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Smith v. T. Marzetti Co.

United States District Court, W.D. Kentucky, Bowling Green Division

August 27, 2019



          H. Brent Brennenstuhl, United States Magistrate Judge.

         Before the Court is the motion of Plaintiff Larry Wayne Smith for extension of discovery and expert deadlines (DN 28). Intervening Plaintiff Great West Casualty Company has no objection to the motion (DN 29). Defendant T. Marzetti Company has responded in opposition (DN 32). Smith has not filed a reply.

         Nature of the Case and Procedural History

         On January 17, 2018, Smith worked as an over the road tractor trailer driver for Sercombe Trucking (DN 28 PageID # 145). Around 7:00 a.m. CST, Smith arrived in the Marzetti parking lot, exited the cab of his truck, and proceeded to the Receiving Office (Id.). Once inside, the Receiving Clerk advised Smith that his driver's license was needed to process the paperwork (Id.). Smith, having left his driver's license in the cab of the truck, proceeded out the Receiving Office door, down the steps, and then slipped on ice in the walkway (Id.). Smith alleges he broke his hip in the fall and underwent surgical repair of his hip (Id.).

         Smith initiated this lawsuit in state court on May 22, 2018 (DN 1-1 PageID # 9-12). Marzetti removed the action to federal court on July 13, 2018 (DN 1). The scheduling order, entered on September 7, 2018, established an October 1, 2018 deadline for initial disclosures and an August 5, 2019 deadline for the completion of all pretrial fact discovery (DN 10 PageID # 99). The scheduling order also established an April 26, 2019 deadline for Smith and the Intervening Plaintiff to make their expert witness disclosures under Fed.R.Civ.P. 26(a)(2)(A), (a)(2)(B), and (a)(2)(C) (Id. PageID # 100-101).

         On March 7, 2019, attorney Matthew Schultz moved to withdraw as counsel for Smith in this matter because he had been terminated by Morgan & Morgan, the law firm representing Smith in this matter (DN 19). On March 11, 2019, Lauren E. Marley, an attorney with the law firm of Morgan & Morgan, entered her appearance on behalf of Smith[1] (DN 20). On March 29, 2019, the court entered an order granting Matthew Schultz's motion to withdraw (DN 21).

         Smith did not make any expert witness disclosures before the April 26, 2019 deadline expired. He moved to extend the discovery and expert deadlines in the scheduling order on July 24, 2019 (DN 28).

         Smith's Motion

         Smith's motion “requests an amendment of all deadlines including and after the August 5, 2019 fact discovery deadline” and “amendment of both parties' expert witness disclosure deadlines which have passed” (DN 28 PageID # 148-51). If the Court amends the expert witness disclosure deadline, Smith intends to disclose his treating physicians who “will opine on the medical treatment provided as well as its reasonableness and necessity, diagnosis, causation, future medical treatment, etc.” (Id. PageID # 149). Smith suggests “there should be nothing surprising or prejudicial” about this disclosure to Marzetti (Id.). Smith may also disclose a life care planner and vocational economist (Id.). But the decision to retain these expert witnesses cannot be made until Dr. Abou-Chakra indicates Smith has reached maximum medical improvement (MMI) and determines whether Smith will be under any permanent restrictions (Id.). At the time Smith filed his motion on July 24, 2019, he was hopeful these milestone events would occur at his next appointment with Dr. Abou-Chakra on August 1, 2019 (Id.). Smith argues the original expert disclosure deadlines were premature and detrimental to both parties making decisions to retain experts because he was not close to MMI by April 26, 2019 (Id.). Smith explains he underwent his second surgery to remove the hardware in his hip in late January 2019 and began a trial period back to work in late June 2019 (Id.).

         Smith's counsel takes responsibility for Smith's expert disclosure deadline not being calendared thereby allowing the deadline to pass without her moving to amend the deadline (Id. PageID # 149-50). Smith's counsel contends “it was not for a lack of diligence in monitoring Smith's condition and evaluating the need for experts” (Id. PageID # 150). Smith asserts Marzetti “will suffer zero prejudice by amendment of the expert deadlines as [Smith] is requesting that [Marzetti] be afforded the opportunity to review any experts disclosed by [him] and then respond accordingly with its own experts” (Id.).

         Smith's counsel asserts the August 5, 2019 deadline for completing fact discovery needs to be amended to accommodate challenges both parties have experienced in trying to complete fact discovery (Id.). Smith's counsel indicates, despite her diligent efforts, she is still waiting on additional medical records and bills from out of state providers and the depositions of certain fact witnesses have been delayed because of the busy schedules of all parties (Id.). Smith emphasizes that a 60 to 90-day extension of the fact discovery deadline will not cause any prejudice or harm to Marzetti (Id. PageID # 151).

         Marzetti's Response

         Marzetti asserts that Smith failed to adhere to the scheduling order by, among other things, not disclosing his expert witnesses within his initial disclosures, or within his written discovery responses, or by supplementing his written discovery responses, or by filing a separate disclosure document (DN 32 PageID # 184). Marzetti argues the civil rules require Smith to demonstrate his failure to disclose was substantially justified or is harmless, not that good cause exists for missing the April 26, 2019 deadline (DN 32 PageID # 184-88, citing Fed.R.Civ.P. 26(a) and Fed.R.Civ.P. 37(c)(1)). Marzetti asserts, because Smith's injury was objective and immediately apparent following the accident, any medical expert who could offer relevant opinions concerning the relatedness of Smith's claimed injury to the subject accident and the reasonableness of his medical treatment has been known since the date of the accident (Id.). Marzetti also asserts each of those experts should be able to render an opinion regarding the impact of the injury on Smith, both presently and in the future, without him reaching MMI (Id.). Regarding prejudice, Marzetti contends it made a tactical decision not to retain expert witnesses because Smith had not disclosed any expert witnesses by the prescribed deadline (Id.). ...

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