New Mexico Expert WitnessesPlaintiffs bred rodeo and ranch horses in New Mexico. The defendant Nutrition Company delivered feed for the horses in December 2016. Shortly thereafter, some of Plaintiffs’ horses fell ill. Two days later, two horses had died. Plaintiffs filed this action against Defendant nearly a year later, claiming that the feed was contaminated with monensin, an antibiotic, which poisoned the horses.

Defendant denied that its feed caused the horses’ injuries.

The trial judge held a status conference and specifically told the parties that the purpose was to avoid opposed motions to extend the discovery deadlines late in the discovery process. The judge explained that the party moving to amend a scheduling order must show good cause, and that the most important factor in determining good cause is the moving party’s diligence.

Plaintiffs listed the following potential trial experts:

  1. An appraiser;
  2. A veterinary expert and/or treating veterinarian;
  3. The person(s) who read/interpreted the testing results on the subject feed and/or 30(b)(6) designee(s) of the testing center(s);
  4. An expert on the effects of monensin on livestock and the standard of care for monensin in horse feed; and
  5. An expert on the standards of care applicable to the manufacture, storage shipping and delivery of the subject feed, including but not limited to “carryover”, maintenance and cleaning of equipment and facilities, ingredients used in the mill where horse feed is made.”

The trial judge held a January 2018 scheduling conference where Plaintiffs’ counsel advised the Court that he hadn’t yet completed his initial disclosures. The judge rescheduled a month later where he set Plaintiffs’ expert disclosure deadline for August 29, 2018. Plaintiffs’ counsel had no any objection to the new deadline. The judge spoke at length on the parties’ obligations regarding disclosure of expert witnesses. He emphasized that it was each party’s obligation to have its own experts ready to be deposed on the date they’re identified.

Nonetheless, Plaintiffs filed a Motion for Extension of the expert disclosure deadline on August 31, 2018—two days after the expert disclosure deadline. The motion sought an extension until October 1, 2018 for Plaintiffs to disclose their experts and produce experts’ reports. However, Plaintiffs didn’t disclose any experts by October 1, 2018. Instead, Plaintiffs filed a Status Report and “Update to Motion for Extension Re Expert Reports.”

Plaintiffs argued that they were “misled” by a local veterinarian who apparently told them that a certain blood test would be able to reveal whether the horses’ hearts had been damaged by the allegedly adulterated feed. They claimed they subsequently learned that the blood test was “inapplicable” in late July, and that the horses would need to undergo echocardiograms to determine whether they had heart damage. Assuming that to be the case, U.S. Magistrate Judge Stephan M. Vidmar said that is when they should’ve filed their Motion for Extension—not after the deadline had passed.

In that Status Report and Update, Plaintiffs requested a “brief,” but unspecified, extension of the expert disclosure deadline. Judge Vidmar denied the request without prejudice for failure to comply with D.N.M. Local Rule 7.1(a).

Two weeks later, the judge heard oral argument on the Motion for Extension. At the hearing, Plaintiffs’ counsel advised the judge that, not only was he unprepared to identify any experts on liability and causation, but that he was unsure whether he ever would have any such experts. In other words, the judge concluded that nearly two years after Plaintiffs retained an attorney to pursue a claim against Defendant, and nearly two years after Plaintiffs were put on notice that Defendant denied liability and causation, they were unsure whether they could find an expert on either issue.

Days later, Plaintiffs filed a Motion to Amend the Scheduling Order, in which Plaintiffs again requested an indefinite, “”brief but sufficient [period of] time to complete” expert disclosures.

Judge Vidmar wrote in his opinion that Plaintiffs requested the extension of time to disclose experts for two reasons. First, they claimed that they needed more time to perform tests on their horses. They said a vet said blood test would reveal the damage done to their horses’ hearts; however, the test proved “inconclusive.” This delayed them from identifying their expert(s) on time. Second, they claimed that they’d been unable to complete two depositions needed by their potential experts: Defendant’s feed mill director and a former employee of Defendant.

The feed mill director’s deposition was cut short when the court reporter fell ill. The reporter didn’t get the transcript to Plaintiffs’ counsel until October 1, 2018. Plaintiffs claimed to have had difficulties scheduling the former employee’s deposition, which was then scheduled to be taken in early November.

Defendant argued that Plaintiffs failed to establish good cause to extend the expert disclosure deadline because they had more than a year to find an expert and hadn’t been able to find one to support their claims.

Judge Vidmar explained that Rule 26(a)(2)(D) provides that a “party must make [expert] disclosures at the times and in the sequence that the court” mandates in its scheduling order. A court may modify a scheduling order, however, for good cause. The judge noted that the Tenth Circuit in Smith v. United States identified several factors to use in determining if good cause exists, including:

  • whether trial is imminent;
  • whether the request is opposed;
  • whether the non-moving party would be prejudiced;
  • whether the moving party was diligent in obtaining discovery within the guidelines established by the court;
  • the foreseeability of the need for additional discovery in light of the time allowed for discovery by the district court; and
  • the likelihood that the discovery will lead to relevant evidence.

The judge wrote that the movant’s diligence is “the touchstone” of these factors. Balancing the Smith factors, the judge found that Plaintiffs failed to establish good cause to amend the Scheduling Order. In examining the Smith factors, Judge Vidmar opined that several weighed against a finding of good cause.

Specifically, with regard to the prejudice to the non-movant, the judge noted that Defendant already timely disclosed its experts. Granting Plaintiffs an indefinite extension to identify their experts would allow them to search for experts with the knowledge of Defendant’s experts’ testimony in mind, which is “the exact opposite of how it is supposed to work.”

Judge Vidmar  that the plaintiffs have the burden of proof and are required to disclose their experts first, so that the defendant can make informed decisions on whether it’s necessary to retain any experts at all, and if so, what issues those experts must address. “Having to identify their own experts without knowing what kind of experts Plaintiffs plan to call, and what opinions those experts will give, is obviously prejudicial to Defendant,” the judge said.

As far as Plaintiffs’ diligence, they retained counsel to pursue a claim in December of 2016. They’d known since December of 2017 that Defendants disputed liability and causation. Plaintiff was deposed in July 2018. As of that date—more than 18 months after retaining an attorney to pursue a claim and more than six months after being placed on notice that Defendant denied liability and causation—he’d done little more than interview potential experts by phone. Plaintiff hadn’t taken any of the horses to a veterinarian. While several horses were eventually taken to Colorado State University for echocardiogram testing, as of October 2018, Plaintiffs were still unsure whether the results of that testing would support their claims.

In short, the judge said that Plaintiffs hoped to obtain an unspecified extension of time to do additional testing on the horses, which may or may not result in their being able to identify experts on liability and causation. If testing was necessary, the court said it should have been done at the beginning of the case, not the month before the expert disclosure deadline.

Plaintiffs argued that their hypothetical experts would need the feed mill director and a former employee’s depositions to prepare expert reports. At oral argument, however, Plaintiffs’ counsel couldn’t say what information he hoped to get from the depositions or why any potential expert would need the testimony to formulate their opinions. And it wasn’t obvious from the pleadings, the judge said. Plaintiffs had to prove that there was an improper level of monensin in the feed and that ingesting the monensin injured the horses.

“If expert testimony is necessary on either of those issues,” Judge Vidmar explained, “it is unclear why an expert would need the deposition testimony of Defendant’s employees to formulate an opinion.”

If that testimony was necessary, Plaintiffs’ counsel should’ve known that and should’ve scheduled the depositions well in advance of the expert disclosure deadline, the judge held.

Judge Vidmar  found that Plaintiffs had known since December of 2017 that Defendant disputed liability and causation and, therefore, that they’d likely need experts on those issues. However, the judge said it looked like Plaintiffs were no closer to finding an expert at this point than they were when the horses died in 2016. Plaintiffs haven’t been diligent, the judge held, and this Smith factor weighed against granting the motion.

The fifth factor—foreseeability of the need for additional discovery in light of the time allowed for discovery—also weighed against Plaintiffs, the judge held. Plaintiffs knew (or should have known) that they would need an expert on liability and causation since Defendant contested those issues in its Answer and in the Joint Status Report. There was no last-minute disclosure of new evidence that Plaintiffs couldn’t earlier have uncovered. “They have simply waited too long to find them,” Judge Vidmar said.

As far as the sixth Smith factor, the judge was “far from convinced” that an extension of the expert disclosure deadline would result in Plaintiffs obtaining relevant evidence. While Plaintiffs argued that they needed to complete the depositions “in order to determine whether they need an expert at all,” the judge emphasized, they couldn’t even represent that they would disclose an expert if granted an extension. As a result, the sixth factor weighed against finding good cause because the likelihood that the extension would produce relevant evidence was unclear.

In balancing the Smith factors, Judge Vidmar found that Plaintiffs failed to establish good cause to amend the Scheduling Order. Plaintiffs’ Motion for Extension and Plaintiffs’ Motion to Amend the Scheduling Order were denied.

 

Ronny Derrick & Angie Derrick v. Std. Nutrition Co., 2018 U.S. Dist. LEXIS 186741 (D.N.M. October 31, 2018)