Whitt v. Union Pacific Railroad Company

Filing 91

ORDER granting 85 the defendant's Motion for Extension of Deadline to File Motions in Limine. The defendant shall have until February 24, 2014, to file a motion in limine challenging the admissibility of Mr. Gavalla's testimony pursuant to Fed. R. Evid. 702. Ordered by Magistrate Judge Thomas D. Thalken. (TRL)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA

JARED L. WHITT,
Plaintiff,

8:12CV358

vs.

ORDER

UNION PACIFIC RAILROAD
COMPANY,
Defendant.

This matter is before the court on the defendant’s Motion for Extension of
Deadline to File Motions in Limine (Filing No. 85). The plaintiff filed a brief (Filing No.
86) in response. The defendant filed a brief (Filing No. 87) in reply.

BACKGROUND
This action arises from injuries the plaintiff allegedly sustained while working for
the defendant. The plaintiff filed this action on October 5, 2012. See Filing No. 1 Complaint. Subsequently, the plaintiff amended the complaint twice. See Filing No. 35
- First Amended Complaint; Filing No. 54 - Second Amended Complaint. Following a
telephone planning conference with counsel, the court set December 9, 2013, as the
deadline to file motions in limine under Fed. R. Evid. 702 and Daubert. See Filing No.
69 - Order. On December 9, 2013, the defendant sought and received an extension to
February 3, 2014, to file Daubert motions. See Filing No. 75 - Unopposed Motion;
Filing No. 76 - Order. Subsequently, on January 17, 2014, the defendant filed a motion
seeking to extend the deadline to file a Daubert motion against one of the plaintiff’s
experts, Douglas Casa, Ph.D. (Dr. Casa). See Filing No. 80 - Unopposed Motion. The
court provided the defendant until March 21, 2014, to file its Daubert motion. See Filing
No. 81 - Order.
The defendant now seeks an extension to file a Daubert motion against one of
the plaintiff’s other experts, George Gavalla (Mr. Gavalla). See Filing No. 85 - Motion.
The defendant seeks an extension of the deadline from February 3, 2014, to February
24, 2014, because of defense counsel’s trial schedule and unavailability due to other

commitments.

Id.

The defendant explains it received Mr. Gavalla’s report on

December 2, 2013, deposed Mr. Gavalla on January 16, 2014, and received the
transcript of the deposition on January 20, 2014, two weeks before the deadline to file
Daubert motions. Id. at 1-2.
In response, the plaintiff argues the defendant overstates the challenge to filing a
Daubert motion to Mr. Gavalla’s opinions. See Filing No. 86 - Response. The plaintiff
further contends there are numerous attorneys in defense counsels’ firms who could
work on the Daubert motion. Id. at 1-2.
In reply, the defendant argues Mr. Gavalla’s opinions are numerous and based
on a lengthy set of facts which will take time to thoroughly analyze. See Filing No. 87 Reply. The defendant also argues the defendant is entitled to have retained counsel,
who is experienced in handling the defendant’s specific case, file the motion and the
fact that defense counsels’ firms have other attorneys is irrelevant. Id.

ANALYSIS
“The district court has broad discretion in establishing and enforcing the
deadlines.” Marmo v. Tyson Fresh Meats, Inc., 457 F.3d 748, 759 (8th Cir. 2006).
“Adherence to progression order deadlines is critical to achieving the primary goal of the
judiciary: to serve the just, speedy, and inexpensive determination of every action.” Id.
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)
(citations omitted) (paraphrasing Fed. R. Civ. P. 16 advisory committee notes (1983
amendment)).
The defendant demonstrates good cause to extend the deadline to file a Daubert
motion challenging Mr. Gavalla’s testimony. The defendant did not delay or wait until
the deadline expired to seek an extension.1 Instead, the defendant proactively seeks an
extension due to defense counsel’s preexisting duties and unavailability. An extension

1

The deadline to file motions in limine was February 3, 2014. See Filing No. 76 - Order. The
defendant filed the instant motion on January 28, 2014. See Filing No. 85 - Motion.
2

does not prejudice the plaintiff or require extending other deadlines.

In fact, the

extended deadline, February 24, 2014, is still before the deadline for the defendant to
file a Daubert motion challenging Dr. Casa’s testimony, which is March 21, 2014.2 The
plaintiff’s opinion on the simplicity of a Daubert motion challenging Mr. Gavalla’s
testimony does not mitigate the defendant’s need for an extension. Additionally, the
plaintiff’s argument defense counsel have other attorneys in their firms who could
handle the motion is irrelevant. Accordingly,

IT IS ORDERED:
The defendant’s Motion for Extension of Deadline to File Motions in Limine (Filing
No. 85) is granted. The defendant shall have until February 24, 2014, to file a motion in
limine challenging the admissibility of Mr. Gavalla’s testimony pursuant to Fed. R. Evid.
702.

Dated this 7th day of February, 2014.
BY THE COURT:
s/ Thomas D. Thalken
United States Magistrate Judge

2

The court notes the plaintiff did not oppose the defendant’s request for an extension file a
Daubert motion challenging Dr. Casa’s opinion. See Filing No. 80 - Unopposed Motion.
3