DON J. SVET, United States Magistrate Judge.
THIS MATTER comes before the Court upon Defendant's Motion for Leave to Add Expert Witnesses filed August 16, 2000 (Docket No. 36). Defendant seeks leave to designate an expert witness and provide a Rule 26 report for that witness after the deadline for discovery has passed. Plaintiff opposes the motion.
Defendant seeks to name Dr. Barry Ramo as an expert witness regarding the question of whether Plaintiffs heart disease prevents him from working. Dr. Ramo is a cardiologist and Defendant contends that it became aware of the need for his testimony after taking the deposition of Plaintiffs treating physician, Dr. Shadoff. Defendant contends that its motion should be granted in light of the factors outlined in Smith v. United States, 834 F.2d 166, 169 (10th Cir. 1987). The factors outlined in Smith include: (1) whether trial is imminent, (2) whether the request is opposed, (3) whether the non-moving party would be prejudiced, (4) whether the moving party was diligent in obtained discovery within the guidelines established by the court, (5) the foreseeability of the need for additional discovery, and (6) the likelihood that the discovery will lead to relevant evidence.
As two the first two Smith factors, the request is opposed and trial is set for early November.
The Pre-Trial Order was filed on September 20, 2000. While there is time for Defendant to submit a Rule 26 report from Dr. Ramo and for Plaintiff to take his deposition before trial, neither of these factors weigh in favor of Defendant. As to the third factor, Defendant argues that any prejudice to Plaintiff having to do with the expense of preparing for Dr. Ramos deposition can be mitigated by requiring it to pay for the cost of deposing him. The Court agrees. Any prejudice to Plaintiff arising from Defendant naming an expert witness at this late date, apart from the expense of deposing that expert, will be minor.
The fourth and fifth factors outlined in Smith weigh heavily against Defendant. After two extensions, seven months were allowed for discovery in this case. The deadline for filing motions related to discovery expired on June 7, 2000, nearly two months before Defendant filed the instant motion. Defendant asserts that it submitted this motion as soon as possible under the circumstance because it could not have anticipated that Plaintiffs treating physician would express an opinion beyond that contained in his medical records when deposed. However, Plaintiff has always based his claim that he is unable to work upon the opinion of his treating physician. While the details of Dr. Shadoffs opinion may have not been available to Defendant until his deposition, the substance of that opinion has not changed. Further, although the doctors deposition was delayed once due to no fault of Defendant, they did not take his deposition until nearly the end of discovery and delayed several months before seeking to name an expert of their own.
When a reasonable time limit for discovery is set and there are no extenuating circumstances, the Court has discretion to enforce discovery deadlines. See, Otero v. Buslee, 695 F.2d 1244, 1247 (10th Cir. 1982). Fed.R.Civ.P. 16(b) specifically provides that scheduling orders can be modified only upon a showing of good cause. See also D. N.M. LR-Civ. 16.1. A showing of good cause requires the party seeking relief to show that the deadline cannot reasonably be met despite its diligence. Pfeiffer v. Eagle Manufacturing Co., 137 F. R. D. 352, 355 (D.Kan. 1991). Defendants arguments to the contrary, good cause has not been shown for their failure to seek to add an expert witness until two months past the discovery deadline.
In light of the Smith factors and the circumstance of this case, the Court finds that Defendants motion is not well taken and should be denied.
IT IS THEREFORE ORDERED that Defendant's Motion for Leave to Add Expert Witnesses is denied.