Two weeks ago we wrote about a pelvic mesh case that crumbled on remand due to the plaintiff’s failure to depose the implanting physician. The importance of the implanting physician is self-evident. Because the plaintiff bears the burden of proving the elements of torts, including whether a different warning would have prompted the implanter to make a different decision, one would think that cases in which plaintiffs failed to depose the implanter would be vanishingly rare.

One would be wrong.

It did not take a lot of pawing through advance sheets to find another example. In Sweatman v. Coloplast Corp., 2020 U.S. Dist. LEXIS 78907 (D.S.C. May 5, 2020), the MDL judge had set a scheduling order, and the discovery cutoff (April 29, 2019), came and went without any deposition of the implanter. Further, remand (September 26, 2019) came and went without any deposition of the implanter. The transfer order stated that the “time to conduct discovery is complete in these cases.”

It is not as if the plaintiff did not know how to ask the MDL court for adjustments to the schedule. Shortly before remand, the plaintiff sought and received permission to substitute an expert witness. But the plaintiff never asked the MDL judge to tweak the discovery cutoff and permit a late deposition of the implanter.

Well after the September 2019 remand, on March 9, 2020, the plaintiff filed a motion for leave to reopen discovery for the limited purpose of deposing the implanting physician. We defense hacks are always worrying that, when it comes to discovery, courts give plaintiffs pretty much whatever they want. Thankfully, that is not true. There actually are standards.

What standard governs? The Sweatman court decided that “the proper standard to evaluate Plaintiffs’ motion is the good cause standard in Rule 16, FRCP, not the excusable neglect standard in Rule 6, FRCP.” That makes sense, as Rule 16 is the more specific rule. Under Fed. R. Civ. P. 16(b)(4), a scheduling order “may be modified only for good cause and with the judge’s consent.”

What is good cause? The primary consideration relates to the movant’s diligence. If the movant was less than diligent in complying with the court’s deadlines, then other factors, such as whether the movant acted in bad faith or whether the other party would be prejudiced, are NOT considered. That is a very important point, as absence of bad faith or prejudice are frequently seized upon by softies as reasons to afford scheduling relief. Nope. Lack of diligence shuts the door.

That door was slammed shut in the Sweatman case. The record showed lack of diligence in trying to depose the implanting doctor. According to the plaintiff, the problem was the doctor’s unavailability. But the plaintiff did not even try to contact the doctor until one month prior to the discovery cutoff. The scheduling order had been in place for seven months.

Significantly, Sweatman was not a case in which the plaintiff was unaware of the witness until after the passing of the discovery deadline. Nor was it a case in which the opposing party “failed to provide information that would have informed Plaintiffs as to the value of the testimony.” In short, the plaintiff lacked any excuse. Rather, this was an example of a plaintiff waiting too long, “playing with fire,” and now seeking a “second bite of the apple.”

Accordingly, the Sweatman court concluded that “merely calling the witness on several occasions one month prior to the expiration of the discovery deadline and then waiting another seven months to raise the issue for the first time” does not constitute diligence and does not constitute good cause.

A chief malignancy of the MDL process is the mass warehousing of cases, with little to no work done on most of them. Some plaintiff lawyers (the lazy ones – who are a minority but who also manage to ruin the whole process) count on settling their cases without an ounce of effort. But not all cases settle before remand. Sweatman is a much needed wake up call.