United States District Court, D. South Dakota, Western Division
MICHAEL KATON, INDIVIDUALLY AND AS GUARDIAN AD LITEM FOR C.K., K.K., AND T.K.; AND SARA KATON, Plaintiffs,
UNITED STATES OF AMERICA, Defendant.
WOLLMANN UNITED STATES MAGISTRATE JUDGE.
an action for personal injury and property damage brought
under the Federal Tort Claims Act. Defendant filed a Motion
to Exclude or Strike, asking the court to exclude Plaintiffs
expert neuropsychologist. (Doc. 100). In response, Plaintiffs
brought a Motion for Leave to Amend their Expert Designations
(Doc. 106). United States District Court Judge Jeffrey L.
Viken, Chief Judge, referred all pretrial motions to this
magistrate judge for determination. (Doc. 89).
allege that an employee of the United States Postal Service
negligently drove a postal truck into Michael Katon's
vehicle on September 20, 2013, causing injuries to occupants
Sara Katon and their minor children C.K., K.K., and T.K.
(Doc. 5). K.K. was seven years old at the time of the
accident. (Doc. 110). In the months following the accident,
K.K, was seen several times by Dr. Jay Bogard at the Queen
City Regional Medical Clinic in Spearfish, South Dakota. Dr.
Bogard noted that K.K. exhibited classic symptoms of a
moderate traumatic brain injury. On October 9, 2014, Dr.
Bogard referred K.K. to neurologist Dr. Jorge Sanchez, at
Regional Medical Clinic Neurology, and to Dr. Teresa Hastings
at Regional Rehab Institute. Dr. Hastings conducted a
neuropsychological evaluation of K.K. on November 14, 2014.
(Doc. 109-5). On August 17 and 25, 2015, Dr. Hastings
completed an updated neuropsychological evaluation at Scovel
Psychological and Counseling Services in Rapid City. In her
evaluation. Dr. Hastings recommended that K.K. should
continue to be followed by a neurologist. (Doc. 109-6). Dr.
Hastings found that K.K. suffered from postconcussive
syndrome affecting her emotional, psychological, and physical
well-being, as well as her scholastic performance.
(Id. at p. 8).
August 18, 2016, Plaintiffs timely disclosed Dr. Hastings as
a treating neuropsychological doctor in this case. On
September 20, 2016, Plaintiffs additionally designated Dr.
Hastings as an expert. (Doc. 102-6, 102-7). Plaintiffs
disclosed Dr. Hasting's raw data on June 22, 2017. Rapid
City Regional produced K.K.'s remaining raw data on July
27, 2017, four days before Defendant's scheduled
deposition of Dr. Hastings. (Doc. 110 at p. 11). The parties
agreed to postpone Dr. Hasting's deposition. Defendant
never sought to reschedule the deposition, and did not
disclose a rebuttal expert to Dr. Hastings. The deadline to
disclose experts expired on November 3, 2017, and the
discovery deadline ran on December 1, 2017. (Doc. 44).
early 2018, Dr. Hastings left Scovel Psychological due to
drug-related criminal charges. Plaintiffs later learned that
Dr. Hastings pleaded guilty to two counts of
misrepresentation to obtain a controlled substance. (Doc 112
at p. 3). Dr. Kari Scovel assumed K.K.'s treatment and
evaluations at Scovel Psychological. On March 2, 2018, Dr.
Scovel clinically interviewed K.K. (Doc. 109-6 at p. 9). Dr.
Scovel found that K.K. meets the criteria for mild
neurocognitive disorder due to traumatic brain injury, as
well as postconcussive syndrome. (Id. at p. 23).
26, 2018, Plaintiffs requested updated medical records from
Scovel Psychological. On July 9, 2018, Plaintiffs provided
Defendant with those records and notified Defendant that Dr.
Scovel had replaced Dr. Hastings as K.K.'s treating
neuropsychologist at Scovel Psychological. (Doc. 102-1).
Defendant moved to exclude or strike Dr. Scovel as an expert
on August 8, 2018. (Doc. 100). Plaintiffs received Dr.
Scovel's final report on August 10, 2018, and provided
Defendants with the final report and Dr. Scovel's raw
data on August 16, 2018. On August 27, 2018, Plaintiffs
provided Defendant with supplemental expert disclosures
including Dr. Scovel's information and evaluation report.
(Doc. 109-8). On August 29, 2018, Plaintiffs moved for leave
to amend their expert designations. (Doc. 106).
request to substitute Dr. Hastings with Dr. Scovel. In
determining whether to allow a substitute expert, courts rely
on Federal Rules of Civil Procedure 16(b) and 6(b) and treat
the request for a substitute expert as a motion to modify the
scheduling order. Evans v. Hartog, 5:16-cv-5060 KES,
2017 WL 5634119, at*l (D.S.D. Nov. 22, 2017); Pierce v.
Fremar, LLC, 4:09-cv-4066-KES, 2010 WL 5172883, at *2
(D.S.D. Dec. 14, 2010}. The district court has broad
discretion to amend a Rule 16 scheduling order. Sherman
v. Winco Fireworks, Inc., 532 F.3d 709, 715 (8th Cir.
2008). Under Federal Rule of Civil Procedure 16(b)(4).,
"[a] schedule may be modified only for good cause and
with the judge's consent." Fed.R.Civ.P. 16(b)(4).
The primary measure of good cause is the movant's
diligence in attempting to meet the scheduling order's
requirements. Bradford v. DANA Corp., 249 F.3d 807,
809 (8th Cir. 2001). Furthermore, when filing a motion
outside of the applicable deadline, the movant must show
excusable neglect for an extension of time under Federal Rule
of Civil Procedure 6(b)(1). Because Plaintiffs requested to
amend their expert disclosures past the deadline, both Rule
16's good cause requirement and Rule 6's excusable
neglect standard apply to Plaintiffs' motion. Evans
v. Hartog, 5:16-cv-5060-KES, 2017 WL 5634119, at *1
(D.S.D. Nov. 22, 2017); Pierce v. Fremar. LLC,
4.09-cv-4066-KES, 2010 WL 5172883, at *2 (D.S.D. Dec. 14,
2010). Further, the court must interpret Rule 16 and Rule 6
in such a manner so as to achieve the "just, speedy, and
inexpensive determination of every action." See
contend that good cause exists to substitute Dr. Hastings
with Dr. Scovel, because Dr. Hastings' departure was
unforeseeable and because it is unclear whether Dr. Hastings
will be available to testify. (Doc. 110 at p. 13, 18; Doc.
112 at p. 2, 6-7). Courts have found good cause under Rule
16(b) to substitute experts when an expert unexpectedly
refuses to testify or becomes unavailable. See,
e.g.. Pierce, 2010 WL 5172883, at *2-4 (expert
refused to testify immediately before scheduled deposition);
Chrisman v. RMH Franchise Holdings, Inc., No.
5:16-cv-06144-DGK, 2018 WL 401819, at *l-2 (W.D.Mo. Jan. 12,
2018) (expert became seriously ill); The Indus. Co. Wyo.,
Inc. v. Factory Mut. Ins. Co., 4:10-cv-3153, 2012 WL
2830867, at *8-9 (D. Neb. July 10, 2012) (expert discovered
conflict of interest); Lincoln Nat. Life Ins. Co. v.
Transamerica Fin. Life Ins. Co., Nos. 1:04-cv-396,
l:06-cv-317, 2010 WL 3892860, at *l-4 (N.D. Ind. Sept. 30,
2010) (expert sentenced to fifteen months in prison). Based
on Plaintiffs' representation that Dr. Hastings has left
Scovel Psychological due to criminal charges, the court finds
that good cause exists under Rule 16.
Plaintiffs move to amend the scheduling order after the
deadline, they must also show excusable neglect.
Pierce, 2010 WL 5172883, at *2. Excusable neglect
has a four-part showing: "(1) the possibility of
prejudice to [Defendant]; (2) the length of [Plaintiffs']
delay and the possible impact of that delay on judicial
proceedings; (3) [Plaintiffs'] reasons for delay,
including whether the delay was within [their] reasonable
control; and (4) whether [Plaintiffs] acted in good
faith." Evans, 2017 WL 5634119, at *1 (quoting
Chorosevic v. MetLife Choices, 600 F.3d 934, 946
(8th Cir. 2010).
the first element, Defendant argues it is prejudiced because,
if Plaintiffs had disclosed Dr. Scovel earlier, the court may
have reached a different conclusion when considering
Defendant's previous motions. (Doc. 111 at p. 3). The
court finds this argument unpersuasive. Dr. Scovel's
report is very similar to Dr. Hastings' opinion. See
The Indus. Co. Wyo., Inc., 2012 WL 2830867, at *9
(substitute expert's report and testimony should be
limited to subject matter ...