Cisco v. Norfolk Southern Railway Company
Filing
269
MEMORANDUM OPINION AND ORDER granting the 243 MOTION for leave to file supplemental Rule 26(a)(2) expert disclosures; granting the 251 MOTION to Exclude to the extent that Mr. Stevens is compelled to make Dr. Fried available for depositio n by 10/3/2014, and otherwise denied; granting the 253 MOTION for Protective Order; Mr. Stevens need not respond to the fourth request for production of documents; granting the 263 MOTION to file a surreply, and with the proposed surreply filed today. Signed by Judge John T. Copenhaver, Jr. on 9/19/2014. (cc: counsel of record; any unrepresented parties) (taq)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
ROGER CISCO,
Plaintiff,
v.
Civil Action No. 2:12-739
(Lead Action)
NORFOLK SOUTHERN RAILWAY COMPANY,
Defendant/Third Party Plaintiff,
v.
GEORGE DOTSON,
Third Party Defendant.
CASEY STEVENS,
Plaintiff,
v.
Civil Action No. 2:12-740
(Consolidated Action)
NORFOLK SOUTHERN RAILWAY COMPANY,
Defendant/Third Party Plaintiff,
v.
GEORGE DOTSON,
Third Party Defendant.
MEMORANDUM OPINION AND ORDER
Pending are defendant Norfolk Southern Railway Company's
("Norfolk") motions for leave to file supplemental Rule 26(a)(2)
expert disclosures, filed June 16, 2014, and to exclude the
supplemental expert opinions offered by Dr. Guy Fried or, in the
alternative, to compel Dr. Fried's deposition (“motion to
exclude”), filed July 15, 2014, and plaintiff Casey Stevens’
motion for a protective order, filed July 25, 2014.1
I. Governing Standards
The pending motions implicate two provisions of the
Federal Rules of Civil Procedure, namely, Rules 16 and 26.
Rule
16(b) provides that “a schedule shall not be modified except upon
a showing of good cause and by leave of the district judge.”
R. Civ. P. 16(b)(4).
Fed.
Thus, “after the deadlines provided by a
scheduling order have passed, the good cause standard must be
satisfied to justify” modifications thereto.
Nourison Rug Corp.
v. Parvizian, 535 F.3d 295, 298 (4th Cir. 2008).
“Good cause”
under Rule 16(b) is measured by the movant’s diligence in
attempting to comply with scheduling order deadlines.
Sherman v.
Winco Fireworks, Inc., 532 F.3d 709, 716 (8th Cir. 2008); Kassner
v. 2nd Ave. Delicatessen Inc., 496 F.3d 229, 243 (2d Cir. 2007);
Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 607–08 (9th
Cir. 1992).
1
Also pending is plaintiffs’ motion to file a surreply
respecting the motion to exclude. It is ORDERED that the motion
to file a surreply be, and hereby is, granted, with the proposed
surreply filed today.
2
Rule 26(c) governs the matter of discovery protective
orders.
It provides pertinently as follows:
The court may, for good cause, issue an order to
protect a party or person from annoyance, embarrassment,
oppression, or undue burden or expense, including one or
more of the following:
(A) forbidding the disclosure or discovery
Fed. R. Civ. P. 26(c); Nicholas v. Wyndham Intern., Inc., 373 F.3d
537, 543 (4th Cir. 2004); Watson v. Lowcountry Red Cross, 974 F.2d
482, 485 (4th Cir. 1992).
II. Analysis
Regarding the motion for leave to file supplemental Rule
26(a)(2) expert disclosures, Norfolk asserts that it must
guarantee the availability of its proposed experts, Dr. James
Cosgrove and Dr. David Shraberg, in the event that the court
allows the brain injury opinions offered by plaintiffs’ expert,
Dr. Fried.
Plaintiffs have not opposed the motion.
It is,
accordingly, ORDERED that the motion for leave to file
supplemental Rule 26(a)(2) expert disclosures be, and hereby is,
granted.
Regarding the motion to exclude, Norfolk asserts that
Dr. Fried filed on April 24, 2014, a supplemental expert report
relating to plaintiff Casey Stevens.
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Plaintiff Stevens’ counsel,
however, has not cooperated in scheduling another deposition of
Dr. Fried concerning his supplemented opinions.
Norfolk thus
requests exclusion of the supplemental opinions or, in the
alternative, the opportunity to depose Dr. Fried about them.
Mr. Stevens responds that Norfolk has failed to
demonstrate the good cause necessary to extend discovery to
accommodate the proposed second deposition of Dr. Fried.
Specifically, Mr. Stevens asserts as follows:
Here, Norfolk . . . has failed to state any grounds
constituting “good cause” for forcing Dr. Fried to be
deposed a second time regarding his opinion in this
case. . . .Dr. Fried’s opinions . . . have never
changed; Dr. Fried’s supplemental report merely
acknowledges, very briefly, that he maintains the same
opinion regarding Plaintiff Stevens’ injury as he did
prior to production of certain discovery -- principally
the deposition of Dr. Ali -- after the discovery
deadline. . . .
Further, Norfolk . . . has failed to state anything new
in Dr. Fried’s supplemental report that could possibly
give rise to “good cause” for a second deposition at
this too late hour. The essence of Dr. Fried’s
supplemental report is simply to acknowledge that he has
reviewed the discovery that Norfolk . . . produced after
the discovery deadline . . . .
(Resp. at 7-8).
It appears accurate that Dr. Fried earlier, namely, in
his January 14 and December 27, 2013, reports, referenced an
alleged brain injury suffered by Mr. Stevens.
The supplemental
expert report at issue presently, however, was filed much later,
4
on April 23, 2014, and Mr. Stevens concedes that the April 2014
report
briefly clarifies his prior opinion (consistent with the
Court’s concerns regarding neuropsychological testing)
and notes that he was able to review additional
materials from his prior opinions, principally the
evidentiary deposition of Dr. Ali, which Norfolk . . .
had been allowed to conduct after the close of discovery
only two weeks earlier.
Specifically, Dr. Fried’s supplemental report was
prompted by his opportunity to evaluate recently taken
depositions . . . .
(Surreply at 8 (emphasis added)).
The presence of a traumatic brain injury may impact
heavily the question of damages if Norfolk is adjudicated
negligent for Mr. Cisco’s actions leading to the accident.
Dr.
Fried’s renewed study of this area, and his elaboration upon it in
light of recently taken discovery, is obviously a matter upon
which he ought to be deposed anew pretrial.
This is so if, for no
other reason, it may help avoid late rising evidentiary challenges
at trial that could be taken up pretrial instead.
Based upon the foregoing, the court finds that Norfolk
has offered good cause to support a discovery extension for the
purpose of deposing Dr. Fried concerning his recent report.
It
has not, however, shown sanctionable misconduct by Mr. Stevens
that would support the fee and cost shift it urges.
It is,
accordingly, ORDERED that the motion to exclude be, and hereby is,
5
granted to the extent that Mr. Stevens is compelled to make Dr.
Fried available for deposition on or before October 3, 2014, and
otherwise denied.
Regarding the motion for a protective order, on June 25,
2014, Norfolk served upon Mr. Stevens’ counsel a fourth set of
requests for production of documents containing the following:
For each social network computer site you have belonged
to at any time from January 1, 2011 through the present,
please produce your account data in the native
electronic format (including the electronic download
file) for the period of January 1, 2011 through the
present. This Request, which includes photographs,
messages, comments, posts and the like, relates to items
placed on your account page or message inbox. This
Request includes deleted items.
(Ex. 1, Mot. for Prot. Ord. at 2).
Norfolk offers the following basis for its request: “The
requested social media activity information -- which is available
in a matter of minutes with a few clicks -- is directly related to
the claims of Plaintiff’s expert Dr. . . . Fried that Stevens has
suffered a traumatic brain injury which severely impacts his
ability to function.”
(Resp. Br. at 2).
As noted, however, Norfolk knew as early as Dr. Fried’s
January 14, 2013, expert report that Mr. Stevens was thought by
Dr. Fried to have suffered “a mild traumatic brain injury . . .
[with] short memory loss.”
(Jan. 2013 Rep. at 7; see also Dec.
6
2013 Rep. at 2).
The circumstances are thus dissimilar from those
immediately above for which the court permitted a late deposition
of Dr. Fried based upon his renewed study of the brain injury and
his elaboration upon the effect of it in light of recently taken
discovery.
Once Norfolk knew of the opinion respecting a brain
injury, in January of 2013 long before expiration of the discovery
period, the matter of cognitive effects, and social media
postings, was placed in issue.
Its lack of diligence in pursuing
the matter results in its concomitant inability to demonstrate
good cause for extending the discovery deadline to accommodate its
fourth request for production of documents.
It is, accordingly, ORDERED that the motion for a
protective order be, and hereby is, granted.
Mr. Stevens need not
respond to the fourth request for production of documents.
The Clerk is directed to transmit copies of this written
opinion and order to all counsel of record and any unrepresented
parties.
DATED:
September 19, 2014
John T. Copenhaver, Jr.
United States District Judge
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