FERNANDO GAITAN, District Judge
Pending before the Court are (1) Plaintiffs' Motion to Stay Commencement of Expert Discovery (Doc. No. 106); (2) Defendants' Motion for Leave to File Surreply Suggestions in Opposition to Plaintiff's Motion to Extend the Time for Expert Discovery (Doc. No. 115); and (3) Plaintiffs' Motion for Leave to File Plaintiffs' Surreply Suggestions to Defendants' Surreply Regarding Plaintiffs' Motion to Extend the Time for Expert Discovery (Doc. No. 116).
1. Plaintiffs' Motion to Stay Commencement of Expert Discovery (Doc. No. 106)
Plaintiffs move to extend the deadlines for submitting expert reports by one month. Plaintiffs' expert affidavit was due on July 16, 2004, and defendants' expert affidavit is due on August 16, 2004. Plaintiffs filed the pending motion to extend the expert discovery deadlines on July 27, 2004, 11 days after their expert affidavit would have been due. Plaintiffs say that their failure to seek an extension of time until after the deadline passed was the result of excusable neglect (see F.R.C.P. 6(b)). Plaintiffs state that "excusable neglect" may be found where a party makes a showing of good faith inadvertence and the absence of prejudice to the other party. See Pioneer Inv. Servs. Co. v. Brunswick Assocs., 507 U.S. 380, 388, 392 (1993). Plaintiffs say they meet this standard because (1) plaintiffs have been pushing forward with this case in good faith, engaging in written discovery, review and exchange of documents, briefed the motion for class certification, and have broached the issue of potentially settling this matter with defendants — therefore, plaintiffs say that their inadvertent failure to submit the expert affidavit on July 16, 2004 "can only be viewed as an unintentional mistake"; (2) the proposed order only slightly affects the timing of the matter, pushing close of discovery from October 4, 2004 to October 14, 2004; and (3) defendants cannot be said to have suffered any prejudice from the delay.
Defendants respond that, in order to make a showing of excusable neglect, plaintiffs "must allege the facts constituting excusable neglect and the mere assertion of excusable neglect unsupported by facts has been held to be insufficient." 4B Wright Miller, Federal Practice and Procedure § 1165, p. 533 (3d Ed. 2002). Defendants note that plaintiffs have given no explanation as to "why they failed to serve their disclosures by the deadline set in the scheduling order." Additionally, defendants state that there have been no settlement discussions; that, while plaintiffs have said a few times over the past few months that they would like to discuss settlement and that plaintiffs would initiate such discussions, to date no settlement discussions have occurred. Therefore, defendants request the Court deny plaintiffs' motion for extension of the expert discovery deadlines.
Plaintiffs state that they have demonstrated excusable neglect. Plaintiffs state that they have demonstrated good faithinadvertence because they have otherwise been pushing the case forward in good faith. Plaintiffs also state that "defendants incorrectly state that no settlement discussions have occurred"; instead, plaintiffs say that settlement discussions are in the preliminary stages. Furthermore, and notably, on the same day that this reply was filed (August 16, 2004), plaintiffs filed their expert report with the Court. Plaintiffs state that defendants cannot demonstrate any prejudice as a result of the delay.
The Court believes that plaintiffs have adequately demonstrated good faith inadvertence and lack of prejudice to defendants. Therefore, plaintiff's motion to stay commencement of expert discovery (Doc. No. 106, filed July 28, 2004) is GRANTED. All other deadlines remain the same as set forth in the Court's Second Amended Scheduling and Trial Order (Doc. No. 77).
The Court finds it unnecessary to consider the surreplies plaintiffs and defendants sought to have included in the briefing of this motion. Therefore, Defendants' Motion for Leave to File Surreply Suggestions in Opposition to Plaintiff's Motion to Extend the Time for Expert Discovery (Doc. No. 115, filed August 17, 2004) and Plaintiffs' Motion for Leave to File Plaintiffs' Surreply Suggestions to Defendants' Surreply Regarding Plaintiffs' Motion to Extend the Time for Expert Discovery (Doc. No. 116, filed August 20, 2004) are both DENIED.
THIRD AMENDED SCHEDULING AND TRIAL ORDER
Counsel should note that the scheduling and trial order indices are provided for their convenience only. All parties are directed to review the entire text of this order.
I. SCHEDULING INDEX
1. Close of discovery October 4, 2004 2. Motion for summary judgment November 19, 2004 3. Other motions November 19, 2004 4. Supplement to discovery response Ten days before pretrial conference 5. Asserting party's expert affidavit(s) August 16, 2004 Defending party's expert affidavit(s) September 15, 2004 Rebuttal affidavit(s) October 14, 2004 Challenges October 14, 2004 Pursuant to Rules 16(b) and 26(f), Fed.R.Civ.P., and upon consideration of the parties' proposals in the matter, the following time schedule is established.
Counsel should note that a courtesy copy of any motion requiring an expedited ruling should be delivered to chambers immediately after the motion is electronically filed.
Counsel should also note that all pleadings and filings shall be submitted in 12 point font form, and double-spaced.
1. DISCOVERY shall close as of October 4, 2004. Close of discovery means that all discovery, including the taking of depositions, shall be completed not simply submitted on the date specified by this paragraph. Any last minute discovery submitted too late for the opposing side to timely discover may be stricken. Counsel should also note that the Court expects discovery to proceed in a timely manner. The filing of a dispositive motion does not preclude the parties from conducting discovery.
a. The Court reserves the right to exercise control over the taking of depositions in any case. The Court may either limit the total number of depositions or place a time limitation on the taking of depositions in general. Any proposed deposition lasting longer than seven hours requires prior approval by the Court. Proposing counsel shall arrange a teleconference with the Court and be prepared to explain the justification for such deposition(s).
b. Any discovery motion must be filed before the close of discovery, and in sufficient time for the Court to rule the motion. The Court will not entertain any discovery motion absent full compliance with Local Rule 37.1. Any discovery motion filed without complying with Local Rule 37.1 will be denied.
c. In the event that a teleconference is needed, my secretary may be reached at (816)512-5630. All teleconference requests should be directed to her. A typed description of the discovery dispute, using a 12 pitch font and not exceeding two pages in length, should be faxed to the Court at (816)512-5643 by movant as soon as the dispute is known but not later than three hours before the scheduled teleconference. These teleconferences are intended to resolve one or two issues that do not require authoritative briefing. Where multiple and complex issues are involved, motion practice is appropriate. If you have questions regarding the appropriateness of your dispute for a teleconference, please ask my secretary.
2. All MOTIONS FOR SUMMARY JUDGMENT shall be filed no later than November 19, 2004. Further, no motion for summary judgment will be entertained absent strict compliance with the following provisions:
a. Any motion for summary judgment shall fully comply with the provisions set forth in Local Rule 7.1; and
b. No deviations from Local Rule 7.1 will be allowed absent leave of court obtained PRIOR to filing non-conforming documents. Unless prior Court approval is granted, motions for leave to deviate from Local Rule 7.1 that are filed contemporaneously with a non-conforming filing shall be denied.
3. All OTHER MOTIONS, except those which, under Rule 12(h)(2) or (3), Fed.R.Civ.P., may be made at any time, and except for motions in limine and discovery motions, shall be filed (with supporting suggestions) not later than November 19, 2004. Absent full compliance with Rule 7.1, these motions will be denied.
4. Any supplement to discovery responses under Rule 26(e), Fed.R.Civ.P. will be filed no later than ten days before the scheduled pretrial conference. This obligation extends to expert affidavits.
5. EXPERT TESTIMONY.
a. A party shall disclose to other parties the identity of any person who may be used at trial to present evidence under Rules 702, 703, or 705, Fed.R.Evid.
1. Standard discovery deadlines include submission of expert affidavits required by Rule 26(a)(2)(B), Fed.R.Civ.P. The affidavit requirement is subject to the provisions of Rule 26(b)(4) of said rules. Plaintiff shall submit its expert affidavit on or before August 16, 2004, defendant on or before September 15, 2004, and rebuttal on or before October 14, 2004. These deadlines also apply to the submission of reports pursuant to 7(e), as well as to identifying "fact" witnesses under 7(e)(1). No affidavits or reports are required for 7(e)(1) fact witnesses. Any challenge to the qualifications of a proposed expert, objections to the foundation of expert testimony, or challenge to a 7(e)(1) fact expert must be submitted to the Court on or before October 14, 2004. The objecting party should cite specific reasons its objection and cite any authority to support that position. Objections not raised by this deadline are waived and may not be raised for the first time at trial. Additionally, any motion to strike proffered expert testimony pursuant to Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), must be made by October 14, 2004.
2. Any further discovery relative to the information and opinions reflected in the expert affidavits shall be by Court order. The party requesting further discovery shall file a motion specifying what additional discovery is needed, and stating in detail why additional discovery is necessary. This motion shall be filed within five days of the close of standard discovery. The opposition to said request shall be filed within 5 days thereafter. Counsel should be advised that this request for additional discovery will not be automatically granted.
b. One of the purposes of the expert affidavit is to set forth the substance of a direct examination. If properly done, the expert affidavit should eliminate the need for deposition of some experts. Consequently, the detailed statements in the affidavit are essential.
c. A party's expert witness will be permitted to testify at trial only in conformity with that witness's affidavit unless otherwise ordered by the Court.
d. Any expert affidavit to be submitted under this section shall be filed with this Court.
e. Treating physicians may testify as fact witnesses, expert witnesses, or both. To the extent that a treating physician may testify as an expert, compliance with 7(a)-(d) is required. To the extent that a treating physician may testify as a fact witness, production of an affidavit or records is not required, however the party intending to use such fact testimony shall disclose the name of that witness by the deadline indicated by 7(a)(1).
1. Fact Witnesses: A treating physician will be considered a fact witness when testifying as to information developed or opinions drawn during the treatment of a patient so long as the information or opinions were necessary in furtherance of the patient's treatment. Examples of fact testimony include: the cause of the medical condition, the diagnosis, the prognosis and the extent of disability caused by the condition, if any. This is a non-exhaustive list of examples.
2. Expert Witnesses: A treating physician will be considered an expert witness when testifying outside the scope of 7(e)(1). Examples of expert testimony include: testimony as to medical matters unrelated to the actual care and treatment administered, testimony regarding the patient's previous care unrelated to the treatment at issue, and opinions that were not derived from the treating physician's personal knowledge of the case or were developed or acquired in anticipation of litigation. This is also a nonexhaustive list of examples.
3. For the purpose of this paragraph, a "treating physician" is a doctor including psychiatrist, dentist or other practitioner of the healing arts.
8. The schedules fixed herein will not be extended except for good cause shown and upon further written order of the court.
II. TRIAL INDEX
Pretrial teleconference April 1, 2005 Trial setting May 9, 2005 1. Stipulation of facts January 11, 2005 2. Asserting party: January 11, 2005 Witness list, exhibit list, designation of deposition testimony 3. Asserting party: January 11, 2005 In camera witness list 4. Defending party: January 18, 2005 Witness list, exhibit list, objections to proposed deposition testimony, deposition designations 5. Defending party: January 18, 2005 In camera witness list 6. Asserting party: January 25, 2005 Objections to proposed deposition testimony, deposition testimony designations 7. Defending party: February 1, 2005 Objections to proposed deposition testimony 8. Stipulation to identity and authentication of February 8, 2005 exhibits 9. Joint proposed instructions February 15, 2005 10. Asserting party: February 22, 2005 Voir dire questions, other instructions 11. Defending party: March 1, 2005 Voir dire questions, other instructions 12. Asserting party: March 8, 2005 Motions in limine, trial brief 13. Defending party: March 15, 2005 Motions in limine, responses to motions in limine, trial brief 14. Asserting party: March 22, 2005 Responses to motions in limine and trial brief 15. Objections to proposed voir dire and March 22, 2005 proposed instructions Pretrial teleconference will be held on April 1, 2005, at 9:30 a.m. Counsel for plaintiff shall initiate the teleconference to the Court at telephone number 816/512-5630.
IT IS ORDERED that this cause be set as the number one case on the jury docket commencing May 9, 2005. The attorneys for the parties shall have the responsibility to maintain contact with the courtroom deputy at telephone number (816)512-5644 to determine their position on the docket. All matters will be heard in Chambers (Room 7552) and Courtroom 7C of the United States Courthouse, 400 East 9th Street, Kansas City, Missouri, unless otherwise notified by the courtroom deputy.
1. On or before January 11, 2005, the parties shall file a STIPULATION OF ANY UNCONTROVERTED FACTS. If no stipulated facts can be agreed upon, including facts related to the court's subject matter or personal jurisdiction, the parties shall file a joint statement to that effect.
2. On or before January 11, 2005, each PARTY ASSERTING an affirmative claim or claims for relief (plaintiff, third party plaintiff, counterclaiming defendant, crossclaiming defendant, etc.) shall serve and file:
a. A LIST OF ALL WITNESSES (inalphabetical order) who may be called at trial by that party in connection with such claim or claims;
b. A LIST OF ALL EXHIBITS which may be offered at trial by that party in connection with such claim or claims. Each exhibit so listed shall be pre-marked and numbered. If only a portion of an exhibit is to be offered, the portion to be offered shall be specifically identified. A copy of the exhibit index will be attached to the copy of the exhibit list filed with the clerk; and
c. A DESIGNATION, by page and line number, of any DEPOSITION TESTIMONY to be offered in evidence as a part of that party's case-in-chief in connection with such claim or claims.
3. In addition to 2(a) above, on or before January 11, 2005, each PARTY ASSERTING an affirmative claim or claims for relief shall submit in camera a WITNESS LIST which includes the subject matter that each witness is expected to testify about and the exhibits that each witness will identify or use; the length of time expected to be used in direct examination of each witness; and the order in which you propose to call each witness. Once opposing side's witnesses have been identified, you shall provide an estimate of the amount of time it will take to cross-examine those witnesses. This should be provided to the Court within five days of disclosure by opposing sides.
Please note that counsel may, if desired, file and serve the information in paragraph three instead of making a separate in camera submission.
4. On or before January 18, 2004, each PARTY DEFENDING against an affirmative claim for relief shall serve and file:
a. A LIST OF ALL WITNESSES (inalphabetical order) who may be called at trial by that party in connection with such defense;
b. A LIST OF ALL EXHIBITS which may be offered at trial by that party in connection with such defense. Each exhibit so listed shall be pre-marked and numbered. If only a portion of an exhibit is to be offered, the portion to be offered shall be specifically identified. A copy of the index will be attached to the copy of the exhibit list filed with the clerk;
c. Any OBJECTIONS TO PROPOSED DEPOSITION testimony designated by any other party pursuant to subparagraph (2)(c);
d. A DESIGNATION, by page and line number, of any DEPOSITION TESTIMONY to be offered as cross-examination to deposition testimony designated by other parties pursuant to subparagraph (2)(c); and
e. A DESIGNATION, by page and line number, of any DEPOSITION TESTIMONY to be offered in evidence as a part of that party's case-in-chief in connection with such defense.
5. In addition to 4(a) above, on or before January 18, 2005, each PARTY DEFENDING against an affirmative claim for relief shall submit in camera a WITNESS LIST which includes the subject matter that each witness will testify about and the exhibits each witness will identify or use; the lengthof time needed for direct examination of each witness; the order in which you propose to call each witness; and the length of time you estimate is necessary to cross-examine the opposing side's witnesses.
Please note that counsel may, if desired, file and serve the information in paragraph five instead of making a separate in camera submission.
6. On or before January 25, 2005, each PARTY ASSERTING an affirmative claim or claims for relief shall serve and file:
a. Any OBJECTIONS TO PROPOSED DEPOSITION TESTIMONY designated by any other party pursuant to subparagraphs (4)(d) or (4)(e); and
b. A DESIGNATION, by page and line number, of any DEPOSITION TESTIMONY to be offered as cross-examination to deposition testimony designated by any other party pursuant to subparagraph (4)(e);
7. On or before February 1, 2005, each PARTY DEFENDING against an affirmative claim or claims for relief shall serve and file any objections to proposed deposition testimony designated by any other party pursuant to subparagraph (6)(b).
8. On or before February 8, 2005, the parties shall file a STIPULATION TO THE IDENTITY AND AUTHENTICATION OF EXHIBITS. If no exhibits can be stipulated to, the parties shall file a joint statement to that effect.
9. INSTRUCTIONS: all proposed instructions that the parties believe appropriate shall be taken from or drawn in the manner of Model Civil Jury Instructions for the District Courts of the Eighth Circuit. The Missouri Approved Instructions (MAI) may be used if there is no Eighth Circuit instruction available. An original (without sources) and one copy (with sources) of all said instructions shall be delivered to chambers. If a non-MAI instruction is proposed (because none of the authoritative sources requested above have instructions on this subject), the source of such instruction should be provided. The Court expects to receive jointly agreed to instructions from the parties. Separate instructions are appropriate only where the parties cannot agree upon a specific instruction. In that instance, opposing counsel shall state in writing the reason for the objection with authority cited as well as an alternative instruction.
The jointly proposed instructions shall be filed on or before February 15, 2005. In the event that the parties cannot agree upon instructions, the asserting party and defendant party may submit their individual instructions on the dates set forth below.
10. On or before February 22, 2005, the ASSERTING PARTY shall serve and file:
a. All proposed voir dire questions;
b. All instructions which have not been agreed to by the defending parties.
11. On or before March 1, 2005, PARTY DEFENDING shall serve and file:
a. All proposed voir dire questions;
b. All instructions which have not been agreed to by the asserting party;
12. On or before March 8, 2005, the ASSERTING PARTY shall serve and file:
a. All motions in limine, with supporting suggestions; and
b. Any desired trial brief.
13. On or before March 15, 2005, the PARTY DEFENDING shall serve and file:
a. All motions inlimine, withsupporting suggestions, and/or any responses to earlier filed motions in limine; and
b. Any desired trial briefs and/or any responses to earlier filed trial briefs.
14. On or before March 22, 2005, the ASSERTING PARTY shall serve and file:
a. Any desired response to motions in limine; and
b. Any desired responses to earlier filed trial brief.
15. On or before March 22, 2005, ALL PARTIES shall serve and file any objections to earlier filed proposed voir dire and proposed jury instructions.
16. The Court may place time limits on opening statements, and direct and crossexamination of all witnesses. You should be prepared to support your representations as to the length of trial. (See 3 and 5 above.)
17. It is important that every moment the jury is in the Courthouse, except when they are on their recess, they should be seated in the jury box hearing testimony. In furtherance of that objective the following rules of Court will be imposed.
a. All legal issues must be raised in advance of trial by written motions and in accordance with the scheduling order of this Court.
b. Motions will not be heard during trial without a strong showing that counsel could not, by due diligence, have raised them sooner.
c. Motions for judgment as a matter of law submitted under Rule 50 shall be filed with the Court as soon as possible but no later than the night before the anticipated completion of testimony.
d. Testimony will not be interrupted to deal with evidentiary matters that could have been heard in advance of trial. The Court will consider those matters during recess, at noon break, or at the end of the day. Counsel should be prepared with written authority for their position.
e. Witnesses who will be testifying from exhibits or about exhibits should review them immediately prior to their examination.
PLEASE NOTE that a witness not listed in accordance with this order will not be permitted to testify, except for good cause shown and with leave of Court; and that an exhibit not listed or deposition testimony not designated in accordance with this order will not be received in evidence, except for good cause shown and with leave of court. All witnesses shall be instructed to be available for testimony as of the first day of trial scheduled herein, should the Court so require.
IT IS SO ORDERED.