Opinion
01 C 2907.
March 13, 2002
On September 21, 2001, the parties filed a Proposed Agreed Scheduling Order and Discovery Plan (the "Scheduling Order") with this Court. In pertinent part, the Scheduling Order provided that (1) all discovery, except that related to experts, will commence in time to be completed by January 7, 2002 and (2) plaintiff will identify all expert witnesses and provide all expert reports on or before January 21, 2002. David Neely, counsel for Phillips, negotiated and agreed upon these terms and executed the Scheduling Order on August 31, 2001. Nevertheless, the January 7, 2002 deadline passed without Phillips noticing or taking any depositions and the January 21, 2002 deadline passed without Phillips serving any expert reports.
After both deadlines had passed, on January 24 or 25, 2002, Neely began making inquiries with counsel for Methodist Youth Services (MYS) about the deadline for serving expert reports. During the following weeks, notwithstanding that counsel for MYS had faxed Neely a copy of the Agreed Scheduling Order indicating that the deadline had passed, Neely faxed three expert reports to MYS's counsel. On February 15, 2002, Phillips filed this motion for leave to modify the Agreed Scheduling Order.
Given his participation in the negotiation of the Agreed Scheduling Order, Neely's excuses for missing the deadlines do not ring true. And MYS is correct that they do not amount to "excusable neglect," the standard for granting an extension of time after the expiration of a deadline. Fed R. Civ. P. 6(b)(2). See Cagle v. K-Five Construction Co., 1997 WL 75645, at *3 (N.D.Ill. 1997) (finding that excusable neglect merits relief for a missed deadline only where the actions leading to the default were not willful, careless or negligent) (citing Johnson v. Gundmundsson, 35 F.3d 1104, 1007 (7th Cir. 1994).
I am permitted to make an exception, however, in instances where, as here, to prohibit the extension of the deadline would result in extreme injustice to the defaulting party. I am persuaded to make this exception and to allow the expert reports because, as Phillips points out, the exclusion of these reports would preclude her primary evidence on certain issues. See Sherrod v. Lingle, 223 F.3d 605, 612 (7th Cir. 2000) (finding circumstances where exclusion of expert would be tantamount to a dismissal of the case must be proportionate to the infraction). I am further persuaded to do so because Phillips offers a proposed cure to any prejudice to MYS. I adopt Phillips' proposed cure and order that Phillips release her deposition time to MYS and forego her right to depose MYS's expert witnesses. MYS shall have until April 2, 2002, to depose Phillips's witnesses.
Finally, I accept MYS's argument that much of the report of Dr. Mary Stewart-Pellegrini is irrelevant to the claim of discrimination or retaliatory discharge and exclude the expert report prepared by Dr. Stewart-Pellegrini. Accordingly, the deadline is extended only with respect to the expert reports of Carl Wahltrom, Jr. and Orest Wasyliw. The report of Dr. Stewart-Pellegrini is excluded.
Plaintiff's motion for leave to modify the proposed agreed scheduling order and discovery plan [11-1] is GRANTED in part and DENIED in part.