Nicholas v. Windstream Communications, LLC

Filing 47

ORDER by Magistrate Judge Kevin R. Sweazea granting 34 Motion to Extend (cbf)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO

MARSHA NICHOLAS,
Plaintiff,
v.

No. 2:17-cv-00361-KRS-GJF

WINDSTREAM COMMUNICATIONS, LLC,
Defendant.
ORDER GRANTING PLAINTIFF’S MOTION TO EXTEND
EXPERT DISCLOSURE DEADLINE
THIS MATTER comes before the Court on Plaintiff’s motion to extend the expert
disclosure deadline for two witnesses, Ronald Haugen, who will testify about Plaintiff’s mental
health and Mark McKinnon who will educate the jury on economic damages. (Doc. 34).
Plaintiff concedes she did not formally designate Haugen before the October 2, 2017 deadline
expired, but did produce his report. As for McKinnon, it appears Plaintiff neither timely
identified him nor provided his report. Plaintiff asks the Court to overlook the noncompliance
because her two attorneys each believed the other had submitted the necessary paperwork.
Although Defendant accepts Plaintiff’s justification as true, Defendant contends the excuse is
insufficient to afford relief. The Court has reviewed the parties’ submissions and considered the
record. With the consent of the parties to conduct dispositive proceedings, see 28 U.S.C. §
636(c), the Court exercises its discretion to extend the disclosure deadline.
STANDARD OF REVIEW
Federal Rule of Civil Procedure 16 requires good cause for extending deadline in a
scheduling order. 1 See Fed. R. Civ. P. 16(b)(4) (providing that a scheduling order “may be

1

Federal Rule of Civil Procedure 6(b), which also governs extending time, appears to require a movant to show
“excusable neglect” if a deadline has passed before a movant seeks relief. Whether the standard is good cause or
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modified only for good cause and with the judge’s consent”); (Doc. 17) (requiring the Court “to
approve any changes to the timing and scope of discovery”). “In practice, this standard requires
the movant to show the scheduling deadlines cannot be met despite [the movant’s] diligent
efforts.” Gorsuch, Ltd., B.C. v. Wells Fargo Nat’l Bank Ass’n, 771 F.3d 1230, 1240 (10th Cir.
2015). Although the Court has “broad discretion in managing the pretrial schedule,” the Tenth
Circuit has cautioned that “a scheduling order can have an outcome-determinative effect on the
case[.]” Rimbert v. Eli Lilly & Co., 647 F.3d 1247, 1254 (10th Cir. 2011) (citations and quotation
omitted). As a result, strict enforcement that results in the exclusion of evidence is a “drastic
sanction and total inflexibility is undesirable.” Id. Four factors frame the Court’s exercise of
discretion: (1) “prejudice or surprise” to the non-movant; (2) the non-movant’s ability to cure the
prejudice; (3) the disruption to the order and efficiency of trial of the case or other cases; and (4)
the movant’s scienter. Id.
DISCUSSION
Applying the four factors in this case, an extension of the scheduling order to allow for
the disclosure of McKinnon 2 is warranted. Although the Court does not condone Plaintiff’s
counsel’s failure to internally communicate and adequately monitor case deadlines, the sound
exercise of discretion counsels against using the scheduling order as an inflexible tool to exclude
expert testimony altogether.
Prejudice & Surprise
In the parties’ JSR, McKinnon was listed by Plaintiff as a “may-call” expert who would
speak to Plaintiff’s economic damages. (Doc. 13). Thus, Defendant had some idea McKinnon

excusable neglect, if the Court does not extend the scheduling order deadline, the effect would be exclusion of the
challenged witnesses. As a result, the Court applies the four-factor test outlined below.
2
It does not appear Defendant seriously objects to Haugen’s late formal disclosure. To the extent Defendant
contests the motion to extend for Haugen, there is no prejudice or surprise. Haugen was informally disclosed in
August 2017 and since then deposed. Defendant further has filed a Daubert motion challenging Haugen’s
qualifications. Consequently, the Court does not address Haugen further.
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might feature in the lawsuit and cannot feign real surprise. The Court agrees, however, that the
purpose and substance of expert disclosures extends far beyond the designation Plaintiff made in
the JSR. See Fed. R. Civ. P. 26(a)(B) & (D) (requiring by the deadline set in the scheduling
order, a report from retained experts containing “(i) a complete statement of all opinions the
witness will express and the basis and reasons for them; (ii) the facts or data considered by the
witness in forming them; (iii) any exhibits that will be used to summarize or support them; (iv)
the witness’s qualifications, including a list of all publications authored in the previous 10 years;
(v) a list of all other cases in which, during the previous 4 years, the witness testified as an expert
at trial or by deposition; and (vi) a statement of the compensation to be paid for the study and
testimony in the case.”). For that reason, failure to timely and properly disclose an expert
requires exclusion unless “the failure was substantially justified.” Fed. R. Civ. P. 37(c)(1).
Defendant suggests that prejudice arises from the fact that discovery is closed, the report
was not received on time, and the report itself is deficient. These points are all valid. The
problem is, however, trial has not yet been scheduled, and Defendant does not argue that the
deficiencies cannot be corrected and exclusion of McKinnon’s report is the only fair result. Cf.
Rimbert, 647 F.3d at 1254 (explaining that “here, the single most important fact about the
posture . . . is that, at the time [the motion to extend] was made, there was no longer any
impending trial date or pretrial schedule remaining”). Moreover, Defendant’s claim that it is now
left with McKinnon’s report as Plaintiff’s computation of damages means Defendant did not
avail itself of remedies under Rule 37(c)(1) for deficient initial-disclosures. See Fed. R. Civ. P.
26(a)(1)(iii). Even after receiving McKinnon’s late disclosure, which the Court agrees Plaintiff
will likely need to correct, see, e.g., Fed. R. Civ. P. 26(a)(2)(B)(iii)-(vi) (requiring more than just
a report), the motions cutoff had not elapsed. Defendant did not seek exclusion or to compel a
proper disclosure. In sum, the surprise-and-prejudice factor weighs in favor of extension.
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Ability to Cure Prejudice
At the time of McKinnon’s disclosure, Defendant was within the timeframe for moving
to compel under Rule 37 to force Plaintiff to correct any deficiencies or, as mentioned above, to
exclude McKinnon altogether. Moreover, discovery was still open after McKinnon’s
designation. As a result, while the Court is cognizant that a timely and compliant expert report
might obviate the need for a deposition, Defendant could have deposed McKinnon to alleviate
some prejudice. True, at the time, Defendant could no longer designate a rebuttal expert under
the scheduling order, but the Court may remedy any prejudice by extending discovery and
allowing Defendant to retain an additional expert should it choose to. See Rimbert, 647 F.3d at
1255 (explaining “there is no reason the district court could not provide ample opportunity for
[Defendant] to test the opinions of the . . . expert witness, review the witness’s reports, depose
the new witness, and adequately defend against that expert at trial”). Thus, this factor does not
preclude relief.
Disruption
The Court endeavors to dispose of the matters before it expeditiously. Nonetheless, since
there is no trial scheduling order in place, disruptions will be minimal and the Court can
accommodate a modest delay in the proceedings. Thus, there is no discernable issue under this
prong of the analysis.
Bad Faith
The Court does not condone counsel’s inadvertence and inattention to the case
management deadlines. Had a trial been scheduled and imminent, the Court may well have been
compelled to deny the motion, which could have had dire consequences for the presentation of
Plaintiff’s case. However, the Court also recognizes that Plaintiff’s counsel immediately
disclosed the information to the Court and opposing counsel. Thus, while the Court would
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expect that in the future that counsel will examine and correct internal procedures to prevent a
reoccurrence, the Court determines that counsel promptly took ownership of the mistake and did
not act in bad faith or with dilatory purpose.
CONCLUSION
For the reasons above, a modest extension of the scheduling order is appropriate. IT IS,
THEREFORE, ORDERED that Plaintiff’s motion is GRANTED and Plaintiff’s late
disclosures are accepted as timely.
IT IS FURTHER ORDERED that discovery is reopened until April 6, 2018 to permit
Defendant to depose McKinnon and to disclose any rebuttal expert.
IT IS FURTHER ORDERED that the deadline for filing motions related to discovery is
extended until March 19, 2018 to allow Defendant to challenge the sufficiency of McKinnon’s
disclosure.

________________________________
KEVIN R. SWEAZEA
UNITED STATES MAGISTRATE JUDGE
Presiding by Consent

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