SIMMONS et al v. CORIZON HEALTH, LLC et al

Filing 97

MEMORANDUM OPINION AND ORDER signed by MAG/JUDGE L. PATRICK AULD on 8/29/2016, that the Extension Motion (Docket Entry 83 ) is DENIED. (Butler, Carol)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

GLENDA S. SIMMONS, et al.,
Plaintiffs,
v.
CORIZON HEALTH, INC., et al.,
Defendants.

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1:14cv730

MEMORANDUM OPINION AND ORDER
This case comes before the Court on “Plaintiffs’ Motion for
Leave of Court to Designate Additional Expert” (Docket Entry 83)
(the “Extension Motion”).

For the reasons that follow, the Court

will deny the Extension Motion.
BACKGROUND
On August 26, 2014, Plaintiffs commenced this action against
Defendants for, inter alia, acts and/or omissions amounting to
deliberate indifference to the medical needs of Bryan Simmons
during his incarceration at the Guilford County Jail in November
and December of 2012.

(Docket Entry 2; see also Docket Entry 20.)

On August 28, 2015, the Court issued a Scheduling Order consistent
with the parties’ proposed discovery plan, which established a
discovery deadline of May 1, 2016, and an expert witness disclosure
deadline for Plaintiffs of December 31, 2015, and for Defendants of
March 3, 2016 (See Docket Entry 40 at 2).

(Text Order dated Aug.

28, 2015; see also Text Order dated Aug. 31, 2015.)

In February

2016,

the

Court

granted

Scheduling

Order

by

the

parties’

extending

the

request

expert

to

modify

witness

the

disclosure

deadlines to May 15, 2016, and July 17, 2016, respectively (as well
as by extending the discovery deadline to September 15, 2016).
(See Text Order dated Feb. 16, 2016; see also Docket Entry 65 at 12.)

On June 20, 2016, Plaintiffs filed the Extension Motion,

seeking to modify their expert disclosure deadline.

(See Docket

Entry 83.) Defendants oppose the requested extension. (See Docket
Entries 89, 96.)1
DISCUSSION
The Federal Rules of Civil Procedure (the “Rules”) generally
require the issuance of a scheduling order early in each case.
Fed. R. Civ. P. 16(b).

See

“The drafters of the Rules intended [the

scheduling] order to control the subsequent course of the action so
as to improve the quality of justice rendered in the federal courts
by sharpening the preparation and presentation of cases, tending to
eliminate trial surprise, and improving, as well as facilitating,
the settlement process.”

Forstmann v. Culp, 114 F.R.D. 83, 84-85

(M.D.N.C. 1987) (internal quotation marks omitted).

Accordingly,

the discovery “schedule may be modified only for good cause and
with the [Court’s] consent.”

Fed. R. Civ. P. 16(b)(4).

touchstone of ‘good cause’ under Rule 16(b) is diligence.”

“[T]he
Marcum

1
The Court granted Defendants leave to file a surreply
regarding the Extension Motion. (Text Order dated July 28, 2016.)
2

v. Zimmer, 163 F.R.D. 250, 255 (S.D. W. Va. 1995); see also Fed. R.
Civ.

P.

16

advisory

committee’s

note,

1983

Amendment

Subdivision (b) (“[T]he court may modify the schedule on a showing
of good cause if it cannot reasonably be met despite the diligence
of the party seeking the extension.” (emphasis added)).
Here, the (amended) Scheduling Order required Plaintiffs to
make their Rule 26(b)(2) expert witness disclosures by May 15,
2016.

(See Text Order dated Feb. 16, 2016.)

Slightly more than a

month after this deadline passed, Plaintiffs filed the Extension
Motion, seeking “an order granting an additional thirty (30) day[s]
to designate [an] expert, if one is needed” (Docket Entry 83 at 2),
“in regards to the actions of Richard Cornwall [(“Cornwall”)], a
physician’s assistant employed . . . at the jail at the time of Mr.
Simmons’ incarceration” (id. at 1).

In the Extension Motion,

Plaintiffs explain that they conducted Cornwall’s deposition on
April 26, 2016,2 and received the transcript from the deposition on
May 11, 2016, “four days before the designation deadline.”
Plaintiffs

further

state

that

they

“were

unaware

(Id.)

until

the

deposition that Cornwall had received, reviewed and disregarded the
highly abnormal blood work of Bryan Simmons 8 days before Simmons’
cardiac arrest. Therefore [they] need additional time to have this

2 The Extension Motion mistakenly states that this
occurred on April 28, 2016 (see id.), but Plaintiffs’
briefs (see, e.g., Docket Entry 84 at 1), and the
transcript (see Docket Entry 84-1 at 1) reflect that the
occurred on April 26, 2016.
3

deposition
supporting
deposition
deposition

matter reviewed by a medical expert with expertise in this area.”
(Id. at 1-2.)
In support of their extension request, Plaintiffs primarily
focus on whether their failure to designate an expert regarding
Cornwall by their disclosure deadline qualifies as substantially
justified or harmless under Rule 37.

(See, e.g., Docket Entry 84

at 4-5 (offering arguments in support of their contention that “the
inability to previously disclose was ‘substantially justified’ and
‘harmless’” (citing Fed. R. Civ. P. 37(c)(1)).)

Rule 37 governs

situations where a party discloses an expert witness after the
deadline for making such disclosures. See Fed. R. Civ. P. 37(c)(1)
(providing that a party who fails to timely identify an expert
witness “is not allowed to use that . . . witness . . . unless the
failure

[to

timely

identify

justified or is harmless”).

the

witness]

was

substantially

In other words, Rule 37 applies to

late-disclosed experts.
Here, however, Plaintiffs seek to extend their deadline for
designating expert witnesses so that they can timely “designate an
additional expert, if needed.” (Docket Entry 84 at 1; see also id.
at 4 (“This [M]otion seeks proactive approval of a supplemental
designation

in

the

wake

of

newly

discovered

evidence.”).)

Accordingly, Rule 16(b)(4) rather than Rule 37(c)(1) governs the
Court’s resolution of the Extension Motion.

Compare Hayes v.

GGP-Four Seasons, L.L.C., No. 1:10cv423, 2011 WL 1466409 (M.D.N.C.

4

Apr. 18, 2011) (analyzing whether “good cause” existed to modify
expert witness disclosure deadlines), with Southern States Rack &
Fixture, Inc. v. Sherwin-Williams Co., 318 F.3d 592, 595-99 (4th
Cir. 2003) (analyzing the five factors that “should . . . guide[]”
“a Rule 37(c)(1) exclusion analysis,” and affirming the district
court’s exclusion of a late-disclosed expert opinion).

The Court

thus considers whether Plaintiffs have established “good cause” for
the requested extension.
Plaintiffs

contend

that,

because

“Cornwall’s

deposition

transcript arrived four days before Plaintiffs’ expert disclosures
were due[,] . . . Plaintiffs did not have adequate time to obtain
an expert to review the transcript and the pertinent medical
records . . . prior to the disclosure deadline.”
at 3.)

(Docket Entry 84

Plaintiffs do not, however, explain why they waited until

June 20, 2016, to request an extension of their expert disclosure
deadline rather than, for instance, requesting such an extension
immediately after Cornwall’s deposition on April 26, 2016, or their
receipt of the deposition transcript on May 11, 2016, or at some
earlier point in the more than five-week period between receipt of
this transcript and the filing of their Extension Motion.

(See

Docket Entries 83, 84, 90; see also Docket Entry 93 (Plaintiffs’
Memorandum Opposing Corizon’s Motion for Leave to File Sur-Reply).)
Plaintiffs’ delay in presenting their extension request counsels
against finding that they have acted with diligence regarding this

5

matter.

The nature of Plaintiffs’ requested extension — thirty

days from the Court’s ruling on the Extension Motion “to designate
[an] expert, if one is needed” (Docket Entry 83 at 2) — further
counsels against such finding.

Put simply, by requesting an

additional thirty days measured from an unknown future date rather
than an extension to a specific date thirty days after filing the
Extension Motion (i.e., July 20, 2016),3 Plaintiffs reinforce the
view that, rather than moving diligently to secure an expert once
the need became apparent, they sought to avoid taking action as
long as possible.
In sum, Plaintiffs have failed to demonstrate sufficient
diligence regarding the requested extension.

As a result, they

have not established “good cause” for amending the Scheduling
Order.

See Marcum, 163 F.R.D. at 255.4

The Court will therefore

3 Such a deadline would have fallen 66 days after Plaintiffs’
extended expert disclosure deadline of May 15, 2016.
4 Further, because Plaintiffs waited until after the expert
disclosure deadline passed to seek an extension, they also would
have to satisfy the demanding “excusable neglect” standard set by
Rule 6(b)(1)(B).
See Tyndall v. Maynor, 288 F.R.D. 103, 109
(M.D.N.C. 2013).
Given Plaintiffs’ failure to offer any
explanation for waiting more than a month beyond the expert
disclosure deadline to seek an extension, as well as the threat
that allowing the requested extension might pose to the Court’s and
Defendants’ interest in meeting the parties’ agreed-upon discovery
deadline, the Court concludes that Plaintiffs also have not
established excusable neglect. See id. at 110 (applying “excusable
neglect” factors identified in Pioneer Investment Services Co. v.
Brunswick Associates Ltd. Partnership, 507 U.S. 380, 395 (1993), in
context of belated request to extend expert disclosure deadline).
6

deny Plaintiffs’ request to extend their expert witness disclosure
deadline.
CONCLUSION
Plaintiffs

have

not

shown

good

cause

for

modifying

the

Scheduling Order, as required by Rule 16(b)(4).5
IT IS THEREFORE ORDERED that the Extension Motion (Docket
Entry 83) is DENIED.
This 29th day of August, 2016.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge

5 Nothing in this Order precludes Plaintiffs from providing
a late expert witness disclosure and litigating any related matters
that arise pursuant to Rule 37(c)(1).
7