Widhelm v. Wal-Mart Stores, Inc.

162 F.R.D. 591, 1995 U.S. Dist. LEXIS 19381, 1995 WL 461905
CourtDistrict Court, D. Nebraska
DecidedApril 10, 1995
DocketNo. 8:CV94-00334
StatusPublished
Cited by8 cases

This text of 162 F.R.D. 591 (Widhelm v. Wal-Mart Stores, Inc.) is published on Counsel Stack Legal Research, covering District Court, D. Nebraska primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Widhelm v. Wal-Mart Stores, Inc., 162 F.R.D. 591, 1995 U.S. Dist. LEXIS 19381, 1995 WL 461905 (D. Neb. 1995).

Opinion

ORDER

JAUDZEMIS, United States Magistrate Judge.

A number of discovery motions are pending before me, all of which relate to an expert witness dispute between the parties. Pending for review are: (1) defendant’s Motion to Strike Plaintiffs Designation of Experts (# 13); (2) plaintiffs Motion to Extend Expert Witness Deadline (# 19); and (3) plaintiffs Motion to Conduct Depositions of Treating Physicians Out of Time (# 24).

FACTUAL BACKGROUND

Plaintiff alleges that she was injured at one of defendant’s stores in Indiana in June of 1993. As a result of those injuries, plaintiff was treated by Dr. Becker; Dr. Hehner and Dr. Brantly. Those physicians were identified by plaintiff to defendant as health care providers in answers to interrogatories. In addition, on October 31, 1994, plaintiffs counsel provided to defense counsel medical authorizations executed by plaintiff so that defendant could obtain plaintiffs medical records.

Plaintiff failed to comply with the court’s order setting progression of this case which required the plaintiff to provide a statement regarding each expert witness it expected to call to testify at trial on or before January 1, 1995. Far from being arbitrarily imposed, the January 1st deadline was agreed to by plaintiff in the Form 35 report the parties sent to the court (copy attached). On January 23,1995, plaintiff filed “Plaintiffs Second Supplementation to Rule 26 Disclosures” identifying the three above-named treating physicians as experts who would testify as to the causation of plaintiffs injuries, to a permanent disability rating given to plaintiff as a result of those injuries, to the necessity of the treatment plaintiff received, and to the fairness and reasonableness of the amounts charged for the treatment. Plaintiff did not provide reports but promised that those would be forthcoming. On February 23, 1995, defendant filed a Motion to Strike Plaintiffs Designation of Experts, indicating that reports had not yet been received and that defendant was not able to comply with its February 1, 1995 deadline because of plaintiffs failure to make adequate disclosure.

Plaintiffs Motion for Extension of Deadline to Designate Expert Witnesses or, in the alternative, Plaintiffs Motion for Leave of Court to Designate Expert Witnesses Out of Time (# 19) alleges that a new issue, plaintiffs eyesight, has been raised by defendant which now requires that plaintiff obtain medical records from her eye doctor. Plaintiff submitted no brief in support of the motion1 nor any affidavit supporting the allegation that this is a newly raised defense. In contrast, defendant’s brief included plaintiffs medical record dated August 3, 1993 (Ex. B) in which it is reported: “Mr. and Mrs. Wid-helm understand that the patient’s poor eyesight contributed to the incident ...” Based on this information, I find plaintiffs argument that this is a new issue not credible.

The Motion to Conduct Depositions of Treating Physicians Out of Time (#24) relates to the physicians identified by plaintiff in January. Plaintiff alleges that attempts to schedule those depositions were frustrated because defense counsel was on vacation in late March. One deposition was scheduled for one of the last days before discovery closed and then cancelled on the understanding that defense counsel would be unavailable. Discovery has now closed, and plaintiff requests it be reopened for the purpose of plaintiff taking the depositions of the treating physicians. By affidavit (Ex. A to defendant’s brief), defendant advises the court that [593]*593no effort was made by plaintiff to schedule any expert depositions until March 24, 1995, a Friday, and the last weekday of defense counsel’s vacation. At that time, plaintiff only had five business days remaining during which to take the expert depositions. No earlier attempt having been made by plaintiff, I find that defense counsel’s vacation had no effect on plaintiffs inability to schedule the expert depositions.

LEGAL ANALYSIS

Courts consistently hold that parties are not entitled to relief from progression order deadlines when the parties have been lax in the conduct of discovery. Rule 16(b) provides:

Except in categories of actions exempted by district court rule as inappropriate, ... a magistrate judge when authorized by distinct court rule,2 shall, after receiving the report from the parties under Rule 26(f) or after consulting with the attorneys for the parties ... by a scheduling conference, telephone, mail, or other suitable means, enter a scheduling order that limits the time
(2) to file motions----
____ A schedule shall not be modified except upon a showing of good cause and by leave of the district judge or, when authorized by local rule, by a magistrate judge.

(Emphasis added.)

The reason for the “good cause” requirement for modification of a court’s scheduling order is that
[s]uch orders and their enforcement are regarded as the essential mechanism for cases becoming trial-ready in an efficient, just, and certain manner. The control of these schedules is deliberately reposed in the court, and not in counsel, so that this end may be achieved. Public Citizen v. Liggett Group, Inc., 858 F.2d 775, 790 (1st Cir.1988), cert. denied, 488 U.S. 1030, 109 S.Ct. 838, 102 L.Ed.2d 970 (1989); Compagnie Nationale Air France v. Port of New York Authority, 427 F.2d 951 (2nd Cir.1970); Forstmann v. Culp, 114 F.R.D. 83, 85 (M.D.N.C.1987); Gestetner Corp. v. Case Equipment Co., 108 F.R.D. 138, 141 (D.Me.1985).

Kramer v. The Boeing Company, 126 F.R.D. 690, 696 (D.Minn.1989). A scheduling order is an important tool in controlling litigation. Jochims v. Isuzu Motors, Ltd., 145 F.R.D. 507, 510 (S.D.Iowa 1992). A magistrate judge’s scheduling order “is not a frivolous piece of paper, idly entered, which can be cavalierly disregarded by counsel without peril.” Gestetner Corp. v. Case Equip. Co., 108 F.R.D. 138, 141 (D.Me.1985). Scheduling orders have become increasingly critical to the district court’s case management responsibilities because “[i]t is well known that we litigate these days under the burden of heavy caseloads and clogged court calendars.” Id. The court in Geiserman v. MacDonald, 893 F.2d 787 (5th Cir.1990), also observed that the flouting of discovery deadlines causes substantial harm to the judicial system. The court stated:

[djelays [in litigation] are a particularly abhorrent feature of today’s trial practice. They increase the cost of litigation, to the detriment of the parties enmeshed in it; they are one factor causing disrespect for lawyers and the judicial process; and they fuel the increasing resort to means of non-judicial dispute resolution. Adherence to reasonable deadlines is critical to restoring integrity in court proceedings.

Id. at 792.

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Bluebook (online)
162 F.R.D. 591, 1995 U.S. Dist. LEXIS 19381, 1995 WL 461905, Counsel Stack Legal Research, https://law.counselstack.com/opinion/widhelm-v-wal-mart-stores-inc-ned-1995.