Carrizales et al v. United States of America

Filing 40

ORDER - The government's motion to strike, (Filing No. 36 ), is granted. The expert opinions of Fred Duboe, M.D., and his affidavit in response to the government's motion for summary judgment, (Filing No. [35-1]), are stricken. Ordered by Magistrate Judge Cheryl R. Zwart. (KLF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
NATASHA CARRIZALES, individually
and on behalf of Nina Carrizales, a
Minor, as her guardian and next friend;
and NINA CARRIZALES, by and through
her mother, guardian and next friend
Natasha Carrizales;

8:17CV19
ORDER

Plaintiffs,
vs.
UNITED STATES OF AMERICA,
Defendant.
Plaintiffs’ complaint alleges an action under the Federal Tort Claims Act
against the United States. Plaintiffs’ complaint alleges federal employees provided
negligent medical care and treatment to Plaintiffs, resulting in damages. (Filing No.
1).
Pending before the court is the government’s motion to strike the Declaration
of Fred Duboe, M.D., (Filing No. 35-1), which was filed by Plaintiffs in response to
the government’s motion for summary judgment. (Filing No. 36). The government
argues that Plaintiffs failed to timely and properly disclose Dr. Duboe’s expert
opinions as required under Federal Rule of Civil Procedure 26(a)(2)(B), and the
opinions must therefore be stricken.

Plaintiffs have not responded to the motion to strike and the deadline for
doing so has passed. The motion is deemed fully submitted. For the reasons
explained below, it will be granted.

BACKGROUND
Pursuant to the court’s case management order, the deadlines for serving
complete expert disclosures for all experts expected to testify at trial, (both retained
experts, (Fed. R. Civ. P. 26(a)(2)(B)), and non-retained experts, (Fed. R. Civ. P.
26(a)(2)(C)), were:
For the plaintiffs:

March 9, 2018.

For the defendant:

June 11, 2018.

For plaintiffs’ rebuttal:

July 2, 2018.

(Filing No. 26, at CM/ECF p. 1, ¶ 2). Plaintiffs never requested a continuance of
these expert disclosure deadlines, and the court did not extend the deadlines.

On March 12, 2018, and on March 19, 2018, counsel for the government
reminded Plaintiffs’ counsel that Plaintiffs’ expert reports were overdue. (Filing No.
37-1, at CM/ECF pp. 5, 6). Plaintiffs’ counsel responded on March 20, 2018 by
leaving a voicemail at 7:07 a.m., explaining he had the reports and they should be
sent to the government that day. (Filing No. 37-1, at CM/ECF p. 2, ¶ 6, and p. 8).
The government never received a Rule 26(a)(2) expert witness disclosure for Fred
Duboe, M.D. (Filing No. 37-1, at CM/ECF p. 2, ¶ 7).

The government moved for summary judgment on April 24, 2018. (Filing No.
27). Plaintiffs’ response to that motion, which was filed on June 1, 2018, included Dr.
Duboe’s affidavit. That affidavit includes Dr. Duboe’s medical expert standard of
care and causation opinions, along with his curriculum vitae. (Filing No. 35-1).
LEGAL ANALYSIS
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.

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R. Civ. P. 16(b)(4). 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). “‘A party that . . . fails to disclose information required by Rule
26(a) . . . shall not be permitted to use [the nondisclosed information] as evidence at
a trial, at a hearing, or on a motion’ ‘unless such failure is harmless' or there was
‘substantial justification’ for the failure.” U.S. Commodity Futures Trading Comm'n v.
Kratville, 796 F.3d 873, 891 (8th Cir. 2015) (quoting Trost v. Trek Bicycle Corp., 162
F.3d 1004, 1008 (8th Cir. 1998) (quoting Fed.R.Civ.P. 37(c)(1)).
Having failed to respond in any manner to the motion to strike Dr. Duboe’s
affidavit and opinions, Plaintiffs’ counsel has not explained why Dr. Duboe’s opinions
were not timely disclosed as required under this court’s case management order. As
such, he has failed to show any reason, much less good cause or a substantial
justification, for failing to timely disclose Dr. Duboe’s expert opinions.

Accordingly,
IT IS ORDERED:
1)

The government’s motion to strike, (Filing No. 36), is granted.

2)

The expert opinions of Fred Duboe, M.D., and his affidavit in response
to the government’s motion for summary judgment, (Filing No. 35-1),
are stricken.

June 28, 2018.

BY THE COURT:
s/ Cheryl R. Zwart
United States Magistrate Judge

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