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Akpan v. United States

United States District Court, S.D. Texas, Houston Division

December 21, 2017

BRENDA AKPAN, Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant.

          MEMORANDUM AND ORDER

          NANCY F. ATLAS SENIOR UNITED STATES DISTRICT JUDGE

         This Federal Tort Claims Act (“FTCA”) case is before the Court on the Motion for Summary Judgment (“Motion”) [Doc. # 13] and Motion for Summary Judgment on Damages (“Damages Motion”) [Doc. # 14] filed by Defendant United States of America. The United States argues that Plaintiff Brenda Akpan has no expert evidence of causation and has no expert evidence that her alleged damages were reasonable and necessary. Plaintiff filed a Motion for Leave to Designate Expert Witnesses [Doc. # 15], together with a consolidated Response to Defendants' two motions. The United States filed its Opposition to Plaintiff's Motion for Leave to Designate Expert Witnesses [Doc. # 16]. Plaintiff neither filed a reply nor requested additional time to file one.

         The Court has carefully reviewed the full record. Based on that review, and the application of relevant legal authorities, the Court denies Plaintiff's Motion and Defendant's Motion for Summary Judgment. The Court grants Defendant's Motion for Summary Judgment on Damages as to past medical expenses.

         I. BACKGROUND

         On April 15, 2014, Plaintiff was driving her vehicle when it was struck by a U.S. Postal Service delivery vehicle. Plaintiff was examined at the scene by first responders from the Cy-Fair Volunteer Fire Department (“Cy-Fair F.D.”). Plaintiff complained of head and right knee pain, and asked to be transported to Houston Methodist West Hospital (“Hospital”). Plaintiff was examined at the Hospital and released the same day.

         On April 11, 2014, four days before the accident with the Postal Service vehicle, Plaintiff injured both knees while working as a Teacher's Aide. Dr. Kenneth Lee and Dr. Trang T. Trinh were the treating physicians. Plaintiff filed a Workers' Compensation Claim in connection with the injury to her knees. In “2014 or 2015, ” Plaintiff was injured in a different motor vehicle accident in which she sustained neck and lower back injuries and for which she filed a lawsuit. In January 2012, Plaintiff was injured at work when a student pushed a desk into her, causing abdominal and lower back injuries. Plaintiff filed a Workers' Compensation Claim in connection with these injuries. Medical records from Dr. Trinh reveal that Plaintiff had a history of chronic knee, neck and back pain that preceded the accident at issue in this case.

         Plaintiff filed this FTCA lawsuit on October 5, 2016. She claims damages based on injuries to her left knee, neck and lower back.

         On December 19, 2016, the Court conducted an initial scheduling conference attended by counsel for both parties. See Hearing Minutes and Order [Doc. # 9]. Following the close of discovery, Defendant filed the Motion for Summary Judgment and the Motion for Summary Judgment on Damages. Plaintiff then filed the Motion for Leave to Designate Expert Witnesses. The pending motions are now ripe for decision.

         II. MOTION TO DESIGNATE EXPERT WITNESSES

         At the initial scheduling conference on December 19, 2016, the Court, with input from and the agreement of counsel, entered a Docket Control Order establishing May 1, 2017, as the deadline for Plaintiff to designate expert witnesses and provide expert reports. See Docket Control Order [Doc. # 10]. At the conference, the Court explained to counsel for Plaintiff that treating physicians often were not qualified to provide opinions on causation and, therefore, Plaintiff would likely need to designate experts on that issue. See Hearing Minutes and Order (“Discussions held about expert opinions”). Plaintiff did not designate expert witnesses or provide reports by the May 1 deadline.

         Rule 16(b)(4) provides that “a schedule may be modified only for good cause and with the judge's consent.” Fed.R.Civ.P. 16(b)(4). Good cause is met when the party seeking relief demonstrates that “the deadlines cannot reasonably be met despite the diligence of the party needing the extension.” S & W Enterprises, L.L.C. v. South Trust Bank of Alabama, NA, 315 F.3d 533, 535 (5th Cir. 2003); see also Martino v. Kiewit New Mex. Corp., 600 F. App'x 908, 911 (5th Cir. Jan. 29, 2015). Mere inadvertence on the part of the movant, even when coupled with the absence of prejudice to the non-movant, is insufficient to establish good cause. See Leonard v. Ocwen Loan Servicing, LLC, 2014 WL 1775527, *2 (S.D. Tex. May 2, 2014). Instead, the movant must show that “despite his diligence, he could not have reasonably met the scheduling deadline.” Id. District courts are afforded “a great deal of deference in determining whether to modify scheduling orders.” Bilbe v. Belsom, 530 F.3d 314, 317 (5th Cir. 2008). To determine whether a movant has established “good cause” to extend the deadline for expert designations and reports, the Court considers the following four factors:

(1) the movant's explanation for the failure to designate experts and produce reports by the deadline;
(2) the importance of the proposed expert testimony;
(3) potential prejudice in extending the experts ...

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