Lawrey et al v. Good Samaritan Hospital et al

Filing 66

ORDER - Plaintiff's Motion to Amend Scheduling Order (filing 61 ) is denied. Ordered by Magistrate Judge F.A. Gossett. (GJG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
DAWN LAWREY, Mother and Next
Friend of Aubree Lawrey, a Minor,
Plaintiff,
V.
GOOD SAMARITAN HOSPITAL,
KEARNEY CLINIC, P.C., and
DAWN M. MURRAY, M.D.,
Defendants.

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8:11CV63

ORDER

This case involves allegations that Defendant, Dr. Dawn Murray, negligently caused
a birth injury, specifically, an injury to the brachial plexus of the right arm of Aubree Lawrey,
during her delivery. Plaintiff has filed a motion requesting that the court amend the
scheduling order so as to extend the deadline for filing Daubert motions (filing 61) to July
23, 2012. For the reasons set forth below, Plaintiff’s motion will be denied.
BACKGROUND
The court’s scheduling order (filing 39) established June 15, 2012, as the deadline for
filing motions in limine under Daubert v. Merrell Dow Pharms., 509 U.S. 579 (1993). On
July 10, 2012, nearly a month after the expiration of that deadline, Plaintiff filed the instant
motion to amend, asserting that additional time for filing Daubert motions is necessary
because Plaintiff was unable to complete the depositions of Defendants’ experts until after
the Daubert deadline had passed. Defendants oppose Plaintiff’s motion, arguing that Plaintiff
has not shown excusable neglect or good cause for modifying the scheduling order and
extending the deadline.

ANALYSIS
Under Fed. R. Civ. P. 16, a progression order schedule “may be modified only for
good cause.” Fed. R. Civ. P. 16. “In demonstrating good cause, the moving party must
establish that the scheduling deadlines cannot be met despite a party's diligent efforts.”
Thorn v. Blue Cross & Blue Shield of Fla., Inc., 192 F.R.D. 308, 309 (M.D.Fla.2000)
(quotation and citation omitted). In addition to the good cause requirement, when a motion
is made after the time has expired, the court may extend the time “if the party failed to act
because of excusable neglect.” See Fed.R.Civ.P. 6(b)(1)(B). “The determination as to what
sort of neglect is considered excusable is an equitable one, taking account of all relevant
circumstances surrounding the party’s own omission.” Miller v. Kellogg USA, Inc., Case No.
8:04CV500, 2006 WL 468315, *2 (D. Neb. Feb. 27, 2006) (quotation and citation omitted).
The court finds that Plaintiff has failed to make a showing of good cause or excusable
neglect. As grounds for the requested amendment, Plaintiff cites her inability to complete
expert depositions until after the Daubert deadline.

The court finds that under the

circumstances here, this is not a sufficient basis for modifying the scheduling order. Plaintiff
has been aware that expert depositions would not be complete before the Daubert deadline
since at least May 7, 2012. However, Plaintiff waited approximately two months to request
an amendment of the scheduling order. Additionally, Plaintiff deposed the last expert
witness on June 25, 2012, but did not file the instant motion until July 10, 2012, despite the
fact that expert reports were provided to Plaintiff on April 2, 2012. Plaintiff explained some
difficulty in setting depositions, however, this does not excuse Plaintiff’s failure to seek an
extension of the Daubert motion deadline until now.
Upon consideration,
IT IS ORDERED that Plaintiff’s Motion to Amend Scheduling Order (filing 61) is
denied.
DATED July 17, 2012.
BY THE COURT:
S/ F.A. Gossett
United States Magistrate Judge
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