United States District Court, S.D. Texas, Houston Division
MEMORANDUM AND ORDER
F. ATLAS SENIOR UNITED STATES DISTRICT JUDGE
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.
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.
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.
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.
filed this FTCA lawsuit on October 5, 2016. She claims
damages based on injuries to her left knee, neck and lower
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.
MOTION TO DESIGNATE EXPERT WITNESSES
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.
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 ...