Alexander et al v. Halliburton Company et al
ORDER denying 330 plaintiffs' Motion to Modify the Scheduling Order and Permit a Supplemental Expert Report on the Emotional Distress Claims (as more fully set out). Signed by Honorable Vicki Miles-LaGrange on 11/10/2016. (ks)
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
AMANDA ALEXANDER, et al.,
Case No. CIV-11-1343-M
Before the Court is plaintiffs’ Motion to Modify the Scheduling Order and Permit a
Supplemental Expert Report on the Emotional Distress Claims, filed October 5, 2016. On October
17, 2016, defendant filed its response. Based upon the parties’ submissions, the Court makes its
Plaintiffs seek permission from this Court to submit, as needed and appropriate, an expert
report in support of certain plaintiffs’ emotional distress claims. Plaintiffs contend that the
opportunity to insure that each plaintiff presents his or her full case to the trier of fact supports the
exercise of judicial discretion and a modification of the scheduling order. Plaintiffs assert that the
Court’s clarifying order on the need for professional or expert testimony in support of such claims,
made following the close of discovery, provides good cause for such a modification, as no case on
point existed within Oklahoma law. Plaintiffs further assert that they have worked diligently
throughout the litigation, particularly noting the numerous settlements of the claims of various
Defendant asserts that plaintiffs have not shown good cause for their requested modification.
Defendant contends that plaintiffs could have and should have retained these experts and proffered
expert reports years ago. Specifically, defendant asserts that based upon the Court’s June 2015
ruling on defendant’s motion for summary judgment, plaintiffs cannot credibly argue that they had
no fair warning of this issue for, at a minimum, well over a year. Defendant further asserts that its
ability to effectively prepare for trial would be prejudiced if belated expert issues are introduced.
Federal Rule of Civil Procedure 16(b)(4) provides: “A schedule may be modified only for
good cause and with the judge’s consent.” Fed. R. Civ. P. 16(b)(4).
Appellate decisions have identified several relevant factors in
reviewing decisions concerning whether discovery should be
reopened, including: 1) whether trial is imminent, 2) whether the
request is opposed, 3) whether the non-moving 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, 169 (10th Cir. 1987) (citations omitted).
Having carefully reviewed the parties’ submissions, the Court finds that plaintiffs have not
shown good cause to modify the scheduling order to allow plaintiffs to submit an expert report in
support of certain plaintiffs’ emotional distress claims. Specifically, the Court finds that plaintiffs
were not diligent in seeking leave of this Court to allow them to submit such an expert report.1 The
Court finds that plaintiffs should have been aware of their need for an expert in relation to certain
plaintiffs’ emotional distress claims no later than June 10, 2015, when the Court issued its order on
While the Court finds that plaintiffs have been very diligent generally in this case, the Court
finds plaintiffs have not been diligent with respect to seeking leave to obtain an expert in relation
to the emotional distress claims.
defendant’s motion for summary judgment regarding the emotional distress claims2 and should have
sought leave at that time. Further, the Court finds that the Court’s June 17, 2016 Order, granting in
part and denying in part defendant’s Motion for Summary Judgment on the Emotional Distress
Claims of Trial Plaintiffs Eric Auton and Susan Whetstone, set forth nothing new regarding the need
for an expert in relation to the emotional distress claims but simply applied the Court’s June 10,
2015 Order to the claims of the trial plaintiffs.3 Additionally, the Court finds that at this juncture,
On June 10, 2015, the Court entered an order granting in part and denying in part
defendant’s Motion for Summary Judgment on the Emotional Distress and/or Mental Anguish
Claims of All Plaintiffs in the Above-Captioned Cases Except Plaintiffs Gilley, F. Herndon, M.
Herndon, Pace, and L. Wilmes. In its order, the Court found:
this Court must determine whether the injury claimed by a plaintiff
is of such character as to require an expert to determine the cause and
extent thereof. In other words, the Court must determine whether the
injury claimed, as well as the causation of that injury, is within the
usual and ordinary experience of the average person. This
determination will necessarily depend on the injury alleged. In the
instant cases, there are various physical injuries alleged by plaintiffs,
such as loss of sleep, nausea, stomach aches, headaches, seizures,
high blood pressure, and ulcers, that plaintiffs contend were caused
by their mental anguish resulting from the alleged contamination.
Certain of these physical injuries, such as headaches, ulcers, and
seizures, are clearly of such character as to require the testimony of
an expert, or at a minimum a plaintiff’s treating physician. Other
physical injuries, such as loss of sleep, fall within the usual and
ordinary experience of the average person and the testimony of an
expert would not be necessary. Additionally, the Court finds the
timing between the mental anguish and the physical injury alleged
will also affect the determination of whether expert testimony is
required. As the claimed physical injury becomes more separated in
time from the mental anguish, the causal relationship becomes more
doubtful and tenuous, and expert testimony would become necessary
to establish causation.
June 10, 2015 Order [docket no. 225] at 6-7.
In its June 17, 2016 Order, the Court, relying in part upon its June 10, 2015 Order, found
that the testimony of an expert would not be necessary for emotional distress claims based on
defendant’s ability to effectively prepare for trial would be prejudiced if plaintiffs were allowed to
submit an expert report in support of certain plaintiffs’ emotional distress claims. Further, the Court
finds that if plaintiffs are allowed to obtain an expert, defendant would likewise need to be afforded
the opportunity to obtain a rebuttal expert if it deemed an expert necessary, and that the time needed
for these experts to form their opinions and for the parties to take any needed depositions could
impact the current setting of this case on the Court’s March 2017 trial docket.
Accordingly, in light of plaintiffs’ approximately one year and four month delay in seeking
leave to submit an expert report from the time the Court finds plaintiffs should have known of the
need for an expert, and the prejudice to defendant if plaintiffs are granted leave, the Court DENIES
plaintiffs’ Motion to Modify the Scheduling Order and Permit a Supplemental Expert Report on the
Emotional Distress Claims [docket no. 330].
IT IS SO ORDERED this 10th day of November, 2016.
sleeplessness but found the testimony of an expert, or at a minimum testimony of plaintiffs’ treating
physicians, would be required for emotional distress claims based on stomach aches, diarrhea,
muscle cramps, headaches, ulcers, irritable bowel syndrome, cysts, fibroid tumors, hypothyroidism,
Hashimoto’s thyroiditis, high blood pressure, and sinus infections. See June 17, 2016 Order [docket
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