The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
CAREY GOMEZ CIVIL ACTION
VERSUS NO. 18-4186
AARDVARK CONTRACTORS, INC. ET AL. SECTION "L" (5)
ORDER & REASONS
Before the Court is Plaintiff’s Motion to Extend Time to Provide Industrial Hygienist
Report. R. Doc. 271. Defendants CBS Corporation, Crosby Valve, LLC, General Electric
Company, Foster Wheeler LLC, FMC Corporation, Ingersoll-Rand Company, and Huntington
Ingalls Incorporated have filed responses to Plaintiff’s Motion. R. Docs. 277, 278. Accordingly,
the Court now rules as follows.
I. RELEVANT BACKGROUND
Plaintiff Cary Gomez filed this suit on March 7, 2018, alleging severe asbestos exposure
from a number of sources throughout his life. R. Doc. 1-2. Plaintiff claims he was exposed to
asbestos first as a consequence of his father’s employment at Avondale Shipyards in the 1960s,
and later as a result of Plaintiff’s work as a plumber for Aardvark Contractors, Inc. (“Aardvark”)
from 1988-2011. As a result of his repeated exposure to asbestos, Plaintiff was allegedly diagnosed
with malignant pleural mesothelioma. In his original Petition for Damages, Plaintiff sued, among
others, Defendants Jefferson Parish School Board (“JPSB”), Huntington Ingalls Incorporated
(“Avondale”), and CBS Corporation, Crosby Valve, LLC, General Electric Company, Foster
Wheeler LLC, FMC Corporation, and Ingersoll-Rand Company. R. Doc. 1-2.
II. PRESENT MOTION
Plaintiff has filed a Motion to Extend Time to Provide Industrial Hygienist Report, R. Doc.
271, due to the alleged failure of JPSB to timely comply with discovery in this matter. R. Doc.
271-1 at 1. Pursuant to the Court’s scheduling order, Plaintiff’s expert reports were due for
submission no later than January 7, 2020. R. Doc. 194. However, because of JPSB’s failure to
timely comply with Plaintiff’s discovery requests, Plaintiff alleges he has been substantially
prejudiced and thus seeks to extend the deadline by which the Industrial Hygienist expert report
of Frank M. Parker, III may be issued. R. Doc. 271 at 1.
III. LAW AND ANALYSIS
Pursuant to Federal Rule of Civil Procedure 16, “[a] schedule may be modified only for
good cause and with the judge’s consent.” Fed. R. Civ. Pro. 16(b)(4). The good cause standard
requires showing “the deadlines cannot reasonably be met despite the diligence of the party
needing the extension.” S&W Enters., L.L.C. v. SouthTrust Bank of Alabama, NA, 315 F.3d 533,
535 (5th Cir. 2003) (internal quotation and citation omitted). In determining whether to amend a
scheduling order, a court must consider “‘(1) the explanation for the failure to [timely move for
leave to amend]; (2) the importance of the [amendment]; (3) potential prejudice in allowing the
[amendment]; and (4) the availability of a continuance to cure such prejudice.’” Id. at 536 (quoting
Reliance Ins. Co. v. La. Land & Expl. Co., 110 F.3d 253, 257 (5th Cir. 1997)) (alterations in
original); Lester v. Exxon Mobil Corp., No. CV 14-1824, 2019 WL 4016325, at *2 (E.D. La. Aug.
26, 2019).
Plaintiff argues an extension is warranted because JPSB’s failure to timely comply with
discovery deadlines in this matter has prevented “Industrial Hygienist expert, Frank M. Parker, III,
from producing a full and complete report by the January 7, 2020” Plaintiff expert report deadline.
R. Doc. 271-1 at 1. Plaintiff and Avondale have allegedly issued numerous discovery requests to
JPSB over the course of months that went unanswered. R. Doc. 271-1 at 2.1 Moreover, Plaintiff
has not yet been able to take the deposition of JPSB’s corporate representative. R. Doc. 271-1 at
3. Plaintiff contends that Mr. Parker requires both JPSB’s written discovery responses and JPSB’s
corporate representative deposition testimony to finalize his report. R. Doc. 271-1 at 3. Plaintiff
thus requests an extension of the expert report deadline for Mr. Parker’s report to a date after JPSB
has complied with discovery requests in their entirety. R. Doc. 271-1 at 7.
Defendants CBS Corporation, Crosby Valve, LLC, General Electric Company, Foster
Wheeler LLC, FMC Corporation, Ingersoll-Rand Company, and Huntington Ingalls Incorporated
(“Avondale”) have filed responses to Plaintiff’s Motion requesting that if Plaintiff’s expert report
deadline for the Industrial Hygienist expert report is extended, then their corresponding expert
report deadline also be extended. R. Docs. 277, 278. Defendants thus do not object to the extension
that Plaintiff is requesting so long as Defendants are granted a similar extension to their expert
report deadline so they may counter any opinions expressed by Mr. Parker in his report. R. Doc.
277 at 2, R. Doc. 278 at 1.
Plaintiff has demonstrated “good cause” in his request to extend Mr. Parker’s expert report
deadline, as it appears that Plaintiff has exerted ample effort to obtain discovery responses from
JPSB and to schedule JPSB’s corporate representative deposition. Despite Plaintiff’s diligence in
attempting to obtain this discovery, Plaintiff cannot reasonably meet the deadline set out in the
Court’s scheduling order. Moreover, Plaintiff has adequately demonstrated the importance of
granting this extension, as Plaintiff intends to use Mr. Parker’s expert report to “detail the
substantial amount of asbestos and asbestos-containing materials Mr. Gomez was exposed to at
1 The Court notes that since the filing of this Motion, Magistrate Judge North has since ordered JPSB to
respond fully to the outstanding discovery propounded on it by January 16, 2020. R. Doc. 272.
JPSB sites.” R. Doc. 271-1 at 6. Finally, it cannot be said that an extension of this one expert report
deadline would cause prejudice to Defendants because the Court will likewise grant an extension
for Defendants to submit opposing expert reports if necessary.
IV. CONCLUSION
For the reasons stated above,
IT IS ORDERED that Plaintiff's Motion to Extend Time to Provide Industrial Hygienist
Report, R. Doc. 271, is GRANTED with respect to Frank M. Parker, III’s expert report. This
expert report shall now be due no later than February 7, 2020. Likewise, Defendants shall receive
an extension to submit their opposing expert reports on the topic, if necessary, which shall be due
no later than March 6, 2020. All remaining deadlines remain in effective pursuant to the Court’s
Scheduling Order.
New Orleans, Louisiana, this 22nd day of January, 2020.
lyn CGR
ae
UNITED STATES DISTRICT JUDGE