McNeese v. United States of America

Filing 72

MEMORANDUM OPINION AND ORDER REGARDING PLAINTIFF'S MOTION TO REOPEN DISCOVERY by Magistrate Judge Kirtan Khalsa. (kys)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
MARY F. McNEESE,
Plaintiff,
v.

Civ. No. 17-1164 KWR/KK

UNITED STATES OF AMERICA,
Defendant.

MEMORANDUM OPINION AND ORDER
REGARDING PLAINTIFF’S MOTION TO REOPEN DISCOVERY
THIS MATTER is before the Court on Plaintiff’s Motion for an Amended Scheduling
Order Reopening Discovery or to Clarify Order Vacating Deadlines (Doc. 54) (“Motion”), filed
October 29, 2019. Plaintiff also filed a Memorandum of Law in support of the Motion on the same
date. (Doc. 55.) Defendant filed a response in opposition to the Motion on November 22, 2019,
(Doc. 58), and Plaintiff filed a reply in support of it on December 2, 2019. (Doc. 61.) The Court
held a hearing on December 16, 2019, at which it granted Plaintiff leave to supplement the Motion
by December 31, 2019. (Doc. 64.) Accordingly, on December 30, 2019, Plaintiff filed her
Supplement to Motion for an Amended Scheduling Order Reopening Discovery or to Clarify Order
Vacating Deadlines (“Supplement”). (Doc. 66.) Finally, Defendant filed a response in opposition
to the Supplement on January 13, 2020. (Doc. 69). Having reviewed the parties’ submissions, the
record, and the relevant law, and being otherwise fully advised, the Court FINDS that Plaintiff’s
Motion is well-taken in part and should be GRANTED IN PART and DENIED IN PART as set
forth below.
I.

Factual Background

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This case involves the alleged wrongful death of Tina Marie McNeese (“the decedent”),
the spouse of Plaintiff Mary McNeese, in December 2015. (See Doc. 1.) On March 31, 2015, the
decedent consulted Ernesto Moran, D.D.S., at NUCLEO Odontologia Avanzada in Juarez, Mexico.
(Doc. 54 at ¶ 11; Doc. 54-5.) Dr. Moran took an x-ray of the decedent’s teeth and recommended a
treatment plan comprised of a root canal, a porcelain crown, five implants, a pontic, and a threeunit fixed bridge at a total cost of nearly ten thousand dollars. (Doc. 54-5 at 1, 4.) However, the
decedent never received the treatment Dr. Moran recommended. (Doc. 58-1 at 2.)
On April 17, 2015, the decedent, a veteran, sought care at the Raymond G. Murphy
Department of Veterans Affairs Medical Center (“VA Hospital”) emergency room in Albuquerque,
New Mexico, for “‘flu-like symptoms’ that included depression, fever, coughing, fatigue, night
sweats and unexplained weight loss[.]” (Doc. 1 at ¶¶ 7, 14.) She was seen on that date by Dr. Meela
Yoo. (Doc. 11 at 7.) The decedent returned to the VA Hospital for treatment of febrile and other
symptoms on numerous occasions between April and November 2015, where she was seen by
various other providers. (Doc. 1 at 3-6.)
On November 23, 2015, the decedent returned to the VA Hospital for “further evaluation
of fever of unknown origin,” where she was seen by Dr. Susan Kellie, an infectious disease
specialist, and Dr. Carol Morales, an infectious disease resident. (Doc. 1 at ¶¶ 34-36; Doc. 11 at 9;
Doc. 54-2 at 1.) Drs. Kellie and Morales noted that “[t]he patient has a chronic febrile syndrome
going back to April of this year” and that her symptoms “could suggest Q fever[.]”1 (Doc. 54-2 at
2.) They also noted “dental caries and [past medical history] significant for mitral regurgitation
which places patient at risk for endocarditis, bacterial type.” (Doc. 54-2 at 1.) They referred the
decedent for a follow up appointment at the infectious disease clinic one week later and noted that

1

According to Plaintiff, “Q fever” is “a type of fever caused by bacterial infection[.]” (Doc. 1 at ¶ 36.)

2

“[i]n view of the fact that this patient will likely need valve replacement in the future, we will
request [a] medically-compelling dentistry consult once a diagnosis has been made regarding the
current fever.” (Doc. 54-2 at 2-3.)
At some point between November 23 and December 1, 2015, the decedent was hospitalized.
(See Doc. 1 at ¶ 37.) While hospitalized, she suffered an intracranial hemorrhage and was
transferred to the University of New Mexico Hospital, where she died on December 1, 2015. (Doc.
1 at ¶ 37.) The Office of the Medical Investigator (“OMI”) performed an autopsy and noted that
before her death, the decedent had positive blood cultures for “Streptococcus sanguinis (bacteria
from the mouth, likely related to her dental issues),” and that “evaluations revealed a poorly
functioning mitral valve (mitral valve regurgitation) due to vegetations (bacterial deposits) on the
valve.” (Doc. 54-3.) The OMI concluded that the decedent’s “cause of death is ascribed to an
embolic stroke, due to infective endocarditis, due to Streptococcus sanguinis bacteremia.” (Doc.
54-3.)
Plaintiff filed her Complaint for Damages for Medical Negligence and Wrongful Death on
November 27, 2017, alleging, inter alia, that Defendant’s failure to timely diagnose and treat the
decedent’s bacterial infection was negligent and led to the decedent’s death. (Doc. 1.) Plaintiff
alleged that “[p]oor dentition such as caries (cavities) and infected teeth on a person with [mitral
valve prolapse] can cause bacterial infection of the heart and is an indicator of infective
endocarditis, which should have alerted the medical staff at the Hospital.” (Doc. 1 at ¶ 19.) Relying
on Dr. Kellie’s observations that the decedent’s mitral valve condition and “poor dentition placed
her at risk for ‘endocarditis, bacterial type,’” Plaintiff alleged that
a competent physician operating under the requisite standard of medical care would
have ordered tests to include blood cultures in a timely manner that would have
confirmed the presence of streptococcus sanguinis and infective endocarditis and
would have indicated a proper course of treatment and likely saved the life of Tina
Marie McNeese.
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(Doc. 1 at ¶ 39.) She further alleged that the physicians who treated the decedent “had the common
symptoms of infective endocarditis staring them in their faces while treating [the decedent] but
none of them made the diagnosis that would have saved her life.” (Doc. 1 at ¶ 42.)
II.

Procedural History

A. The Parties’ Joint Status Report and Provisional Discovery Plan
In accordance with Federal Rule of Civil Procedure 26(f) and the Court’s Initial Scheduling
Order (Doc. 9), the parties filed a Joint Status Report and Provisional Discovery Plan (“JSR”) on
April 25, 2018. (Doc. 11.) In the JSR, Plaintiff identified four witnesses she intended to call or
depose: (1) Plaintiff; (2) Plaintiff’s expert witness, Dr. Ronald Liss; (3) the decedent’s primary
care physician, Dr. Edwin Rodriguez-Segarra; and, (4) Dr. Kellie. (Id. at 6-7.) Plaintiff further
indicated she may call or depose “[a]ny witness called by the defense or mentioned in any
document produced in discovery.” (Id. at 7.) Defendant named twenty-two possible witnesses and
indicated that it had not yet identified an expert but intended to do. (Id. at 7-11.) The parties jointly
proposed a discovery termination date of November 5, 2018. (Id. at 13.)
B. Discovery Extensions
On May 8, 2018, the Court entered an Order Adopting Joint Status Report and Provisional
Discovery Plan with Changes and Setting Case Management Deadlines (“Scheduling Order”).
(Doc. 17.) The Scheduling Order set a 180-day discovery track with discovery set to terminate on
November 5, 2018. (Id. at 2.)
On September 17, 2018, however, the parties filed a Joint Motion for Extension of Pretrial
Dead[]lines, seeking to extend discovery through December 20, 2018. (Doc. 20 at 1-2.) As grounds
therefor, the parties stated that “[d]iscovery has been proceeding in this case and the parties are
cooperating in the discovery process. This extension will allow additional time for the taking of
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expert depositions and treating physician witnesses in a timely fashion.” (Id. at ¶ 1.) The Court
granted this motion on September 18, 2018. (Doc. 21.)
On November 28, 2018, the parties filed a Second Joint Motion for Extension of Pretrial
Dead[]lines, seeking to extend discovery through January 22, 2019. (Doc. 26 at 1-2.) As grounds
therefor, the parties stated that “[d]iscovery is proceeding in this case. However, depositions are
still required of experts and treating physicians.” (Id. at ¶ 1.) They further indicated that counsel
for both parties had been tending to other cases. (Id. at ¶¶ 2-3.) The parties stated that “[e]xtensions
of time will allow counsel to finalize depositions of the treating physicians and Plaintiff’s expert.”
(Id. at ¶ 5.) The Court granted this motion on November 19, 2018. (Doc. 27.)
On January 4, 2019, the Court entered an Order Staying Case due to a lapse in federal
appropriations, temporarily staying the case and extending “[a]ll current pretrial deadlines . . . by
the number of days that elapse between December 21, 2018 and the lifting of the temporary stay.”
(Doc. 30.) The temporary stay was lifted on January 30, 2019. (Doc. 32-1.)
On March 18, 2019, the parties filed a Third Joint Motion for Extension of Pretrial
Dead[]lines, seeking to extend discovery through April 12, 2019. (Doc. 34 at 1-2.) As grounds
therefor, the parties stated that
[d]iscovery is proceeding in this case, but was interrupted due to the federal
government shutdown . . . . The parties have completed most of the pending
discovery, but now require additional time to conduct the depositions of the
Plaintiff, an expert and two treating physicians.
(Id. at ¶¶ 1, 3.) Noting that a bench trial was “set for June 3, 2019 on a trailing calendar[,]” the
parties indicated that they intended to “file a separate motion to continue the trial date,” and that
the requested extensions of time would “allow counsel to finalize the remaining depositions and
prepare this matter for trial.” (Id. at ¶¶ 4-5.) On March 15, 2019, the Court extended discovery
through April 12, 2019 as requested. (Doc. 37.)
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The case was reassigned from Judge James A. Parker to Judge Martha Vázquez as the trial
judge on April 2, 2019. (Doc. 40.) On April 15, 2019, Judge Vázquez entered an Order Cancelling
Deadlines which specified that the “Pre-Trial Conference, Call of the Calendar and Bench Trial
dates previously imposed by Judge James A. Parker are hereby VACATED.” (Doc. 41.) On
January 6, 2020, the case was reassigned to Judge Kea W. Riggs as the trial judge. (Doc. 68.) To
date, trial has not yet been rescheduled.
C. Discovery Obtained and Disclosed
According to the pleadings, the parties have deposed eight witnesses in this matter: (1)
Plaintiff; (2) Plaintiff’s expert, Dr. Liss; (3) Defendant’s expert, Dr. Neal Shadoff; (4) four VA
Hospital physicians who treated the decedent; and, (5) a Dr. Vadhani, whose role in this case is
unclear. (See Doc. 11 at 6-11; Doc. 60; Doc. 61-1 at 1; Doc. 66 at 2; Doc. 66-2.) It is undisputed
that Dr. Shadoff was not deposed until July 12, 2019, three months after discovery terminated.
In addition to depositions, discovery relevant to the instant Motion includes: (1) Plaintiff’s
disclosure to Defendant, in October 2018, of “copies of the estimates for dental care prepared in
Mexico,” (Doc. 58-1; see also Doc. 54-5 at 1; Doc. 69 at 4); (2) Defendant’s disclosure of Dr.
Shadoff’s expert report to Plaintiff on November 5, 2018, (Doc. 24; see Doc. 61-1); (3)
Defendant’s supplementation of Dr. Shadoff’s report on April 19, 2019, (Doc. 60); and, (4)
Plaintiff’s disclosure of Dr. Moran’s March 2015 x-ray of the decedent’s teeth to Defendant in
October 2019. (Doc. 66 at 3.)
III.

Plaintiff’s Motion to Reopen Discovery

Plaintiff filed the instant Motion on October 29, 2019, some six months after discovery
closed. (Doc. 54.) In her Motion, Plaintiff asks the Court to clarify whether Judge Vázquez’s
April 15, 2019 Order Cancelling Deadlines vacated the discovery and motions deadlines in the

6

case.2 (Id. at 1-2.) In the alternative, Plaintiff asks the Court to reopen the discovery and motions
deadlines
to permit the Plaintiff to include the deceased’s dental records in her exhibit list and to
take the deposition of Dr. Moran if that is possible, or if not, to retain a local dentist
who has examined the X-Rays to testify as an expert on the condition of the deceased’s
teeth in March of 2015.

(Id. at ¶ 12.) Plaintiff adds that the testimony of Defendant’s expert witness, Dr. Shadoff, “may
also require the Plaintiff to retain an expert cardiologist.” (Id. at ¶ 13.)

Plaintiff argues that the need for this discovery arose only after she deposed Dr. Shadoff
because she “had no indication that the Defendant was going to deny that [the decedent] had bad
teeth” until that time. (Doc. 55 at 2.) Specifically, according to Plaintiff, Dr. Shadoff indicated for
the first time at his deposition that “he could find no mention in the medical records that the VA
physicians observed cavities in the teeth of the deceased until Dr. Susan Kellie recommended a
dental consult for her.” (Doc. 54 at ¶ 6.) Plaintiff contends that Dr. Shadoff
testified as to his theory that because there was no mention about the decedent’s
bad teeth in the VA medical records from early 2015 until November 2015, the lack
of such a record proves that she did not have bad teeth in early 2015 . . . because
the examining physicians would have mentioned the bad teeth if they existed.
(Doc. 55 at 2.) Plaintiff explains that she “would like the opportunity to test [Dr. Shadoff’s]
confidence [in the infallibility of his fellow physicians] by presenting hard facts of tooth decay in
the deceased’s mouth.” (Id.)
In her Supplement, Plaintiff narrows the scope of the discovery she is seeking to a “brief”
deposition of Dr. Moran regarding “his recollection of the examination of the deceased and any
comments that he might make from examining the X-Rays.” (Doc. 66 at 3.) Plaintiff argues that

2
The position that Judge Vázquez vacated the discovery deadline in her April 15, 2019 Order Cancelling Deadlines
is patently untenable, both because the discovery deadline had already expired by April 15, 2019, and because Judge
Vázquez was perfectly clear regarding which deadlines she was vacating and made no mention of the discovery
deadline. No clarification of Judge Vázquez’s Order is needed, and to the extent Plaintiff still seeks such clarification,
her Motion is denied.

7

Dr. Moran will not be presenting expert testimony in this case but will testify as a
treating dentist. His testimony about his evaluation of the decedent’s teeth and gums
on March 31, 2015, is the best evidence of the condition of the decedent’s teeth just
over two weeks prior to her visit to the emergency room at the VA hospital on April
16, 2015.
(Doc. 66 at 3-4.) According to Plaintiff, Dr. Moran’s testimony will “refute Dr. Shadoff’s claim
that the decedent had no notable teeth or gum problems” when she was seen by Dr. Yoo and “the
various other physicians who examined her” before November 23, 2015, and thus allow Plaintiff
to “show that Dr. Yoo and the subsequent physicians were negligent in their treatment of the
decedent.” (Doc. 66 at 4.)
In addition to arguing that Plaintiff has failed to establish good cause to support reopening
discovery, (Doc. 58 at 2-4; Doc. 69 at 2-4), Defendant challenges both the relevance and the
propriety of the testimony Plaintiff seeks to elicit from Dr. Moran. (Doc. 69 at 6-8.) Regarding
relevance, Defendant argues that Plaintiff fails to explain how Dr. Moran’s testimony regarding
the condition of the decedent’s teeth in March 2015 can be linked to her medical condition and
ultimate death eight months later. (Id. at 6-7.) Defendant additionally challenges Plaintiff’s
characterization of Dr. Shadoff’s testimony, specifically that Dr. Shadoff “claim[ed] that [the
decedent] had no notable teeth or gum problems when examined by Dr. Yoo[.]” (Id. at 7.)
According to Defendant, Dr. Shadoff “merely testified . . . that none of the V.A. providers noted
any dental issues in [the decedent’s] medical chart[.]” (Id.) Regarding propriety, Defendant
questions Plaintiff’s assertion that Dr. Moran will not be presenting expert testimony and expresses
a concern that “Dr. Moran’s testimony will border on expert testimony if Plaintiff seeks to obtain
his opinion of what the x-rays show.” (Id. at 6-8.)
IV.

Analysis

A. Applicable Legal Standards

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Under Federal Rule of Civil Procedure 6, “[w]hen an act may or must be done within a
specified time, the court may, for good cause, extend the time . . . on motion made after the time
has expired if the party failed to act because of excusable neglect.” Fed. R. Civ. P. 6(b)(1)(B).
“[E]xcusable neglect under Rule 6(b) is a somewhat elastic concept and is not limited strictly to
omissions caused by circumstances beyond the control of the movant.” Pioneer Inv. Servs. Co. v.
Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 392 (1993) (internal quotation marks omitted).
“[T]he determination is at bottom an equitable one, taking account of all relevant circumstances
surrounding the party’s omission.” Id. at 395.
If the Court finds that there is excusable neglect for Plaintiff’s failure to timely complete
or move to extend discovery, it must then determine whether good cause exists to support
modification of the Scheduling Order. See Fed. R. Civ. P. 16(b)(4); D.N.M.LR-Civ. 16.1. To
demonstrate good cause under Rule 16, the moving party must “show that it has been diligent in
attempting to meet the deadlines.” Strope v. Collins, 315 F. App’x 57, 61 (10th Cir. 2009) (citation
omitted).3 In deciding whether to modify a scheduling order to reopen discovery, courts are to
consider “several relevant factors,” including:
1) whether trial is imminent, 2) whether the request is opposed, 3) whether the nonmoving party would be prejudiced, 4) whether the moving party was diligent in
obtaining discovery within the guidelines established by the court, 5) the
foreseeability of the need for additional discovery in light of the time allowed for
discovery by the district court, and 6) the likelihood that the discovery will lead to
relevant evidence.
Smith v. United States, 834 F.2d 166, 170 (10th Cir. 1987). Whether to reopen discovery is a matter
within the Court’s discretion. See id.
B. Whether Plaintiff Has Demonstrated Excusable Neglect

3

Unpublished decisions are not binding precedent in the Tenth Circuit but may be cited for their persuasive value.
United States v. Austin, 426 F.3d 1266, 1274 (10th Cir. 2005).

9

Plaintiff waited over six months after the deadline for seeking to extend discovery expired
to file her Motion. (See Doc. 17 at 2 (“Any requests for additional discovery must be submitted
to the Court by motion prior to the expiration of the discovery.”) By way of explanation, Plaintiff
states that she believed the “intent” of Judge Vázquez’s April 15, 2019 Order Cancelling Deadlines
was to “vacate all deadlines including the April 12, 2019 discovery deadline[.]” (Doc. 54 at ¶ 3.)
That belief is manifestly untenable, both because the discovery deadline had already expired by
April 15, 2019, and because Judge Vázquez was perfectly clear regarding which deadlines she was
vacating and made no mention of the discovery deadline. However, Plaintiff further explains that
from late 2018 to mid-2019 her counsel was dealing with his wife’s and his own serious medical
issues, discussed in more detail below, which doubtless contributed both to counsel’s neglect, and
to his confusion. Moreover, the Court notes that Defendant added to the confusion by allowing its
expert to be deposed three months after discovery terminated without seeking the Court’s leave.
Based on the peculiar and rare convergence of circumstances presented in this case, the Court
reluctantly finds that Plaintiff’s neglect in failing to seek a discovery extension until October 2019,
is excusable.
C. Application of the Smith Factors for Determining Whether There is Good Cause to
Reopen Discovery
1. Imminence of Trial
The previously scheduled trial in this case was vacated on April 15, 2019 and has not yet
been rescheduled. (Doc. 41.) Defendant asserts that granting Plaintiff’s Motion “will delay trial
setting further.” (Doc. 58 at 7.) Nevertheless, a trial that has not yet been set cannot be
characterized as imminent. The Court therefore finds that the first Smith factor weighs in favor of
reopening discovery.
2. Whether the Request is Opposed
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Defendant opposes Plaintiff’s request to reopen discovery because, it argues, “Plaintiff has
had plenty of time to determine her litigation strategy since this case began administratively and
upon the filing of this lawsuit,” and has failed to establish good cause to support her Motion. (Doc.
58.) Defendant opposes not only Plaintiff’s initial Motion, but also the narrower Supplement she
filed on December 30, 2019. (See id.; Doc. 69.) Thus, this factor weighs against reopening
discovery.
3. Whether Defendant Would Be Prejudiced
Defendant contends that, if the Court grants Plaintiff’s Motion, it “will be prejudiced
because discovery would essentially be started all over to satisfy Plaintiff’s requests” and that “[a]
new schedule will likely result in further delay in the final disposition of this matter.” (Doc. 58 at
7.) As explained below, the Court finds Defendant’s assertions of prejudice to be unavailing.
Initially, the Court notes that this case has been pending for over two years and that case
management deadlines have been extended several times on the parties’ joint requests. According
to the parties’ own motions, they were diligent in conducting discovery; discovery was
“proceeding”; and, both sides needed the requested extensions. (Docs. 20, 26, 34.) Further,
Defendant appears to have been complicit in the de facto discovery extension that occurred when
Plaintiff took Dr. Shadoff’s deposition in July 2019, months after discovery terminated and without
the Court’s leave. The Court agrees that the additional discovery Plaintiff seeks in her initial
Motion could result in, essentially, a whole new discovery period, and could therefore be
prejudicial to Defendant. However, the Court fails to see, and Defendant has failed to explain,
how the Court’s allowing the narrower scope of discovery Plaintiff seeks in her Supplement, i.e.,
Dr. Moran’s brief deposition as a fact witness, would unfairly prejudice it. As such, the Court finds
that this factor weighs in favor of reopening discovery for the limited purpose identified in
Plaintiff’s Supplement.
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4. Diligence of the Moving Party
This factor addresses “whether the moving party was diligent in obtaining discovery within
the guidelines established by the court.” Smith, 834 F.2d at 170. Defendant argues that “Plaintiff
was not diligent in seeking to locate and depose Dr. Moran or in locating expert witnesses to review
her case and testify on behalf of her case.” (Doc. 58 at 7.) Defendant additionally argues that
Plaintiff’s proffered explanations for her delay in moving to depose Dr. Moran are insufficient to
weigh in favor of reopening discovery. (Doc. 69 at 4-5.) The Court disagrees.
While it is true that Plaintiff did not depose Dr. Moran during discovery, Plaintiff did timely
provide Defendant with the decedent’s treatment records from Dr. Moran. (See Doc. 58 at 5; Doc.
58-1 at 2; Doc. 66 at 2-3.) However, for reasons that are unclear, it appears that she did not receive
the March 2015 x-ray image of the decedent’s teeth when she initially obtained these records. (See
Doc. 61 at 6; Doc. 66 at 3.) Also, Plaintiff contends that she tried to contact Dr. Moran’s office for
additional records in April and May of 2019 but received no response. (Doc. 66 at 3.) Plaintiff
represents that it was not until October 12, 2019 that she was able to obtain a copy of the x-ray,
which she provided to Defendant that same month. (Id.) Defendant does not challenge this
description of events, which in the Court’s view demonstrates at least some degree of diligence on
Plaintiff’s part in pursuing evidence from Dr. Moran.
Moreover, Defendant’s contention that Plaintiff “was not diligent . . . in locating expert
witnesses to review her case and testify on behalf of her case” is inaccurate. (Doc. 58 at 7.) In fact,
Plaintiff timely hired Dr. Liss as an expert witness to testify that the decedent’s death “was caused
by the failure of the primary care physicians at the VA [Hospital] to diagnose bacterial endocarditis
by ordering blood cultures[.]” (Doc. 11 at 6.) At his deposition, Dr. Liss explained that “when the
teeth are in miserable condition and black at the borders, and many of the gums are red as described
by other people, . . . that should be noted because . . . the most common source of infection for the
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heart valve is from the teeth.” (Doc. 54-4.) Asked about the basis for his description of the
decedent’s teeth, Dr. Liss explained that he was making “an educated guess” based on the fact that
“she had just presented to a Mexican dentist trying to get her teeth fixed[.]” (Doc. 54-4.) The Court
is satisfied that Plaintiff’s engagement of Dr. Liss demonstrates some degree of diligence in
obtaining discovery necessary—though perhaps, without more, insufficient—to support her theory
of causation.
Finally, the Court must consider Plaintiff’s counsel’s explanation for any lack of diligence
on his part, i.e., his personal and professional circumstances from December 2018 through
September 2019. Counsel, who is 79 years old, represents that his elderly wife was hospitalized
for gastrointestinal bleeding several times in late 2018 and early 2019. (Doc. 66 at 1.) Then, in
April 2019, she had heart surgery and has “returned to the hospital several times . . . for electrical
cardioversion to treat an acute atrial fibrillation problem.” (Id.) Counsel and his wife have no
children, and counsel is his wife’s “only support at home and cared for her when she fell ill.” (Id.)
In addition, counsel himself underwent an operation for colon cancer, contracted hospitalacquired pneumonia, and suffered a mild stroke for which he had to be hospitalized, all in late May
and early June of 2019. (Doc. 61 at 4; Doc. 66 at 1; see also Doc. 46 at ¶ 4.) Furthermore, from
June through September 2019, and while still dealing with the aforementioned health issues,
counsel was “engaged in extensive litigation” in a case that had been pending in state court for
nearly thirteen years and finally went to trial in September 2019 after voluminous motions practice
in the months leading up to trial. (Doc. 66 at 2; Doc. 66-1.) To be sure, an attorney’s election to
tend to impending deadlines in one case does not, on its own, excuse his failure to meet deadlines
in another. Cf. Ghamrawi v. Case & Assocs. Props. Inc., 116 F. App’x 206, 210 (10th Cir. 2004)
(holding that the district court did not abuse its discretion by denying counsel’s untimely motion
to file a late response where counsel “intentionally chose to work on another litigation matter,
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rather than plaintiff’s response, because the other matter was close to trial”). However, under the
totality of the circumstances on the record before it, the Court finds that Plaintiff has adequately
explained her delay in pursuing the relief she seeks in her Motion.
In short, the Court finds that this Smith factor weighs in favor of reopening discovery
because Plaintiff, though not perfect, demonstrated some degree of diligence in pursuing discovery
within the Court’s guidelines.
5. Foreseeability of the Need for Additional Discovery
Regarding this factor, Plaintiff argues that her need to depose Dr. Moran did not arise until
Dr. Shadoff’s deposition, by which time discovery had closed. (Doc. 55 at 3.) According to
Plaintiff,
[p]revious to Dr. Shadoff’s deposition testimony there seemed little doubt that the
decedent’s teeth were in very poor condition because the Defendant’s own
physician, Dr. Kellie, stated that the condition of the teeth required a ‘medically
compelling dentistry consult.’
(Doc. 66 at 3.) Defendant counters that Plaintiff was well aware that the decedent’s dental health
was central to her theory of negligence from the time she filed her Complaint, and that she should
have known of the need to depose Dr. Moran and/or hire a dental expert since at least October
2018, when she produced Dr. Moran’s records to Defendant, and certainly no later than November
2018, when she received Dr. Shadoff’s report. (Doc. 58 at 7-8; Doc. 69 at 4, 6.)
The Court agrees with Defendant that this factor weighs against reopening discovery. The
decedent’s dentition has been a central part of Plaintiff’s case-in-chief from the very beginning of
this litigation. (See Doc. 1; Doc. 42-1.) The record belies Plaintiff’s contention that, “[u]ntil Dr.
Shadoff’s deposition testimony, . . . the Plaintiff was not aware of any dispute by the Defendant as
to the deceased’s poor dentition.” (Doc. 54 at ¶ 10.) In her Complaint, Plaintiff specifically alleged:

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18. Surgery on the mitral valve was indicated but the deceased had poor dentition,
with missing teeth and several infected teeth, which was a concern because
dental infection can carry the risk of infection from the surgery.
19. Poor dentition such as caries (cavities) and infected teeth on a person with
[mitral valve prolapse] can cause bacterial infection of the heart and is an
indicator of infective endocarditis, which should have alerted the medical staff
at the Hospital.
20. During the course of her treatment at the Hospital in 2015, the deceased was
referred by her physicians for a dental consult and dental care at the Hospital
on two (2) occasions.
21. The dental referrals were denied on the basis that the deceased did not meet the
[VA’s] criteria for dental care, although the proper criteria include ‘medically
indicated treatment,’ which applied to the deceased.
(Doc. 1 at ¶¶ 18-21.) Plaintiff further alleged that the streptococcus sanguinis found in her blood
cultures “is a type of bacteria from the mouth related to [the decedent’s] poor dentition.” (Id. at
¶ 36.) With the exception of Plaintiff’s allegation that the “dental referrals were denied on the
basis that the deceased did not meet the [VA’s] criteria for dental care,” (id. at ¶ 21), Defendant
denied all of these dentition-related allegations on the basis that it lacked sufficient knowledge to
admit or deny them. (Doc. 7 at ¶¶ 18-21, 36.)
Based on the foregoing, the Court finds that the need for discovery related to both the
factual question of the condition of the decedent’s dentition and the legal question of whether her
dentition was causally related to her death were foreseeable well before Plaintiff took Dr. Shadoff’s
deposition. This factor weighs against reopening discovery.
6. Likelihood that Discovery Will Lead to Relevant Evidence
Relevant evidence is evidence that “has any tendency to make a fact more or less probable
than it would be without the evidence,” and “the fact is of consequence in determining the action.”
Fed. R. Evid. 401. Before determining whether the additional discovery at issue is likely to lead
to such evidence, the Court must clarify precisely what additional discovery it might permit
15

Plaintiff to take. In her Supplement, Plaintiff tacitly concedes that she cannot engage in the
wholesale expert discovery she originally sought in her Motion. (Doc. 66 at 3-4.) Rather, as
previously noted, she now proposes to limit the discovery she seeks to a “brief” deposition of Dr.
Moran regarding “his recollection of the examination of the deceased and any comments that he
might make from examining the X-Rays,” not as an expert witness, but as a treating dentist. (Id.)
The fact that Plaintiff’s expert disclosure deadline expired in October 2018 demands this
concession. (Doc. 21.) As suggested in Section IV.B.3, supra, the prejudice to Defendant if the
Court were to reopen expert discovery would tip the balance of the Smith factors in favor of
denying such relief.
As such, the Court emphasizes that the only discovery it will consider permitting Plaintiff
to take at this time is the brief deposition of Dr. Moran as a treating dentist, and not as an expert
witness. A treating physician not disclosed as an expert “may provide testimony only within the
province of a lay witness” regarding his interactions with his patient. Montoya v. Sheldon, 286
F.R.D. 602, 619 (D.N.M. 2012) (quotation marks omitted); cf., e.g., Musser v. Gentiva Health
Servs., 356 F.3d 751, 758 (7th Cir. 2004) (“[E]ven treating physicians and treating nurses must be
designated as experts if they are to provide expert testimony.”). He “cannot express [an] opinion
as to matters which are beyond the realm of common experience and which require [the] special
skill and knowledge of an expert witness.” Montoya, 286 F.R.D. at 620 (quotation marks omitted).
Thus, Plaintiff would be limited to deposing Dr. Moran about his observations as a lay witness,
such as the physical appearance of the decedent’s teeth and gums, as opposed to his opinions
regarding matters beyond the realm of common experience, such as his interpretation of the
decedent’s March 2015 x-ray.
Nevertheless, even this limited discovery is likely to lead to evidence that has the tendency
to make a fact—to wit, whether the decedent’s dentition in March 2015 was visibly poor—more
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or less probable than it would be without the evidence. And that fact, in turn, is of consequence in
determining this action, because Plaintiff seeks to prove, inter alia, that Defendant was negligent
in failing to timely realize that the decedent’s poor dentition was the source of the bacterial
infection that ultimately caused her death. (See Doc. 66-2.) Indeed, Defendant concedes that the
discovery Plaintiff seeks “is part of Plaintiff’s theory of negligence” and offers no reasoned
argument as to why it would be unlikely to lead to relevant evidence. (Doc. 58 at 8); cf. Simpson
v. Univ. of Colo., 220 F.R.D. 354, 359 (D. Colo. 2014) (“When the discovery sought appears
relevant, the party resisting the discovery has the burden to establish the lack of relevance by
demonstrating that the requested discovery (1) does not come within the scope of relevance as
defined under Fed. R. Civ. P. 26(b)(1), or (2) is of such marginal relevance that the potential harm
occasioned by discovery would outweigh the ordinary presumption in favor of broad disclosure.”
(quotation marks and citation omitted)). The Court therefore finds that this factor weighs in favor
of reopening discovery.
V.

Conclusion

On balance, the Court finds that the Smith factors weigh in favor of reopening discovery
for the limited purpose of allowing Plaintiff to depose Dr. Moran briefly as a lay witness. The
Court will therefore grant Plaintiff’s Motion to that extent. The remainder of Plaintiff’s Motion
will be denied. The Court notes that Dr. Moran is located in Juarez, Mexico, while defense counsel
is located in Albuquerque. The Court instructs the parties that it will not require defense counsel
to travel outside of Albuquerque to attend Dr. Moran’s deposition. If Dr. Moran is unable or
unwilling to travel to Albuquerque to be deposed, Plaintiff’s counsel should explore the possibility
of deposing him remotely, for example, by Skype.
IT IS THEREFORE ORDERED that Plaintiff’s Motion for an Amended Scheduling Order
Reopening Discovery or to Clarify Order Vacating Deadlines (Doc. 54) is GRANTED insofar as
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discovery in this matter is reopened for the limited purpose of allowing Plaintiff to depose Dr.
Moran as a lay witness. Plaintiff must complete this deposition by Thursday, March 26, 2020.
In all other respects, the Motion is DENIED.
IT IS SO ORDERED.

_____________________________________
KIRTAN KHALSA
UNITED STATES MAGISTRATE JUDGE

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