United States District Court, D. Nevada
PLAINTIFF'S MOTION FOR EXTENSION OF TIME TO DISCLOSE REBUTTAL EXPERT WITNESS
(DOCKET NO. 19) DEFENDANT(S). DEFENDANT'S EMERGENCY MOTION TO STRIKE PLAINTIFF'S
UNTIMELY REBUTTAL EXPERT WITNESS (DOCKET NO. 21)
NANCY J. KOPPE, Magistrate Judge.
Before the Court is Plaintiff's Motion for Extension of Time to Disclose Rebuttal Expert Witness (Docket No. 19) and Defendant's Emergency Motion to Strike Plaintiff's Untimely Rebuttal Expert Witness (Docket No. 21). The Court finds these motions appropriately resolved without oral argument. Local Rule 78-2.
This is a personal injury action stemming from a motor vehicle accident which occurred on December 8, 2012. Docket No. 1. Defendant removed the case to federal court on September 30, 2013. Id.
On November 7, 2013, the Court entered the parties' Stipulated Discovery Plan and Scheduling Order. Docket No. 12. Pursuant to the scheduling order, expert disclosures were due no later than January 30, 2014, rebuttal expert disclosures were due no later than February 28, 2014, and the discovery deadline was set for March 30, 2014.
On November 25, 2013, Plaintiff identified Andrew Cash, M.D. as her treating physician and disclosed that he would to testify "as to the facts and circumstances surrounding the medical care, treatment, and/or billing for said care and treatment provided to [Plaintiff]." Docket No. 21-2., at 4 Thereafter, Defendant obtained Plaintiff's medical records related to her treatment with Dr. Cash. Docket Nos. 21, at 4; 21-2, at 12-14.
On January 29, 2014, Defendant timely served Plaintiff with its expert witness designations, which included the designation of medical expert Hugh Bassewitz. M.D., and biomechanical expert Joseph Peles, Ph.D. Docket No. 21-2, at 16-17. In Dr. Bassewitz's initial report, dated January 20, 2014, he opined that Plaintiff's "limited course of chiropractic and physical therapy treatment was reasonable, " but that he "did not believe [Plaintiff] has any long term need for future medical care." Docket No. 21-3, at 12. Further, he opined that Plaintiff had "cervical and lumbar strains" which were "related to her motor vehicle accident." Id., at 11.
Thereafter, Dr. Bassewitz had the opportunity to review Dr. Pele's initial and supplemental reports (dated January 20, 2014, and February 24, 2014, respectively), and Plaintiff's January 21, 2014, deposition transcript and exhibits. Docket No. 21, at 4-5. Dr. Bassewitz then supplemented his initial report on February 25, 2014, and Defendant served that supplement on Plaintiff on February 28, 2014. Id., at 5. Dr. Bassewitz's supplemental report noted that, based on Plaintiff's deposition testimony, her back pain did not appear until a month after the motor vehicle accident at issue in this case. Docket No. 21-3, at 14. Further, based on a photograph of Plaintiff going down a water slide with her spine in a hyper-extended position, he affirmed his prior position that there was no structural damage to Plaintiff's spine. Id. Dr. Bassewitz concluded that it was "more likely than not" than Plaintiff's injury was not related to the motor vehicle accident. Id., at 15.
On March 12, 2014, Plaintiff served Defendant with her rebuttal expert designation, designating her treating physician Dr. Cash as her rebuttal expert. Docket No. 21-5, at 6-7. Five days later, Plaintiff filed her motion to extend the rebuttal expert deadline. Docket No. 19. Within her motion, Plaintiff argues first, that her rebuttal expert disclosure was not late because it was filed within 30 days of Dr. Bassewitz's supplemental report and, alternatively, if her rebuttal disclosure was late, that good cause and excusable neglect exist to extend the deadline. Id.
The next day, on March 19, 2014, Defendant filed its motion to strike Plaintiff's rebuttal expert. Docket No. 21. Defendant asserts that Plaintiff's disclosure was untimely and that it will be prejudiced if Plaintiff's rebuttal expert is not stricken. Id.
II. MOTION TO EXTEND
A. Good Cause
A motion to extend deadlines in the Court's scheduling order must be supported by a showing of "good cause" for the extension. Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 608-09 (9th Cir. 1992); see also Fed.R.Civ.P. 16(b) and Local Rule 26-4. The good cause inquiry focuses primarily on the movant's diligence. See Coleman v. Quaker Oats Co., 232 F.3d 1271, 1294-95 (9th Cir. 2000). "Good cause" to extend a deadline exists "if it cannot reasonably be met despite the diligence of the party seeking the extension." Johnson, 975 F.2d at 609. While prejudice to the opposing party may also ...