United States District Court, D. Utah, Central Division
Benson, District Judge
MEMORANDUM DECISION AND ORDER
M. WARNER, Chief United States Magistrate Judge
Judge Dee Benson referred this case to Chief Magistrate Judge
Paul M. Warner pursuant to 28 U.S.C. §
636(b)(1)(A). Before the court is a Motion to Extend
Expert Discovery Deadline (the “Motion for
Extension”),  filed by Plaintiffs Georgia Barr and
Ronald Barr (“Plaintiffs”), and a Motion to
Compel Discovery (the “Motion to
Compel”) filed by Defendant Wal -Mart Stores, Inc.
(“Defendant”). Having reviewed the parties'
briefs and the relevant law, the court renders the following
Memorandum Decision and Order.
September 13, 2016, Plaintiffs filed their complaint in this
case (the “Complaint”).The Complaint alleges that on
September 23, 2015, Plaintiff Georgia Barr
(“Georgia”) was struck by a line of shopping
carts pushed by Defendant's employee while in the parking
lot of one of Defendant's stores in Washington County,
Utah. As a result of this incident, the
Complaint alleges that Georgia has suffered a back injury
which has caused her “constant pain, ” and
“difficulty walking, standing upright, and performing
household and personal care tasks.”Georgia seeks
compensatory damages for her injuries. In addition,
Plaintiff Ronald Barr (“Ronald”) claims special
damages based on loss of spousal consortium.
court first addresses Plaintiffs' Motion for Extension,
followed by Defendant's Motion to Compel.
MOTION FOR EXTENSION
Motion for Extension, Plaintiffs request an extension of the
deadline for disclosure of their initial expert reports from
July 27, 2017, to October 28, 2017. Plaintiffs also seek an
extension to designate two additional experts. The Motion
for Extension was filed on September 13, 2017; nearly two
months after the original expert report deadline had passed.
to Rule 16, “[a] schedule may be modified only for good
cause and with the judge's consent.” Fed.R.Civ.P.
16(b)(4). Moreover, “[a]ny additions or changes to
[expert witness] information must be disclosed by the time
the party's pretrial disclosures under Rule 26(a)(3) are
due.” Id. at 26(e)(2).
If a party fails to provide information or identify a witness
as required by Rule 26(a) or (e), the party is not allowed to
use that information or witness to supply evidence on a
motion, at a hearing, or at a trial, unless the failure was
substantially justified or is harmless.
Id. at 37(c)(1).
have failed to establish good cause for modifying the
scheduling order. Plaintiffs have also failed to establish
that missing the expert report deadline, and failing to
disclose two additional experts, was substantially justified.
Plaintiffs assert that they “were unable to retain an
expert until shortly before the July 27, 2017
deadline.” Plaintiffs should have known at that
time that an extension would be necessary. Rather than seek
an extension, though, Plaintiffs produced their expert's
report a “few weeks after the deadline had already
passed.” Moreover, Plaintiffs did not disclose
their expert witness until after the deadline for initial
expert reports had passed, and did not indicate to Defendant
that they wanted to designate additional expert witnesses
until September 11, 2017. And yet, Plaintiffs still did
not seek an extension of the deadline, delaying until
September 13, 2017, when they filed the Motion for Extension.
The only explanation Plaintiffs provide for the delay in
seeking the requested extension is that they are “very
low on funds” and have “limited
means.” The court finds that a lack of financial
resources is not good cause for amending the scheduling order
or an adequate justification for the Plaintiffs' delay in
seeking the requested extension. Accordingly, the requested
extension is denied.
MOTION TO COMPEL
Motion to Compel, Defendant moves this court for an order
compelling Georgia to submit to a Rule 35 physical
examination by Jeff Chung, M.D. (“Dr.
Chung”). Defendant further moves this court for
an order compelling Ronald to submit to a
Rule 35 Physical ...