Significant Delay And Disregard For Deadlines Sufficient to Refuse Extensions of Expert Disclosure Deadlines

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Law Updates-Civil Procedure: Marquez v. Ortega, 65 Ariz. Adv. Rep. 18 (App. Div. I February 28, 213 (J.Hall) SIGNIFICANT DELAY AND DISREGARD FOR COURT IMPOSED DEADLINES JUSTIFIES THE TRIAL COURT IN REFUSING TO ALLOW AN EXTENSION OF EXPERT DISCLOSURE DEADLINES.

Plaintiffs filed this wrongful death action in Maricopa County Superior Court. The case arose out of an automobile accident involving the decedent and defendant's cotton picker which was allegedly sticking into the decedent's lane of travel resulting in a collision. The trial court set discovery and disclosure deadlines. By stipulation, the deadlines were extended once. Plaintiffs failed to disclose any experts before these deadlines ran. Five months after the deadline ran out of state counsel moved to extend the deadlines claiming that different local counsel had been hired and the deadlines were not properly calendared. More importantly, no trial date had been set and extending the deadlines created no prejudice to the defense.

Defendants opposed the motion establishing that the only witness plaintiffs had deposed in two and a half years of litigation was one defendant and the only supplemental disclosure filed by plaintiffs' was a year before the deadline. Defendants further pointed out that plaintiffs had repeatedly failed to meet court deadlines, disclosure and discovery deadlines throughout the case.

The trial court denied the motion. Plaintiff filed a motion for reconsideration seeking to nullify the stipulation to extend discovery (so defendants would have no experts either) based upon the fact that while local counsel signed the stipulation, local counsel failed to inform out of state counsel of the stipulation. The trial court determined no "culprit hearing" was necessary and denied the motion for reconsideration. Thereafter a new local counsel appeared for plaintiffs and filed a supplemental disclosure statement disclosing experts and their opinions. Defendants' motion to strike this disclosure was granted. The jury returned a defense verdict and the trial court assessed $24,407.20 in taxable costs against the plaintiffs. Plaintiffs appealed the trial court's denial of their motion to extend the disclosure deadline and the granting of the motion to strike. The Arizona Court of Appeals affirmed.

The court of appeals noted that while Allstate Ins. Co. v. O'Toole, 182 Ariz. 284, 896 P.2d 254 (1995) held a "slight delay" where no trial date has yet been set does not prejudice the defendant, here "the delay by [plaintiffs'] attorneys was both substantial and inexcusable under circumstances that demonstrated complete indifference to their responsibilities to the opposing party and the justice system." Further, since the practice of most judges in Maricopa County is not to set a trial date until disclosure and discovery is complete virtually all motions to extend disclosure deadlines in that venue would have to be granted if the absence of a trial date was dispositive. Such a rule would encourage delay and thwart the efficient administration of justice in Maricopa County.

Next, the court addressed the criteria established in O'Toole for analyzing whether there is "good cause" to support an extension of a disclosure deadline. "(1) the reason for the failure to properly disclose evidence; (2) the willfulness or inadvertence of a party's (or attorney's) conduct; (3) prejudice to either side that may result from excluding or allowing the evidence; (4) the opposing party's (or attorney's) action or inaction in attempting to resolve the dispute short of exclusion; and (5) the overall diligence with which a case has been prosecuted."

The court found that the failure to disclose here was clearly the result of dilatoriness and disregard for court rules and deadlines extending beyond mere inadvertence. Further the defense did comply with the orders and rules and relied upon compliance by the plaintiffs. In contrast the defendants established a complete lack of diligence by the plaintiffs' attorney. Importantly the court noted that the failure to allow the extension was not dispositive of the case and in fact the case proceeded to trial, survived directed verdict and went to the jury.

Lastly, the court recognized that where the conduct of counsel and not the party is attributable to the failure to comply with the disclosure deadline there must be notice and an opportunity to be heard concerning the propriety of the sanctions-commonly referred to as a "culprit hearing." Here, while there was no actual hearing, there was never one requested and entire argument by both sides made it clear to the court that the plaintiff was totally innocent in the failure to comply. The fact the failure is fully the fault of the attorney is not dispositive; the court may still enforce the deadline. Where enforcing the deadline did not dispose of the case but only limit what evidence could be presented the ruling was within the sound discretion of the trial court.

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