sur-reply (DN 42). CBS
contends that Brownstein’s reply contains no new information, and specifically, that it lacks any
explanation as to “why Plaintiff did not use the CBS freezer documents she received on July 8 in
order to prepare for the August 18 inspection, how the documents received on September 22 are
instrumental to an expert report, [or] what interrogatory or request for production elicited the
freezer blueprints,” or “what information is contained in those blueprints that are instrumental to
her expert’s report.” (DN 41 at 1.)
DISCUSSION
This matter has been referred to the undersigned Magistrate Judge for resolution of all
litigation planning issues, entry of scheduling orders, consideration of amendments thereto, and
disposition of all non-dispositive matters, including discovery issues. (See DN 12, 23.) Pursuant
to Rule 16 of the Federal Rules of Civil Procedure, a scheduling order “may be modified only for
good cause and with the judge’s consent.” Fed. R. Civ. P. 16(b)(4). On the record before the
Court at this time, the Court cannot conclude that good cause exists that would support extending
the existing deadline for Brownstein to file her expert report.
The Court has already extended the relevant deadline multiple times.

Moreover,

Brownstein did not file the instant request for an additional extension until the very day of the
existing deadline. This is so in spite of Brownstein’s expert having inspected the freezer more
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than one month before the deadline and the parties having filed a joint status report nearly one
month before the deadline in which they informed the Court that the inspection had taken place
and that “[a]ll expert reports [would] be filed in accordance with [the existing scheduling
order].” (DN 33.)
Additionally, Brownstein and her expert may well have been able to obtain at least some
information regarding the freezer’s specifications and been able to identify potential comparators
based on the documents produced by CBS in July 2015. At the very least, Brownstein could
have informed counsel for CBS and, if necessary, the Court, well in advance of the existing
deadline of her expert’s belief that the inspection was inadequate to allow him to complete a
timely report. Instead, Brownstein joined CBS in a report informing the Court that she would
have no trouble meeting the existing deadline.
The Court agrees with CBS that the interrogatory and request for production that
Brownstein claims should have prompted CBS to produce the freezer blueprints did not obligate
CBS to turn over the blueprints. Specifically, Brownstein’s Request for Production No. 8 sought
“any and all plans, specifications, blueprints or other drawings or documents as referenced in
Interrogatory No. 24.” (DN 37-1 at 19.) In turn, Interrogatory No. 24 asked, “Have you or any
other person or entity repaired, altered, or otherwise changed the design or specifications of the
product from the date of manufacturing to the date of the incident?” (Id. at 12.)

The

interrogatory continued by requesting the name and address of the person who made the repair or
alteration, relevant dates and other details, and sought “legible cop[ies] of . . . plans,
specifications, blueprints, drawings or documents” if the change was displayed on such
documents. (Id. at 13.) In response to Interrogatory No. 24, after stating an objection based on
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admissibility of evidence of subsequent remedial measures, CBS stated that it “has not repaired,
altered, or otherwise changed the design” of the freezer model at issue in this case. (Id.; see also
id. at 19 (responding to Request for Production No. 8 by incorporating its objections to
Interrogatory No. 24).) In short, CBS responded to the discovery requests at issue by stating that
it had no responsive documents in its possession. Accepting this statement as true, CBS was not
required to produce the subject blueprints at the time that it responded to Brownstein’s discovery
requests.
However, even if the blueprints were within the scope of those discovery requests,
Brownstein has failed to articulate how earlier production of the blueprints would have assisted
her expert in producing a report in advance of the deadline. The same is true of the documents
that were withheld by CBS for some time on the basis of confidentiality: it is unclear how earlier
possession of such documents might have led Brownstein’s expert to produce a report in
compliance with the deadline. In short, the Court concludes that on the current record, good
cause does not exist to extend the deadline for Brownstein’s expert report. Brownstein has not
shown that her failure to meet the deadline was influenced by CBS.
Nevertheless, the Court further notes that several months have elapsed since the motion
for extension was filed. It is possible that Brownstein’s existing expert has been able to further
develop his opinion or that Brownstein has been able to identify a new expert. It is conceivable
that Brownstein could provide explanations for the shortcomings outlined above that would be
sufficient to support a brief extension of the expert deadline. For those reasons, the Court will
deny the motion without prejudice.

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Accordingly, IT IS HEREBY ORDERED that Brownstein’s motion for extension (DN
35) is DENIED WITHOUT PREJUDICE.
IT IS FURTHER ORDERED that counsel for Brownstein and CBS shall confer
regarding whether they believe a telephonic status conference and/or a settlement conference
would be beneficial at this time. No later than May 6, 2016, counsel shall contact Case
Manager Theresa Burch at [e-mail] to notify her of their conclusions
regarding the same.
April 21, 2016

Colin Lindsay, MagistrateJudge
United States District Court

cc: Counsel of record

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