OMAHA (LN) — A federal magistrate judge denied plaintiffs' motion to serve expert disclosures out of time in their personal injury lawsuit against Delta Air Lines, ruling the plaintiffs showed no diligence in meeting case progression deadlines and failed to establish good cause to modify the scheduling order under Rule 16(b).
Magistrate Judge Ryan C. Carson found that plaintiffs Wanda and Bruce Ridnour, who allege Bruce suffered injuries from a fall on an aircraft, failed to conduct any discovery in the 16 months since filing suit. Delta's counsel told the court that plaintiffs had been "radio silent" throughout the matter, and the record shows plaintiffs did not issue a single set of written discovery requests or notice any depositions disclosure deadline expired.
The court applied Eighth Circuit precedent requiring good cause under Rule 16(b) before modifying scheduling orders, citing Petrone v. Werner Enterprises, 940 F.3d 425 (8th Cir. 2019). The court noted that while plaintiffs have now prepared expert reports in support of their motion, this does not excuse their failure to diligently pursue discovery and meet earlier deadlines.
The expert reports of Phillip T. Gibson, an aviation expert, and Dr. Nicholas B. Bruggeman, an orthopedic trauma surgeon, are deemed untimely. However, the disclosure of Dr. Eric Christianson, a non-retained treating physician, was found sufficient and timely.
The court rejected plaintiffs' argument that Rule 37's substantially justified or harmless exception applied, finding that Rule 37 governs exclusion of evidence at trial, not the threshold question of whether to modify a scheduling order under Rule 16(b).
Defendants must now serve their expert disclosures by June 22, 2026, with a status conference set for June 26, 2026.