GLENNON v. WING ENTERPRISES, INC. et al

Filing 33

ORDER that Plaintiff's Motion to re-open discovery and adjourn the Final Pretrial Conference [dkt. entry no. 30 ] is GRANTED; that the Final Pretrial Conference scheduled for November 30, 2011 is adjourned; that the Court will set a new schedul e resetting discovery deadlines and rescheduling the Final Pretrial Conference during a telephone status conference, to be initiated byPlaintiff's counsel, on December 9, 2011 at 10:00 a.m. Signed by Magistrate Judge Douglas E. Arpert on 11/17/2011.(mmh)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
SEAN GLENNON,

:
:
Plaintiff,
:
:
v.
:
:
WING ENTERPRISES, INC., et al.,
:
:
Defendants.
:
____________________________________:

Civil Action No.: 10-0324 (JAP)

ORDER

This matter having come before the Court on Motion by Plaintiff Sean Glennon (“Plaintiff”)
to re-open discovery and adjourn the Final Pretrial Conference [dkt. entry no. 30], returnable
November 21, 2011; and Defendant Wing Enterprises (“Defendant”) having filed opposition; and
Plaintiff noting that he alleges that “he sustained serious personal injuries as a result of a ladder
manufactured by Defendant failing on December 14, 2007” (Pl.’s Br., dkt. entry no. 30-1 at 1); and
Plaintiff stating that after the accident, he “consulted with Dr. Choi of Somerset Orthopedics”, that
Dr. Choi “prescribed physical therapy for [Plaintiff’s] lower back complaint”, and that Plaintiff “had
thirty-eight physical therapy visits with Belle Meade Physical Therapy” starting on March 12, 2008
(Id. at 2); and Plaintiff stating that “[d]uring the time he received physical therapy, [he] continue[d]
to consult and treat with Somerset Orthopedics”, had “a series of seven epidural injections”, was
diagnosed as having sustained “an annular tear at L4-5”, and was informed that he was “a candidate
for future surgical intervention” in September 2010 (Id.); and Plaintiff stating that treatment notes
and reports from February, June, July, and September 2011 indicate that Plaintiff’s doctors
contemplated, and then recommended, that Plaintiff undergo an “IDET surgical procedure and
interbody fusion” based, in part, on a discography performed in July 2011 which “revealed two
annular tears at L4-5 and L5-1” and the conclusion that Plaintiff had “sustained a permanent injury
to his lower back” (Id. at 3); and Plaintiff noting that “[a]ll of the medical reports referenced were

served within the discovery period or through agreement by counsel with the assistance of [the]
Court” (Id.); and Plaintiff maintaining that since the parties went to arbitration on September 7,
2011, he “sought a second opinion” related to the recommendation that he undergo “the IDET
Procedure” and Dr. Lutz issued a report on September 28, 2011 “finding that [Plaintiff] ha[d] an
internally disrupted disc at L4-5 and...chronic disabling pain as a result of his...fall” and
“recommended that [Plaintiff] consider a L4-5 IDET procedure” (Id. at 3-4); and Plaintiff stating that
“[a]s a result of [Dr. Lutz’s] recommendation, [he] has scheduled the surgical procedure...for
December 6, 2011” and therefore requests leave “to reopen discovery to permit the serving of Dr.
Lutz’s report and the associated medical records and reports stemming from [Plaintiff’s] upcoming
surgical procedure” (Id. at 4); and Plaintiff, citing Koplove v. Ford Motor Co., 795 F.2d 15, 18 (3d
Cir. 1986), Pastore v. Bell Tel. Co., 24 F.3d 508, 511 (3d Cir. 1994), Spring Creek Holding Co. v.
Keith, 2006 WL 2403958, at *3 (D.N.J. 2006), maintains that “in order to reopen discovery after a
case management order has been set, a party needs to demonstrate good cause”, “must demonstrate
that it could not have met the original scheduling deadline”, and must satisfy all of the following
conditions – “(1) identify the particular information sought, (2) show how the information would
preclude summary judgment, and (3) explain why it was not previously obtained” (Id. at 4, 6); and
Plaintiff arguing that he has “met [his] burden because the information giving rise to the request for
the reopening of discovery was not available until discovery had already closed” (Id. at 6); and
Plaintiff arguing that he seeks “to reopen discovery to permit a fact finder to hear that [his] upcoming
surgical procedure is related to the ladder’s collapse” based upon the discogram, Dr. Choi’s opinion,
and Dr. Lutz’s second opinion (Id. at 4-5); and Plaintiff arguing that the second factor “does not
apply because this application is not submitted in response to a motion for summary judgment” (Id.
at 5); and Plaintiff arguing that the pertinent discovery “was not previously obtained because it was

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the result of a...recent diagnostic procedure...that led to the recommendation of the IDET procedure”
and Dr. Lutz’s second opinion (Id.); and Plaintiff maintaining that he “does not anticipate naming
Dr. Lutz as an expert witness...but will forward Dr. Lutz’s September 28, 2011 report and the records
associated with the surgery to [his previously designated expert] for comment” (Id.) and Plaintiff
stating that he has “scheduled the surgery for December 6, 2011” such that “any trial date will not
be extensively delayed” and “the Final Pretrial Conference can be rescheduled to January” (Id.); and
in opposition, Defendant contending that “[t]his is a case where [it] should not be forced to bear any
further prejudicial delay from Plaintiff’s belated choice to have surgery that was first discussed
before this suit was filed” in November...2009 and again “in September and October...2010” (Def.’s
Opp’n Br., dkt. entry no. 31-9 at 1); and Defendant noting that these “discussions preceded
Plaintiff’s initial expert report deadline of November 30, 2010”, a deadline which “was extended
twice before Plaintiff served any report” and that said report “made no mention of surgery” such that
Defendant “had every right to assume that it was trying a case involving a non-surgical injury” (Id.);
and Defendant further noting that “Plaintiff served a supplemental damages expert report which
again made no mention of any surgery being necessary or scheduled” after “two more amended
scheduling orders were entered...and as expert discovery was being concluded” and that Defendant
withdrew its initial objection to this supplemental report “because Plaintiff consented to an
independent medical examination based on new test results...[and] a schedule that would not
adversely impact the timely resolution of [this] case” (Id.); and Defendant, maintaining that
Plaintiff’s request comes “four years post-accident, nearly two years into suit, and nearly three
months after Plaintiff’s last untimely amendment to his damages proofs”, argues that Plaintiff’s
“request is improper and will lead to a miscarriage of justice” because “it will require [Defendant]
to further delay this matter in order to await the surgical outcome, re-depose Plaintiff on his

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condition, and obtain a post-surgery medical evaluation” (Id. at 2); and Defendant arguing that
“[a]llowing Plaintiff to delay this matter further in order to have surgery that was discussed before
suit was filed will have the same prejudicial impact...[as] if Plaintiff had deliberately waited two
years to release critical information” and will “unnecessarily delay the completion of this matter at
a cost in money and time that [Defendant] has diligently fought to minimize” (Id.); and Defendant,
citing Eichorn v. AT&T Corp., 484 F.3d 644, 650-51 (3d Cir. 2007), Meyers v. Pennypack Woods
Home Ownership Ass’n, 559 F.2d 894, 904 (3d Cir. 1977), and Goodman v. Lukens Steel, 777 F.2d
113 (3d Cir. 1985), aff’d, 482 U.S. 656 (1987), notes that “the decision as to whether to allow new
experts and opinions after the close of discovery and/or after a deadline in a scheduling order is
judged by an abuse of discretion standard” based on “(1) the prejudice or surprise to the opposing
party”, “(2) the ability of the offering party to cure the prejudice”, “(3) the extent to which allowing
the testimony would disrupt the orderly and efficient trial of...[the] case and other cases”, and “(4)
bad faith or willfulness in failing to comply with the Court’s order” (Id. at 2-3); and Defendant
arguing that “there will be prejudice...from any delay that results due to Plaintiff’s belated surgical
decision...and that Plaintiff could have cured this prejudice by adhering to...[the] Court’s scheduling
orders” (Id. at 3-4); and Defendant, noting that “[a]fter four extensions of this deadline, the
submission of two expert reports, and at least two additional discussions of his surgical options,
discovery closed without Plaintiff having surgery and without any disclosure that Plaintiff was
seeking a second opinion, contemplating having the surgery, or would be further updating his
discovery with regard to his medical condition”, argues that “[t]his information is clearly a surprise
to [Defendant]...and would warrant the denial of Plaintiff’s motion without other considerations” (Id.
at 4); and Defendant, maintaining that “if Plaintiff has surgery...and that surgery is considered as an
element of Plaintiff’s case, [Defendant] will need to (1) await Plaintiff’s surgical outcome, (2) re-

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depose Plaintiff as to his post-surgical condition, (3) obtain all records associated with Plaintiff’s
surgery...including pre- and post-surgical treatment and any resulting physical therapy, (4) obtain a
follow up medical examination/medical record review, and (5) undertake any additional activities
shown to be necessary through these efforts”, argues that “these considerations present grounds for
denying a late discovery amendment as prejudicial” pursuant to Ajax Enterprises v. Fay, 2007 WL
1456201, at *3 (D.N.J. 2007) (Id. at 4-5); and Defendant, citing Konstantopoulos v. Westvaco Corp.,
112 F.3d 710, 719-21 (3d Cir. 1997), argues that “where...a party declines to pursue known treatment
options during the discovery period and fails to make known any reason for his delay in treatment”,
“that failure...[should be] regarded as a flagrant violation of the Court’s discovery orders” and
“operate to deny a late discovery amendment” (Id. at 5-6); and Defendant, noting that an arbitration
has been conducted, a Final Pretrial Conference is scheduled, and all discovery has been completed,
argues that “[t]o allow this process to be slowed because Plaintiff has...[now] elected to pursue
treatment that was made known to him before suit was filed would be allow justice to be delayed for
no legitimate purpose” (Id. at 5); and Defendant contending that “had Plaintiff timely alerted his
adversary to his consideration of surgery, his efforts to obtain a second opinion, and other
information relating to his treatment, this lawsuit could have been conducted without disruption and
the associated increase in cost” (Id. at 6); and the Court noting that pursuant to FED . R. CIV . P.
16(b)(4), “[a] schedule may be modified only for good cause and with the judge’s consent”; and the
Court noting that “[a] determination of good cause depends on the diligence of the moving party”
where “[t]he moving party has the burden of demonstrating that despite its diligence, it could not
reasonably have met the scheduling order deadline” (Spring Creek Holding Co. v. Keith, 2006 WL
2403958, at *3 (D.N.J. 2006); see also GlobespanVirata, Inc. v. Texas Instruments, Inc., 2005 WL
1638136, at *3 (D.N.J. 2005); Hutchins v. United Parcel Service, Inc., 2005 WL 1793695, at *3

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(D.N.J. 2005)); and the Court noting that “the lack of prejudice to the nonmovant does not show
‘good cause’” (GlobespanVirata, 2005 WL 1638136, at *3; see also Deghand v. Wal-Mart Stores,
Inc., 904 F. Supp. 1218, 1221 (D. Kan. 1995)); and the Court noting generally that “the factors to
be considered in resolving” whether to re-open discovery are whether there was “bad faith on the part
of the party seeking to call witnesses not listed in...[a] pretrial memorandum”, the “ability of the
party to have discovered the witnesses earlier”, the “validity of the excuse offered by the party”, the
“willfulness of the party’s failure to comply with the court’s order”, “the parties’ intent to mislead
or confuse his adversary”, “and...the importance of the excluded testimony” (Meyers v. Pennypack
Woods Home Ownership Ass’n, 559 F.2d 894, 904-05 (3d Cir. 1977)); and the Court noting that
“exclusion of critical evidence is an extreme sanction...not normally to be imposed absent a showing
of willful deception or flagrant disregard of a court order by the proponent of the evidence” (Id. at
905; see also Dudley v. South Jersey Metal, Inc., 555 F.2d 96, 99 (3d Cir. 1977)); and the Court
noting when determining “if withheld evidence should be excluded”, factors that have been
considered include “(1) the importance of the information withheld[,] (2) the prejudice or surprise
to the party against when the evidence is offered[,] (3) the likelihood of disruption at trial[,] (4) the
possibility of curing the prejudice[,] (5) the explanation for the failure to disclose[,] and (6) the
presence of bad faith or willfulness in not disclosing the evidence” (Ajax Enterprises v. Fay, 2007
WL 1456201, at *2 (D.N.J. 2007); see also Pfizer, Inc. v. Teva Pharmaceuticals USA, Inc., 2006 WL
2938723, at *3-4 (D.N.J. 2006)); and the Court noting that “[t]he burden of establishing substantial
justification and harmlessness is on the party that failed to make the required disclosure” (Id.; see
also M. Eagles Tool Warehouse, Inc. v. Fisher Tooling Co., Inc., 2007 WL 979854, at *12 (D.N.J.
2007); Yeti by Molly, Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 1107 (9th Cir. 2001)); and the
Court noting that a Final Pretrial Conference is scheduled for November 30, 2011 (see dkt. entry no.

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28) but that a trial date has not been set; and the Court noting that medical records produced by
Plaintiff indicate that he was diagnosed with a “lumbar annular tear” and wished to continue with
a non-operative course of therapy as of March 12, 2010 (see Pl.’s Cert. of Peter Cipparulo
(“Cipparulo”), dkt. entry no. 30-2, Ex. D), that “discography analysis” and “surgical intervention”
were discussed but Plaintiff wished to continue with a non-operative course of therapy as of
September 18, 2010 (Id.), that Plaintiff underwent a MRI study on September 25, 2010 which
demonstrated results “similar to the previous study” of January 26, 2008 (Id.), that “discography”,
“intradiscal procedures”, and “interbody fusion” were discussed but Plaintiff wished to continue with
a non-operative course of therapy and “epidural injections” as of March 22, 2011 (Id.), that Plaintiff
underwent a “discographic analysis” on July 15, 2011 which demonstrated “grade 2 annular
degeneration and grade 2 disruption[s]” of L3-L4, L4-L5, and L5-S1 (Id.), that Plaintiff obtained a
second opinion from Gregory E. Lutz, M.D. (“Dr. Lutz”) on September 28, 2011 indicating that
Plaintiff’s “symptoms [were] consistent with internally disrupted disc at L4-5”, that Plaintiff “has
had chronic disabling pain as a result of his traumatic fall from the ladder”, and recommending that
Plaintiff “consider L4-5 IDET procedure as...[a] treatment option to treat his [lumbar] discogenic
pain” (Id. at Ex. H), and that Plaintiff has scheduled an IDET procedure for December 6, 2011 (Id.);
and the Court finding that information related to Plaintiff’s “second opinion” from Dr. Lutz and the
IDET procedure/results are important to the ultimate disposition of this matter, that Defendant was
– or should have been – aware that surgical intervention was a possibility based on information
produced by Plaintiff during discovery and therefore should not be surprised (see Pl.’s Cert. of
Cipparulo at Ex. D), that any prejudice to Defendant is minimal given that any prejudice may be
cured by adjourning the Final Pretrial Conference and re-opening discovery to allow Defendant to
engage in additional factual/expert discovery related to Dr. Lutz’s second opinion and the IDET

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procedure (see Def.’s Opp’n Br. at 4-5) and Plaintiff’s representation that any delay will be minimal
given that the Final Pretrial Conference may be rescheduled as early as January 2012 (see Pl.’s Br.
at 5), and that Plaintiff has demonstrated that his request is not made in bad faith or that his delay
was willful based upon the medical history and course of treatment set forth above (Id. at 1-5; see
also Pl.’s Cert. of Cipparulo at Exhs. A-H); and the Court finding that Plaintiff has demonstrated
good cause and established substantial justification and harmlessness for adjourning the Final
Pretrial Conference and re-opening discovery (see Ajax, 2007 WL 1456201, at *2; see also Meyers,
559 F.2d at 904-05); and the Court having reviewed the parties’ written submissions; and the Court
having considered the matter pursuant to FED . R. CIV . P. 78; and for the reasons stated above;
IT IS on this 17th day of November, 2011,
ORDERED that Plaintiff’s Motion to re-open discovery and adjourn the Final Pretrial
Conference [dkt. entry no. 30] is GRANTED; and it is further
ORDERED that the Final Pretrial Conference scheduled for November 30, 2011 is
adjourned; and it is further
ORDERED that the Court will set a new schedule resetting discovery deadlines and
rescheduling the Final Pretrial Conference during a telephone status conference, to be initiated by
Plaintiff’s counsel, on December 9, 2011 at 10:00 a.m.
s/ Douglas E. Arpert
DOUGLAS E. ARPERT
UNITED STATES MAGISTRATE JUDGE

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