Mckeague v. One World Technologies, Inc.

858 F.3d 703 (1st. Cir. 2017)

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Nature of the Case

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Facts

P suffered injuries to his hand while using a table saw. P sued One Word (Ds) claiming that they were responsible for a defect in the design of the saw that proximately caused his injuries. Ds removed the suit to federal court. In April of 2015, the parties filed a discovery plan that the district court approved and adopted as an order under Rule 16(b). After the case was assigned to a new judge, the court modified the order slightly. Ds thereupon propounded discovery, serving interrogatories and document requests and deposing P, all well within the deadlines. P served no discovery before the deadline. Instead, two months after the deadline, and without leave of the court, P belatedly served written discovery requests. P's counsel prevailed upon defendants to assent to a motion to extend the discovery deadline nunc pro tunc, but then never filed the motion. P's counsel did not at the outset retain an expert in this design-defect product-liability case in which P concedes an expert is required in order to get to trial. In his initial disclosures under 26(a)(1) P identified Dr. Stephen Gass, David Fanning, and David Fulmer and Darry Robert Holt as possible expert witnesses. In an interrogatory answer served four months later P added another name to the list, stating that he might call as an expert witness an engineer named Richard Montifusco. P's counsel, however, did not retain Montifusco or any of the other four possible experts at that time. The final expert disclosure deadline under the scheduling order came and went with no expert designation by P. Even when defendants subsequently and timely designated their expert, P's lawyers were nowhere to be found, seemingly content to make no effort at a counter-designation. P's lawyers had retained no expert. Ds filed a motion for summary judgment arguing that the absence of any expert testimony was fatal to P's case. Ps asked the court reopen discovery, set a new expert-disclosure deadline for P, order ds to respond to P's untimely discovery, and push back the date by which P needed to oppose the summary judgment motion. The district court granted the delinquents all they sought. It is presumed the district court decided that any prejudice to defendants in designating their experts first was minimal, enough so to favor an outcome-driven by the merits rather than by P's counsel's neglect. No sanctions were issued. The new deadlines came and went without anything being filed on P's behalf. On August 10, 2016, two days after the new deadline passed, the district court dismissed the case for failure to prosecute and failure to comply with scheduling orders. Twelve days after the case was dismissed, P moved for reconsideration. P argued he had timely retained an expert, but that the expert needed more time to review a large number of documents received from D. The district court denied the motion for reconsideration. This appeal followed.