United States District Court, W.D. Washington
L. ROBART UNITED STATES DISTRICT JUDGE
the court is Plaintiffs Leslie Jack and David Jack's
(collectively, “Plaintiffs”) motion to extend (1)
the deadline to disclose their expert witness Dr. Ronald
Gordon's opinion and report; and (2) the deadline for
expert witness Dr. Carl Brodkin to supplement his opinions
based on Dr. Gordon's report. (Mot. (Dkt. # 402).)
Defendant Ford Motor Company (“Ford”) opposes the
motion (Resp. (Dkt. # 405)), and Defendants Union Pacific
Railroad Company (“Union Pacific”), Warren Pumps,
LLC (“Warren Pumps”), and Borgwarner Morse TEC
LLC (“Morse TEC”) join in Ford's opposition
(Union Pacific Joinder (Dkt. # 419); Warren Pumps Joinder
(Dkt. # 422); Morse TEC Joinder (Dkt. # 423)). The court has
reviewed the motion, the submissions in support of and in
opposition to the motion, the relevant portions of the
record, and the applicable law. Being fully advised, the
court GRANTS Plaintiffs' motion.
October 18, 2017, various Defendants requested an autopsy of
decedent Patrick Jack to preserve his lungs for later tissue
digestion studies. (See 10/18/17 Mot. (Dkt. # 207).)
The court granted the request and ordered an autopsy to be
performed by neutral, third-party examiner, Dr. Carl Wigren
on October 26, 2017. (10/25/17 Order (Dkt. # 232) at 1-2.)
Dr. Wigren performed the autopsy and preserved Mr. Jack's
lung and lymph tissue. (Adams Decl. (Dkt. # 403) ¶ 2,
Ex. A (“Autopsy Rep.”) at 6.)
March 22, 2018, Defendant Crosby Valve, LLC
(“Crosby”) moved to allow Dr. Victor Roggli to
perform tissue digestion and fiber burden analysis studies on
the preserved lung tissue. (3/22/18 Mot. (Dkt. # 270) at
1-4.) The court granted the order that same day. (3/22/18
Order (Dkt. # 273) at 1-2.) However, due to Dr. Roggli's
workload, Dr. Roggli could not finish his report by the April
18, 2018, expert disclosure deadline. (4/16/18 Mot. (Dkt. #
284) at 1-2.) Plaintiffs agreed to an extension of the
deadline, provided that their expert, Dr. Gordon, could also
have an extension to perform the same studies. (Adams Decl.
¶ 4.) Crosby and the Plaintiffs agreed that Dr. Gordon
would have until June 11, 2018, to disclose the results of
his tissue digestion study, and that Dr. Brodkin would have
until June 11, 2018, to supplement his existing opinion based
on Dr. Gordon's results. (Id.; see also
id., Ex. B (“Emails”).)
and Plaintiffs drafted a stipulation reflecting their
agreement, but because Ford would not agree to the extension,
the parties did not file the stipulation. (See Adams
Decl. ¶ 4; Emails at 6-7; see generally Dkt.)
Instead, Crosby moved to extend the expert disclosure
deadline on April 18, 2018. (4/16/18 Mot. at 1-2.) Ford filed
an opposition to the motion. (See 4/16/18 Resp.
(Dkt. # 286).) Ford eventually withdrew its opposition
(see Supp. Reply (Dkt. # 347) at 1), and the court
granted Crosby's motion to extend the disclosure date for
Dr. Roggli from April 18, 2018, to April 24, 2018
(see 4/27/18 Order (Dkt. # 348)). After completing
his tissue digestion study, Dr. Roggli shipped the lung
tissue back to Dr. Wigren on April 12, 2018. (See
Emails at 3.)
Wigren did not ship the lung tissue to Dr. Gordon until May
14, 2018, and Dr. Gordon received the tissue two days later
on May 16, 2018. (Adams Decl. ¶ 5, Ex. C (“FedEx
Tracker”).) Upon receiving the lung tissue, Dr. Gordon
completed his testing and report. (Id. ¶ 6.)
Plaintiffs shared both Dr. Gordon's report and Dr.
Brodkin's supplemental report based on Dr. Gordon's
testing to all Defendants on June 5, 2018. (Id.
¶¶ 6-7; id. ¶ 6, Ex. D at 1-4.)
Plaintiffs now move for an extension of the expert disclosure
deadline for both Dr. Gordon's opinion and Dr.
Brodkin's supplemental opinion. (See Mot.)
Rule of Civil Procedure 16(b)(4) provides that a schedule may
be modified only for good cause and with the court's
consent. Fed.R.Civ.P. 16(b)(4). Rule 16(b)'s good cause
standard “primarily considers the diligence of the
party seeking the amendment.” Johnson v. Mammoth
Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992).
The court may modify a pretrial schedule if “it cannot
reasonably be met despite the diligence of the party seeking
the extension.” Id. (internal quotation marks
omitted) (quoting Fed.R.Civ.P. 16 Advisory Committee's
Notes (1983 amendment)).
Plaintiffs have established good cause and that they could
not have met the April 18, 2018, disclosure deadline even
through due diligence. Indeed, Dr. Wigren did not ship the
lung specimen for testing until May 14, 2018, and Dr. Gordon
did not receive the lung tissue until May 16, 2018.
(See Mot. at 4; FedEx Tracker at 1.) Dr. Brodkin, in
turn, could not have supplemented his report until after Dr.
Gordon completed his testing and findings. None of these
delays were due to carelessness on the part of Plaintiffs.
See Pritchard v. Dow Agro Servs., 255 F.R.D. 164,
177-79 (W.D. Pa. 2009) (allowing amendment when moving party
was not responsible for the delay). Because the court finds
that Plaintiffs could not have reasonably met the disclosure
deadline despite their diligence, the court finds good cause
to modify the scheduling order.
does not dispute that Plaintiffs exercised diligence here.
(See Resp.) Instead, Ford focuses on alleged
“procedural deficiencies” in Plaintiffs'
motion. (See Id. at 2-4.) The court has already
discussed one of the supposed procedural deficiencies-namely
that Plaintiffs did not adhere to the April 18, 2018, expert
disclosure deadline. Ford's remaining argument fares no
better. Ford chastises Plaintiffs for not filing a motion
asking the court for leave to perform tissue digestion
studies on the lung tissue preserved at the autopsy. (See
Id. at 2-4.) But the court has already granted
permission for studies to be performed on the tissue at issue
(see 3/22/18 Order), and the court sees no reason
why Crosby and other Defendants should be allowed to perform
such an analysis while Plaintiffs are barred from doing the
same. Thus, the court declines to exclude the expert reports
on this basis.
foregoing reasons, the court GRANTS Plaintiffs' motion to
extend the deadline to disclose Dr. Gordon's opinion and
Dr. Brodkin's ...