United States District Court, S.D. Mississippi, Northern Division
KEITH BALL UNITED STATES MAGISTRATE JUDGE.
cause is before the Court on Plaintiff Lener Kinslow's
Motion to Designate Dr. Ralph Bell as a Retained Expert
Witness . For the following reasons the Court finds that
the motion should be granted.
alleges that on March 3, 2015, he slipped and fell at a
Popeye's restaurant belonging to and operated by
Defendant Sailormen, Inc. He contends that the fall was the
result of Defendants' negligence. Kinslow filed suit on
February 15, 2018, and his deadline for expert designations
was November 2, 2018.
timely filed a Notice of Service of Designation of Experts.
. His designations consisted of four treating physicians:
Dr. John Meyer, Dr. Bobbie West, Dr. Nathan Williamson, and
Dr. Burgess. However, the designations were not
complete. Kinslow's attorney explained that he had not
been able to speak with any of the physicians prior to the
designation deadline. He was unable to locate Dr. Meyer and
Dr. West, and was unable to find current contact information
for since-retired Dr. Williamson. He was able to contact Dr.
Burgess's office, however the doctor would not discuss
Kinslow's treatment except through a deposition.
undersigned held a conference with counsel on November 19,
2018, to discuss the incomplete designations. After the
conference, the parties conferred and reached an agreement.
On November 30, 2018, Sailormen, Inc. filed an Unopposed
Motion to Compel Plaintiff to Provide Full Expert Disclosures
of Actor-Experts and to Extend Defendant's Expert
Deadline . The motion described the agreement as follows:
[The parties] have agreed to extend Plaintiff's expert
designation deadline to allow Plaintiff to take the
deposition of treating physicians and supplement
Plaintiff's expert designation as to those experts
shortly thereafter. Additionally, the parties agree to extend
Defendant's expert deadline.
The parties' agreement herein does not permit Plaintiff
to designate any new experts, but rather, is limited to
supplementation of already designated actor-experts after
allowing sufficient time to take depositions. Stated
differently, the only disagreement that remains between the
parties is whether Plaintiff may designate a new expert, i.e.
an expert not disclosed by Plaintiff's November 2 expert
deadline, an issue Plaintiff intends to take up in a separate
 at 2. The Court entered an Agreed Order on December 3,
2018, granting Kinslow an extension until January 18, 2019,
to supplement his designation of the four treating
days later, Kinslow filed his Motion to Designate Dr. Ralph
Bell as a Retained Expert Witness . He explained that the
difficulty in communicating with the treating physicians has
necessitated that he also retain a physician to serve as an
expert. Sailormen, Inc. opposes the motion, contending that
Kinslow has failed to show good cause for his failure to
timely designate Dr. Bell or show the importance of Dr.
Bell's expected testimony.
16(b) of the Federal Rules of Civil Procedure grants
“the trial court ‘broad discretion to preserve
the integrity and purpose of the pretrial order.'”
Geiserman v. MacDonald, 893 F.2d 787, 790 (5th Cir.
1990)(quoting Hodges v. United States, 597 F.2d
1014, 1018 (5th Cir.1979). Rule 16(b)(4) permits the Court to
modify the case scheduling upon a showing of good cause. The
good cause standard requires that the party seeking relief
show that the deadlines cannot reasonably be met despite the
diligence of the party needing the extension. See
Southwestern Bell Tele. Co. v. City of El Paso, 346 F.3d
541, 547 (5th Cir. 2003). In determining whether the movant
has met its burden under Rule 16(b)(4), the Court considers
four factors: (1) the party's explanation for its failure
to meet the deadline, (2) the importance of the requested
relief, (3) potential prejudice in granting the relief, and
(4) the availability of a continuance to cure such prejudice.
Georgia-Pac. W&FS (MS) LLC v. Johnson's Fence,
LLC, No. 5:14-CV-121-KS-MTP, 2015 WL 5021887, at *3
(S.D.Miss. Aug. 24, 2015)(citing S & W Enters., LLC
v. SouthTrust Bank of Ala., N.A., 315 F.3d 533, 535 (5th
Cir.2003); Geiserman, 893 F.2d at 791).
the four factors weighs in favor of allowing Kinslow to
designate Dr. Bell. Regarding the first factor, Kinslow
identified four different treating physicians who he believed
could provide testimony concerning his injuries and
treatment. However, despite a diligent effort, he was unable
to locate and/or sufficiently communicate with three of them.
Considering the circumstances, the Court finds Kinslow's
explanation for not having met the expert designation
deadline to be satisfactory.
the second factor, given the nature of this case - a premises
liability slip and fall - the importance of testimony
regarding medical damages and treatment, both past and
future, is self-evident. Given the difficulty Kinslow has had
locating and communicating with his treating physicians, the
importance of retaining an additional expert witness is also
clear. Without this expert, it is very possible that Kinslow
will not have the means to present necessary damages
testimony to a jury.
third and fourth factors, granting an extension would cause
minimal prejudice to Defendant. This case is not scheduled
for trial until a two-week term of court beginning November
4, 2019. The only deadline that granting Kinslow's motion
will affect is Defendants' expert designation date,
currently set for February 18, 2019. . By extending that
deadline, the Court can cure any prejudice that allowing Dr.
Bell's designation would cause Defendants.
the Court finds that Plaintiff's Motion to Designate Dr.
Ralph Bell as a Retained Expert Witness  should be, and
is hereby, granted. The Court sets a deadline of February 22,
2019, for Plaintiff to fully and completely designate his
experts in this matter and a deadline of March 25, 2019, for
Defendants to designate their experts. Should the parties
need an extension of the discovery deadline, currently set
for April 19, 2019, they may either ...