Case Information
*1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA _____________________________
)
GEORGE J. WATT, JR., )
)
Plaintiff, )
) v. ) Civil Action No. 10-595 (RWR) )
ALL CLEAR BUSINESS SOLUTIONS )
LLC, )
)
Defendant. )
_____________________________ )
MEMORANDUM OPINION AND ORDER
Plaintiff George J. Watt has moved to reopen discovery for the limited purpose of designating economic expert Dr. Richard Lurito to project the present value of Watt’s future medical costs. Defendant All Clear Business Solutions, LLC (“All Clear”) opposes the motion, arguing that Watt has failed to comply with court-ordered discovery deadlines and that allowing this additional expert will considerably delay trial. Magistrate Judge Alan Kay recommends that the motion be granted. Though Watt’s delay was avoidable, there is good cause to repen discovery and Watt’s motion will be granted.
BACKGROUND
Watt’s complaint asserts one negligence claim against All Clear, arising from the company’s alleged failure properly to secure a filing cabinet its employees were unloading from a truck. (Compl. ¶¶ 9, 11.) The filing cabinet fell, struck Watt, and caused him injuries, including a permanent back injury, which resulted in “medical expenses and other economic loss.” (Id. ¶ 12.) The August 6, 2010 scheduling order set December 5, 2010 as the deadline for the close of discovery. On Watt’s motion, and with All Clear’s consent, the discovery deadline was continued to January 5, 2011. The parties later requested and were granted a further continuance until April 11, 2011. During the April 15, 2011 post-discovery status conference, the parties reported that discovery was complete. They pursued private mediation, unsuccessfully, in June.
At the pre-trial conference before Magistrate Judge Kay in September, Watt stated that he had hoped the parties would stipulate to the present value of his future medical treatment, but that they had not reached an agreement. Report and Recommendation [Docket 22] at 1. Accordingly, on September 27, 2011, Watt moved to reopen discovery by supplementing his expert designations with an economic expert. (Pl.’s Mem. in Supp. of Pl.’s Mot. to Reopen Disc. (“Pl.’s Mem.”) at 1.) In his motion, Watt explains that he had “expect[ed] that the case would settle prior to the need for incurring the additional cost of this expert[,]” that “[p]ermitting the relief sought . . . would more fully permit the trial of this case on its merits[,]” and that adding Dr. Lurito would “not materially prejudice [All Clear’s] trial preparation.” (Id. at 3.)
All Clear argues in opposition that adding Dr. Lurito as an economic expert will cause considerable delay, and that Watt has proffered no legitimate reason for filing his motion on this late date. (Def.’s Opp’n ¶¶ 3, 5.) However, Magistrate Judge Kay recommends granting Watt’s motion and denying All Clear’s request for a hearing. Report and Recommendation [Docket 22] at 1. “No prejudice will result from reopening discovery for this limited purpose, as a trial date has not been set in this case. All Clear will have ample time to review the expert’s report, and if necessary, depose the expert.” (Id. at 2.) Neither party has objected to the magistrate judge’s report and recommendation.
DISCUSSION
“A [scheduling order] may be modified only for good cause
and with the judge’s consent.” Fed. R. Civ. P. 16(b)(4).
“[R]eopening discovery . . . [therefore] require[s] a showing of
good cause[.]” U.S. ex rel. Pogue v. Diabetes Treatment Ctrs. of
Am.,
Watt has not demonstrated that he could not reasonably have
completed discovery by the established deadline. See Capitol
Sprinkler Inspection, Inc.,
On balance, the Childers factors nonetheless weigh in Watt’s
favor. See Childers,
medical costs should have been apparent from the outset of the litigation.
On the other hand, no trial date has been set. Although All Clear opposed Watt’s motion, the opposition does not describe any significant prejudice All Clear would suffer from reopening discovery for the limited purpose of adding an economic expert. In re Christou, Bankruptcy Nos. 06-68251-MHM, 06-68376-MHM, 2008 WL 7880888, at *1 (Bkrtcy. N.D. Ga. Nov. 30, 2008) (“Defendant has presented no specific evidence of prejudice except the mere passage of time.”) Nor has All Clear objected to the magistrate judge’s recommendation to grant Watt’s motion. Finally, it seems likely that the additional expert discovery as to Watt’s future medical costs will lead to relevant evidence of the scope of the damages at issue, and All Clear will have a fair opportunity to meet the new evidence. Watt’s motion, then, will be granted.
CONCLUSION AND ORDER
Watt has not justified his failure to supplement his expert designations before now. However, there is good cause for a limited reopening of discovery. Accordingly, it is hereby
ORDERED that the plaintiff’s motion [19] to reopen discovery be, and hereby is, GRANTED. Plaintiff shall have 15 days from the entry of this Order to designate Dr. Richard Lurito as an expert and serve All Clear with any report by Dr. Lurito. All Clear shall have until 45 days after entry of this Order to depose Dr. Lurito. It is further
ORDERED that the parties file a joint status report and proposed order within 7 days after the magistrate judge enters the Local Civil Rule 16.5(a)(3) Pretrial Order. See Partial Scheduling Order ¶ 3. The joint status report shall include three mutually agreeable dates on which the trial can begin.
SIGNED this 13 th day of January, 2012.
/s/ RICHARD W. ROBERTS United States District Judge
Notes
[1] In Gotlin, the court denied the plaintiff’s request to reopen discovery where he “had ample opportunity to produce the Records prior to the close of expert discovery, and can offer no reason why the deadline for expert discovery, which was