Frontline Services, Inc. v. Seaspine Orthopedics Corporation

Opinion

2 UNITED STATES DISTRICT COURT 3 SOUTHERN DISTRICT OF CALIFORNIA 4

5 FRONTLINE SERVICES, INC., Case No.: 23-cv-00077-JAH-BGS 6 Plaintiff, 7 v. ORDER GRANTING JOINT MOTION 8 FOR EXTENSION OF DEADLINES SEASPINE ORTHOPEDICS REGARDING EXPERT WITNESS 9 CORPORATION, DISCOVERY 10 Defendant. 11 [ECF 61]

13 14 On March 5, 2024, the parties filed a joint motion seeking to extend the 15 deadlines in their case for expert and supplemental expert disclosures and expert 16 discovery so that Plaintiff may substitute its previously designated expert witness 17 and so the replacement expert witness may provide a timely written report under 18 Federal Rule of Civil Procedure 26(a)(2)(B). (See ECF 61.) For the following 19 reasons, the Court concludes there is good cause to extend the remaining expert 20 deadlines and to allow the substitution of the previously designated expert witness 21 and, therefore, GRANTS the joint motion. 22 “‘[T]he district court is given broad discretion in supervising the pretrial 23 phase of litigation . . . .’” Bagwell v. CBS Broadcasting Inc., CV 19-8423 DSF 24 (ASx), 2021 WL 9145409, at *2 (C.D. Cal. Oct. 19, 2021) (quoting United States 25 v. Dang, 488 F.3d 1135, 1143 (9th Cir. 2007). “Once the district court has issued 26 a pretrial scheduling order, the ‘schedule may be modified only for good cause and 27 with the judge’s consent.’” Id. (quoting Fed. R. Civ. P. 16(b)(4)); Stone Brewing 1 Co., LLC v. MillerCoors LLC, No. 3:18-cv-00331-BEN-LL, 2021 WL 1263836, 2 at *1 (S.D. Cal. Apr. 5, 2021) (“‘Courts have applied the ‘good cause’ standard in 3 [Federal Rule of Civil Procedure] 16(b) to a party’s request to designate a new 4 expert after the deadline in the Scheduling Order has expired.’” (quoting Cross- 5 Fit, Inc. v. Nat’l Strength & Conditioning Assoc., No. 14-cv-1191-JLS-KSC, 2018 6 WL 3491854, at *12 (S.D. Cal. Jul. 18, 2018))) (alteration in original). “‘Rule 7 16(b)’s ‘good cause’ standard primarily considers the diligence of the party 8 seeking the amendment.’” Id. (quoting Johnson v. Mammoth Recreations, Inc., 9 975 F.2d 604, 609 (9th Cir. 1992). 10 According to the parties’ joint motion, Plaintiff had timely designated its 11 intended expert witness under the parties’ scheduling order in this case, but the 12 expert later informed Plaintiff that a conflict existed that would prohibit the expert 13 from testifying. (ECF 61 at 2.) Plaintiff is now in the process of retaining a 14 replacement expert, who has performed a conflict check and has confirmed that he 15 has no conflict in this case. (Id.) Because the replacement expert will need time 16 to provide a written report under Rule 26(a)(2)(B) and Defendant’s rebuttal expert 17 will need time to provide rebuttal evidence based on the replacement expert’s 18 written report, the parties seek to extend dates for expert and supplemental expert 19 disclosures and the expert discovery deadline in their case. (ECF 61 at 3-4.) 20 The parties have satisfied the good cause standard in Rule 16(b) for an 21 extension of the deadlines. See Bagwell v. CBS Broadcasting Inc., CV 19-8423 22 DSF (ASx), 2021 WL 9145409, at *2 (C.D. Cal. Oct. 19, 2021) (“‘Courts have 23 consistently allowed the substitution of expert witnesses when unexpected events 24 prevent the designated expert from testifying at trial.’” (quoting Leibel v. NCL 25 (Bahamas) Ltd., 185 F. Supp. 3d 1354, 1356 (S.D. Fla. 2016))); see also Doctor’s 26 Assocs., Inc. v. QIP Holder LLC, No. 3:06-CV-1710 VLB, 2009 WL 5184404, at 27 *4 (D. Conn. Dec. 23, 2009) (finding good cause to substitute where the original 1 || expert withdrew due to a conflict of interest). Plaintiff complied with the expert 2 || designation deadline, and it appears that Plaintiff was diligent in finding a 3 || replacement expert once the designated expert informed Plaintiff of a conflict. The 4 || substitution is unopposed by Defendant. Furthermore, Plaintiff contacted the 5 || Court by phone on March 4, 2024, before the expiration of the deadline for expert 6 || disclosures (March 4, 2024, was the deadline for expert disclosures). 7 Accordingly, as related to Plaintiff's replacement expert only, the 8 || following dates are reset: the date for the parties to comply with the disclosure 9 || provisions in Rule 26(a)(2)(A) and (B) of the Federal Rules of Civil Procedure, 10 || March 4, 2024, is reset to March 29, 2024. The date for the parties to supplement 11 || disclosures regarding contradictory or rebuttal evidence under Rule 26(a)(2)(D), 12 || March 18, 2024, is reset to April 19, 2024, and the deadline for all expert 13 || discovery, April 18, 2024, is reset to May 10, 2024. All other remaining 14 || scheduling order dates and deadlines provided in ECF 23 remain in effect. 15 IT IS SO ORDERED. 16 17 Dated: March 5, 2024 □ □ / 18 on. Bernard G. Skomal 19 United States Magistrate Judge 20 21 22 23 24 25 26 27 28