In a recent case, a New Mexico personal injury plaintiff timely identified his treating physicians as potential trial witnesses. He did not timely come forward with any retained experts. According to the court’s ruling, approximately a month after the plaintiff made his disclosures, the defendant, a national retail chain, produced the plaintiff’s medical records. Although the records concerned the plaintiff’s treatment, the plaintiff did not have the records before the plaintiff obtained them. The defendant, with the plaintiff’s concurrence, obtained an extension of the defendant’s expert disclosure deadline.
Subsequently, the defendant disclosed a medical doctor as an expert witness, and indicated that the doctor was expected to testify that the slip and fall accident underlying the litigation was not the cause of the plaintiff’s injuries attributed to the slip and fall. Further the doctor was anticipated to testify that the accident did not aggravate pre-existing conditions suffered by the plaintiff and that the pre-existing factors and conditions were the likely explanations for the treatment and related costs incurred by the plaintiff. In support of this theory of the case, the defendant produced an expert witness report. The defendant’s actions put the plaintiff in a bad position insofar as the plaintiff needed relief from scheduling deadlines to come forward with a competing expert opinion on causation.
The plaintiff attempted to proceed under Federal Rule of Civil Procedure 26(e), which mandates that parties to federal civil litigation supplement disclosures when learning the disclosures are incorrect or incomplete. The court rejected this approach, reasoning that the plaintiff was not seeking to supplement disclosures, but rather to disclose a completely new expert and produce a new expert report. The court was forgiving, and characterized the plaintiff’s error as one of form and not substance. The court explained that if the plaintiff could show excusable neglect under Federal Rule of Civil Procedure 6(b) then the court could reopen the lapsed expert disclosure deadline. The plaintiff would then need to show good cause for modification of the expert disclosure deadline in the scheduling order, under Federal Rule of Civil Procedure 16(b)(4), in order to prevail.
The court applied these standards to the record presented by the parties. The court was satisfied there was excusable neglect mainly because the plaintiff’s counsel did not receive voluminous medical records supporting the defendant’s challenge of the cause of her client’s injuries until after her client’s expert disclosure deadline had passed. It helped the plaintiff that counsel acknowledged to the court that counsel had underestimated the defendant’s position on causation. The court considered the risks to the plaintiff that could result from the court not granting the plaintiff’s motion. A risk was losing all or most of the case by entry of summary judgment or a directed verdict by the court, i.e. losing on paper without getting a chance to present the case at trial. According to the court, the defendant was less inconvenienced by the proposed addition of a new witness because the defendant could depose the witness and there was not a trial date, so the court could add to the trial preparation an opportunity for the defendant to rebut the plaintiff’s expert’s report with a supplemental report.
If you or someone you love has been hurt in an accident, you may be entitled to receive a monetary award for damages. Being compensated monetarily when you are injured can help people and their loved ones recover out-of-pocket costs including medical bills and lost wages. Litigation can be complicated. We can help. To understand more about your case and how it can be pursued to maximize your financial recovery, call New Mexico personal injury lawyer Matthew Vance. At the Law Office of Matthew Vance, P.C., we provide a free consultation and can be reached at (505) 242-6267 (Phone) or (505) 317-3118 (Skype). Alternatively, we can also be reached by email at the following email addresses: