Expert Disclosure ExpertsA silicone breast implants manufacturer was sued for health issues arising from its product. Due to the number of claims by implant recipients, a class-settlement was initiated, and an agreement was reached in the Northern District of Alabama. About 440,000 individuals agreed with this settlement, but thousands of individuals opted out.

As a result of the litigation, the manufacturer filed for reorganization under the Bankruptcy Code. The bankruptcy court authorized a reorganization plan, under which a plaintiff could litigate individual claims against the manufacturer or accept payments under the plan. Plaintiff, an implant recipient, elected to litigate her claims.

In the subsequent case, the district court denied the plaintiff’s request to extend the expert disclosure deadline. The district court granted the manufacturer’s motion for summary judgment because, without an expert, plaintiff could not prove causation.

The plaintiff appealed the district court’s order denying the request to extend the expert disclosure deadline.

The plaintiff raised on appeal the assertions that she showed “good cause” to amend the scheduling orders under Federal Rule of Civil Procedure 16(b)(4) and that failing to disclose their expert by the expert disclosure deadlines was “harmless” under Federal Rule of Civil Procedure 37(c)(1).

Sixth Circuit Judge Karen Nelson Moore wrote in the opinion of the Court of Appeals that a party must disclose his or her expert witnesses by the scheduling order deadline. If the party can’t meet that deadline, he or she can move to amend the scheduling order. When considering a motion to amend, a district court will examine (1) whether the moving party has shown “good cause,” and (2) whether the modification will cause the opposing party to experience possible prejudice.

To show good cause, a moving party can demonstrate that he or she diligently attempted to meet the original deadline. For this issue, the Court said there are five factors to consider:

  • when the moving party learned of the issue that is the subject of discovery;
  • how the discovery would affect the ruling below;
  • the length of the discovery period;
  • whether the moving party was dilatory; and
  • whether the adverse party was responsive to discovery requests.

The central question among these factors is whether a party acted diligently, Judge Moore explained.

When examining the facts, the district court focused on the plaintiff’s ability to comply with the expert disclosure deadline, and based on the facts, the district court found that the plaintiff had not been diligent. Further, when applying the law, the district court examined whether the plaintiff could have disclosed the expert before the deadline.

The Sixth Circuit found that the district court didn’t abuse its discretion by finding that the plaintiff hadn’t proven “good cause.” As a result, it affirmed the district court’s judgment based on its denial of the plaintiff’s motions to amend the scheduling orders.

Because of the resolution of this issue, the plaintiff forfeited her argument under Federal Rule of Civil Procedure 37(c)(1).

Gatza v. DCC Litig. Facility, Inc., 2017 U.S. App. LEXIS 21861 (6th Cir. Mich. Oct. 31, 2017)