United States District Court, S.D. Indiana, Indianapolis Division
R. SWEENEY II, JUDGE.
Johnny Webber was seriously injured while cutting down a tree
on Defendant Roger Butner's property. Johnny and his wife
Debora filed this suit in state court, and Defendant Butner
subsequently removed it to this court, invoking the
Court's diversity jurisdiction. (ECF No. 1.) Following
the initial pretrial conference in June 2016, the deadline
for non-expert witness discovery and discovery relating to
liability was set for March 11, 2017, and the deadline for
expert witness discovery and discovery relating to damages
was set for September 11, 2017. (ECF No. 10, ECF No. 11.) In
July 2018, the case was tried to a jury who apportioned 51%
of fault to Plaintiffs-barring them from recovery under the
applicable Indiana tort law. (ECF No. 90.) Judgment was
entered for Defendant. Plaintiffs appealed, challenging the
admission of evidence that Johnny Webber was not wearing a
hardhat and the instruction to the jury about that evidence.
The Seventh Circuit held that the admission of this evidence
was an error, as was the instruction about considering the
evidence, and remanded the case for a new trial. (ECF No.
remand, this Court ordered the parties to file position
statements. (ECF No. 111.) Plaintiffs want the Court to
proceed to jury trial (ECF No. 112 at 4), whereas Defendant
wants the Court to reopen discovery and set a new expert
deadline for potential expert testimony regarding the use of
a hardhat. (ECF No. 113.) Now before the Court is, in effect,
Defendant's motion to reopen expert discovery. (ECF No.
118.) Plaintiffs respond that discovery should not be
reopened because it is impossible for an expert to testify
that Mr. Webber's nonuse of a hardhat caused the branch
to fall, and because there is no showing of excusable neglect
for why the discovery was not completed within the discovery
deadline. (ECF No. 119.) For the reasons below, the motion is
decision whether to grant a motion to reopen discovery rests
within the district court's sound discretion. Winters
v. Fru-Con, Inc., 498 F.3d 734, 743 (7th Cir. 2007).
Motions to reopen discovery following remand are governed by
Rule 16(b) of the Federal Rules of Civil Procedure.
Schagene v. Spencer, No. 13cv333-WQH(RBB), 2018 WL
1210682, at *3 (S.D. Cal. Mar. 8, 2018). Rule 16(b) provides
that “a schedule may be modified only for good cause
and with the judge's consent.” Fed.R.Civ.P. 16(b).
The Rule 16 good-cause standard focuses on the
“reasonable diligence” of the moving party.
Noyes v. Kelly Servs., 488 F.3d 1163, 1174 n.6 (9th
higher standard applies in cases where a motion is filed
after discovery has closed. Brosted v. Unum Life Ins. Co.
of Am., 421 F.3d 459, 464 (7th Cir. 2005). Thus, under
Federal Rule of Civil Procedure 6(b), a party seeking to
reopen discovery must show “excusable neglect”
for failing to complete discovery within the time allotted.
Fed.R.Civ.P. 6(b)(1)(B). Additionally, remands are not
typically intended to allow a party to fill in gaps from the
original record. Millenkamp v. Davisco Foods Int'l,
Inc., No. CV03-439-S-EJL, 2009 WL 3430180, at *3 (D.
Idaho Oct. 22, 2009).
important factor in deciding whether discovery should be
reopened is “whether the moving party was diligent in
obtaining discovery within the guidelines established by the
court.” Reyblatt v. Nuclear Regulatory
Comm'n, No. 86 C 385, 1991 WL 140920, at *2 (N.D.
Ill. July 22, 1991). Courts are to consider the following
factors in determining whether to amend a Rule 16 scheduling
order to reopen discovery:
(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
obtaining discovery within the guidelines established by the
court, (5) the foreseeability of the need for additional
discovery in light of the time allowed for discovery by the
district court, and (6) the likelihood that the discovery
will lead to relevant evidence.
City of Pomona v. SQM N. Am. Corp., 866 F.3d 1060,
1066 (9th Cir. 2017). Consideration of these factors leads
the Court to the conclusion that the motion to reopen
discovery should be denied.
is scheduled for March 3, 2020. Because reopening discovery
would likely delay the trial date, this factor weighs in
favor of denying the motion. Plaintiffs opposed the request
to reopen discovery, which also weighs in favor of denying
to prejudice, a delay in the proceedings, especially the
trial date, can constitute prejudice to the non-moving party.
Lockheed Martin Corp. v. Network Sols.,
Inc., 194 F.3d 980, 986 (9th Cir. 1999). The same is
true for reopening discovery when it requires additional
costs and alterations in trial tactics and strategy.
Kozlov v. Associated Wholesale Grocers, Inc., 818
F.3d 380, 395 (8th Cir. 2016); see also Reed v. Columbia
St. Mary's Hosp., 915 F.3d 473, 484 (7th Cir. 2019)
(noting that allowing a “last-minute defense that
introduces . . . new factual and legal issues after discovery
has closed raises the costs of litigation”). Since this
case's inception over three and one-half years ago,
Plaintiffs have expended considerable resources of time and
money. For example, they deposed Butner's human factors
expert witness, Farheen S. Khan, Ph.D., who gave opinions on
Mr. Webber's nonuse of a hardhat. (Khan Dep. 149-54, ECF
No. 39-7.) Plaintiffs incurred expenses related to Dr.
Khan's deposition, including $1, 420 for her time and $1,
050 for a court reporter. (Pls.' Overview of Pertinent
Legal Authority 10, ECF No. 115.) Reopening discovery would
only further delay the retrial of this case and raise the
costs of litigation. Thus, this factor weighs in favor of
denying Mr. Butner's motion.
Butner was not diligent in obtaining discovery on Mr.
Webber's nonuse of a hardhat before the first trial.
Butner knew of his need for information on the nonuse of a
hardhat before the September 11, 2017 deadline for expert
witness discovery. In her expert report disclosed to
Plaintiffs on March 8, 2017, Dr. Khan stated that
“[t]he use of personal protective equipment could have
protected Mr. Webber and likely prevented injury on the day
of the incident.” (Khan Report 1, ECF No. 30-1.) And at
her May 19, 2017 deposition, Dr. Khan specifically addressed
Mr. Webber's nonuse of hardhat. (Khan Dep. 149, ECF No.
39-7.) When asked whether she was unqualified to give
opinions about the kind of injuries one could suffer from a
particular force, and how the use or nonuse of a hard hat
could cause injuries to be different, Dr. Khan acknowledged
that she was unqualified. (Id.) She testified that
it would depend on things such as, how the branch fell, how
big it was, what mass it carried, and the direction of the
fall; and she agreed that one would have to have information
about velocity and the amount of force with which the branch
hit Webber's head. (Khan Dep. 148-52, ECF No. 39-7.)
took the position that he was not using Dr. Khan's
opinion regarding hardhats, but acknowledged the nonuse of a
hardhat issue as a potential defense. (Khan Dep. 153-54
(“We're not using Miss Khan's testimony
regarding the hard hat at trial. . . . We are not concerned
with her opinions on whether a hard hat could or could not
have prevented the injuries. . . . We are not using her
opinion regarding hard hats. I'm not saying we're not
using that as a defense, but we are not using Miss Khan's
opinions regarding the hard hat.”), ECF No. 39-7.) At
the time of Khan's May 19, 2017 deposition, Defendant
still had the opportunity to obtain evidence from a qualified
expert about the nonuse of a hard hat before the September
11, 2017, close of expert discovery. Defendant has identified
no reason why he could not have retained an expert on the
nonuse of a hardhat prior to the deadline for expert
discovery and before the first trial. Instead, he offered no
evidence at trial that the use of a hardhat would have
affected Webber's injuries. It seems that Defendant wants
to revisit the decision not to present such evidence. He has
given no good reason to allow that change in strategy
now-post-trial and on remand. Moreover, Butner should have
and could have foreseen the need for expert discovery on Mr.
Webber's nonuse of a hardhat long before the Seventh
Circuit's remand. Khan's deposition suggests such an
awareness. Thus, these two factors weigh in favor of denying
But-ner's motion to reopen discovery.
finally, further discovery would not likely lead to relevant
evidence. Because this case is in federal court under
diversity jurisdiction, see 28 U.S.C. § 1332,
the Court applies Indiana substantive law, which governs
whether evidence of Mr. Webber's nonuse of a hardhat is
relevant. As the Seventh Circuit's decision explains:
In determining fault, Indiana law bars admission of evidence
that an injured plaintiff was not using safety equipment
unless the failure to use the equipment contributed to
causing the injury. See Ind. Code §§
34-51-2-7(b)(1) & 34-51-2-3; Green v. Ford Motor
Co., 942 N.E.2d 791, 795-96 (Ind. 2011). The fact that
Webber was not wearing a hardhat did not cause the branch to
fall and hit him on the head. The district court nevertheless