Failure to Establish Good Cause Leads to Affirmation of Denial of Additional Expert Disclosure

KANSAS — The plaintiff sued the Budd Company alleging her father, Robert Rabe, developed mesothelioma as a result of occupational exposure to asbestos for which the defendant was allegedly liable. Specifically, Rabe claimed exposure to pipe insulation used on railcars built by the defendant.

A scheduling order was entered by the magistrate, which called for the disclosure of experts by June 23, 2012 amongst other deadlines. After that deadline passed, the defendant moved without objection for a modification of the expert disclosure deadline to September 30, 2017. The court granted the motion to modify. The defendant then disclosed 8 experts by the deadline and emailed the plaintiff the name of an additional expert on November 6, 2017. The email stated that Dr. Burgher would offer “general, state of the art opinions regarding the historical knowledge of the hazards of asbestos.” The defendant then moved for leave to add an expert and to reopen discovery for a limited purpose. The motion was denied after the Magistrate concluded that no cause existed for the relief sought. Budd filed objections to the denial claiming that the Magistrate applied the wrong standard.

The court began its analysis and noted that Federal Rule of Civil Procedure 16(b)(4) permits a modification of the scheduling order upon a showing of good cause. Here, the Magistrate found that defendant had not established that it couldn’t have met the original deadline. The defendant countered and took the position that the court permits modification under the “four factor Test” laid down in the Summers and Rimbert decisions. Further, the defendant argued that the “good cause” test was applied to amendment of pleadings rather than a modification of the scheduling order. The court agreed that the Summers case allowed a newly designated expert when four factors are met. The same applied in Rimbert according to the court. However, those cases dealt with experts being added after Daubert challenges where no surprise could be argued by the other party. Additionally, trial dates were not yet set meaning the parties suffered no prejudice from the additional expert disclosure. Thecourt noted that this case was different from Summers and Rimbert. Specifically, the Budd Company had not been subject to an adverse Daubert ruling. Further, the defendant had only provided a “generic” description of the anticipated testimony of Dr. Burgher.

Accordingly, the court found that the Magistrate did not apply the wrong legal standard. The objections were overruled.

Read the full decision here.