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Little v. Budd Co.

United States District Court, D. Kansas

February 13, 2018

NANCY LITTLE, individually and as personal representative of the estate of ROBERT L. RABE, Plaintiff,
v.
THE BUDD COMPANY, Defendant.

          MEMORANDUM AND ORDER

          Daniel D. Crabtree United States District Judge

         This matter comes before the court on defendant's “Objection to the District Court Regarding Magistrate's Order of January 3, 2018.” Doc. 62. On January 3, 2018, Magistrate Judge Kenneth G. Gale denied defendant's Motion for Leave to Add an Expert Witness and to Reopen Discovery for a Limited Purpose. Doc. 54. Defendant asserts that Judge Gale applied an incorrect legal standard in his Order. Thus, defendant contends, Judge Gale's Order is clearly erroneous. For this reason, defendant asks the court to set aside Judge Gale's Order under Federal Rule of Civil Procedure 72(a). As explained below, the court overrules defendant's Objection and affirms Judge Gale's decision.

         I. Factual and Procedural Background

         Plaintiff Nancy Little brings this action individually and as the personal representative of the estate of her father, Robert L. Rabe, against defendant The Budd Company. Plaintiff alleges that her father was exposed to asbestos-containing pipe insulation that defendant placed in passenger railcars it manufactured. She contends that this exposure caused her father to develop asbestos-related malignant mesothelioma, causing his death on December 28, 2012.

         On January 6, 2017, Judge Gale entered a Scheduling Order that established various deadlines for the case's management, including a requirement that defendant disclose its experts by June 23, 2017. Doc. 11 at 4. On August 10, 2017, defendant filed an unopposed motion to modify certain deadlines in the Scheduling Order, including an extension of its expert disclosure deadline until September 30, 2017. Doc. 29-1 at 3. Judge Gale granted that request and entered a Revised Scheduling Order that established September 30, 2017, as defendant's deadline to disclose experts. Doc. 30 at 2.

         By the September 30, 2017 deadline, defendant had identified eight expert witnesses in its Rule 26(a) disclosures. On November 6, 2017, defendant's counsel sent an email to plaintiff's counsel disclosing a ninth expert witness-Dr. Louis Burgher. The email also provided Dr. Burgher's curriculum vitae. Plaintiff asserts that Dr. Burgher will offer “only general, state-of-the-art opinions regarding the historical knowledge of the hazards of asbestos at various times in the 20th century . . . .” Doc. 62 at 3.

         On November 15, 2017, defendant filed a Motion for Leave to Add an Expert Witness and to Reopen Discovery for a Limited Purpose. Doc. 40. On January 3, 2018, Judge Gale denied the motion because, he determined, defendant had not established “good cause” under Fed.R.Civ.P. 16(b)(4) to modify the Scheduling Order after the deadline for disclosing experts had expired. Doc. 54 at 3. Instead, Judge Gale reasoned, defendant had explained only that it was seeking to add an expert witness past the deadline for making disclosures because it had “come to the conclusion that this action will be furthered by retention of an additional expert.” Id. Judge Gale concluded that this reason did not provide the requisite good cause to grant defendant leave to add an expert after the deadline established by the Scheduling Order had expired. Id.

         On January 16, 2018, defendant filed an Objection to Judge Gale's Order. Doc. 62. Defendant asserts that Judge Gale applied the incorrect legal standard to defendant's Motion for Leave to Add an Expert Witness and Reopen Discovery for a Limited Purpose. Defendant argues that Judge Gale applied the “good cause” standard that governs amendment of pleadings-not requests for leave to add an expert. Defendant contends that the standard for leave to add an expert requires a party to satisfy a less onerous burden. And so, defendant argues, Judge Gale's Order is clearly erroneous. Defendant thus asks the court to modify Judge Gale's Order and allow it to use the testimony of Dr. Louis Burgher in this action. The court considers defendant's request below.

         II. Legal Standard

         Federal Rule of Civil Procedure 72(a) permits a party to present specific, written objections to a magistrate judge's order. When reviewing a magistrate judge's order deciding nondispositive pretrial matters, the district court applies a “clearly erroneous or contrary to law” standard of review. See First Union Mortg. Corp. v. Smith, 229 F.3d 992, 995 (10th Cir. 2000) (quoting Ocelot Oil Corp. v. Sparrow Indus., 847 F.2d 1458, 1461-62 (10th Cir. 1988)); 28 U.S.C. § 636(b)(1)(A); Fed.R.Civ.P. 72(a). Under this clearly erroneous standard, the district court does not conduct a de novo review of the factual findings; instead, it must affirm a magistrate judge's order unless a review of the entire evidence leaves it “with the definite and firm conviction that a mistake has been committed.” Ocelot Oil Corp., 847 F.2d at 1464. In contrast, “the contrary to law” standard permits the district court to conduct an independent review of purely legal determinations made by the magistrate judge. Sprint Commc'ns Co. L.P. v. Vonage Holdings Corp., 500 F.Supp.2d 1290, 1346 (D. Kan. 2007) (citations omitted). A magistrate judge's order is contrary to law if it “fails to apply or misapplies relevant statutes, case law or rules of procedure.” Walker v. Bd. of Cty. Comm'rs of Sedgwick Cty., No. 09-1316-MLB, 2011 WL 2790203, at *2 (D. Kan. July 14, 2011) (quotation omitted).

         III. Analysis

         Defendant asserts that Judge Gale erred by denying its Motion to Add an Expert Witness and Reopen Discovery for a Limited Purpose. Defendant filed its motion on November 15, 2017-15 days after the Scheduling Order's deadline for disclosing experts had expired. Because defendant's motion sought to amend a deadline established by the Scheduling Order, Judge Gale applied Fed.R.Civ.P. 16-the rule that governs modification of a Scheduling Order.

         Under Fed.R.Civ.P. 16(b)(4), “[a] schedule may be modified only for good cause and with the judge's consent.” The advisory committee notes to this Rule provide: “[T]he court may modify the schedule on a showing of good cause if it cannot reasonably be met despite the diligence of the party seeking the extension.” Fed.R.Civ.P. 16 advisory committee's note to 1983 amendment; see also Gorsuch, Ltd., B.C. v. Wells Fargo Nat'l Bank Ass'n, 771 F.3d 1230, 1240 (10th Cir. 2014) (“In practice, this standard requires the movant to show the scheduling deadlines cannot be met despite [the movant's] diligent efforts.” (citation and internal quotation marks omitted)). “Rule 16's good cause requirement may be satisfied, for example, if a plaintiff learns new information through discovery or if the underlying law has changed.” Gorsuch, 771 F.3d at 1240.

         The district court exercises its sound discretion when deciding whether to modify a Scheduling Order. Rimbert v. Eli Lilly & Co., 647 F.3d 1247, 1254 (10th Cir. 2011) (reviewing a district court's refusal to enter a new scheduling order for abuse of discretion). Despite this “broad discretion in managing the pretrial schedule, ” the Tenth Circuit has concluded that “total inflexibility is undesirable.” Summers v. Mo. Pac. R.R. Sys., 132 F.3d 599, 604 (10th Cir. 1997). Also, a scheduling order which produces an exclusion of material evidence is “a drastic sanction.” Id.; see also Deghand v. Wal-Mart Stores, Inc., 904 F.Supp. 1218, 1221 (D. Kan. 1995) (“While a scheduling order is not a frivolous piece of paper, ...


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