Barr et al v. Wal-Mart Stores

Filing 30

MEMORANDUM DECISION and ORDER denying 17 Plaintiff's Motion for Extension of Time; granting 18 Defendant's Motion to Compel. Signed by Magistrate Judge Paul M. Warner on 11/14/2017. (blh)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION

GEORGIA BARR and RONALD BARR,

MEMORANDUM DECISION
AND ORDER

Plaintiffs,
Case No. 2:16-cv-01057-DB-PMW
v.
District Judge Dee Benson
WAL-MART STORES, INC.,
Chief Magistrate Judge Paul M. Warner
Defendant.

District Judge Dee Benson referred this case to Chief Magistrate Judge Paul M. Warner
pursuant to 28 U.S.C. § 636(b)(1)(A). 1 Before the court is a Motion to Extend Expert Discovery
Deadline (the “Motion for Extension”), 2 filed by Plaintiffs Georgia Barr and Ronald Barr
(“Plaintiffs”), and a Motion to Compel Discovery (the “Motion to Compel”) 3 filed by Defendant
Wal-Mart Stores, Inc. (“Defendant”). Having reviewed the parties’ briefs and the relevant law,
the court renders the following Memorandum Decision and Order. 4

1

See docket no. 19.

2

See docket no. 17.

3

See docket no. 18.

4

Pursuant to civil rule DUCivR 7-1(f) and DUCivR 37-1, the court elects to determine the
present motions on the basis of the written memorandum and finds that oral argument would not
be helpful or necessary.

BACKGROUND
On September 13, 2016, Plaintiffs filed their complaint in this case (the “Complaint”). 5
The Complaint alleges that on September 23, 2015, Plaintiff Georgia Barr (“Georgia”) was
struck by a line of shopping carts pushed by Defendant’s employee while in the parking lot of
one of Defendant’s stores in Washington County, Utah. 6 As a result of this incident, the
Complaint alleges that Georgia has suffered a back injury which has caused her “constant pain,”
and “difficulty walking, standing upright, and performing household and personal care tasks.” 7
Georgia seeks compensatory damages for her injuries. 8 In addition, Plaintiff Ronald Barr
(“Ronald”) claims special damages based on loss of spousal consortium. 9
DISCUSSION
The court first addresses Plaintiffs’ Motion for Extension, followed by Defendant’s
Motion to Compel.
I.

MOTION FOR EXTENSION

In the Motion for Extension, Plaintiffs request an extension of the deadline for disclosure
of their initial expert reports from July 27, 2017, to October 28, 2017. 10 Plaintiffs also seek an

5

See docket no. 2-1. The case was originally filed in state court, and was removed to federal
court by Defendant Wal-Mart Stores on October 14, 2016. See docket no. 2.
6

See docket no. 2-1 at 2–3.

7

Id. at 3.

8

See id. at 3–5.

9

See id. at 4–5.

10

See docket no. 17.
2

extension to designate two additional experts. 11 The Motion for Extension was filed on
September 13, 2017; nearly two months after the original expert report deadline had passed.
Pursuant to Rule 16, “[a] schedule may be modified only for good cause and with the
judge’s consent.” Fed. R. Civ. P. 16(b)(4). Moreover, “[a]ny additions or changes to [expert
witness] information must be disclosed by the time the party’s pretrial disclosures under Rule
26(a)(3) are due.” Id. at 26(e)(2).
If a party fails to provide information or identify a witness as
required by Rule 26(a) or (e), the party is not allowed to use that
information or witness to supply evidence on a motion, at a
hearing, or at a trial, unless the failure was substantially justified or
is harmless.
Id. at 37(c)(1).
Plaintiffs have failed to establish good cause for modifying the scheduling order.
Plaintiffs have also failed to establish that missing the expert report deadline, and failing to
disclose two additional experts, was substantially justified. Plaintiffs assert that they “were
unable to retain an expert until shortly before the July 27, 2017 deadline.” 12 Plaintiffs should
have known at that time that an extension would be necessary. Rather than seek an extension,
though, Plaintiffs produced their expert’s report a “few weeks after the deadline had already
passed.” 13 Moreover, Plaintiffs did not disclose their expert witness until after the deadline for
initial expert reports had passed, and did not indicate to Defendant that they wanted to designate

11

See id.

12

Id. at 2.

13

Id.
3

additional expert witnesses until September 11, 2017. 14 And yet, Plaintiffs still did not seek an
extension of the deadline, delaying until September 13, 2017, when they filed the Motion for
Extension. The only explanation Plaintiffs provide for the delay in seeking the requested
extension is that they are “very low on funds” 15 and have “limited means.” 16 The court finds that
a lack of financial resources is not good cause for amending the scheduling order or an adequate
justification for the Plaintiffs’ delay in seeking the requested extension. Accordingly, the
requested extension is denied.
II.

MOTION TO COMPEL

In its Motion to Compel, Defendant moves this court for an order compelling Georgia to
submit to a Rule 35 physical examination by Jeff Chung, M.D. (“Dr. Chung”). 17 Defendant
further moves this court for an order compelling Ronald to submit to a deposition. 18
a. Rule 35 Physical Examination of Georgia Barr
In relevant part, Rule 35 provides:
(a) Order for an Examination.
(1) In General. The court where the action is pending may
order a party whose mental or physical condition--including
blood group--is in controversy to submit to a physical or
mental examination by a suitably licensed or certified
14

Docket no. 22-14 at 1. It is unclear to the court, but ultimately immaterial to the disposition of
the Motion for Extension, whether the Plaintiffs disclosed the identities of the additional expert
witnesses to Defendant before filing the Motion for Extension on September 13, 2017.
15

Docket no. 17 at 2.

16

Id. at 4.

17

See docket no. 18.

18

See id.
4

examiner. The court has the same authority to order a party to
produce for examination a person who is in its custody or
under its legal control.
Fed. R. Civ. P. 35(a)(1)-(2). The decision to grant a Rule 35 examination is within the discretion
of the trial court.
Rule 35 . . . requires discriminating application by the trial judge,
who must decide, as an initial matter in every case, whether the
party requesting a mental or physical examination or examinations
has adequately demonstrated the existence of the Rule’s
requirements of “in controversy” and “good cause,” which
requirements . . . are necessarily related.
Schlagenhauf v. Holder, 379 U.S. 104, 118-119 (1964). The Tenth Circuit “reviews discovery
decisions pertaining to Rule 35 examinations for an abuse of discretion.” Herrera v. Lufkin
Indus., 474 F.3d 675, 688 (10th Cir. 2007).
Here, Georgia has squarely placed her physical condition in controversy by alleging
Defendant is liable to her for personal injuries. Accordingly, the court finds that there is good
cause for the Rule 35 physical examination. Plaintiffs object to the request that the examination
take place in Salt Lake City, because they assert that Georgia’s physical condition prevents her
from traveling. Therefore, if the Plaintiffs insist on the examination taking place in St. George,
Plaintiffs shall bear the additional costs associated with Dr. Chung examining her there. These
additional costs may include travel expenses, travel time, the cost of transporting equipment, and
any costs related to Dr. Chung being unable to see patients.

5

b. Deposition of Ronald Barr
Second, Defendant seeks an order compelling Ronald to submit to a deposition. Plaintiffs
have previously asserted that Ronald is not well enough to appear at a deposition. 19 Defendant
has indicated that it is willing to make accommodations to address any of Ronald’s health
concerns. 20 However, in their opposition to the Motion to Compel, Plaintiffs did not address
Defendant’s request for an order compelling Ronald’s deposition. 21
Pursuant to Rule 30, “[a] party may, by oral questions, depose any person, including a
party, without leave of court.” Fed. R. Civ. P. 30(a)(1) (emphasis added). Ronald, as a plaintiff, is
a party to the action. Indeed, he, along with Georgia, initiated the instant action against
Defendant. Consequently, it is inappropriate for Ronald to refuse to submit to a deposition. In
addition, Plaintiffs did not oppose Defendant’s request for an order compelling Ronald to submit
to a deposition. For these reasons, Defendant’s request is granted.
CONCLUSION
For the foregoing reasons, Plaintiff’s Motion for Extension is hereby DENIED; and, the
court hereby GRANTS Defendant’s Motion to Compel and ORDERS that:
1. Within thirty (30) days of the date of this order, Plaintiff Georgia Barr shall:
a. submit to a physical examination by Dr. Chung at Dr. Chung’s office in Salt
Lake City; or,

19

See id. at 3.

20

Id. at 9.

21

See docket no. 23.
6

b. submit to a physical examination by Dr. Chung in St. George, and Plaintiffs
shall bear the costs of the examination, including travel expenses, travel time,
the cost of transporting equipment, and the cost to Dr. Chung resulting from
the inability to see patients.
2. Within thirty (30) days of the date of this order, Plaintiff Ronald Barr shall submit to a
deposition by Defendant.
As a final matter, the court notes that in the argument section of its Motion to Compel,
Defendant requested “a limited extension to file an Amended Report by Dr. Chung after . . . [he]
has had an opportunity to perform a physical examination of Plaintiff.” 22 However, Defendant
did not request a specific extension, or apprise the court of the amount of time required to
produce an amended report. The court, therefore, instructs the parties to attempt to stipulate to an
amended schedule for Defendant’s amended expert report, and any other affected dates. If the
parties cannot come to an agreement, either party may move the court for an amended scheduling
order.
IT IS SO ORDERED.
DATED this 14th day of November, 2017.
BY THE COURT:

PAUL M. WARNER
Chief United States Magistrate Judge

22

Docket no. 18 at 8.
7