United States District Court, E.D. North Carolina, Western Division
FA YE GORE, Individually and as Executrix of the Estate of WADE MILLER GORE, Deceased, Plaintiff,
3M COMPANY, et al., Defendants.
B. JONES, JR UNITED STATES MAGISTRATE JUDGE
matter comes before the court on the motion of defendant John
Crane, Inc. ("Defendant") for leave to file amotion
for an order governing the release of pathology materials
("Motion for Leave") pursuant to Fed.R.Civ.P.
16(b)(4) [DE-289], and for an order governing the release of
pathology materials [DE-291]. Faye Gore ("Plaintiff)
opposes the Motion for Leave [DE-296], but does not oppose
Defendant's motion for an order governing the release of
pathology materials if Defendant's motion for leave is
allowed. [DE-297]. Duke University Health System, Inc.
("DUHS"), a non-party to this lawsuit, filed a
Motion for Protective Order Governing Release of Pathology
Material [DE-294], which Defendant does not oppose, but
Defendant requests the proposed protective order be modified
with respect to certain language [DE-299]. All matters raised
in the motions and briefing are ripe for decision. For the
reasons that follow, Defendant's Motion for Leave
[DE-289], Defendant's Motion for Order Governing Release
of Pathology Materials [DE-291] and DUHS's Motion for
Protective Order Governing Release of Pathology Material [DE-
297] are ALLOWED.
Motion for Leave
filed this Motion for Leave to file its motion for order
governing release of pathology materials out of time because
the discovery deadlines and the time for filing motions set
forth in the Scheduling Order have expired. See
Scheduling Order [DE-158] at ¶ 3; Local Civil Rule
7.1(a). The Scheduling Order entered on September 9, 2016,
provided a fact discovery deadline of March 6, 2017, and an
expert discovery deadline of June 5, 2017. [DE-158].
Defendant asserts that it began requesting pathology
materials from Plaintiff on October 21, 2015, but, despite
multiple requests, Plaintiff did not produce any pathology
until March 14, 2017-eight days after the close of fact
discovery. Def.'s Mem. [DE-290] at 2. By early April
2017, Defendant's expert had reviewed the provided slides
and raised questions of causation related to Plaintiffs
claims. Id. Accordingly, on April 9, 2017,
Defendant's counsel inquired about the availability of
additional tissue blocks for further testing by
Defendant's expert. Id. Plaintiffs counsel
replied that no such blocks had been provided to Plaintiff.
Id. DUHS later confirmed to Defendant that such
tissue blocks did exist, and, on April 12, 2017, Defendant
requested that DUHS release the pathology materials for
further testing. Id. On May 12, 2017, DUHS informed
Defendant that certain conditions had to be met before it
could release the pathology materials, advising that, if
Plaintiff would consent to the release, DUHS's
institutional requirements for release would be met.
Id. at 3. Plaintiff objected to the release of the
pathology materials. Id. On July 1, 2017, DUHS's
counsel advised Defendant that it would not voluntarily
release the pathology materials and, on August 29, 2017,
Defendant filed this Motion for Leave to pursue those
scheduling order may be amended for good cause and with
consent from the court. Fed.R.Civ.P. 16(b)(4). The good cause
provision of Rule 16(b)(4) does not focus on the prejudice to
the non-movant or bad faith of the moving party, but rather
on the moving party's diligence. Dilmar Oil Co. v.
FederatedMut. Ins. Co., 986 F.Supp. 959, 980 (D.S.C.
1997), qff'd, 129 F.3d 116 (4th Cir. 1997);
see also Cook v. Howard, 484 Fed.Appx. 805, 815 (4th
Cir. 2012) ('"Good cause' requires 'the
party seeking relief [to] show that the deadlines cannot
reasonably be met despite the party's diligence, '
and whatever other factors are also considered, 'the
good-cause standard will not be satisfied if the [district]
court concludes that the party seeking relief (or that
party's attorney) has not acted diligently in compliance
with the schedule.'") (quoting 6A Charles Alan
Wright, Alan R. Miller, and Mary Kay Kane, Federal
Practice and Procedure Civ. § 1522.2 (3d ed.
2010)); McDonald v. Marlboro Cty., No.
5:12-CV-1725-RBH-KDW, 2013 WL 6580631, at *4 (D.S.C. Dec. 16,
2013) ("[T]he key to the 'good cause' analysis
of Rule 16 is whether the party was diligent in seeking to
amend."); Fed.R.Civ.P. 16(b), advisory committee's
note (1983 amendment) ("[T]he court may modify the
schedule on a showing of good cause if it cannot reasonably
be met despite the diligence of the party seeking the
extension."). The party moving to modify a scheduling
order bears the burden of demonstrating the existence of good
cause. United States v. Cochran, No. 4:12-CV-220-FL,
2014 WL 347426, at *2 (E.D. N.C. Jan. 30, 2014) (citing
Nourison Rug Corp. v. Parvizian, 535 F.3d 295, 298
(4th Cir. 2008)). "[T]he scheduling order 'is not a
frivolous piece of paper, idly entered, which can be
cavalierly disregarded by counsel without peril.'"
Velasquez v. Salsas & Beer Restaurant, Inc., No.
5:15-CV-146-D, 2016 WL 3339488, at *2 (E.D. N.C. June 13,
2016) (quoting Gestetner Corp. v. Case Equip. Co.,
107 F.R.D. 138, 141 (D. Me. 1985)).
argues that "good cause" exists here because
"Defendant did not receive the initial set of pathology
materials from Plaintiffs counsel until after the discovery
deadline had passed, " and therefore could not have
known that additional materials were needed until after
discovery expired. Def.'s Mem. [DE-290] at 3. Plaintiff
contends that her production of the pathology materials was
timely because the relevant deadline was the June 5, 2017
expert discovery deadline, and not, as Defendant asserts, the
March 6, 2017 fact discovery deadline. PL's Mem. Opp.
[DE-296] at 6. The court disagrees with Plaintiff.
that have a direct bearing on the factual disputes in the
case are the subject of fact discovery, which often (as here)
concludes before expert discovery so that the parties may
rely on a complete factual record to inform their own experts
and depose their opponents' experts." United
States v. North East Med. Serv. 's, No.
10-CV-1904-CW, 2014 WL 7208627, at *5 (N.D. Cal. Dec. 17,
2014) (citing Sparton Corp. v. United States, 77
Fed. CI. 10, 14-15 (2007)). "In other words, expert
opinions are to be distinguished from the facts upon which
they rely." Sparton Corp., 77 Fed. C. at 15.
The analysis in Arkansas Game & Fish Comm'n v.
United States is helpful in interpreting the distinction
between Rule 34(a), providing for the production of
documents, and Rule 26(a)(2)(B), (b)(4)(A)-(B), providing for
expert discovery. 74 Fed. CI. 426, 429-30 (2006). In that
case, the court considered whether the government's
request to enter upon land under Rule 34(a) in order to test
and measure conditions using piezometers constituted fact
discovery or expert discovery. That court explained:
fact discovery addressed by Rule 34(a) differs from the
expert discovery covered by Rule 26, which provides that
expert discovery will be carried out through mandatory
disclosure of the reports of experts expected to testify at
trial, and through interrogatories or depositions .... In
this case, the government's experts might ultimately
render opinions based on the data obtained from the
piezometers, and those opinions would be subject to the rules
relating to expert discovery. See Fed. R. Civ. P.
26(a)(2)(B), (b)(4)(A)-(B). The unevaluated data from the
piezometers, however, would not be expert opinions "to
be expressed and the basis and reasons therefor, "
Fed.R.Civ.P. 26(a)(2)(B), even though the results of testing
by the piezometers might well become "data or other
information considered by the [expert] in forming the
opinions, " id, or "facts known ... by an
expert." Fed.R.Civ.P. 26(b)(4)(B).
Game & Fish Comm'n, 74 Fed. CI. at 429-30. Here,
the court likens data testing by piezometers in the
Arkansas Game case to the pathology materials sought
by Defendant in the instant case. Similarly, the pathology
slides constitute facts upon which experts may base their
opinions at trial, and therefore are distinct from the expert
opinions themselves. Accordingly, the court finds the
pathology slides were subject to the March 6, 2017 fact
discovery deadline and Plaintiffs production of the pathology
slides was untimely.
court finds that "good cause" exists to grant
Defendant's Motion for Leave in order to release
pathology slides held by DUHS. Defendant has demonstrated
diligence in its attempts to timely request the tissue
blocks. On March 14, 2017, the pathology was produced by
Plaintiff and, by April 9, 2017, Defendant's expert had
analyzed the materials and inquired about additional slides
in order to perform further tests. From April 2017 through
July 2017, Defendant was in contact with both DUHS and
Plaintiff regarding a consensual release of the pathology
materials. It was not until July 1, 2017, that DUHS's
counsel stated it would not voluntarily release the pathology
materials to Defendant due to Plaintiffs opposition to the
release. Therefore, Defendant's reasonable diligence
before the fact discovery deadline would not have resulted in
the production of these pathological materials, and
accordingly "good cause" exists.
the late production of the pathology materials, Plaintiff
makes two additional arguments regarding Defendant's lack
of "good cause" to amend the Scheduling Order.
First, Plaintiff posits that there is a consensus in the
scientific community that "a lung tissue digestion is
not necessary to render a diagnosis of mesothelioma" and
there is an "undeniable link between exposure to
asbestos and mesothelioma, universally accepted attribution
criteria acknowledge[ing] that 'a history of significant
occupational, domestic, or environmental exposure to asbestos
will suffice for attribution.'" Pi's Mem. Opp.
[DE-296] at 7. Plaintiff also cites Defendant's own
pathologist's expert report and deposition, in which
Defendant's expert confirmed the decedent's
mesothelioma diagnosis through his own analysis of the same
pathology slides that Plaintiffs expert analyzed.
Id. Because Defendant requests these additional
tissue blocks in order to perform further tests related to
causation, Plaintiff posits that there is no justifiable
reason for Defendant to request the pathology slides. The
court disagrees. The focus of a "good cause"
analysis is the reasonable diligence of the moving party and
not its underlying reason for requesting the discovery.
Second, Plaintiff argues that, if the court granted
Defendant's request, it will cause severe prejudice to
"the entire discovery process that has already taken
place in this case" and will likely cause the November
27, 2017 trial date to be postponed. Id. at 8. The
court notes that since Plaintiffs response was filed, the
court removed this case from its November 27, 2017 trial
calendar in order to rule on pending dispositive motions.
[DE-298]. Accordingly, Defendant's Motion for Leave is
Defendant's Motion for Order Governing Release of
asserts that DUHS is in possession of the requested pathology
materials and has informed Defendant that it "would not
voluntarily release the pathology materials." Def.'s
Mem. Supp. [DE-292] at 1-2. DUHS, in its Motion for Entry of
Protective Order Governing Release of Pathology Materials,
asserts that its institutional mandate to retain original
pathology slides, tissue blocks, and wet tissue pursuant to
the Clinical Laboratory Improvement Amendments of 1988
("CLIA 88") and College of American Pathologists
("CAP") prevents the voluntary release of original
material without a consent protective order governing the
release. DUHS's Mot. [DE-294] at 6. As such, a court
order governing the release of pathology materials is
required in order for DUHS to produce the requested pathology