     Case: 10-10258 Document: 00511398842 Page: 1 Date Filed: 03/02/2011




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                            March 2, 2011
                                       No. 10-10258
                                                                            Lyle W. Cayce
                                                                                 Clerk

RICHARD FUJITA,

                                                   Plaintiff-Appellant,
versus

UNITED STATES OF AMERICA,

                                                   Defendant-Appellee.




                    Appeal from the United States District Court
                         for the Northern District of Texas
                               USDC No. 4:08-CV-126




Before SMITH, WIENER, and OWEN, Circuit Judges.
JERRY E. SMITH, Circuit Judge:*


       Richard Fujita appeals a summary judgment that resulted from his failure
to designate an expert to support his medical malpractice claim. We affirm, be-
cause the district court gave Fujita ample opportunity to designate and did not
abuse its discretion in enforcing its deadline. Absent designation of an expert,



       *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
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                                        No. 10-10258

there is no genuine issue of material fact on the standard of case to support
Fujita’s claims.


                                               I.
       Fujita is a federal inmate. In February 2008, he sued under the Federal
Tort Claims Act (“FTCA”), alleging that, for his asthma, he received negligent
medical care from the Bureau of Prisons (“BoP”) and that he is entitled to recov-
er damages under Texas law.1 Specifically, he claims that the BoP provided dan-
gerously high doses of Prednisone against the advice of two asthma specialists,
causing him to develop Type-II steroid-induced diabetes mellitus.
       The scheduling order set a deadline of November 28, 2008, for Fujita to
provide expert witness disclosures under Federal Rule of Civil Procedure 26(a)(2)
and a deadline of March 31, 2009, to complete discovery. Several weeks later,
the government moved for an extension of time, and the court extended the ex-
pert-disclosure deadline to January 28, 2009, and the discovery deadline to
June 1, 2009.
       Fujita took no action until January 27, 2009, when he served the govern-
ment with his first request for production of documents, including a request for
his medical records.2 The government responded by noting that Fujita could re-
quest his medical records directly from the BoP. When Fujita objected that do-
ing so would take too long, the government produced 942 pages of medical rec-
ords and 960 pages of health-service materials. Fujita objected by letter that he
could not locate his prescription-drug history among the produced documents,
but the government refused to produce more documents or to identify the loca-


       1
        The FTCA authorizes civil actions for damages against the United States for the negli-
gent acts of its employees where private individuals would be liable under the law of the state
in which the acts occurred. See 28 U.S.C. § 1346(b).
       2
           Fujita dated the request January 29 but certified that it was served on January 27.

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                                 No. 10-10258

tion of the requested materials, again reminding Fujita that he could request
them directly from the BoP.
      On April 21, Fujita moved to compel the government to produce the re-
quested documents. Instead of responding, the government moved for summary
judgment on April 30, then on May 7 moved to stay discovery, pending a ruling
on the summary judgment motion, arguing that Fujita could not prove his claim
without a medical expert and that he had not timely designated one. Also on
May 7, Fujita served a request for admissions.
      Fujita answered the summary judgment motion on May 28 with a Federal
Rule of Civil Procedure 56(f) motion for continuance until he could complete fur-
ther discovery, reasoning that he could not designate a medical expert until the
government complied with his first discovery request and released all his medi-
cal records. On June 5, the government filed a motion for a protective order. Fu-
jita on June 9 filed a second motion to compel production of the medical records
and for discovery sanctions.
      The court resolved these matters in an order of June 25. It granted Fujita
until August 10 to designate an expert and thus avoid summary judgment, but
it stayed all discovery in the interim and deferred ruling on Fujita’s motions to
compel. Later the court extended that deadline until August 24. On Septem-
ber 2, Fujita notified the court that he could not meet that deadline, protesting
that an expert who had expressed interest in his case would not sign on until the
expert had evaluated the medical records that the government had declined to
release. The court refused to allow more time, instead granting the motion for
summary judgment and dismissing the action. Fujita appeals the summary
judgment.


                                       II.
      The district court has “broad discretion and inherent power to stay discov-

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                                       No. 10-10258

ery until preliminary questions that may dispose of the case are determined.”
Petrus v. Bowen, 833 F.2d 582, 583 (5th Cir. 1987). For example, under Federal
Rule of Civil Procedure 26(c), the court may stay discovery for “good cause,” such
as a finding that further discovery will impose undue burden or expense without
aiding the resolution of the dispositive motions.3 We review the grant of a mo-
tion to stay discovery for abuse of discretion.4
       The court had good cause to stay discovery. The pending summary judg-
ment motion was dispositive and turned solely on whether Fujita could appoint
a medical expert. Fujita asserted that he could not obtain an expert without fur-
ther discovery, but the court rejected that contention. That decision was correct
for at least three reasons.
       First, the lack of medical records was not the most significant reason for
Fujita’s delay in securing an expert. He knew the initial deadline for submitting
expert disclosures was January 28, but he did not request his records until Janu-
ary 27. Had the lack of records really thwarted his efforts to obtain an expert,
he should have sought to obtain them well before the expert deadline. His delay
in doing so suggests that his argument is a pretext disguising an initial lack of
diligence in finding an expert.5
       Second, the government repeatedly and accurately informed Fujita that
he could get all his medical records from the BoP. See Bureau of Prisons Pro-
gram Statement 6090.02, at 15 (Oct. 13, 2008). There is no indication in the rec-


       3
         See Landry v. Air Line Pilots Ass’n Int’l AFL-CIO, 901 F.2d 404, 435-36 (5th Cir.
1990); see also 6 JAM ES W. MOORE ET AL ., MOORE ’S FEDERAL PRACTICE § 26.105[3][c] (3d ed.
2010).
       4
        See Brandley v. Keeshan, 64 F.3d 196, 200 (5th Cir. 1995), abrogated on other grounds
by Wallace v. Kato, 549 U.S. 384 (2007).
       5
        The deadlines in the scheduling order were justified and routine. Courts must set the
deadline for expert disclosures well before the close of discovery to ensure that the other side
has an opportunity to depose the expert. 3 MOORE ET AL ., supra, § 16.13[2][b][iii].

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                                       No. 10-10258

ord that Fujita made such a request.
         Third, Fujita had already obtained 942 pages of his medical records. Al-
though he may be correct that those pages left out the relevant prescription his-
tory, those records, combined with Fujita’s own recollections of the drugs he was
taking, provided some basis to consult with an expert.
         Fujita’s difficulties deserve some solicitude because of “this court’s tradi-
tional disposition of leniency toward pro se litigants.” Spotville v. Cain, 149 F.3d
374, 377 (5th Cir. 1998). The district court was lenient enough, however. Its ini-
tial deadline for expert disclosures was November 28, 2008, but it gave an ex-
tended deadline to January 28, 2009. Fujita let that deadline pass without des-
ignating an expert or explaining his failure to do so. In fact, he gave no indica-
tion that he even wanted to designate an expert until his May 28 motion to con-
tinue.
         The court would have been justified in enforcing the deadline.6 Instead,
it extended the deadline by over six months, giving Fujita until August 10SSand
then until August 24SSto find an expert. Moreover, the court did not require Fu-
jita to have an expert report prepared by that time, so long as he had secured a
commitment from an expert to testify. The district court by no means abused its
discretion in its management of discovery.


                                              III.
         “We review [a] summary judgment de novo.” Dunn-McCampbell Royalty

         6
         See Geiserman v. MacDonald, 893 F.2d 787, 790 (5th Cir. 1990) (“‘Rule 16(b) of the
Federal Rules of Civil Procedure authorizes the district court to control and expedite pretrial
discovery through a scheduling order. Consistent with the authority vested in the trial court
by rule 16, our court gives the trial court ‘broad discretion to preserve the integrity and pur-
pose of the pretrial order.’” (quoting Hodges v. United States, 597 F.2d 1014, 1018 (5th Cir.
1979))); see also 3 MOORE ET AL ., supra, § 16.14[1][a] (noting that the enforcement of schedul-
ing orders is an “essential mechanism for cases becoming trial-ready in an efficient, just and
certain manner” (quoting Rouse v. Farmers State Bank of Jewell, Iowa, 866 F. Supp. 1191,
1198 (N.D. Iowa 1994))).

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                                        No. 10-10258

Interest, Inc. v. Nat’l Park Serv., 2011 U.S. App. LEXIS 461, at *10 (5th Cir.
Jan. 7, 2011) (citing Croft v. Governor of Tex., 562 F.3d 735, 742 (5th Cir. 2009)).
Summary judgment is appropriate if there “is no genuine dispute as to any ma-
terial fact and the movant is entitled to judgment as a matter of law.” F ED. R.
C IV. P. 56(a).
       The district court correctly concluded that the government is entitled to
summary judgment if Fujita cannot designate an expert witness to establish that
the government breached the standard of care, an essential element of the medi-
cal-malpractice claim.7 Fujita does not dispute that maxim but argues that sum-
mary judgment is disfavored where relevant evidence remains to be discovered
and that the court should have given him more time to find an expert. As we
have explained, however, the court gave Fujita ample time, and it was reasona-
ble to conclude that granting yet more time would not make a difference.
       Finally, Fujita maintains that there is a genuine dispute as to a material
fact, because the government did not timely respond to his request for admis-
sions, so all of them should be deemed admitted. See F ED. R. C IV. P. 36(a)(3).
Fujita served the request on April 30.8 The thirtieth day was Saturday, May 30,
F ED. R. C IV. P. 6(a)(1)(C), so the period ran until the next business day, June 1.
The government had three additional days to respond under Rule 6(d), because



       7
        See Hannah v. United States, 523 F.3d 597, 601-02 (5th Cir. 2008) (holding that expert
testimony is required to establish that the defendant breached the standard of care in a Texas
medical malpractice case unless “‘the mode or form of treatment is a matter of common knowl-
edge or is within the experience of the layman’” (quoting Hood v. Phillips, 554 S.W.2d 160,
165-66 (Tex. 1977))).
       8
         Fujita argues that the date of service should be calculated from the date that he hand-
ed the request for admissions to the prison guards under the “prisoner mailbox rule.” See
Stoot v. Cain, 570 F.3d 669, 671 (5th Cir. 2009). That rule applies to calculate the date a pris-
oner files a document, not the date he serves it on another party. See id. (“Under the prison
mailbox rule, a prisoner’s pleading is deemed to have been filed on the date that the pro se
prisoner submits the pleading to prison authorities for mailing.”). Service is complete when
the document was mailed. See FED . R. CIV . P. 5(b)(2)(C).

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                                No. 10-10258

Fujita mailed the documents. The deadline to respond was therefore June 4.
The government timely responded by serving its objections and motion for a pro-
tective order that day. Thus, there were no deemed admissions.
      For the reasons stated, the summary judgment is AFFIRMED.




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