Lemmon v. City of Akron, et al

Filing 22

Memorandum Opinion: Plaintiff's untimely motion for an extension of the expert discovery deadline is denied. (Related Doc. No. 20 ). Judge Sara Lioi on 11/30/2017. (P,J)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

WILLIAM T. LEMMON, SR.,

PLAINTIFF,
vs.
CITY OF AKRON, et al.,

DEFENDANTS.

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CASE NO. 5:16cv2356

JUDGE SARA LIOI

MEMORANDUM OPINION

This matter comes before the Court on the motion of plaintiff William Lemmon, Sr.
(“plaintiff”) for a thirty (30) day extension of the time to submit expert reports. (Doc. No. 20
[“Mot.”].) Defendants City of Akron, James Nice, and Brian Armstead (collectively
“defendants”) oppose the motion. (Doc. No. 21 [“Opp’n”].) For the following reasons, and for
the reasons set forth in defendants’ response, plaintiff’s motion is denied.
This civil rights action, filed on September 23, 2016, stems from the fatal shooting of
William R. Lemmon (the “decedent”) by Akron police officer Brian Armstead. (Doc. No. 1
(Complaint [“Compl.”]) ¶ 1.) Plaintiff, the administrator of the estate of the decedent, brings this
action under 42 U.S.C. § 1983, alleging that defendants deprived the decedent of his right to be
free from unreasonable seizure and excessive force under the Fourth and/or Fourteenth
Amendments to the United States Constitution. (Id. ¶ 2.)

On February 15, 2017, the Court conducted a telephonic case management conference, at
which time it set dates and deadlines to govern this case. (Minutes, dated 2/15/17; Doc. No. 13
(Case Management Plan and Trial Order [“CMPTO”]).) Pursuant to the CMPTO, and relevant to
the present motion, the deadline for completing non-expert discovery was October 20, 2017, and
the deadline for the party with the burden of proof to identify any expert witnesses and provide
expert reports was November 13, 2017. (CMPTO at 79-80.)
On November 1, 2017, twelve days after the deadline for non-expert discovery had
passed, and twelve days before plaintiff was required to identify expert witnesses and prove any
reports, the Court conducted a telephonic status conference. During the conference, counsel
reported that the case was “moving along in accordance with the Court’s [CMPTO].” (Minutes,
dated 11/01/17.) Counsel for plaintiff did not indicate that he believed that he would need
additional time in order to identify experts or provide expert reports.
On November 15, 2017, two days after the deadline for identifying his expert witnesses
had passed, plaintiff filed the present motion for an extension. In support of his motion, plaintiff
represents that his lead counsel had arranged a meeting with defense counsel to take place on
November 9, 2017, but that his counsel had to cancel the meeting because counsel is “being
treated for, and will be undergoing surgery for a medical problem in the very near future.” (Mot.
at 109.) He claims that counsel did meet on November 14, 2017, and that, based on a “free
ranging discussion of the case and the parties’ positions” at this meeting, “[p]laintiff’s counsel
will likely need to retain an expert as to the need for, proper deployment of, and use of deadly
force in suspect apprehension situations. The [p]laintiff will likely retain the services of an
economist for the purposes of proof of damages and has discussed the probable identify of same
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with [d]efendants’ counsel.” (Id. at 109-110.) Plaintiff now seeks a thirty day extension of the
expert witness deadline.
Defendants oppose any extension, noting that “it should come as no surprise” to plaintiff
that expert testimony may be required in this case, inasmuch as “experts are commonplace in a
42 U.S.C. § 1983 excessive force, officer-involved-shooting wrongful death case.” (Opp’n at
112-13.) They further note that the “likely need” for such experts should have been apparent
from the outset of the case, or at the very latest, during the non-expert discovery phase. (Id. at
113.) Defendants also note that counsel discussed a number of topics at the November 14, 2017
meeting (previously scheduled for November 9, 2017), and had the meeting been “critical in
determining a need for expert witnesses, [p]laintiff’s counsel should have requested the meeting
long before the expert deadline date.” (Id.)
Rule 16 of the Federal Rules of Civil Procedure “permits district courts to amend the
pretrial scheduling order provided that the movant demonstrates ‘good cause.’” Smith v. Holston
Med. Grp., P.C., 595 F. App’x 474, 478 (6th Cir. 2014) (affirming trial court’s denial of
plaintiff’s motion to extend expert discovery deadlines for want of good cause) (quoting Fed. R.
Civ. P. 16(b)(4)). “‘The primary measure of Rule 16’s ‘good cause’ standard is the moving
party’s diligence in attempting to meet the case management order’s requirements,’ though
courts may also consider prejudice to the nonmoving party.” Smith, 595 F. Appx. at 478 (citing
Inge v. Rock Fin. Corp., 281 F.3d 613, 625 (6th Cir. 2001) (quotation marks and further citation
omitted)).
The Court finds that plaintiff has failed to demonstrate that he exercised diligence in
attempting to meet the Court’s dates and deadlines in the CMPTO. The Court agrees with
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defendants that it should have been apparent to plaintiff at the outset of the litigation, if not by
the end of non-expert discovery, that expert testimony on use of force and economic damages in
an excessive force/police shooting case may be necessary or appropriate.1 See generally King v.
Taylor, 944 F. Supp. 2d 548, 554-55 (E.D. Ky. 2013) (collecting Sixth Circuit, and district court,
cases permitting expert testimony on police officers’ use of excessive force in subduing an
arrestee). Moreover, while the Court is sympathetic to plaintiff’s counsel’s medical issues, even
if the meeting between counsel had gone forward on November 9, 2014 as original scheduled, it
is unlikely that plaintiff would have been able to secure and submit an expert report on excessive
force in the four days before his expert deadline passed.2 Further, the Court finds that, at this
stage in the litigation, plaintiff’s requested extension would clearly prejudice defendants. Under
the terms of the Court’s CMPTO, the deadline for filing dispositive motions is January 29, 2018,
and a thirty day extension of plaintiff’s expert discovery deadline will have the cascading effect
of jeopardizing all of the Court’s remaining dates and deadlines, up through and including
dispositive motion practice and trial.
Ultimately, the Court finds that plaintiff has failed to demonstrate good cause to warrant
an extension of his expert discovery deadline. The Court has both the right and the obligation to
manage the cases on its docket in a timely and effective manner, and the Court cannot justify

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Defendants underscore the fact that plaintiff did not conduct any formal non-expert discovery. The need for expert
testimony certainly would have been apparent had plaintiff propounded interrogatories, document requests, requests
for admissions, or taken any depositions. Having failed to avail himself of fact discovery, plaintiff cannot now claim
that, despite due diligence, he was unaware that he would require expert discovery. In fairness, it is possible that
plaintiff did not conduct any formal discovery because, as his counsel indicated in the record telephonic status
conference, counsel had obtained a complete copy of the Akron Police Department’s investigation file through a
pre-litigation public records request. A review of the documents contained in the investigation file, however, should
also have alerted plaintiff to the possible need for expert discovery.
Plaintiff does not suggest that his attorney’s undisclosed medical condition prevented counsel from meeting prior
to November 9, 2017.
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delaying the disposition of this case based upon plaintiff’s dilatory conduct and vague references
to counsel’s medical issues. Accordingly, plaintiff’s untimely motion for an extension of the
expert discovery deadline is denied.
IT IS SO ORDERED.

Dated: November 30, 2017
HONORABLE SARA LIOI
UNITED STATES DISTRICT JUDGE

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