United States District Court, W.D. Kentucky, Bowling Green Division
MEMORANDUM, OPINION, AND ORDER
Brent Brennenstuhl, United States Magistrate Judge.
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.
of the Case and Procedural History
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.).
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 #
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 (DN 20). On March
29, 2019, the court entered an order granting Matthew
Schultz's motion to withdraw (DN 21).
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
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
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
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).
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.). ...