When Can a Judge Say a Plaintiff’s Had Enough Time to Find an Expert?

In October of 2018, a Federal Court denied plaintiffs their motion for an extension and amendment of the scheduling order. The case provides an illustration of the importance of either following the scheduling order or taking steps to establish due diligence in attempting to comply with the scheduling order.

The plaintiffs breed both ranch horses and rodeo horses in New Mexico. The defendant, Standard Nutrition, provided horse feed to the plaintiffs on December 8, 2016. The plaintiffs’ horses subsequently fell ill, and two horses died within two days. Shortly thereafter, the plaintiffs retained an attorney. Nearly a year later, plaintiffs filed suit against the defendant, alleging the feed was contaminated with an antibiotic, monensin, which poisoned the plaintiffs’ horses.

Case Timeline

11/2/2017 Plaintiffs file suit

12/27/2017 Defendant files an answer, denying the feed caused the horses injuries

1/29/2018 Status conference

3/9/2018 Parties file joint status report and provisional discovery plan. Additionally, the defendant again denies causation at the joint status report. This is the first time the plaintiff identifies experts.

4/2/2018 At Rule 16 scheduling conference, the plaintiffs acknowledge they failed to complete the initial disclosures as contemplated by the rules. The court reschedules the conference.

5/1/2018 Rescheduled Rule 16 scheduling conference takes place. The court gives the plaintiffs until August 29 to disclose experts.

8/29/2018 The plaintiffs do not disclose their experts as ordered

8/31/2018 The plaintiffs file a motion for extension Re: expert reports

9/14/2018 The defendant responds to the plaintiff’s motion

9/21/2018 The plaintiffs reply to the defendant’s response

10/1/2018 The plaintiffs file their status report and update to motion for extension Re: experts reports, which the court finds is actually a second motion to extend.

10/2/2018 The court denies the motion without prejudice

10/19/2018 An oral argument on the motion ensues

10/22/2018 The plaintiffs file a motion to amend scheduling order

10/31/2018 The court denies the plaintiffs’ motion to amend scheduling order

January Status Conference

At the January 29, 2018 status conference, the court made clear the purpose of the conference was to avoid subsequent requests to extend discovery deadlines. Should a party need an extension, the court explained, they must show good cause. While there are several factors the court may consider when determining good cause, in this case, the court specifically indicated the moving party’s diligent efforts to meet the timeline would be the most important factor.

March Joint Status Conference

On March 9, 2018, the plaintiffs identified the following potential testifying trial experts:

• An appraiser
• Treating veterinarian, also identified as a veterinary expert
• Individual who read or interpreted the testing results of the feed at issue (or a designee, consistent with the rules)
• An expert to testify to the effects of the antibiotic, monensin, on livestock, as well as the standard of care applied to the issue of monensin in horse feed
• An expert to testify as to the standards of care that apply regarding the manufacture, storage, shipment, and delivery of the feed at issue, including, but not limited to “carryover,” maintenance, and cleaning of all facilities and equipment, as well as ingredients used in a mill where horse feed is produced.

May Rule 16 Scheduling Conference

At the rescheduled scheduling conference, the court gave the plaintiffs until August 29, 2018 to disclose their experts. When asked, the plaintiffs indicated they had no objection to the deadline. The court again went to great lengths to explain to the parties their obligations regarding the disclosure of their expert witnesses, as well as their obligation to have their experts ready to be deposed on the date they are identified.

August 31 Request for Extension

In their motion, the plaintiffs requested an extension of the expert disclosure deadline. This request was filed two days after their disclosure was due. In their request, they asked for an October 1, 2018, due date for disclosure.

October Status Report and Arguments

In their October status report, the plaintiffs asked for a “brief” but unspecified amount of additional time. The court denied this request on October 2, 2018. Oral arguments were heard on October 19, 2018. The plaintiffs acknowledged they were not prepared to identify any experts on either liability or causation. Further, the plaintiffs acknowledged they may not ever have experts on the issues of liability or causation. The plaintiffs indicated to the court they needed additional time to perform tests on the horses, as well as additional time to complete depositions for expert review. The plaintiffs renewed their request for an extension for a “brief but sufficient period of time” to complete their disclosures.

The defendant argued that the plaintiffs failed to prove good cause to extend the deadline. The defendant pointed out that the plaintiffs had more than a year and apparently had yet to find an expert witness to support their claims.

Court’s Holding

The court first pointed out that the Federal Rule of Civil Procedure 26 (a)(2)(D) provides parties must make disclosures as ordered by the court in the scheduling order. When good cause is shown, the court may modify the scheduling order pursuant to Federal Rule of Civil Procedure 16 (b)(4). The court then looked to the rules within the Tenth Circuit, which have detailed the factors courts should consider when determining whether good cause exists, including:

• Whether the trial is imminent
• Whether the request is opposed
• Whether the non-moving party would be prejudiced
• Whether the moving party was diligent in obtaining discovery within the guidelines established by the court
• The foreseeability of the need for additional discovery given the time frame allowed by the district court and
• The likelihood that the extended time will lead to relevant evidence.

As the court cautioned the parties at the beginning of the case, the diligence of the party requesting the continuance is the touchstone of the above factors. The court then engaged in a balancing of the factors and the facts of the case.

The trial was not set until July of 2019, thus, the lack of imminence of the trial weighed in favor of granting the plaintiffs’ request. However, all other factors weighed against them.

The defendant opposed the motion for a continuance. The defendant had already disclosed its experts pursuant to the scheduling order, thus they were prejudiced. Typically, it is the plaintiff who must first disclose their expert, giving the defendant the opportunity to determine if experts are even needed to defend against the suit.

The plaintiffs’ apparent lack of diligence also weighed against them. Without question, the plaintiffs had been on notice since December of 2017 that the defendants denied liability and causation. Yet, nearly a year later, the plaintiffs did not have any experts to testify about liability or causation, nor had the plaintiffs taken the horses to be examined by a veterinarian, nor had the horses been subject to additional testing. This, the court noted, should have occurred at the beginning of the case. Preliminary testing, which was performed only a month before disclosures were due, was found by the court to indicate a lack of diligence.

The court also found the plaintiffs knew they would need an expert from the very beginning.

Finally, the court ruled they were not convinced an extension would actually lead to relevant evidence. After all, the court reasoned, the plaintiffs were on record indicating they still were not certain they could find an expert on the issues of causation and liability at all – even if they were granted an extension.

Why Scheduling Orders Matter

From a public policy standpoint, scheduling orders matter because they keep both parties on task. The order recognizes each party’s need for resolution of their court case. However, the scheduling order does provide for some wiggle room when the facts and circumstances of the case warrant an extension. In this case, however, the plaintiff was unable to provide the court with a reasonable expectation that a different result could be obtained. Further, the court found their past efforts lacking. In such a case, the court is well within their rights to deny a civil litigant extended time.