Whitaker v. Union Security Insurance Company et al

Filing 38

MEMORANDUM OPINION AND ORDER granting 25 Motion To Extend Time, filed by Disability Reinsurance Management Services Inc, Union Security Insurance Company. (Ordered by Judge Sidney A Fitzwater on 6/25/2015) (Judge Sidney A Fitzwater)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
KRISTINA WHITAKER,
Plaintiff,
VS.
UNION SECURITY INSURANCE
COMPANY, et al.,
Defendants.

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§ Civil Action No. 3:14-CV-3571-D
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MEMORANDUM OPINION
AND ORDER
Defendants Union Security Insurance Company and Disability Reinsurance
Management Services, Inc. move to amend the June 1, 2015 scheduling order by 49 days for
designating rebuttal expert witnesses. For the following reasons, the court grants the motion.
I
On November 13, 2014 the court entered the scheduling order in this case. Pertinent
to defendants’ motion, the court set April 1, 2015 as the deadline for a party with the burden
of proof on a claim or defense to designate expert witnesses and otherwise comply with Fed.
R. Civ. P. 26(a)(2), and June 1, 2015 as the deadline for a party who intends to offer expert
evidence “intended solely to contradict or rebut evidence on the same subject matter
identified by another party under Rule 26(a)(2)(B)” to designate expert witnesses and
otherwise comply with Rule 26(a)(2). On April 1, 2015 plaintiff Kristina Whitaker
(“Whitaker”) disclosed that she had retained Paul Hurd, M.D. (“Dr. Hurd”) as a medical
expert, and disclosed what he was expected to testify about. Whitaker explained that she was

unable to provide Dr. Hurd’s written report because of unexpected delays in obtaining her
records from the Medical Center of Plano. Defendants did not receive Whitaker’s expert
disclosure until April 7, 2015 because she mailed them to an incorrect address for
defendants’ counsel, thereby delaying receipt for several days.
On April 16, 2015 defendants’ counsel advised Whitaker’s counsel that her expert
witness disclosure was incomplete because it lacked Dr. Hurd’s written report. Defendants’
counsel agreed to extend the deadline for Whitaker to make her expert witness disclosure if
she would advise when she expected to receive her expert’s written report and would agree
to extend for a comparable period the deadline for defendants to make their rebuttal expert
witness disclosure. On April 17, 2015 Whitaker’s counsel advised that he did not know
when Whitaker would be able to provide Dr. Hurd’s signed report, and he declined to agree
to a comparable extension of the deadlines. On May 20, 2015—49 days after the April 1,
2015 court-ordered deadline—Whitaker disclosed Dr. Hurd’s full report. The same day,
defendants’ counsel advised Whitaker’s counsel that disclosure of the report had been due
on April 1, 2015, and again requested an extension to file a rebuttal expert witness disclosure
and report.
On May 26, 2015 defendants filed the instant motion to amend scheduling order,
requesting that the court grant them a comparable extension and set July 20, 2015 as the
rebuttal expert designation deadline. Whitaker opposes this motion, contending that
defendants have failed to demonstrate good cause to support a 49-day extension. Whitaker
maintains that defendants fail to acknowledge that: (a) Dr. Hurd’s expected opinions were
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disclosed on April 1; (b) Dr. Hurd’s abbreviated report was disclosed on April 8, and was
consistent with the opinions disclosed on April 1; (c) defendants were cautioned on April 17
that Dr. Hurd’s full report was not expected to differ from the opinions disclosed on April
1; (d) Dr. Hurd’s full report was consistent with the opinions disclosed on April 1; and (e)
defendants are no strangers to these medical issues, having retained their expert as a
consultant over one year ago.
II
A
To modify the scheduling order, a party must demonstrate good cause and obtain the
judge’s consent. Cartier v. Egana of Switz. (Am.) Corp., 2009 WL 614820, at *2 (N.D. Tex.
Mar. 11, 2009) (Fitzwater, C.J.). The good cause standard “require[s] the movant ‘to show
that the deadlines cannot reasonably be met despite the diligence of the party needing the
extension.’” Puig v. Citibank, N.A., 514 Fed. Appx. 483, 487-88 (5th Cir. 2013) (per curiam)
(quoting S & W Enters., L.L.C. v. SouthTrust Bank of Ala., NA, 315 F.3d 533, 535 (5th Cir.
2003)). The court assesses four factors when deciding whether the movant has shown good
cause under Rule 16(b)(4): “(1) the explanation for the failure to timely move for leave to
amend; (2) the importance of the amendment; (3) potential prejudice in allowing the
amendment; and (4) the availability of a continuance to cure such prejudice.” S & W Enters.,
315 F.3d at 536 (internal quotation marks and brackets omitted). The court considers the
four factors holistically and “does not mechanically count the number of factors that favor
each side.” EEOC v. Serv. Temps, Inc., 2009 WL 3294863, at *3 (N.D. Tex. Oct. 13, 2009)
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(Fitzwater, C.J.), aff’d, 679 F.3d 323 (5th Cir. 2012).
B
1
The court first considers defendants’ explanation. Defendants maintain that the
scheduling order should be amended because Whitaker did not produce Dr. Hurd’s written
report until May 20, 2015, 49 days after the court-ordered deadline. They request a
comparable 49-day extension in order to have the same amount of time to retain a rebuttal
expert witness as they had under the scheduling order. The court finds defendants’
explanation to be adequate.
2
Under the second factor, the court considers the importance of the amendment. The
court concludes that extending the scheduling order is important because defendants should
have the time that the court originally allowed them under the scheduling order to designate
expert witnesses and otherwise comply with Rule 26(a)(2).
3
The court next considers as the third factor the potential prejudice to Whitaker in
granting defendants’ motion. Defendants contend that the requested 49-day extension will
not delay the case and that Whitaker will not be prejudiced by an extension. Whitaker does
not assert that she will be prejudiced if an extension is granted, and the court finds no such
prejudice that would result from the nature and circumstances of defendants’ request.

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4
The fourth factor is the availability of a continuance to cure such prejudice. Because
Whitaker opposes a continuance, this factor does not support granting the motion.
5
Assessing the four factors holistically, the court finds that defendants have shown
good cause to amend the scheduling order. In sum, Whitaker effectively received a 49-day
extension of the expert designation deadline for reasons that defendants did not oppose.
Defendants simply seek a comparable extension for their own designation. Whitaker has not
shown that she will suffer prejudice from granting defendants’ request. Indeed, it is not
apparent to the court why it was even necessary for defendants to file this motion.
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For the reasons explained, the court grants defendants’ May 26, 2015 motion to amend
scheduling order. It extends until July 20, 2015 the deadline for a party who intends to offer
expert evidence “intended solely to contradict or rebut evidence on the same subject matter
identified by another party under Rule 26(a)(2)(B)” to designate expert witnesses and
otherwise comply with Rule 26(a)(2).
SO ORDERED.
June 25, 2015.
_________________________________
SIDNEY A. FITZWATER
UNITED STATES DISTRICT JUDGE

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