SARAH S. VANCE, District Judge.
Before the Court is plaintiff Jordan Simmons' motion to supplement his witness and exhibit lists.
This is a Jones Act personal injury action, in which plaintiff alleges that he suffered shoulder injuries while working on defendant's vessel. Trial in this matter was originally set for March 28, 2016. On February 25, 2016, plaintiff moved to continue the trial date, arguing that discovery was not complete and that plaintiff's counsel had unavoidable conflicts in his trial calendar. The Court granted the motion over defendant's objection and ordered the parties to contact the Court's case manager to reschedule the trial date.
According to the scheduling order, the deadline for plaintiff to submit witness and exhibit lists was January 18, 2016.
Plaintiff now requests that the Court allow him to file an amended witness and exhibit list beyond the deadline specified in the scheduling order in order to include Dr. Thomas Lyons as a witness and Dr. Lyons' records as exhibits. Though plaintiff's motion is self-titled "Motion for Leave to File Plaintiff's First Supplemental Amended Witness and Exhibit List," the Court will consider it as a motion to amend the deadlines in the scheduling order.
Federal Rule of Civil Procedure 16(b) "authorizes the district court to control and expedite pretrial discovery through a scheduling order." Geiserman v. MacDonald, 893 F.2d 787, 790 (5th Cir. 1990); accord Barrett v. Atl. Richfield Co., 95 F.3d 375, 380 (5th Cir. 1996). Consistent with this authority, the Court has "broad discretion" to enforce its scheduling order. See Geiserman, 893 F.3d at 790 ("[O]ur court gives the trial court broad discretion to preserve the integrity and purpose of the pretrial order.") (quotation omitted). Under Rule 16(b), a scheduling order "may be modified only for good cause and with the judge's consent." Fed. R. Civ. P. 16(b)(4). "The good cause standard requires the `party seeking relief to show that the deadlines cannot reasonably be met despite the diligence of the party needing the extension.'" S & W Enters., L.L.C. v. South Trust Bank of Ala., NA, 315 F.3d 533, 535 (5th Cir. 2003) (quoting 6A Charles Alan Wright, et al., Federal Practice and Procedure § 1522.1 (2d ed. 1990)).
In Geiserman v. MacDonald, the Fifth Circuit established a four-factor balancing test to determine whether good cause existed for an untimely designation of expert witnesses, ruling that courts must consider (1) the explanation for the failure to adhere to the deadline; (2) the importance of the testimony; (3) the potential prejudice that could result from allowing the testimony; and (4) the availability of a continuance to cure that prejudice. 893 F.2d at 791 (citing Bradley v. United States, 866 F.2d 120, 125 (5th Cir. 1989)); accord Betzel v. State Farm Lloyds, 480 F.3d 704, 707 (5th Cir. 2007). The Fifth Circuit has since used this test to determine whether good cause exists for an untimely submission of expert reports.
After weighing the four Geiserman factors, the Court concludes that plaintiff has not shown good cause for his request to modify the Court's scheduling order to allow him to submit new witness and exhibit lists referencing Dr. Lyons.
With regard to the first factor, plaintiff has not provided a convincing explanation for his failure to comply with the applicable deadlines or his delay in seeking to add an additional witness. Plaintiff was injured in October of 2013, and has been treated by Dr. Mark Larkins, a pain management specialist, and Dr. Kirby Turnage, both of whom are included on plaintiff's initial timely witness and exhibit list.
Of course, even if plaintiff saw a new doctor in April, the new witness and exhibit lists would still be late, as the deadline was in January. However, if plaintiff saw a doctor sooner, the Court may have accepted plaintiff's explanation for his failure to timely comply with the scheduling order. Further, plaintiff's diligence in securing an examination earlier could help mitigate any prejudice suffered by defendant, which is relevant to the third Geiserman factor. The Court is not convinced that plaintiff could not have found a qualified orthopedist in the surrounding area to examine him before October, or received suitable treatment by Dr. Turnage. Because plaintiff does not adequately explain the six-month delay, the first Geiserman factor weighs against modification of the scheduling order. See Hernandez v. Mario's Auto Sales, Inc., 617 F.Supp.2d 488, 494-96 (S.D. Tex. 2009) (finding party's lack of diligence and inadequate explanation weighed heavily against amending scheduling order to allow additional witnesses).
Turning to the second factor, plaintiff argues that the addition of Dr. Lyons' testimony is important "to discuss Mr. Simmons' current symptoms, his diagnosis, and recommendation for a left shoulder arthroscopy."
Further, the Court is troubled that, contemporaneously with the briefing on plaintiff's earlier motion to extend the discovery and expert deadlines, plaintiff made no mention whatsoever of Dr. Larkins' recommendation that plaintiff see an orthopedist, and certainly made no mention that plaintiff needed to see an orthopedist besides Dr. Turnage.
The third factor requires the Court to determine whether the proposed modification would prejudice any party. As with his motion to extend deadlines, plaintiff again repeatedly asserts that his request will not prejudice defendant. And again, as the Court explained in its order denying plaintiff's earlier request, the defendant certainly will be prejudiced by granting plaintiff's request. Defendant and its counsel would incur significant costs, in terms of both time and expense, if they must depose Dr. Lyons and evaluate his potential trial testimony. Plaintiff asserts defendant will not be prejudiced because it has time to depose Dr. Lyons before trial.
Finally, turning to the fourth Geiserman factor, the Court finds that a continuance is not available to cure the prejudice identified above. As explained in the Court's earlier order, regardless of when trial commences, plaintiff's requests would require defendant to expend additional time and money responding to plaintiff's untimely maneuvers. Plaintiff was injured over three years ago, and this case has already been continued once over defendant's objection. A continuance to cure prejudice is highly undesirable at this late stage of an already protracted litigation. Thus, this factor also weighs against granting plaintiff's requests and modifying the scheduling order.
Based on the above analysis, the Court finds that plaintiff has not shown good cause for his request to modify the Court's scheduling order to permit him to file untimely witness and exhibit lists. Therefore, Dr. Lyons will not be permitted to testify at trial, and the records and opinions of Dr. Lyons shall not be introduced at trial.
For the foregoing reasons, the Court DENIES plaintiff's motion to amend the scheduling order.