Ferguson et al v. United States of America

Filing 37

ORDER granting 31 plaintiff's Motion to Withdraw Plaintiff's Motion for Trial Date Certain and Motion to Extend Deadlines, withdrawing 29 Plaintiff's Motion to Set Trial Date Certain and continuing case to the Court's May 2016 trial docket (as more fully set out). Signed by Honorable Vicki Miles-LaGrange on 2/19/2016. (ks)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
DAWN FERGUSON, individually and
as next of kin of her husband, Tague
Ferguson, deceased,
Plaintiff,
vs.
UNITED STATES OF AMERICA,
Defendant.

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Case No. CIV-15-178-M

ORDER
Before the Court is plaintiff’s Motion to Withdraw Plaintiff’s Motion for Trial Date Certain
and Motion to Extend Deadlines, filed February 5, 2016. On February 8, 2016, defendant filed its
response, and on February 12, 2016, plaintiff filed her reply. Based upon the parties’ submissions,
the Court makes its determination.
This is a wrongful death action. Plaintiff alleges that agents, servants, and/or employees of
defendant failed to diagnose and treat her husband Tague Ferguson’s medical condition, i.e.,
pulmonary thromboembolism, resulting in Mr. Ferguson’s death. This case is currently on the
Court’s March 2016 trial docket. Plaintiff now moves the Court to enter an amended scheduling
order extending all deadlines for a period of 90 days.1
Federal Rule of Civil Procedure 16(b)(4) provides that “[a] schedule may be modified only
for good cause and with the judge’s consent.” Fed. R. Civ. P. 16(b)(4). Further, a district court has
“wide discretion in its regulation of pretrial matters”, including whether to reopen discovery and to

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The only unexpired deadlines in this case are the deadlines for the parties’ pre-trial
submissions, i.e., motions in limine, etc. Based upon plaintiff’s motion, it appears plaintiff is
seeking to extend both the expired and unexpired deadlines, particularly plaintiff seeks to reopen
discovery.

grant an extension of deadlines. See Sil-Flo, Inc. v. SFHC, Inc., 917 F.2d 1507, 1514 (10th Cir.
1990). Additionally, the following are relevant factors in determining whether discovery should be
reopened: (1) whether the trial is imminent, (2) whether the request is opposed, (3) whether the nonmoving party would be prejudiced, (4) whether the moving party was diligent in obtaining discovery
within the guidelines established by the court, (5) whether the need for additional discovery in light
of the time allowed for discovery was foreseeable, and (6) whether the discovery is likely to lead
to relevant evidence. See id.
Plaintiff asserts that without an extension of the deadlines, she will not be given a full and
fair opportunity to conduct complete discovery of the medical treatment at issue. Specifically,
plaintiff asserts that she received the expert report of defendant’s medical expert on January 25,
2016 and that defendant’s expert opined that the cause of death of Mr. Ferguson cannot be
determined with any degree of medical certainty. Plaintiff further asserts that after receiving the
expert report, her counsel spoke with Dr. Duval in the Medical Examiner’s office regarding the
likely cause of death and that Dr. Duval stated that he was still comfortable with the most likely
cause of death being a pulmonary embolus probably originating in Mr. Ferguson’s leg and that the
only way to be certain of the cause of death would be to exhume Mr. Ferguson’s body. In lieu of
exhumation, plaintiff’s counsel requested their expert radiologist, Jose Spencer, M.D., to take
another look at the ultrasound done at the hospital of Mr. Ferguson’s lower leg. Dr. Spencer
reviewed the ultrasound and reported to plaintiff’s counsel that there is a clot on the ultrasound that
was in Mr. Ferguson’s posterior tibial vein that was missed at the time Mr. Ferguson was in the
hospital. Plaintiff requests the additional time to allow further discovery into the ultrasound,
including taking depositions of plaintiff’s treating physicians to determine what would have been

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done differently if they had known there was a clot shown on the ultrasound. Additionally, plaintiff
requests the additional time to allow discovery regarding defendant’s claim of contributory
negligence on the part of plaintiff and Mr. Ferguson that was asserted for the first time on January
29, 2016.
Defendant vehemently opposes plaintiff’s motion. Defendant contends that plaintiff did not
diligently pursue discovery in this case. Further, defendant contends that in light of the evidence
that Mr. Ferguson “refused” to seek medical care despite worsening symptoms prior to his death,
plaintiff wants to start over. Finally, defendant contends that it would be prejudiced if the discovery
deadline is reopened and the deadlines in this case are extended.
Having carefully reviewed the parties’ submissions, the Court finds that discovery in this
case should be reopened and that the remaining deadlines in this case should be extended by sixty
(60) days. Specifically, the Court finds that plaintiff has shown good cause for reopening discovery
and extending the deadlines to conduct discovery regarding the ultrasound and the contributory
negligence defense based upon the recent receipt of defendant’s expert report and the recent
assertion of the contributory negligence defense. Initially, the Court would note that this is
plaintiff’s first motion to extend deadlines in this case. Further, while it might have been prudent
for plaintiff to have her expert review the ultrasound earlier, it appears plaintiff did not believe the
medical examiner’s likely cause of death would be disputed until she received defendant’s expert
report on January 25, 2016. Once she received the expert report, plaintiff promptly sought
confirmation of the medical examiner’s cause of death and requested Dr. Spencer to review the
ultrasound. Additionally, plaintiff filed the instant motion eleven days after receiving the expert
report. The Court, thus, finds that there is not such a lack of diligence that would warrant denying

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plaintiff’s request to reopen discovery. The Court also finds that the requested discovery was not
clearly foreseeable at the outset and that there is a reasonable likelihood that further discovery will
lead to additional relevant evidence.
Furthermore, while this case is currently on the Court’s March 2016 trial docket and trial is
imminent, plaintiff is also requesting a continuance of the trial in this case. Because reopening
discovery would also include moving the trial, the Court finds this factor does not weigh against
granting plaintiff’s motion. The Court also finds that defendant would not incur any real prejudice
if discovery is reopened and the deadlines are extended by sixty days. As set forth below, the Court
is only reopening discovery as to the ultrasound and the contributory negligence defense, thereby
limiting any prejudice to defendant. Finally, by granting plaintiff’s motion, the Court is not allowing
plaintiff to start over and have a complete redo of discovery in this case.
Accordingly, the Court GRANTS plaintiff’s Motion to Withdraw Plaintiff’s Motion for Trial
Date Certain and Motion to Extend Deadlines [docket no. 31]. Plaintiff’s Motion to Set Trial Date
Certain [docket no. 29] is hereby WITHDRAWN. Further, the Court EXTENDS the following
deadlines as set forth below:
1.

Discovery regarding the ultrasound and the contributory negligence defense
to be completed by April 1, 2016;

2.

Disclosure of any additional experts to be filed and additional expert reports
and/or supplementation of expert reports to be submitted by March 15, 2016;2

3.

Daubert motions as to any additional experts or matters supplemented to be
filed by April 1, 2016;

4.

Trial Docket: May 2016;

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Any additional experts and/or supplementation of expert reports shall solely relate to the
issues of the ultrasound and the contributory negligence defense.
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5.

Motions in limine to be filed by April 21, 2016;
Responses due by April 28, 2016;
[No replies to motions in limine shall be filed without leave of Court.]

6.

Designations of deposition testimony to be used at trial to be filed by April
21, 2016;
Objections and counter designations to be filed by April 28, 2016;
Objections to counter designations to be filed within seven (7) days thereafter;

7.

Trial briefs (optional unless otherwise ordered) to be filed by April 21, 2016;

8.

Proposed findings and conclusions of law to be filed by April 21, 2016;

9.

Any objections to the above trial submissions to be filed by April 28, 2016;

10.

Proposed final pretrial report, approved by all counsel, and in full compliance
with Local Rules (see Appendix IV), to be submitted to the Court by April
21, 2016.

IT IS SO ORDERED this 19th day of February, 2016.

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