United States District Court, D. North Dakota
Charles S. Miller, Jr., Magistrate Judge.
the court is a “Motion for Leave to Amend Expert
Designations” filed by plaintiff on October 24, 2018.
For the reasons set forth below, the motion is granted.
action arises out of a two-vehicle collision that occurred on
June 23, 2014, on the exit ramp near mile marker 59 on
Interstate 94. According to plaintiff, he was stopped at a
stop sign, waiting to make a right turn. Defendant attempted
to pass through the stop sign and, failing to take notice of
the plaintiff, struck plaintiff's vehicle from behind.
October 17, 2017, the court issued a scheduling order that
provided in relevant part that plaintiff's and
defendant's expert disclosures were due by September 11
and October 12, 2018, respectively. (Doc. No. 14).
parties served each other with their respective expert
designations in accordance with the court's scheduling
order. Thereafter, on October 24, 2018, plaintiff filed a
motion for leave to amend his expert disclosures to include a
trailer hitch expert from whom he obtained a report after the
expert disclosures deadlines had lapsed. He avers this
expert's testimony is vital to his case and, given the
present posture of this case, his late designation should
pose appreciable prejudice to defendant.
filed a response in opposition to plaintiff's motion on
November 7, 2018. He asserts that plaintiff offered no
reasonable explanation for his delay in locating the trailer
hitch expert and thus failed to establish good cause for
retroactively extending his expert disclosure deadline.
court starts, as it must, with the guidance provided by the
Eighth Circuit with respect to the modification of
scheduling/discovery orders. In Marmo v. Tyson Fresh
Meats, Inc., 457 F.3d 748 (8th Cir. 2006), the Eighth
Circuit had this to say:
Adherence to progression order deadlines is critical to
achieving the primary goal of the judiciary: “to serve
the just, speedy, and inexpensive determination of every
action.” Fed.R.Civ.P. 1; see a l s o Bradford v.
DANA Corp., 249 F.3d 807, 809 (8th Cir. 2001) (“As
a vehicle designed to streamline the flow of litigation
through our crowded dockets, we do not take case management
orders lightly, and will enforce them.”) (citation
omitted). Accordingly, the district court has broad
discretion in establishing and enforcing the deadlines.
Fed.R.Civ.P. 16, 37. To modify a progression order, a party
must show good cause for the modification. Bradford,
249 F.3d at 809. To establish good cause, a party must show
its diligence in attempting to meet the progression order.
Id. (citation omitted). A district court may also
consider the existence or degree of prejudice to the party
opposing the modification. Id.
Id. at 759.
the nature of plaintiff's proposed disclosure and in
light of the present posture of this case, the court finds
there is good cause to extend the deadlines for expert
disclosures. First, the trailer hitch expert's opinion is
a partial rebuttal to defendant's expert's opinion
(which was disclosed on October 12, 2018) that the forces
generated in the collision could not have been so great given
the apparent lack of damage to defendant's vehicle. Thus,
the court is not persuaded that there has been an utter lack
of diligence on plaintiff's part. Second, the pretrial
deadlines need to be adjusted for other reasons. For example,
defendant has filed a motion to compel independent physical
and mental health examinations of plaintiff. In the event that
the motion is granted in whole or in part, defendant will
require time to arrange for examinations and the parties will
thereafter require time to digest the results (and plaintiff
some time to respond). Third, defendant will not be unduly
prejudiced by extending the expert disclosure deadlines since
the court intends to afford him ample time for rebuttal.
Motion for Leave to Amend Expert Designations (Doc. No. 34)
is GRANTED. Plaintiff shall have until
December 7, 2018, to supplement his expert
disclosures. Defendant shall have until February 15,
2019, to supplement his expert disclosures or otherwise