Case 8:23-cv-01921-KKM-AEP Document 60 Filed 09/27/24 Page 1 of 21 PageID 852
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`UNITED STATES DISTRICT COURT
`MIDDLE DISTRICT OF FLORIDA
`TAMPA DIVISION
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`Case No. 8:23-cv-1921-KKM-AEP
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`MATTHEW J. DAVID, an
`individual,
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`Plaintiff,
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`v.
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`GENERAL DYNAMICS
`INFORMATION
`TECHNOLOGY, INC., a
`Virginia corporation,
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`Defendant.
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`PLAINTIFF’S RESPONSE TO DEFENDANT’S
`RULE 35 MOTION TO COMPEL A VOCATIONAL
`EVALUATION OF PLAINTIFF AND MOTION FOR EXTENSION OF TIME
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`Plaintiff, Matthew J. David (“David” or the “Plaintiff”), by and through
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`undersigned counsel, responds to (A) the Rule 35 Motion to Compel a Vocational
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`Evaluation of Plaintiff and Memorandum in Support (Doc. 55) (the “CME Motion”)
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`and (B) the Motion for Extension of Time to Disclose Rebuttal Experts, the Discovery
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`Deadlines, and Subsequent Deadlines (Doc. 58) (the “Motion to Extend”) filed by the
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`Defendant, General Dynamics Information Technology, Inc. (“GDIT” or the
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`“Defendant”). In support, the Plaintiff states as follows:
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`1
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`BACKGROUND
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`1.
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`The Plaintiff commenced this action on August 25, 2023 by filing a
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`Complaint and Demand for a Jury Trial (the “Complaint”) against GDIT. Through
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`the Complaint, the Plaintiff asserted claims against GDIT (his former employer)
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`for tortious interference (Counts I and II) and defamation (Counts III and IV) “for
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`its intentional publication and dissemination of false allegations that the Plaintiff
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`was terminated for sexual and other workplace misconduct.” (Complaint, ¶ 6).1
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`2.
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` On November 13, 2023, the Plaintiff served GDIT with his initial
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`disclosures. Through his initial disclosures, David informed GDIT that he was
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`seeking damages for loss of future earning capacity – specially loss of earning
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`capacity “over the remainder of his career as a PSYOP professional in the
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`industry.”
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`3.
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`On April 12, 2024, the Court entered the Seconded Amended Case
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`Management and Scheduling Order. (Doc. 29) (the “Scheduling Order”). Most
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`pertinent for purposes of this response, the Court set the following deadlines:
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`a. Plaintiff Expert Disclosure: July 26, 2024
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`b. Defendant Expert Disclosure: August 23, 2024
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`c. Rebuttal Expert Disclosure: September 20, 2024
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`1 Plaintiff’s Motion for Leave to File Amended Complaint (Doc. 42) is currently pending before the
`Court.
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`2
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`d. Discovery Cut-Off and Discovery-Related Motions Deadline: October
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`25, 2024
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`4.
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`On July 26, 2024, consistent with the Scheduling Order, David
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`disclosed two experts and their respective reports to GDIT: Deborah Hilby (Career
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`Consultants of America) and Dr. Cynthia Stephens (Deiter, Stephens, Durham &
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`Cook).2 In addition, Dr. Stephens attended the deposition of Peraton’s corporate
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`representative on July 16. Prior to that, on June 18, 2024, counsel for the Plaintiff
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`advised counsel for GDIT that his expert intended to attend the Peraton
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`deposition. Thus, since at least June 18—and certainly since July 26—GDIT had
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`notice that David had retained expert witnesses.
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`5.
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`On August 9, 2024, GDIT’s counsel requested that the Plaintiff make
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`himself available for an “interview” with their expert vocational rehabilitationist
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`and further stated that the “interview” would include questions relating to the
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`Plaintiff’s current medical history, current medical status, work history, work
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`status, general living conditions and his socioeconomic background as well as
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`“academic and aptitude testing.” On August 14, 2024, the Plaintiff declined
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`GDIT’s request because the vocational examination is not authorized under Rule
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`35.
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`2 True and correct copies of the reports are attached to the CME Motion as Exhibit D and Exhibit
`E.
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`3
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`6.
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`GDIT’s deadline to disclose its initial/affirmative experts expired on
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`August 23. GDIT did not disclose any initial expert witnesses or otherwise file a
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`motion to modify the Scheduling Order/extend its expert disclosure deadline.
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`7.
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`Then, on September 13 and 16—less than one week before the GDIT’s
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`deadline for rebuttal expert disclosure, GDIT moved to compel a vocational
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`evaluation of David and moved to extend the time to disclose rebuttal experts and
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`other discovery deadlines. (Docs. 55, 58).
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`8.
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`The Court should deny both of GDIT’s motions because (a) a
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`vocational evaluation of David is improper, unnecessary, and inappropriate; and
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`(b) GDIT fails to establish good cause for modifying the scheduling order. Both
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`the CME Motion and the Motion to Extend are addressed, in turn, below.
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`LEGAL STANDARD
`A court “may order a party whose mental or physical condition . . . is in
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`9.
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`controversy to submit to a physical or mental examination by a suitably licensed or
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`certified examiner.” Fed. R. Civ. P. 35(a)(1) (emphasis added). The physical or
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`mental examination must be requested by motion and may only be ordered “for
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`good cause.” Fed. R. Civ. P. 35(a)(2). The court must conduct a “discriminating
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`application” to determine whether the movant has affirmatively shown that the
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`mental or physical condition of the party to be examined is “in controversy,” and
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`that “good cause” for the examination exists to obtain a court order for the
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`4
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`procedure. Schlagenhauf v. Holder, 379 U.S. 104, 118-19, 85 S. Ct. 234, 243 (1964);
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`Rydzewski v. Depuy Orthopaedics, Inc., No. 11-80007-Civ, 2012 U.S. Dist. LEXIS
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`192244, at *3 (S.D. Fla. July 31, 2012).
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`ARGUMENT AND MEMORANDUM OF LAW
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`10.
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`The CME Motion should be denied for two principal reasons. First,
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`the Plaintiff has not placed his mental or physical condition sufficiently “at issue”
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`to justify subjecting him to a Rule 35 examination. Second, even if the Plaintiff had
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`placed his mental or physical condition “at issue,” the proposed examination is
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`neither necessary nor appropriate to rebut Ms. Hilby’s opinion regarding the
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`Plaintiff’s loss of future earning capacity. As a result, GDIT has failed to
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`demonstrate good cause for the requested examination and the CME Motion
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`should be denied.
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`I.
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`The Plaintiff Has Not Placed His Mental Condition Sufficiently at Issue
`to Warrant Subjecting Him to a Second Vocational Rehabilitation
`Examination.
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`11.
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`To obtain a CME, the movant must affirmatively show that “each
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`condition as to which the examination is sought is really and genuinely in
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`controversy . . . .” Robinson v. Jacksonville Shipyards, Inc., 118 F.R.D. 525, 527 (M.D.
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`Fla. 1988) (quoting Schlagenhauf, 379 U.S. 104 at 118).
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`12.
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`“Generally, a court should only order a mental examination when one
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`or more of the following factors are present: (1) a tort claim is asserted for
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`5
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`intentional or negligent infliction of emotional distress; (2) allegations of a specific
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`psychiatric injury or disorder are made; (3) a claim of unusually severe emotional
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`distress is made; (4) the plaintiff intends to offer expert testimony in support of a
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`claim for emotional distress damages; and/or (5) the plaintiff concedes that her
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`mental condition is in controversy within the meaning of Rule 35.”Rydzewski, 2012
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`U.S. Dist. LEXIS 192244, at *3-4; Rellas v. Lee Cty. Port Auth., No. 2:18-cv-220-FtM-
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`38CM, 2018 U.S. Dist. LEXIS 113904, at *5-6 (M.D. Fla. July 10, 2018) (citing Trenary
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`v. Busch Entm't Corp., No. 8:05-CV-1630-T-30-EAJ, 2006 U.S. Dist. LEXIS 83661,
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`2006 WL 3333621, at *2 (M.D. Fla. Nov. 16, 2006)).
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`13. A party’s mental condition is not at issue merely because the party
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`seeks emotional distress damages. Rellas, 2018 U.S. Dist. LEXIS 113904, at * 6.
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`Likewise, “asserting an affirmative defense of failure to adequately mitigate
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`damages is insufficient to put a plaintiff's ability to work into controversy for the
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`purposes of Rule 35.” Id. at *9.
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`14.
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`Significantly, vocational rehabilitation examinations under Rule 35
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`are only proper where the plaintiff alleges her inability to work is due to a physical
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`or mental condition. Ferrigan v. City of Delray Beach, No. 22-81088-CV-
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`MIDDLEBROOKS, 2023 U.S. Dist. LEXIS 238652, at *4 (S.D. Fla. Jan. 3, 2023); Drake
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`v. Lab. Corp. of Am. Holdings, No. 02-CV-1924 (FB) (RML), 2009 U.S. Dist. LEXIS
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`29591, at *4 (E.D.N.Y. Apr. 7, 2009) (holding that Rule 35 did not authorize a
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`6
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`vocational rehabilitation examination where the plaintiff intended to offer
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`evidence that he was “unemployable due to the ‘notoriety’ of his allegedly having
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`failed a drug test by his prior employer, not because of any mental or physician
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`condition.”); Rellas, 2018 U.S. Dist. LEXIS 113904, at *5.3 For example, in the Rellas
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`case, the plaintiff sued her former employer for violations of the FCRA and ADEA
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`arising out of alleged age discrimination. 2018 U.S. Dist. LEXIS 113904, at *3. The
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`plaintiff sought future economic damages and alleged “garden variety emotional
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`distress damages.” Id. In support of her claim for future economic damages, the
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`plaintiff’s vocational expert issued a report opining on the extent of the plaintiff’s
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`future economic damages. Id. at *8. The report did not affirmatively state that the
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`plaintiff was unemployable due to the plaintiff’s mental condition – in fact, the
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`3 Every case GDIT cites in its motion involved a plaintiff who claimed loss of future earnings
`based on an inability to work due to a mental or physical condition or otherwise sought damages
`for personal injury. See Winstead v. Lafayette Cty. Bd. of Cty. Comm'rs, 315 F.R.D. 612, 617 (N.D. Fla.
`2016) (holding that plaintiff’s anxiety was “the type of anguish that normally accompanies
`workplace discrimination, or perhaps something only slightly more serious than that”); Fischer v.
`Coastal Towing, 168 F.R.D. 199, 200 (E.D. Tex. 1996) (ordering vocational rehabilitation
`examination where plaintiff’s loss of future earnings/earning capacity was due to physical injury
`suffered while acting within the course and scope of employment with defendant); Olcott v.
`LaFiandra, 793 F. Supp. 487, 492 (D. Vt. 1992) (ordering examination because “[p]laintiff has
`maintained that she cannot effectively enter the work force due to her injuries that are the subject
`of this lawsuit.”); Berry v. Mi-Das Line S.A., No. CV408-159, 2009 U.S. Dist. LEXIS 92348, at *10
`(S.D. Ga. Oct. 5, 2009) (ordering examination in personal injury action because the plaintiff did
`“not dispute that part of the presentation he will make to support his money damage claim will
`be based on what he can and cannot do, employment-wise, given his knee injury”); see also
`Ferrigan v. City of Delray Beach, No. 22-81088-CV-MIDDLEBROOKS, 2023 U.S. Dist. LEXIS 238652,
`at *4 (S.D. Fla. Jan. 3, 2023) (“The cases cited in Defendants' motion to support its position that
`Plaintiff should be compelled to attend an interview with a vocational rehabilitationist are
`inapposite, in that all involve a physical or mental condition which impacts employability.”).
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`7
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`report stated that the plaintiff was actively seeking employment, had the ability to
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`work, and the ability to obtain future employment. Id. at *11. The former employer
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`moved to compel a vocational rehabilitation examination of the plaintiff, arguing
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`that the plaintiff’s mental condition was in controversy because the plaintiff’s
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`expert’s report was implicitly based “‘on the assumption that Plaintiff's condition
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`is such that she has no ability to obtain employment.’” Id. at * 8 (quoting former
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`employer’s motion). The Rellas court rejected the employer’s argument, finding
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`the employer’s reliance on the report to be inapposite because the plaintiff’s expert
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`did not opine that the plaintiff had any condition that precluded her from finding
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`comparable employment. Id. at *11. Therefore, the report did not place the
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`plaintiff’s mental condition in controversy and, as a result, the court denied the
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`motion.
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`15. Here, the Plaintiff has not placed his mental condition sufficiently at
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`issue to warrant subjecting him to a second vocational rehabilitation examination.
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`Just like in Rellas, the Plaintiff does not attribute his loss of future earning capacity
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`to any mental or physical condition. The Plaintiff’s position is (and has always
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`been) that his loss of earning capacity stems from the damage to his professional
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`reputation caused by GDIT’s actions.4 The Plaintiff does not allege that he has
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`4 Plaintiff’s Complaint (Doc. 1), ¶ 52 (“Since Peraton’s withdrawal of the Plaintiff’s offer of
`employment, GDIT’s false statements about the Plaintiff have been widely and irresponsibly
`disseminated throughout the government-contracting community. Numerous government
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`been unable to secure comparable employment due to a mental or physical
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`limitation. To the contrary, the Plaintiff’s vocational rehabilitation expert, Ms.
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`Hilby, attributes the Plaintiff’s future lost earning capacity to a “damage[d]
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`professional reputation” and not to “any medical and/or psychological limitations
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`that would affect his vocational prospects.”5 Therefore, because the Plaintiff has
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`not alleged – either through his pleadings or Ms. Hilby’s report – that he cannot
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`secure comparable employment due to a mental or physical condition, GDIT has
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`failed to demonstrate that the Plaintiff’s mental condition is in controversy.
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`16.
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`In tacit recognition of the foregoing, GDIT seizes on the fact that the
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`Plaintiff informed Ms. Hilby that he declined a job offer for a lower-level, lower-
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`paying job in the Washington, D.C. area in January 2024 due to, among other
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`reasons, being concerned that his heightened anxiety would make it difficult for
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`him to pass a polygraph examination.6 While GDIT’s attempt to use this episode
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`as a means of justifying a CME is undoubtedly clever, it misses the mark
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`completely.
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`stakeholders and individuals within the industry have reached out to the Plaintiff about the false
`allegations circulating his departure from GDIT. As a result, the Plaintiff’s best efforts to find
`alternative employment within his field have been wholly unsuccessful.”).
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` 5
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` 6
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` Defendant’s Ex. E – Hilby Report, at 28, 29.
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` CME Motion, at 6.
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`9
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`17.
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`For starters, the Washington, D.C. offer was not “comparable” to the
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`position the Plaintiff lost with Peraton. It was a lower-level, lower-paying, non-
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`management position that would have required the Plaintiff to relocate to
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`Washington, D.C. As a matter of law, the position was not comparable to the one
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`he lost and, as such, the Plaintiff had no duty accept the Washington, D.C. job as a
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`means of mitigating his damages. See Marrero v. Destinations, No. 6:19-cv-1728-
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`RBD-GJK, 2021 U.S. Dist. LEXIS 132113, at *10 (M.D. Fla. June 8, 2021) (noting that
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`a plaintiff’s damages will not be reduced if he does not accept or otherwise
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`“remain in a noncomparable position to mitigate his damages.”); Punkar v. King
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`Plastic Corp., 290 So. 2d 505, 507 (Fla. 2d DCA 1974) (plaintiff’s damages would not
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`be reduced because he did not accept inferior employment or “employment at a
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`distance from his home.”); S. Keswick, Inc. v. Whetherholt, 293 So. 2d 109, 109 (Fla.
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`2d DCA 1974) (same).
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`18.
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`Second, the Plaintiff’s past decision to reject the Washington, D.C. job,
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`even if partially motivated by a mental or physical condition, has no bearing on
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`his future lost earning capacity. For avoidance of doubt, the Plaintiff retained Ms.
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`Hilby to render an opinion regarding his future lost earnings. As demonstrated
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`by the report of the Plaintiff’s economist, Dr. Stephens, the Plaintiff’s future lost
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`earnings will begin to accrue (assuming he prevails in this action) immediately
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`following the verdict in this case. Ms. Hilby opined that the Plaintiff suffered a
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`10
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`20%-35% loss of future earning capacity due to the incident in this case. The
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`Plaintiff’s decision, whether justified or not, to reject a job offer in January of 2024
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`is relevant only to the Plaintiff’s claim for past lost earnings, i.e. earnings that
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`accrued prior to trial. Whether the Plaintiff had a physical or mental condition
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`that affected his ability to work prior to trial does not impact Ms. Hilby’s opinion
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`regarding future lost earning capacity.
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`19.
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`Finally, and most significantly, despite remarking that she found the
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`Plaintiff’s concerns regarding a possible failed polygraph to be “reasonable,”7 Ms.
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`Hilby opined that the Plaintiff does not have “any medical and/or psychological
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`limitations that would affect his vocational prospects.”8 Stated differently,
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`according to Ms. Hilby, the Plaintiff’s anxiety disorder has not limited his future
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`vocational prospects.9 10 Given that Ms. Hilby has not rendered an opinion on past
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`7 Defendant’s Ex. E – Hilby Report, at 28.
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` 8
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` Defendant’s Ex. E – Hilby Report, at 28.
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` 9
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` “The amount of an award for loss of future earning capacity should be measured by the plaintiff's
`diminished ability to earn income in the future, rather than the plaintiff's actual loss of future
`earnings.” Auto Club Ins. Co. v. Babin, 204 So. 3d 561, 564 (Fla. 5th DCA 2016). Even assuming that
`the Maryland Offer was comparable employment, which it was not, Marrero v. Destinations, No.
`6:19-cv-1728-RBD-GJK, 2021 U.S. Dist. LEXIS 132113, at *10 (M.D. Fla. June 8, 2021); Punkar v. King
`Plastic Corp., 290 So. 2d 505, 507 (Fla. 2d DCA 1974), the Maryland Offer would have mitigated
`the Plaintiff’s actual damages (i.e., loss of employment opportunity with Peraton), not his ability
`to earn money in the future.
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`10 Setting aside the issue of relevance, when adjusted for the cost of living in the Washington D.C.
`area, the offer equates to an approximately 35% loss of earnings when compared to the Plaintiff’s
`lost employment opportunity with Peraton—completely consistent with Ms. Hilby’s projected
`loss of earning capacity.
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`11
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`lost earnings or otherwise opined that GDIT’s actions caused the Plaintiff to suffer
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`a physical or mental disorder sufficient to limit his future vocational prospects,
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`GDIT has failed to demonstrate the Plaintiff’s mental condition is “actually and
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`genuinely” in controversy under Rule 35. Therefore, the CME Motion should be
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`denied.
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`II.
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`Even if the Plaintiff has Placed his Medical Condition at Issue, GDIT has
`Failed to Demonstrate Good Cause to Subject the Plaintiff to a Second
`Vocational Rehabilitation Examination
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`20.
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`Even if the Plaintiff has somehow placed his mental condition “at
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`issue,” GDIT has failed to satisfy its burden of demonstrating good cause for the
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`specific relief sought in the CME Motion for the following three (3) reasons. First,
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`the expert retained by GDIT is not qualified to conduct a Rule 35 examination
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`regarding the Plaintiff’s physical or mental condition. Second, GDIT has already
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`obtained or had ample opportunity to obtain the equivalent of the information
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`sought via CME through alternative means. Third, the scope of the opinion sought
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`to be rendered by GDIT’s vocational rehabilitationist exceeds the proper scope of
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`rebuttal under Rule 26. Each issue is addressed, in turn, below.
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`21.
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`For starters, while GDIT attempts to justify its need to conduct a CME
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`based on the Plaintiff putting at issue his mental or emotional condition, it is
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`notable that GDIT does not seek leave to have the Plaintiff examined by a licensed
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`physician. To the contrary, GDIT seeks to subject the Plaintiff to a vocational
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`rehabilitation examination by a hostile vocational rehabilitationist who will
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`presumably opine that he has not suffered any future loss of earnings attributable
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`to GDIT’s actions. Given the Plaintiff’s own vocational rehabilitationist has
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`already opined that his mental condition has not affected his future vocational
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`prospects, there is no basis for GDIT’s vocational rehabilitionist to conduct a CME
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`regarding the Plaintiff’s mental condition. And, even if there were some
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`theoretical basis to further explore the Plaintiff’s mental condition under Rule 35,
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`the proper person to conduct the CME would be a licensed physician. See Fed. R.
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`Civ. P. 35, Advisory Committee Notes (1991 Amendment) (“If the proposed
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`examination and testimony calls for an expertise that the proposed examiner does
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`not have, it should not be ordered . . . .”); Masters v. City of Indep., 998 F.3d 827, 838
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`(8th Cir. 2021) (noting that vocational rehabilitationists are not mental health
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`professionals and may only review existing materials to “opine on the effect the
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`medical condition may have on that person's vocational outlook.”); Jimerson v.
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`Ford, No. 4:20-cv-01145 KGB, 2024 U.S. Dist. LEXIS 160547, at *8 (E.D. Ark. Sep. 6,
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`2024) (“Mental examinations must be limited to the extent that a party's mental
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`condition is actually in controversy.”).
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`22.
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`Second, good cause for a vocational rehabilitation examination does
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`not exist where the information being sought could be obtained through other
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`means. Washam v. BNSF Ry. Co., No. 3:19-cv-00231 KGB, 2020 U.S. Dist. LEXIS
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`159919, at *7 (E.D. Ark. Sep. 1, 2020) (finding lack of good cause for vocational
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`rehabilitation examination where all of the relevant information – the plaintiff’s
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`personal background, education, work experience, and medical history/records –
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`was already produced through discovery and the defendant could have otherwise
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`inquired about such information at the plaintiff’s deposition); Rye v. Castillo, No.
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`1:16-0061, 2021 U.S. Dist. LEXIS 210368, at *9 (M.D. Tenn. Nov. 1, 2021) (finding
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`defendant failed to establish good cause for vocational rehabilitation examination
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`where the plaintiff already produced her medical records and the report of her
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`vocational expert, and the defendant deposed the plaintiff and may depose her
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`treating physicians and vocational and other experts).
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`23. Here, GDIT’s vocational rehabilitationist has already authored a
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`“preliminary” expert report based on her review of “employment records,
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`deposition transcripts, interrogatories, expert reports, production, etc.”11 GDIT
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`conducted a nearly 11-hour deposition of the Plaintiff on June 5, 2024 and recently
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`deposed the Plaintiff’s primary care physician, Dr. Saran. Subjecting the Plaintiff
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`to a second vocational rehabilitation examination would essentially allow GDIT to
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`conduct a second deposition of the Plaintiff outside of the normal adversarial
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`process. GDIT has failed to demonstrate good cause for such extraordinary relief.
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`11 A true and correct copy of Frain’s Preliminary Report is attached hereto as Exhibit “A.”
`Plaintiff’s Ex. A – Frain’s Report, at 1.
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`24.
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` Third, and perhaps most significantly, the scope of the relief sought
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`by GDIT is incongruous with the limited role of a rebuttal expert under Rule
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`26(a)(2)(D)(ii). A rebuttal expert report must “solely contradict or rebut” the
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`report of an opposing party’s expert. Fed. R. Civ. P. 26(a)(2)(D)(ii). Significantly,
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`unlike a defendant’s initial expert report, which “contradicts an expected portion
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`of the opposing party’s case,” a rebuttal report “explains, repels, counteracts, or
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`disproves evidence of the adverse party’s initial report.” Ceats, Inc. v.
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`TicketNetwork, Inc., No. 2:15-CV-01470-JRG-RSP, 2018 U.S. Dist. LEXIS 7211, at *9
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`(E.D. Tex. Jan. 17, 2018) (finding a portion of an expert report to be rebuttal because
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`it criticized the opposing party’s expert’s methodologies and did “not rely on new
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`information to support those criticisms”); Gibson Brands, Inc. v. Armadillo
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`Distribution Enters., LLC, Civil Action No. 4:19-CV-00358, 2020 U.S. Dist. LEXIS
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`209861, at *9 (E.D. Tex. Nov. 10, 2020) (further explaining that an expert report is
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`not a rebuttal report merely because it is made subsequent to another expert
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`report).
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`25. Critically, expert reports predicated on a “separate and distinct
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`analysis,” or “new analysis and experimentation” do not fall within the scope of
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`rebuttal evidence. Home Design Servs. V. Hibiscus Home Fla., Inc., 2005 U.S. Dist.
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`LEXIS 41745, at *13-14 (M.D. Fla. 2005) (holding that expert report was an initial
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`report, not a rebuttal report, because the expert reached new conclusions based on
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`materials not used by the opposing party’s expert); Daly v. FESCO Agencies NA
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`Inc., 108 F. App'x 476, 480 (9th Cir. 2004) (granting motion in limine and excluding
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`addendum filed on rebuttal expert disclosure deadline because the addendum
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`included “the results of an experiment” that did not solely contradict or impeach
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`the plaintiff’s expert report). Moreover, courts do not allow Rule 35 examinations
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`if the results or information from the examination are to be used in connection
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`with untimely expert reports. Morgan v. Standard Fire Ins. Co., No. 0:23-CV-61609-
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`ROSENBERG, 2024 U.S. Dist. LEXIS 97636, at *4 (S.D. Fla. Apr. 22, 2024) (granting
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`plaintiff’s motion for protective order and stating that “Plaintiff need not attend
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`any CME scheduled by Defendant if results or information from the CME will not
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`be used for either” a timely initial report or time rebuttal expert report); Giannerini
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`v. Embry-Riddle Aeronautical Univ., Inc., No. 6:22-cv-2075-RBD-LHP, 2024 U.S. Dist.
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`LEXIS 3314, at *7 (M.D. Fla. Jan. 8, 2024) (denying defendant’s request for CME to
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`be used in connection the defendant’s expert report because the report was not
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`and could not be produced within the time permitted under Rule 26(a)).
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`26. Here, the fact that GDIT is seeking leave to have its vocational
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`rehabilitationist conduct a CME of the Plaintiff demonstrates that it intends to
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`exceed the permissible scope of rebuttal under Rule 26(a)(2)(D)(ii). As a rebuttal
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`expert, GDIT’s vocational rehabilitationist’s role is to rebut Ms. Hilby’s report and
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`the conclusions contained therein. GDIT’s vocational rehabilitationist is clearly
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`Case 8:23-cv-01921-KKM-AEP Document 60 Filed 09/27/24 Page 17 of 21 PageID 868
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`and obviously capable of doing so based on the materials already available to her.
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`By conducting “new testing” on the Plaintiff, GDIT’s vocational rehabilitationist
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`will necessarily exceed the scope of her “rebuttal” opinions beyond those rendered
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`by Ms. Hilby. This, in turn, would legitimately necessitate a sur-rebuttal report by
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`Ms. Hilby, which in turn could lead to a vicious cycle of one-upmanship among
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`the parties’ experts. Simply put, GDIT’s vocational rehabilitationist has been
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`afforded a full and fair opportunity to render her rebuttal opinion. GDIT’s desire
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`to conduct its own vocational rehabilitation examination of the Plaintiff under the
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`guise of rebutting Ms. Hilby’s report is improper and unauthorized.
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`III. GDIT’s Motion for Extensions to the Scheduling Order and Discovery
`Deadlines Should Be Denied
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`27. Where a deadline is set forth in a scheduling order, Rule 16 governs
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`whether an extension or modification of that deadline is proper. In re Deepwater
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`Horizon Belo Cases, No. 3:19cv963, 2022 U.S. Dist. LEXIS 45142, at *9 (N.D. Fla. Mar.
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`10, 2022) (“Rule 6(b) does not govern the context here. Here, Plaintiff is attempting
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`to modify a scheduling order by re-opening the time for expert disclosures--a
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`deadline that, according to the Court's scheduling order, expired on December 2,
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`2021.”); Robinson v. 3M Co., No. 8:24-cv-00828-WFJ-AAS, 2024 U.S. Dist. LEXIS
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`128984, at *4 (M.D. Fla. July 22, 2024). Under Rule 16(b)(4), scheduling order
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`deadlines “may be modified only for good cause and with the judge’s consent.”
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`(emphasis added).
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`Case 8:23-cv-01921-KKM-AEP Document 60 Filed 09/27/24 Page 18 of 21 PageID 869
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`28.
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`To establish good cause, the party seeking an extension must show
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`that it has been diligent in its attempts to meet the current court-imposed deadline.
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`See Romero v. Drummond Co. Inc., 552 F.3d 1303, 1319 (11th Cir. 2008). The party
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`seeking the extension bears the burden of establishing good cause and diligence.
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`Northstar Marine Inc. v. Huffman, No. 13-0037-WS-C, 2014 WL 3720537, at *3 (S.D.
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`Ala. July 28, 2014).
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`29. Here, GDIT contends that there is good cause to extend the rebuttal
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`expert disclosure deadline and fact discovery deadline by a period of 60 days
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`because its vocational rehabilitationist should be permitted to examine the
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`Plaintiff. As set forth above, GDIT has failed to demonstrate that the requested
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`interview is appropriate under Rule 35. As a result, GDIT’s request for a vocational
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`evaluation cannot satisfy the good cause and diligence requirements under Rule
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`16 for amending the Court’s scheduling order.
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`30.
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`Further, GDIT has already provided rebuttal reports to the reports of
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`Dr. Stephens and Dr. Hilby. GDIT has known since July 16 that David has had at
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`least one expert witness and certainly since July 26 that David had two expert
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`witnesses and reports. GDIT allowed the initial August 23 deadline for its expert
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`reports to pass without any motion and has now waited until a week before the
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`rebuttal deadline to seek other discovery extensions resulting from their lack of
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`diligence and mismanagement. GDIT does not require additional time to prepare
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`Case 8:23-cv-01921-KKM-AEP Document 60 Filed 09/27/24 Page 19 of 21 PageID 870
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`rebuttal reports after the Rule 35 Motion is denied. Therefore, GDIT’s alternative
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`request for a 60-day extension of expert and fact discovery deadlines from the date
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`of an order denying the Rule 35 Motion should be denied.
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`WHEREFORE, the Plaintiff respectfully requests that the Court deny the
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`Motion and grant the parties such additional relief as is just and proper.
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`DATED: September 27, 2024
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`Case 8:23-cv-01921-KKM-AEP Document 60 Filed 09/27/24 Page 20 of 21 PageID 871
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`RESPECTFULLY SUBMITTED,
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`
`/s/ Erik Johanson
`Erik Johanson, Esq.
`Florida Bar No. 106417
`Lead Counsel for Plaintiff
`Joseph R. Boyd, Esq.
`Florida Bar No. 1039873
`ERIK JOHANSON PLLC
`3414 W. Bay to Bay Blvd
`Suite 300
`Tampa, FL 33629
`(813) 210-9442
`erik@johanson.law
`jr@johanson.law
`ecf@johanson.law
`Counsel for Plaintiff
`
`/s/ Diego M. Pestana_________
`Diego M. Pestana
`Florida Bar #1004436
`THE SUAREZ LAW FIRM, P.A.
`1011 West Cleveland Street
`Tampa, FL 33606
`Telephone: (813) 229-0040
`Facsimile: (813) 229-0041
`dpestana@suarezlawfirm.com
`Attorney for Plaintiff
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`20
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`Case 8:23-cv-01921-KKM-AEP Document 60 Filed 09/27/24 Page 21 of 21 PageID 872
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`CERTIFICATE OF SERVICE
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`I HEREBY CERTIFY that the foregoing was served on this 27th day of
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`September 2024 via the Court’s ECF filing system to the following counsel of
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`record:
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`
`Christine E. Howard, Esq.
`choward@fisherphillips.com
`FISHER & PHILLIPS LLP
`101 E. Kennedy Blvd., Suite 2350
`Tampa, FL 33602
`Counsel for Defendant
`
`Alissa Krans, Esq.
`akranz@fisherphillips.com
`FISHER & PHILLIPS LLP
`101 E. Kennedy Blvd., Suite 2350
`Tampa, FL 33602
`Counsel for Defendant
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`/s/ Erik Johanson
`Erik Johanson, Esq.
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`21
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