Delgado v. GGNSC Grand Island Lakeview LLC

Filing 48

ORDER granting in part and denying in part 37 Motion to Compel; granting 43 Motion ; granting 44 Motion for Leave. Defendant must produce any written report of the examination of Plaintiff by Defendants consulting expert, Dr. Bruce Gutnik, provided such a report exists. Ordered by Magistrate Judge Cheryl R. Zwart. (Zwart, Cheryl)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
TARA DELGADO,
Plaintiff,

4:15CV3124

vs.
MEMORANDUM AND ORDER
GGNSC GRAND ISLAND LAKEVIEW LLC,
Defendant.
The following motions are pending before the court:


Plaintiff’s motion to compel, (Filing No. 37);



Plaintiff’s motion to substitute relief sought in the motion to compel, (Filing No.
43); and



Plaintiff’s motion to allow a brief in response to Defendant’s sur-reply regarding
Plaintiff’s motion to compel. (Filing No. 44).

For the reasons discussed below, Plaintiff’s motion to compel will be granted in part and
denied in part, and Plaintiff’s motion to substitute and motion to file will be granted.

BACKGROUND
Plaintiff’s complaint alleges she was subjected to sexual and gender-based harassment
while working for the Defendant. (Filing No. 15 at CM/ECF p. 2). Plaintiff claims the
harassment caused her extreme emotional distress and other psychological conditions. She
requests an award of damages. (Filing No. 15 at CM/ECF p. 3). On November 24, 2015, the
parties filed their Rule 26(f) Report of the Parties’ Planning Conference. (Filing No. 8). In
accordance with the report, the court entered its Final Progression Order and set a May 2, 2016
deadline for designating experts. (Filing No. 9).

In July of 2016, Defendant requested a medical examination of Plaintiff by Dr. Bruce
Gutnik. Sometime after the examination, Defendant clarified that Gutnik was a consulting expert
and would not be preparing a report. (Filing No. 36 at CM/ECF p. 1). Counsel for the parties
engaged in discussions regarding whether Plaintiff was entitled to depose Gutnik: They were
unable to reach agreement.

On August 26, 2016, Plaintiff filed her motion to compel the deposition of Gutnik.
(Filing No. 37). In her reply brief, and in her motion to substitute relief, Plaintiff withdrew her
request to depose, and instead requests an order compelling Defendant to produce a written
report of Gutnik’s examination findings. (Filing No. 41 at CM/ECF p. 1); Filing No. 43).
Therefore, the court denies Plaintiff’s motion to compel Gutnik’s deposition as moot, but will
instead consider the substituted and other types of relief requested in Plaintiff’s motion to
compel. The remaining issues are whether Plaintiff is entitled to an order requiring the creation
and production of an examination report from Gutnik, and whether Plaintiff’s deadline to
designate experts should be extended. (See Filing No. 36).
Plaintiff additionally filed a motion to file a brief in response to Defendant’s sur-reply
regarding the motion to compel and attached the proposed brief to the motion. (Filing No. 44).
The court grants this motion and the undersigned has considered the attached brief in ruling on
the pending motions.

ANALYSIS
Plaintiff argues that after submitting to a physical examination by Defendant’s expert,
Gutnik, under Federal Civil Procedure Rules 26 and 35(b), Gutnik must produce a written report
and provide a copy to Plaintiff upon request.

Rule 35 governs examinations agreed to by parties and provides that after examinations,
The party who moved for the examination must, on request, deliver to the
requester a copy of the examiner’s report, together with like reports of all earlier
examinations of the same condition. The request may be made by the party
against whom the examination order was issued or by the person examined.

2

Fed. R. C. P. 35(b)(1). The rule does not distinguish between examinations by testifying or nontestifying experts and the rule has generally been interpreted to mean that the person examined
has an absolute right to a copy of the examining physician’s report. Decristo v. Southwestern
Motor Transport, Inc., 89-6080, 1990 WL 156457 (E.D. PA. Oct. 12, 1990); 8 Wright & Miller,
Federal Practice and Procedure § 2237 (1970). Regardless, neither Rule 26 nor Rule 35 require
that a non-testifying expert create an expert report. 1

While Plaintiff submitted to the requested examination, it is unclear whether Gutnik
created a written report for the examination. Therefore, the court finds that Defendant’s expert
Gutnik must provide a copy of any written report concerning the examination to Plaintiff, if such
a report exists.

Plaintiff also requests an extension of the deadline to designate experts within her motion
to compel. (See Filing No. 36 at CM/ECF pp. 2–3).

Pursuant to Rule 16(b)(4), a case

management order setting progression deadlines “may be modified only for good cause and with
the judge’s consent.” Fed. R. Civ. P. 16(b)(4). “The primary measure of Rule 16's ‘good cause’
standard is the moving party’s diligence in attempting to meet the case management order’s
requirements. . . . , [but the] ‘existence or degree of prejudice to the party opposing the
modification’ and other factors may also affect the decision.” Bradford v. DANA Corp., 249
F.3d 807, 809 (8th Cir. 2001) . The movant’s level of diligence and the degree of prejudice to the
parties are both factors to consider when assessing if good cause warrants extending a case
management deadline, with the movant’s diligence being the first consideration and the extent of
prejudice to either party considered only following a requisite threshold finding of due diligence.
Sherman v. Winco Fireworks, Inc., 532 F.3d 709, 716-17 (8th Cir. 2008); Marmo v. Tyson Fresh
Meats, Inc., 457 F.3d 748, 759 (8th Cir. 2006).

1

Plaintiff argues in her brief in response to Defendant’s surreply that she is entitled to
have Gutnik produce the report pursuant to Federal Rule of Evidence 701. (Filing No. 44-1).
However, the court finds that Rule 701 is not applicable to the issue in this motion as Gutnik is
not testifying as an expert or otherwise.

3

Under the Final Progression order entered on December 12, 2015, Plaintiff’s deadline for
identifying experts was May 2, 2016. (Filing No. 9). Although other continuances have been
sought and granted in this case, Plaintiff did not previously request additional time to identify
experts. There is nothing in Plaintiff’s motions or briefing which describes her diligence in
meeting the May 2nd deadline, or explains why she could not identify an expert on or before that
date. Plaintiff has failed to show good cause for extending the court’s case management order,
and her request to extend the deadline for identifying experts must be denied.

Accordingly,

IT IS ORDERED:

1)

Plaintiff’s motion to substitute relief sought in her motion to compel, (Filing No.
43), is granted.

2)

Plaintiff’s motion for leave to allow a brief in response to Defendant’s sur-reply,
(Filing No. 44), is granted.

3)

Plaintiff’s motion to compel, (Filing No. 37), is granted in part and denied in
part. Defendant must produce any written report of the examination of Plaintiff by
Defendant’s consulting expert, Dr. Bruce Gutnik, provided such a report exists.

Dated this 23rd day of September, 2016
BY THE COURT:
s/ Cheryl R. Zwart
United States Magistrate Judge

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