Civil Practice – Products Liability – Modifications to Scheduling Order

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Plaintiff’s failure to timely disclose expert testimony, after lacking diligence to modify the scheduling order under Rule 16, was fatal to his product liability claims.

We affirmed the district court’s denial of a motion to amend a scheduling order and its subsequent grant of summary judgment in a products liability action.

The case arose from a surgical procedure in which plaintiff alleged that a stapler used during surgery malfunctioned, leading to complications. He brought product liability claims against several manufacturers. The litigation proceeded through discovery under multiple scheduling orders, with the district court extending plaintiff’s expert disclosure deadline several times, ultimately setting a final deadline of March 15, 2024. Plaintiff failed to disclose any expert witnesses by that date. After defendants moved for summary judgment, plaintiff sought to amend the scheduling order, 20 days after the deadline had passed, to allow additional time to identify and disclose an expert.

We rejected plaintiff’s argument that the district court should have applied the more lenient “excusable neglect” standard under Federal Rule of Civil Procedure 6. Instead, the court held that Rule 16(b)(4) governs modifications to scheduling orders, requiring a showing of “good cause.” Because plaintiff sought to extend a deadline already set by the court’s scheduling order, he was required to satisfy Rule 16’s more stringent standard, regardless of whether Rule 6 might also apply.

Applying that framework, we found no abuse of discretion in the district court’s conclusion that plaintiff failed to demonstrate diligence. The record showed that plaintiff had ample time, over the course of nearly two years of litigation and multiple deadline extensions, to secure expert testimony. Even after learning key product identification information in December 2023, he waited months before taking meaningful steps and failed to serve timely discovery requests or pursue a motion to compel. His request to extend the deadline came only after it had expired and after defendants had moved for summary judgment.

Diligence is the “touchstone” of the Rule 16 inquiry. A party must show that, despite its efforts, it could not reasonably meet the scheduling deadline. Plaintiff’s explanations, delayed discovery responses and difficulty identifying the specific product, were insufficient, particularly given his own admissions regarding when he obtained relevant information and his lack of prompt follow-up action.

Because plaintiff failed to timely disclose an expert, the district court concluded, and we agreed, that his product liability claims could not proceed. Expert testimony was necessary to establish defect and causation, and its absence was fatal. Having affirmed the denial of the motion to amend, we also upheld summary judgment for the defendants.

Affirmed.

Eichin v. Ethicon Endo-Surgery LLC (Lawyers Weekly No. 001-134-26, 6 pp.) (Allison J. Rushing, J.) Appealed from the U.S. District Court for the District of South Carolina, at Florence. Joseph Dawson, III, J.) ARGUED: Hunter L. Windham, LAW OFFICE OF HUNTER L. WINDHAM, LLC, Charleston, South Carolina, for Appellant. A. Mattison Bogan, NELSON MULLINS RILEY & SCARBOROUGH, LLP, Columbia, South Carolina, for Appellees. ON BRIEF: Brandon C. Hall, HART, DAVID, CARSON, LLP, Greenville, South Carolina; Joshua T. Hawkins, Helena L. Jedziniak, HAWKINS & JEDZINIAK, LLC, Greenville, South Carolina, for Appellant. C. Mitchell Brown, James F. Rogers, Axton D. Crolley, NELSON MULLINS RILEY & SCARBOROUGH, LLP, Columbia, South Carolina, for Appellees. U.S. Court of Appeals for the Fourth Circuit