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Case 1:04-cv—01278-KAJ Document 230-7 Filed 10/27/2005 Page1 0f4

Case 1 :04-cv-01278-KAJ Document 230-7 Filed 10/27/2005 Page 2 of Rage l
LEXSEE 1993 U.S. DIST. LEXIS 138 -
FREDERICK M. WELTON v. CONSOLIDATED RAIL CORPORATION
CIVIL ACTION NO. 92-1679 ·
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF
PENNSYLVANIA -
1993 U.S. Dist. LEXIS 138 -
_ January 4, 1993, Decided
January 4, 1993, Filed; January 5, 1993, Entered
DISPOSITION: [*1] IT IS HEREBY ORDERED that action brought under the Act. `
Defendants Motion is GRANTED.
LexisNexis(R) I-Ieadnotes
` CASE SUMMARY: .
Civil Procedure > Trials > Pretrial Conferences
PROCEDURAL POSTURE Piaimmc cmwcyee {PINE] Under Fed. R. Cie R I6(b), a court must issue
brought an action against defendant railroad employer ;Os;l;§;it:i2§C;;c;€; `;;}Qcl;?E§;:fSPd;;(E£I;?;3 Half; 3;m’ E;
seeking to recover personal injury damages under the . ` . ` ` ' ' `. P {PO
Federal Em IO cfs Liabmt Act 45 U S C S § 5] of a schedulmg order is to advance the case tn an orderly
it Sc nil from tt! rm it gr; itémenol t an tempt com tt ele te mriue Sven ed
answgs me empicycrg med an imlérgmcy pigoticn E0 inexpensive disposition of the case as soon as possible un-
reopen discovery and to extend the pretrial scheduling dc; the cllcumsaanccg grader Rmc 16(b)’ thqcomt may
Ogder deadlines only modify the scheduling order upon a showing of good
` cause. The court may modify the schedule on a showing
0VERVIEW_,l,hc mh 1O‘cc,S mm laimscu mrclicffm of good cause if it cannot reasonably be met despite the
injums aucgédgy Sustgmgd On Fcbaiaw 19 *%}%,2 While diligence of the party seeking the extension. In order to
working for the employer. The employee allegedly fell as gsntjggsggigzgtcgxiggl§C;;g?;;_;;r;0:FgS£§;1m;;;;gTgc that
a result of unsafe working conditions. The employee filed P '
his complaint on March 23, 1992. After the employee _ ~
brought his action, a second incident occurred on July 1;;LVI;RE iM`
18, i992. Despite requests from the employer regarding ' ' H ’
whether the employee intended to assert a claim with re- SFXAL STREET` STE
gard to the second incident, no response was given until ’ ’ ’ ’
the discovery deadline date established by the court in its
scheduling order. As a result of the employees answers,
the employer requested a stipulation from the employee E HURST ` MONTGOMERY MC éRACKE§
for an extension of discovery because the employee as- ' ’ ’ ’
_ seats it claim er liability rm the second tscreen. The §;’§J};E§A83§r;;(;A§`;THREE PARKWM 20TH Fire I
employee refused.'l`he court granted the employers re- ’ ’ '
quests to reopen discovery based on new infomation, _
which the employee submitted to the employer at the East ·*UDGES· PIUTTON
minute. The court reasoned that the employer was enti- _ _
tied under Fed. R. Cin R I6(b) to a moditlcation ofthe BY' BY DE COURR HERBERT J`
scheduling order because it established good cause for
not reasonably being able to complete discovery in the 0P1NION_
required timeframe. '
MEMORANDUM AND ORDER
OUTCOME: The court granted the employers request
for an extension of the scheduling order in the employee's I-IUTTON, J.

Case 1 :04-cv—O1278-KAJ Document 230-7 Filed 10/27/2005 Page 3 of Rage 2
1993 U.S. Dist. LEXIS 138, *i
ing order is "to advance the case in an orderiy and prompt
Ianuary 4, E993 manner in order to secure the just, speedy and inexpensive
disposition of the case as soon as possible under the cir-
Presently before the Courtis Defendanttfonsolidated Rail cumstances." Fox v. S.}? Parks, Inc., N0. 85-3371, 1986
Corporations Emergency Motion to Reopen Discovery WL 1907 at *2 (E1). Pa. Febtuaty l2, 1986). Under Role
and to Extend the Ptetrial Scheduling Order Deadiines. 16(b), the Court may oniy modify the Scheduling Order
For the following reasons, Defendants Motion is upon a showing of good cause. The Notes of Advisory ` `
GRANTED. Committee on Rules provide that "the court may n10d·
FACTUAL BACKGROUNB IEEE$5.*;*§..§;’;§§;,’2;“’..i.‘;i§i€§.?..‘2.‘l Eli.; §§JZ2E§‘
Plaintiff {lied this action to recover damages under the mg me Extension? in Order E0 establish gomi ?auS€’ the
. . , . . . defendants should demonstrate that a more diligent pur-
provistons of the Federal Ernpioyers Liability Act. 45 . . . . .
. . . . . suit of discovery was impossible. McElyea it Navtstar
USC. § 51-58. Plaintiffs compiaint seeks reltef for in- . . .
. . . . . International Transportation Cmpomttort, 788 E Supp.
juries allegedly sustained on February 19, 1992, while in . . .
. . 1366, 1371 {ECD. Pa. 1991), {*4] a;l‘f`d without opinion,
the employ ofthe defendant. Plaintiff aliegediy fell as a 950 Fzd 723 Gm, C.? 199;) Th def d Ht h t th.
result ofthe defendants failure to maintain its workplace bwdc}1 I ` € Cn 3 as me IS
in a safe condition. Plaintiff filed his complaint on March `
23, l.992. In this case, the plaintiffs complaint seeks recovery
On May 26, 1992, the com mmd a Scheduling {*2] for damages on a theory of negligence based on the omg- ‘
. mal fall at Conrad on or about Febmary 19, 1992. The
Order to govern the proceedings ofthe case. Thereafter, com lam Ovidcs . H. t zh t_
the Court issued an Amended Scheduling Order on July p i pr ’ in pc mm pm a '
22, 1992 in response to a letter request by the plaintiff. ‘ . .
The Amended Scheduling Order set a discovery deadline 5) OI} or about Febmmwy 19’ i992’ *i"‘?"‘l‘H
for November 20 1992 sustained severe and permanent injuries
’ ` while employed by Defendant.
Plaintiff, on the November 20, 1992 deadline, in
compliance with the Amended Scheduling Order, sub— 6) Plaintiffs injury was caused solely and
tnitted supplemental answers to the defendants first and exclusively by the negligence of Defendant,
second set of interrogatories and provided responses to its servants, agents, and/or employees for the
i)efendant's Second Request for Production. As a result of following reasons: .
the plaintiffs answers, the defendant contacted the plain·~
tiff requesting a stipulation for an extension of discovery. a} Defendant faiied to use ordinary care to furnish Plaintiff
Plaintiff refused. with a reasonably safe place to work and reasonably safe
Defendant now requests the Court to reopen discov— cqmpmcm wlth which LO Work; _
ery based on new information which the plaintiff sub- . . . . .
rnitted to the defendant at the midnight hour of discovery, E£h?;f§?§Et iigdwg t anggn mm if émta m
Defendant contends that the plaintiffs answers for the first in ac I0 Er aagltgas am a aggcimdi, m?c D is m]ury’
time reveal that: (1) plaintiff will be asserting a claim of P P n On y Sa E I mm
damages arising out of a second incident occurring on . . .
tiny ia, 1992; (2) plaintiff mat with physteaam and was C) D°f““‘i““t ¥a‘1‘”"* ‘° pT°‘Y‘d“.ad€q?‘a“’ ind “`?‘”°d pip
. . . . . sonnel to assist the plaintiff tn doing his duties while
treated at hospttals without previously disclosing these Workin fo the Bcf adam
facts; (3) plaintiff has identified new expezts and theories g I E ‘
Ofhabihty ammg from me fuly { 3] .18m inmdmih mid ti) Defendant was otherwise negligent under its estab-
(4)pla1ntrffhas undergone surgery which will require six . . .
momhs to dewmqim its Success lished rules, regulations, customs and practices.
DISCUSSION (Pialntifs Complaint, P 6). The {*5] complaint does not
include a claim of liability for an additional fall occurring
{HN1] Under Federal Rule of Civil Procedure ]6(b), ex- on July 18, 1992. Although the defendant repeatedly at·
cept in actions exempted bythe Local Rules which are not tempted to determine if the plaintiff intended to use the
a licable in this matter, theCot1rtrnust issue aschedullng events surrounding the iatter fall as a uni ue basis 0f lia-
1FP Q
order which limits the time, inter alia, to complete discov— bility by asking the plaintiff if he intended to amend his
ery. Fed. R. Civ. Pro. 16(b}(3). The purpose of a schedt1E· complaint, the piaintiff never responded to the defendants

Case 1 :04-cv-01278-KAJ Document 230-7 Filed 10/27/2005 Page 4 of ¢l?¤e<¤‘ 3
E993 U.S. Dist. LEXIS 138, *5
inquiries. The defendant sent Eetters to the plaintiff on this return to work. As a consequence of Conrai1's improper
issue on October 1, 1992 and November 6, 1992, well be- and negligent placement of the plaintiff into a job as a
fore the discovery deadline. As far as the defendant was policeman he aggravated his already herniated L2—3 disc
ld to believe, as the plaintiff did not reply, liability would white working at the South Kearny yard."
oniy he based on the original fait on the night of February -
19, 1992. (Plaintiffs Supplemental Answer to Defendants First Set
Despite piaintiffs failure to repiy to the defendant‘s if LrgsgrggEgmaicilgxcsgonricgglgi icfcgdaélgf giggled
inquiries, plaintiff contends that the defendant had kngwl- through addiisml digmvfry gms PP P p **9
edge of the July 18th incident weil in advance of the `
discovery deadline based on the plaintiffs Pre·~'t`rial An appropriate Order foilows. . ‘
. Memorandum of July 20, 1992. Plaintiffs memorandum ORDER
does discuss the July 18, 1992 fail after the plaintiff was
put back to work. However, the discussion is more in tlie AND NOW, this 4th day of January, 1993, upon con-
` nature of proof that the plaintiffs disability would prevent sideration of Defendant Consolidated Rail Corporations `
. him from returning to work given his injured condition. Emergency Motion to Reopen Discovery and to Extend
The statements {*6] in no way notify the defendant that the Pretriai Scheduling Order Deadlines, IT {*7}
the plaintiif intended to recover based on a theory of li- IS HEREBY ORDERED that Defendants Motion is
abiiity involving the decision to put the plaintiff hack to GRANTED.
` work wholly independent ofthe original theory of liabiiity H, IS FURTHER ORHERED that thc Amended
Set fmt}; m plammffs mmplalm Scheduling Order of July 22, 1992 has been amended
The supplemental responses of the piaintiff as submit- to reflect a sixty (60} day extension. p
ted at the close of discovery reveal that he now has taken
a much different approach. ?laintiff now submits that; BY THE COURT: ·
"The plaintiff was required by Conrail to return to work HERBERT J. HUTTON, J.
in July 1992, upon pain of being disciplined if he did not y _