(PC) Hepner v. County of Tulare

Opinion

7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9

10 ROGER HEPNER, Case No. 1:18-cv-00774-NODJ-EPG-PC

11 Plaintiff, ORDER GRANDING DEFENDANT COUNTY OF TULARE’S REQUEST FOR 12 v. ORDER AMENDING SCHEDULING ORDER TO REOPEN EXPERT 13 COUNTY OF TULARE, et al., DISCOVERY TO ALLOW THE DEFENDANT COUNTY OF TULARE TO 14 Defendants. DISCLOSE A REPLACEMENT EXPERT

15 (ECF No. 145, 150) 16 Roger Hepner (“Plaintiff”), represented by counsel, is proceeding in this civil rights 17 action filed pursuant to 42 U.S.C. § 1983. Before the Court is Defendant County of Tulare’s 18 motion to amend the scheduling order to reopen expert witness discovery to allow the Defendant 19 County of Tulare to disclose a replacement expert. (ECF No. 145, 150). For the following 20 reasons, the Court grants the motion. 21 Defendant County of Tulare previously designated George Williams as a Use of Force 22 expert. However, following his deposition, Mr. Williams indicated that he cannot continue as an 23 expert witness on this or any other case due to a serious medical condition. Expert discovery has 24 now closed. County of Tulare has retained a replacement expert, who is prepared to issue an 25 expert report. However, County of Tulare requests amendment of the scheduling order to permit 26 disclosure of the replacement expert’s report and expert discovery. 27 Plaintiff Roger Hepner does not oppose Defendant County of Tulare’s motion, although he reserves his right to use the deposition testimony of Mr. Williams in the future. 1 Defendant O’Neal opposes Defendant of Tulare’s request. Mr. O’Neil argues that he has 2 already expended significant costs and expenses on expert discovery. He claims that County of 3 Tulare should have known that Mr. Williams might not be healthy enough to testify at trial. He 4 also argues that County of Tulare can use the deposition testimony of Mr. Williams, even though 5 County of Tulare did not conduct any direct questioning of Mr. Williams at the deposition. 6 “A schedule may be modified only for good cause and with the judge’s consent.” Fed. R. 7 Civ. P. 16()(b)(4). The good cause standard under Rule 16(b) “primarily considers the diligence 8 of the party seeking the amendment.” Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 9 (9th Cir. 1992). When ruling on a motion to amend a Rule 16 scheduling order to reopen 10 discovery, courts consider six factors: (1) Whether trial is imminent; (2) whether the request is 11 opposed; (3) whether the non-moving party would be prejudiced; (4) whether the moving party 12 was diligent in obtaining discovery within the guidelines established by the court; (5) the 13 foreseeability of the need for additional discovery in light of the time allowed for discovery by 14 the district court; and (6) the likelihood that the discovery will lead to relevant evidence. City of 15 Pomona v. SQM N. Am. Corp., 866 F.3d 1060, 1066 (9th Cir. 2017). 16 Regarding the first factor, no trial date has been set in this case. Second, the request is 17 not opposed by Plaintiff, although it is opposed by Defendant O’Neal. Third, the non-moving 18 party would only be prejudiced insofar as it will be required to undertake discovery of the 19 replacement expert. Fourth, Defendant County of Tulare was diligent in obtaining discovery 20 within the schedule and requesting relief upon notice of Mr. Williams’ condition. Fifth, it was 21 not foreseeable that Mr. Williams would withdraw as an expert after agreeing to undertake the 22 assignment. Finally, all parties agree that a use of force expert is important in this case. 23 Considering these factors, the Court will grant County of Tulare’s motion. 24 Moreover, in light of the pending Findings and Recommendations regarding County of 25 Tulare’s motion for summary judgment regarding Plaintiff’s claims (although not Defendant 26 O’Neal’s cross-claims), the Court will adopt County of Tulare’s recommended schedule 27 regarding the proposed expert disclosure and discovery. 1 2 1. Defendant County of Tulare’s motion to amend the scheduling order (ECF No. 145) 3 is GRANTED. 4 2. Discovery is reopened for the limited purpose of permitting County of Tulare to 5 withdraw George Williams as a Use of Force Expert and designate a replacement Use 6 of Force Expert, and permitting expert disclosures and discovery of the replacement 7 expert. 8 3. Expert disclosures and discovery regarding the replacement use of force expert is 9 stayed until after the District Judge rules on the pending Findings and 10 Recommendations regarding County of Tulare’s motion for summary judgment. 11 4. Following the District Judge’s order on the pending Findings and Recommendations, 12 the parties shall meet and confer regarding a schedule for this discovery and shall 13 submit a joint proposed schedule, or statement of disagreement as to that schedule, no 14 later than 14 days after the District Judge’s order. 15 16 IT IS SO ORDERED. 17| Dated: _ Jume 17, 2024 [sf ey — 18 UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 27 28