Parker v. Bombardier Recreational Products, Incorporated et al

Filing 23

OPINION AND ORDER Granting In Part Plaintiff's Motion for Extension of Scheduling Order 19 ( Fact Discovery due by 3/13/2019 ). Signed by District Judge Judith E. Levy. (Sandusky, K)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
Matthew Parker,
Plaintiff,
v.

Case No. 17-11399
Judith E. Levy
United States District Judge

Bombardier Recreational Products,
Inc., a foreign corporation, and
Mag. Judge Mona K. Majzoub
BRP Inc., a foreign corporation,
Defendants.
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OPINION AND ORDER GRANTING IN PART PLAINTIFF’S
MOTION FOR EXTENSION OF SCHEDULING ORDER [19]
Plaintiff filed a motion for a ninety-day extension of the scheduling
order on January 18, 2019 (Dkt. 19), which defendants opposed. (Dkt. 20.)
Plaintiff argues that all discovery deadlines, including the parties’ expert
reports and fact discovery, should be extended due to the death of his
design liability expert and his recent identification of a substitute expert.
(Dkt. 19 at 1, 3–4.) Defendants argue that plaintiff has inexcusably
delayed in requesting an extension given his knowledge of the expert’s
death in October of 2018. (Dkt. 20 at 2–5.) In the alternative, defendants

argue that the extension should only apply to deadlines related to the
proposed design liability expert. (Id. at 2.) Moreover, defendants state
that plaintiff has not provided an explanation for his failure to provide
the report of another expert, Marie Truman, that satisfies Federal Rule
of Civil Procedure 37(c). (Id. at 10.) The Court ordered plaintiff to reply
(Dkt. 21), and plaintiff did. (Dkt. 22.)
In his reply, plaintiff does not persuasively address why he did not
request an extension earlier and whether his failure to disclose Truman’s
report was substantially justified or harmless under Rule 37(c). As to the
first issue, plaintiff merely states that “counsel was unable to obtain a
new expert with the proper background.” (Dkt. 22 at 4.) He does not offer
any explanation why he did not request an extension before two discovery
deadlines had passed, however, especially when one of those deadlines
pertained to his expert witness reports and Truman’s report depends on
the design liability expert. Nor does plaintiff show that his failure to
provide Truman’s report was substantially justified, especially given his
lack of explanation for not requesting earlier extension. See R.C.
Olmstead, Inc. v. CU Interface, LLC, 606 F.3d 626, 272 (6th Cir. 2010)
(citing Roberts v. Galen of Virginia, Inc., 325 F.3d 776, 782 (6th Cir.
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2003)).
Nonetheless, it is undisputed that if plaintiff cannot add his design
liability expert, then his case will irreparably suffer because it will be
nearly impossible to meet his burden of proof under Michigan’s riskutility analysis for product defect claims. See Prentis v. Yale Mfg. Co., 421
Mich. 670, 692–93 (1984). And although it is an annoyance to defendants,
there is no indication that defendants are harmed by an extension of the
expert report deadlines. See Fed. R. Civ. Pro. 37(c). Therefore, the Court
exercises its discretion to grant plaintiff an extension on all expert
reports, including Truman’s.
Accordingly, plaintiff’s motion is GRANTED IN PART. Plaintiff
shall have until March 13, 2019 to add Dr. Craig Good as an expert in
lieu of Robert Yano and submit Dr. Good’s and Truman’s reports. Fact
discovery shall extend until this date as well.
IT IS SO ORDERED.
Dated: February 20, 2019
Ann Arbor, Michigan

s/Judith E. Levy
JUDITH E. LEVY
United States District Judge

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CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was served
upon counsel of record and any unrepresented parties via the Court’s
ECF System to their respective email or First Class U.S. mail addresses
disclosed on the Notice of Electronic Filing on February 20, 2019.
s/Karri Sandusky on behalf of
SHAWNA BURNS
Case Manager

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