United States District Court, D. South Carolina, Aiken Division
RICHARD MARK GERGEL, DISTRICT JUDGE
matter is before the Court on Plaintiffs motion for a fourth
amended scheduling order (Dkt. No. 41). For the reasons set
forth below, the Court grants the motion.
Jonathan Scott brought this action pursuant to 42 U.S.C.
§ 1983 in the Marion County Court of Common Pleas on
December 6, 2017. (Dkt. No. 1-1.) The case was subsequently
removed to this Court. (Dkt. No. 1.) Plaintiff alleges,
generally, that he was subjected to assault and battery,
negligence, and medical malpractice, giving rise to various
tort and constitutional claims, while in the custody of
to the Court's scheduling orders, Plaintiffs ID of Expert
Witnesses was due by October 22, 2018. (Dkt. No. 30.) Prior
to that date, on August 22, 2018, Plaintiff disclosed Dr.
Essam Eskander as an expert witness, but failed to produce an
expert report by October 22, 2018. (Dkt. No. 19.) The Court
issued a third amended scheduling order on January 15, 2019
setting a Discovery deadline of May 20, 2019, a deadline for
Motions as June 3, 2019, and a deadline for jury selection
and/or trial on September 1, 2019. (Dkt. No. 38.) Prior to
the close of discovery, Plaintiff made this motion,
requesting a three-month extension on the Court's last
scheduling order. (Dkt. No. 41.) Most notably, Plaintiff
claimed he needed an extension as his expert, Dr. Eskander,
had been diagnosed with Non-Hodgkin's Lymphoma and, due
to his declining health, had not been able to testify or
assist Plaintiff with the case. (Id.) Plaintiff also
stated he needed an extension to the discovery deadline as
the Parties had been unable to agree on a date to depose
Defendant Southern Health Partners, Inc.'s expert, Dr.
Oliver Harden. (Id.)
Southern Health Partners, Inc. opposes the motion. (Dkt. Nos.
45, 47.) Southern Health argues that Plaintiff had been aware
of Dr. Eskander's illness for months before their motion
and, regardless, Plaintiff failed to produce Dr.
Eskander's expert report by October 22, 2018, Plaintiffs
disclosure deadline for experts. (Id.) Plaintiff
filed a reply in support of their motion. (Dkt. No. 46.)
Rule of Civil Procedure 16(b)(4) provides that a scheduling
order may only be modified "for good cause and with the
judge's consent." Fed.R.Civ.P 16(b). The standard
"focuses on the diligence of the party seeking leave to
modify the scheduling order to permit the proposed
amendment." Dilmar Oil Co. v. Federated Mut. Ins.
Co., 986 F.Supp. 959, 980 (D.S.C.) (citations omitted),
aff'd sub nom. Dilmar Oil Co. v. Federated Mut. Ins.
Co., 129 F.3d 116 (4th Cir. 1997). The good cause
standard "means that scheduling deadlines cannot be met
despite a party's diligent efforts." Id.
cause clearly exists here to extend the scheduling order. As
other courts have recognized, the illness of an expert is a
"textbook example" of good cause under Rule 16(b).
See Acad. of Motion Picture Arts & Scis. v.
Godaddy.com, Inc., No. CV 10-03738-AB (CWX), 2015 WL
12697750, at *3 (CD. Cal. Apr. 10, 2015) ("Mr.
Lastowka's tragic illness is a textbook example of good
cause under Rule 16(b)."); Palatkevich v.
Choupak, No. 12 CV 1681 CM MHD, 2014 WL 5463371, at *1
(S.D.N.Y. Oct. 22, 2014) ("The illness and sudden
unavailability of a designated expert is certainly good cause
to modify a Rule 16 scheduling order...."). See
also Martinez v. City of Avondale, No.
CV-12-1837-PHX-LOA, 2013 WL 673507, at *4 (D. Ariz. Feb. 25,
Southern Health focuses on the fact that Dr. Eskander failed
to produce any expert report, arguing that, since he failed
to produce a report, Plaintiff never complied with the
requirements of Rule 26(a)(2)(B) for naming an expert and Dr.
Eskander's later illness should not excuse this prior
failure to comply with Rule 26. (Dkt. Nos. 45, 47.) However,
while that would be relevant to a motion to exclude under
Rules 26 and 37, Defendant's argument misses the mark:
regardless of whether Dr. Eskander had provided a report by
the October 22nd deadline, Plaintiff would still
be unable to meet the required deadlines regarding Dr.
Eskander, such as a deposition or trial testimony, given his
illness. Additionally, Defendants did not address Plaintiffs
argument that they required additional time to depose
Defendant Southern Health's expert, Dr. Harden, but were
unable to because Plaintiff had not received dates from
Defendant. (Dkt. No. 41 at 1 - 2.) Defendant Southern Health
now seeks to quash a recently-issued subpoena for Dr.
Harden's testimony given the Parties' prior inability
to schedule the deposition within the discovery deadline.
(Dkt. No. 68.) The inability to schedule a deposition for Dr.
Harden, which was sought prior to the close of discovery,
further demonstrates good cause and necessitates an amendment
to the scheduling order.
Court will therefore issue a fourth amended scheduling order.
Given the need to resolve this case expeditiously, the Court
will provide an approximately six-week extension for
Plaintiff to name a new expert. The expert disclosure
deadline is extended solely for Plaintiff to name a new
expert to replace Dr. Eskander, and Plaintiff may not name a
new expert on an unrelated topic. As requested by Defendants
Southern Health (Dkt. No. 45 at 4), and to cure any potential
prejudice, Defendants shall have an opportunity to name a
rebuttal expert to any expert named by Plaintiff. Discovery
is reopened solely in relation to Dr. Oliver Harden, any
rebuttal expert identified by Defendants, and any newly-named
expert by Plaintiff. While the Court is issuing an amended
scheduling Order, the Court will require this Order to be
strictly followed. The Court will not extend these deadlines
absent extraordinary circumstances, and the Court will call
this case for trial in the term identified in the scheduling
as discovery is being re-opened, albeit for limited purposes,
the Court will deny without prejudice all other pending
motions (Dkt. Nos. 48, 49, 66, 67, 68) as they are resolved
or mooted by this Order and, for dispositive motions, any
newly disclosed information may affect the substance of the
motions. Pursuant to the deadlines in the Fourth Amended
Scheduling Order, the Parties may re-file any motions that
were denied without prejudice. To the extent any alleged
deficiencies or arguments remain relevant, the Parties may
file the same or substantially similar motions and briefs.