United States District Court, S.D. California
YARET MORALES, as next friend of ESTELA LOREDO MORALES, the real party in interest, Plaintiffs,
PALOMAR HEALTH, et al., Defendants.
ORDER GRANTING IN PART AND DENYING IN PART
PLAINTIFF'S MOTION TO SUBSTITUTE EXPERT WITNESS AND TO
AMEND THE SCHEDULING ORDER [ECF NO. 118]
Mitchell D. Dembin United States Magistrate Judge
the Court is the Joint Motion of the parties, filed on June
17, 2016, presenting Plaintiff's Motion to Amend the
Scheduling Order and Substitute an Expert Witness. (ECF No.
118). Plaintiff seeks permission to substitute a different
expert for Dr. Katherine Mandeville because Dr. Mandeville
has not communicated directly with counsel for Plaintiff
since May 3, 2016, and has not made herself available for
deposition within the time allowed by the operative
Scheduling Order. The operative Scheduling Order provides
that expert discovery must be completed by July 1, 2016. (ECF
No. 114). Defendants oppose on the grounds that good cause
has not been shown and that Defendants would be prejudiced by
a change in experts at this time.
scheduling order "may be modified only for good cause
and with the judge's consent." Fed.R.Civ.P.
16(b)(4). "The district court may modify the pretrial
schedule ‘if it cannot reasonably be met despite the
diligence of the party seeking the extension.'
Fed.R.Civ.P. 16 advisory committee's notes (1983
amendment)…" Johnson v. Mammoth Recreations,
Inc., 975 F.2d 604, 609 (9th Cir. 1992). "[T]he
focus of the inquiry is upon the moving party's reasons
for seeking modification…. If that party was not
diligent, the inquiry should end." Id.
(citation omitted). "The good cause standard typically
will not be met where the party seeking to modify the
scheduling order has been aware of the facts and theories
supporting amendment since the inception of the action."
In re Western States Wholesale Natural Gas Antitrust
Litig., 715 F.3d 716, 737-738 (9th Cir. 2013).
Court appreciates Plaintiff's frustration regarding the
lack of communication directly with Dr. Mandeville. According
to Plaintiff's brief, Dr. Mandeville was retained through
Elite Medical Experts ("EME"). Plaintiff has been
able to communicate, albeit unsatisfactorily to Plaintiff,
through EME. According to those communications, Dr.
Mandeville will be available for deposition after July 17,
2016. There is nothing in those communications, as presented
by Plaintiff, which suggests that Dr. Mandeville is no longer
willing to serve as Plaintiff's expert. Her report has
been completed and provided. This is not a case where the
expert has become unavailable. See, e.g., McDowell v.
Evey, No. CIV. 95-846-FR, 2000 WL 1371400, at *2-3 (D.
Ore. Aug. 31, 2000) (retirement); TIC-The Indus. Co.
Wyoming v. Factory Mut. Ins. Co., No. 4:10CV3153, 2012
WL 2830867, at *8 (D. Neb. July 10, 2012) (ethical conflict);
Park v. CAS Enters., Inc., Civil No. 08cv385 DMS
(NLS), 2009 WL 4057888, at *3 (S.D. Cal. Nov. 19, 2009)
(unilateral withdrawal by expert due to severe memory
contend that they will be unfairly prejudiced if the
substitution is permitted. The new, as yet unidentified
expert will not be relying on Dr. Mandeville's report but
will prepare a new report. This will prejudice defendants,
they argue, because the new report will be made with the
benefit of reviewing the reports of Defendants' experts
and may necessitate new rebuttal reports.
Court agrees with Defendants that good cause has not been
shown. Dr. Mandeville has not withdrawn, actually or
constructively. Provided that the Court amends the Scheduling
Order, she can be deposed in late July. The Court sympathizes
with Plaintiff's predicament but allowing a new expert
and expert report would unduly prejudice Defendants where the
current expert remains available, albeit difficult to reach.
The Court will amend the Scheduling Order to provide that
expert discovery must be completed by July 29, 2016 and
extend the date by which pretrial motions, including any
Daubert motions, must be filed to August 15, 2016.
Motion to Substitute Expert and to Amend the Scheduling
Order, as presented in the instant Joint Motion, is GRANTED
IN PART AND DENIED IN PART. Plaintiff's Motion to
Substitute another expert for Dr. Mandeville is DENIED.
Plaintiff's Motion to Amend the Scheduling Order is
GRANTED. The Scheduling Order is amended as follows:
expert discovery deadline is extended to July 29, 2016, to
allow for the deposition of Dr. Mandeville.
deadline to file any pretrial motions, including Daubert