Herrera v. Union Pacific Railroad Company
Filing
76
ORDER that Plaintiff's Motion to Extend Time for Plaintiff to File Rebuttal Expert Reports, (Filing No. 72 ), is denied. Ordered by Magistrate Judge Cheryl R. Zwart. (LAC)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
GUILLERMO HERRERA III,
Plaintiff,
8:15CV426
vs.
ORDER
UNION PACIFIC RAILROAD
COMPANY, a Delaware corporation;
Defendant.
Plaintiff’s FELA complaint alleges he suffered heat exhaustion and a cerebellar
stroke while working for the railroad on July 26, 2015. Plaintiff has now moved to extend
the deadline for filing the medical causation expert report of Francis G. O’Connor, M. D.
(Filing No. 72). Plaintiff refers to Dr. O’Connor as a proposed rebuttal expert whose
report, under the court’s scheduling order, was due on or before November 30, 2016.
The deadlines within a final progression order “may be modified only for good
cause and with the judge’s consent.” Fed. R. Civ. P. 16(b)(4). A party who moves to
extend a court-ordered case progression deadline must show good cause to modify the
schedule. Sherman v. Winco Fireworks, Inc., 532 F.3d 709, 716 (8th Cir. 2008)(quoting
Popoalii v. Corr. Med. Servs., 512 F.3d 488, 497 (8th Cir. 2008)). “The primary measure
of good cause is the movant’s diligence in attempting to meet the [scheduling] order’s
requirements . . . Our cases reviewing Rule 16(b) rulings focus in the first instance (and
usually solely) on the diligence of the party who sought modification of the order.”
Harris v. FedEx Nat. LTL, Inc., 760 F.3d 780, 786 (8th Cir. 2014). If due diligence is
shown, the movant must then show prejudice will result if the requested continuance is
denied. Sherman, 532 F.3d at 716.
Plaintiff’s motion to extend the rebuttal expert deadline was filed on the date the
rebuttal disclosure itself was due. As defined in the Federal Rules, rebuttal experts are
experts who present evidence “intended solely to contradict or rebut evidence on the
same subject matter identified by another party under Rule 26(a)(2) (B) or (C).” Fed. R.
Civ. P. 26(a)(2)(D)(ii).
Rebuttal expert testimony must relate to and rebut evidence or testimony on
the same subject matter identified by another party under Rule 26(a)(2)(B)
or (C). Such evidence is not tied to any particular witness; it is tied to
whether the party with the affirmative burden has presented evidence
and/or testimony from a duly disclosed expert on the same subject matter as
that which will be rebutted by the disclosed rebuttal expert.
Bleck v. City of Alamosa, Colo., 2012 WL 695138, *4 (D. Colo. March 5, 2012); see
also Plumbers & Pipefitters Local 572 Pension Fund v. Cisco Systems, Inc., 2005 WL
1459572, *2 (N.D. Cal. June 21, 2005)(“Plaintiffs will have an opportunity to respond to
Defendants’ expert reports in their rebuttal reports, including theories relied upon by
Defendants[’] experts with respect to their affirmative defenses.”).
If permitted to testify, Dr. O’Connor would provide opinion testimony on the issue
of whether Plaintiff’s exposure to hot environmental temperatures and heavy exertion
caused him to suffer a right cerebellar stroke. This medical causation issue has been
relevant, and Plaintiff’s burden to prove, from the outset of this case. As such, Dr.
O’Connor’s opinions are buttressing the opinions disclosed by Plaintiff’s treating
physician, Bennett Machanic, M.D., as to an essential element of Plaintiff’s case. Dr.
O’Connor is not offered to rebut a reasonably unforeseen issue raised by Defendant’s
expert, or to respond to expert testimony on any affirmative defense raised by Defendant.
As such, Dr. O’Connor’s opinions are offered to reinforce the opinions of Plaintiff’s
already disclosed medical expert, not to rebut Defendant’s responsive medical expert.
Perhaps Plaintiff is arguing that Dr. O’Connor’s disclosure should be permitted as
supplemental expert testimony. Although parties are permitted to supplement expert
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disclosures, Leviton Mfg. Co., Inc. v. Nicor, Inc., 245 F.R.D. 524, 528 (D.N.M. 2007)
(citing Beller v. United States, 221 F.R.D. 696, 701 (D.N.M. 2003)),
A supplemental expert report that states additional opinions or rationales or
seeks to “strengthen” or “deepen” opinions expressed in the original expert
report exceeds the bounds of permissible supplementation and is subject to
exclusion under Rule 37(c)(1). “To rule otherwise would create a system
where preliminary [expert] reports could be followed by supplementary
reports and there would be no finality to expert reports, as each side, in
order to buttress its case or position, could ‘supplement’ existing reports
and modify opinions previously given. This result would be the antithesis
of the full expert disclosure requirements stated in Rule 26(a).
Cook v. Rockwell Int'l Corp., 580 F. Supp. 2d 1071, 1169 (D. Colo. 2006).
The court finds that Dr. O’Connor’s proposed expert testimony is not rebuttal
testimony, but rather testimony offered to buttress the opinions of Plaintiff’s timely
disclosed medical causation expert. Dr. O’Connor would provide additional medical
expert testimony on an essential element of Plaintiff’s FELA claim. Plaintiff has failed to
show good cause for extending the court’s case progression deadlines to permit
disclosure of an additional medical causation expert—either in terms of due diligence by
Plaintiff, or resulting prejudice to Plaintiff if the motion to continue is denied.
Accordingly,
IT IS ORDERED that Plaintiff’s Motion to Extend Time for Plaintiff to File
Rebuttal Expert Reports, (Filing No. 72), is denied.
December 14, 2016.
BY THE COURT:
s/ Cheryl R. Zwart
United States Magistrate Judge
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