Family Service Association of Steubenville, Ohio v. Wells Township et al
Filing
108
OPINION AND ORDER granting Defendant Ronald Bradcovich's Motion for Leave toName Additional Expert Witness, 2:12-cv-135, ECF 104 ; 2:13-cv-1193, ECF 56 . Signed by Magistrate Judge Norah McCann King on 6/10/2015. Associated Cases: 2:12-cv-00135-MHW-NMK, 2:13-cv-01192-MHW-NMK (pes)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
FAMILY SERVICE ASSOCIATION OF
STEUBENVILLE, OHIO,
Plaintiff,
Case No. 2:12-cv-135
Judge Watson
Magistrate Judge King
v.
WELLS TOWNSHIP, et al.,
Defendants.
Defendants.
JEFFREY KAMERER, JR.,
Plaintiff,
Civil Action 2:13-cv-1192
Judge Watson
Magistrate Judge King
vs.
RONALD J. BRADCOVICH,
Defendant.
OPINION AND ORDER
This matter is before the Court on the Motion of Defendant Ronald
Bradcovich for Leave to Name Additional Expert Witness, 12-cv-135, ECF
104; 2:13-cv-1193, ECF 56 (“Motion”).
For the reasons that follow,
the Motion is GRANTED.
I.
PROCEDURAL BACKGROUND
On February 13, 2012, Family Service Association of
Steubenville, Ohio (“Family Service”), acting on behalf of James W.
1
Coil, II,1
initiated an action in this Court, 2:12-cv-135 (the “Family
Service action”), alleging the denial of Mr. Coil’s rights under the
Constitution and in violation of state law in connection with an
incident that occurred on December 25, 2011 in Brilliant, Ohio (“the
incident”). Named as defendants in the Family Service action are
Officer Jeffrey Kamerer, an employee of the Wells Township Police
Department, Wells Township, which funds and manages the Wells Township
Police Department, and John Ingram, Chief of Police of the Wells
Township Police Department (collectively, “the Wells Township
defendants”), as well as Ronald Bradcovich, a motorist involved in the
incident.
The Wells Township defendants assert a cross claim against
defendant Bradcovich for indemnification and contribution, and
defendant Bradcovich asserts a cross claim for contribution against
the Wells Township defendants.
2:12-cv-135, ECF 9, 11, 12, 13.
On October 21, 2013, Officer Kamerer filed a personal injury
action in the Court of Common Pleas of Jefferson County, Ohio, against
defendant Bradcovich, asserting claims of negligence arising out of
the incident.
action”).
Complaint, 2:13-cv-1192, ECF 2 (the “personal injury
The personal injury action was removed to this Court on
November 27, 2013, on the basis of diversity jurisdiction, 28 U.S.C. §
1332,
Notice of Removal, 2:13-cv-1192, ECF 1,
were consolidated on April 29, 2014,
2:13-cv-1192, ECF 16.
and the two actions
Order, 2:12-cv-135, ECF 71,
The Court permitted discovery conducted in one
case to be used in the other case, but ordered that the cases maintain
1
The Probate Court of Jefferson County, Ohio, appointed plaintiff, the Family
Service Association of Steubenville, Ohio, to serve as the guardian of Mr.
Coil’s person and estate. Family Service Amended Complaint, ¶ 7.
2
separate pretrial schedules.
Id. at 1-2.
At the time, the deadline
for disclosing liability-related primary expert reports in the Family
Service action was December 31, 2012.
2:12-cv-135, ECF 16, p. 2.
Preliminary Pretrial Order,
The personal injury action required that
Officer Kamerer disclose his expert reports by June 1, 2014, and that
defendant Bradcovich disclose his expert reports by July 1, 2014.
Memorandum of First Pretrial Conference, 2:13-cv-1192, ECF 8, pp. 2-3.
Those dates were later extended to October 1, 2014 and December 3,
2014, respectively.
Order, 2:12-cv-135, ECF 78, 2:13-cv-1192, ECF 26,
pp. 2-3.
On September 18, 2014, the Court granted summary judgment in
favor of the Wells Township defendants on all of Family Service’s
claims, but denied summary judgment on Family Service’s claims against
Officer Kamerer.
Opinion and Order, 2:12-cv-135, ECF 84.
Kamerer appealed from that decision.
Officer
Notice of Appeal, 2:12-cv-135,
ECF 88.
Discovery disputes arose in connection with Officer Kamerer’s
delay in the production of his medical records in the personal injury
action, resulting in a further extension of the expert report
production dates in that action.
The reports of primary experts were
to be produced in the personal injury action by January 16, 2015; the
reports of rebuttal experts were to be produced in the personal injury
action by March 16, 2015.
Order, 2:12-cv-135, ECF 91, 2:13-cv-1192,
ECF 41, pp. 1-2.
On April 16, 2015, the United States Court of Appeals for the
Sixth Circuit affirmed the denial of Officer Kamerer’s motion for
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summary judgment in the Family Service action.
ECF 102.
Opinion, 2:12-cv-135,
See also Mandate, 2:12-cv-135, ECF 103 (filed May 15, 2015).
This Court thereafter met with counsel for the parties in both cases,
who advised that yet additional expert reports were to be produced and
that expert discovery had not yet been completed.
ECF 105, 2:13-cv-1192, ECF 57, p. 1.
Order, 2:12-cv-135,
The Court ordered Family Service
to produce its remaining expert reports by July 15, 2015, and
established September 15, 2015 as the date by which rebuttal expert
reports were to be produced in the Family Service action. Id.
The
Court further ordered, inter alia, that all expert discovery must be
completed by October 15, 2015, and that motions for summary judgment
may be filed, if at all, no later than November 1, 2015.
Id.
No
trial date has been set in either case.
The Motion is now ripe for review.
II.
STANDARD
Rule 16 of the Federal Rule of Civil Procedure governs the
Motion.
Rule 16(b) requires that the Court, in each civil action not
exempt from the operation of the rule, enter a scheduling order that,
inter alia, limits the time to complete discovery and to file motions.
Fed. R. Civ. P. 16(b)(3)(A).
The Court may also modify, inter alia,
the timing of disclosures under Rule 26(a) and the extent of
discovery.
Fed. R. Civ. P. 16(b)(3)(B). The rule further provides
that “[a] schedule may be modified only for good cause and with the
judge's consent.”
Fed. R. Civ. P. 16(b)(4).
See also S.D. Ohio Civ.
R. 16.2 (“[T]he Magistrate Judge is empowered to . . . modify
scheduling orders upon a showing of good cause.”).
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“‘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.’”
Inge v. Rock Fin. Corp., 281 F.3d 613, 625 (6th Cir.
2002) (quoting Bradford v. DANA Corp., 249 F.3d 807, 809 (8th Cir.
2001)).
“A district court should also consider possible prejudice to
the party opposing the modification.”
Andretti v. Borla Performance
Indus., Inc., 426 F.3d 824, 830 (6th Cir. 2005) (citing Inge, 281 F.3d
at 625).
The focus is, however, “primarily upon the diligence of the
movant; the absence of prejudice to the opposing party is not
equivalent to a showing of good cause.”
Ortiz v. Karnes, 2:06-cv-562,
2010 U.S. Dist. LEXIS 75287, at *2 (S.D. Ohio July 26, 2010) (citing
Tschantz v. McCann, 160 F.R.D. 568, 571 (N.D. Ind. 1995)).
Whether to
grant leave under Rule 16(b) falls within the district court’s
discretion.
Leary v. Daeschner, 349 F.3d 888, 909 (6th Cir. 2003).
III. DISCUSSION
In the case presently before the Court, defendant Bradcovich
seeks leave to name Marc Green, Ph.D., to testify as a nighttime
vision expert as to
whether James Coil and/or Jeffrey Kamerer would have been
reasonably discernible as [defendant Bradcovich] approached
the scene of the accident and whether he ought to have been
able to have avoided the accident.
Motion, p. 1.
Noting that little discovery was completed during the
pendency of the interlocutory appeal in the Family Service action,
defendant Bradcovich, who has already produced Dr. Green’s expert
report, argues that the grant of the Motion will not delay resolution
of the personal injury action.
Id.
Officer Kamerer contends that defendant Bradcovich’s failure to
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timely produce Dr. Green’s expert report is neither substantially
justified nor harmless.
Opposition, p. 1.
Although Officer Kamerer
apparently concedes that there were discovery delays in the personal
injury action related to the production of his medical records, he
argues that those delays had no impact on the production of Dr.
Green’s report.
Id. at 1-3.
Noting that defendant Bradcovich has
known of Officer Kamerer’s negligence expert witness, Walter J.
Kosmatka, since February 15, 2013, Officer Kamerer complains that
defendant Bradcovich waited nearly two years before identifying Dr.
Green as his expert.
Id.
Officer Kamerer contends that the grant of
the Motion will work to his prejudice by “complicat[ing]” “the status
of discovery” and unfairly rewarding defendant Bradcovich’s
“dereliction.”
Id. at 4.
Defendant Bradcovich disagrees, insisting that the record
reflects his diligence in discovery and preparing his defense despite
Officer Kamerer’s failure to fully cooperate in discovery.
1-3.
Reply, p.
Defendant Bradcovich denies that the grant of his Motion will
prejudice Officer Kamerer because Dr. Green’s report has been
produced, no trial date has been set, and there remains ample time to
conduct discovery in accordance with the deadlines recently
established by the Court. Id.
Defendant Bradcovich’s arguments are well-taken.
The procedural
history of this case demonstrates his diligence in the personal injury
action in seeking discovery and attempting to meet, or asking to
extend, case deadlines.
Moreover, Officer Kamerer will suffer no
prejudice if the Motion is granted.
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As noted supra, the Court has
extended the deadline for the production of expert reports in the
Family Service action and has extended the date in both cases by which
expert discovery must be completed.
2:13-cv-1192, ECF 57, p. 2.
case.
Order, 2:12-cv-135, ECF 105,
No trial date has yet been set in either
Under these circumstances, there is ample time to depose Dr.
Green.
Indeed, Family Service has not opposed the Motion.
In short,
defendant Bradcovich has established the necessary good cause in
seeking to disclose and rely upon Dr. Green’s report. See Fed. R. Civ.
P. 16(b)(4).
WHEREUPON, the Motion of Defendant Ronald Bradcovich for Leave to
Name Additional Expert Witness, 2:12-cv-135, ECF 104; 2:13-cv-1193,
ECF 56, is GRANTED.
The Court notes that the expert discovery date
remains October 15, 2015, and that any discovery-related motions must
be filed prior to that date.
Order, 2:12-cv-135, ECF 105, 2:13-cv-
1192, ECF 57, p. 2.
June 10, 2015
s/Norah McCann King
Norah McCann King
United States Magistrate Judge
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