                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 18a0024n.06

                                        Case No. 17-3434

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                                                                    FILED
ESTATE OF JUAN CARLOS ANDRADE                       )                         Jan 12, 2018
RODRIGUEZ,                                          )                     DEBORAH S. HUNT, Clerk
                                                    )
       Plaintiff-Appellant,                         )       ON APPEAL FROM THE UNITED
                                                    )       STATES DISTRICT COURT FOR
v.                                                  )       THE NORTHERN DISTRICT OF
                                                    )       OHIO
UNITED STATES OF AMERICA,                           )
                                                    )
       Defendant-Appellee.                          )
                                                    )


BEFORE: COLE, Chief Judge; SILER and COOK, Circuit Judges.

       SILER, Circuit Judge. For more than ten months, Juan Carlos Andrade Rodriguez was

held in the United States’ custody at a private prison in Ohio.          During his incarceration,

Rodriguez, who suffered from type-one diabetes, experienced a severe decline in his health.

Three years after his removal to Mexico, Rodriguez died. His estate brought suit against the

United States, alleging the inadequate medical care he received while incarcerated caused his

illnesses and eventual death. During discovery, the estate failed to timely produce a medical

expert report, and the district court denied its motion for extra time to do so. The district court

then granted the United States’ motion for summary judgment because the estate lacked expert

testimony to support its claims. The estate appeals the district court’s denial of its motion for an
No. 17-3434
Estate of Rodriguez v. United States

extension of time, grant of summary judgment in the government’s favor, and denial of the

estate’s motion to reconsider. We AFFIRM.

                                                I.

       Rodriguez was arrested and federally indicted for conspiring to possess marijuana with

the intent to distribute in 2010.      From February 2010 to January 2011, Rodriguez was

incarcerated at the Northeast Ohio Correctional Center (NEOCC), a private prison owned and

operated by the Corrections Corporation of America (CCA). Rodriguez’s estate alleges that the

United States, through CCA, provided him with inadequate medical care for his diabetes during

his incarceration.

       Shortly after his arrest, Rodriguez’s health started to decline, beginning with vision

problems in March 2010.      He was found unresponsive in his cell on eight occasions and

hospitalized five times, all due to low blood sugar levels. His counsel made several motions

related to his need for medical care. Eventually, the district court sentenced Rodriguez to twelve

months and one day of incarceration. He was removed to Mexico in January 2011. By that time,

the estate says, Rodriguez was suffering from blindness, kidney failure, and other serious

ailments.

       Rodriguez died in Mexico in 2014. The estate attributes Rodriguez’s illnesses and death

to the government’s negligent failure to ensure he received proper treatment while in its custody.

The United States denies liability, saying Rodriguez’s diabetes was out of control before his

arrest, and he regularly refused medical treatment while incarcerated at NEOCC.

       Prior to his death, Rodriguez filed this suit against the United States. He brought claims

arising under the Federal Tort Claims Act (FTCA), the Eighth and Fourteenth Amendments, the

Americans with Disabilities Act, and the Rehabilitation Act. The United States moved to


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Estate of Rodriguez v. United States

dismiss, arguing that it could not be held liable for the actions of its independent contractor,

CCA. The district court dismissed most of Rodriguez’s claims but allowed his FTCA claim to

proceed. Following Rodriguez’s death, the court substituted his estate as the named plaintiff.

The estate then filed an amended complaint, adding an FTCA wrongful death claim. The United

States impleaded CCA as a third-party defendant.

       The district court issued a scheduling order in February 2016. It set August 1 as the

deadline for completing fact discovery, November 18 as the deadline for completing all

discovery, and December 19 as the deadline for dispositive and Daubert motions. The order

required the estate to disclose any expert witness reports no later than eight weeks before the end

of discovery, and the government to disclose its expert reports no later than four weeks before

the end of discovery. It cautioned that “[in] the event that a [Rule] 26(a)(2)(B) report . . . is not

provided as required herein, the proposed expert testimony may be excluded.” The order also

specified that “[e]xtensions of court-supervised discovery are not ordinarily granted in the

absence of unusual circumstances. Although unsupervised discovery is sometimes agreed to

among counsel, court deadlines are not changed based upon mere agreement.”

       On July 12, the United States moved, unopposed, for an extension of time to complete

discovery. The district court granted that motion, extending the fact discovery deadline to

September 1 and the deadline for all discovery to December 1. On September 8, again at the

government’s request, the court extended the fact discovery deadline to October 1, but left the

discovery completion deadline intact. Pursuant to the original scheduling order, then, the estate

had until October 6—eight weeks before December 1—to disclose its expert report.                The

October 6 deadline passed with no disclosures by the estate.




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       On October 20, the estate’s counsel emailed the government’s counsel, asking if the

United States would oppose a forty-five day extension of the expert disclosure deadline so the

estate’s expert, Dr. Jorge Calles-Escandon, could complete his report. The government’s counsel

replied the following day, stating she had no objection.

       Eight weeks later, on December 16, the estate filed its first motion for an extension of

time. It asked to be allowed to disclose its expert report no later than January 10, 2017, ninety

days before the April 10, 2017 trial. The United States opposed this motion, arguing that the

estate had run afoul of the court’s February 2016 scheduling order and had not shown good cause

for an extension. The district court agreed and denied the estate’s motion to extend the expert

deadline. The court then granted summary judgment in the United States’ favor because the

estate failed to produce admissible expert testimony establishing the standard of care and

proximate causation, as was necessary for the estate to prevail on its FTCA claims.

       After the court granted the United States’ summary judgment motion, the estate filed Dr.

Calles-Escandon’s expert report in the record and moved for reconsideration. The district court

denied the estate’s motion and entered judgment for the government.

                                                II.

                                                A.

       The estate first challenges the district court’s denial of its motion for an extension of time

to disclose Dr. Calles-Escandon’s report. A party must disclose the written reports of its experts

“at the times and in the sequence that the court orders.”           Fed. R. Civ. P. 26(a)(2)(D).

A scheduling order “may be modified only for good cause and with the judge’s consent.” Fed.

R. Civ. P. 16(b)(4). We consider five factors when deciding whether the district court abused its

discretion by denying additional time to complete discovery: “(1) when the moving party learned


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Estate of Rodriguez v. United States

of the issue that is the subject of discovery; (2) how the discovery would affect the ruling below;

(3) the length of the discovery period; (4) whether the moving party was dilatory; and

(5) whether the adverse party was responsive to prior discovery requests.” Dowling v. Cleveland

Clinic Found., 593 F.3d 472, 478 (6th Cir. 2010) (citation omitted).            “The overarching

inquiry . . . is whether the moving party was diligent in pursuing discovery.” Id.

        The Dowling factors weigh strongly in the United States’ favor. From the outset of this

case in 2013, the estate knew or should have known it would need expert evidence to support its

medical negligence claims, and it had nearly eight months from the district court’s February

2016 scheduling order to submit an expert report. Even after the estate recognized it needed

more time to complete expert discovery, it waited eight weeks to file a motion for an extension.

The record does not indicate that the United States was unresponsive to the estate’s prior

discovery requests.

        Only one factor weighs in the estate’s favor. As explained below, the district court

correctly held that the estate’s lack of medical evidence was fatal to its claims. If Dr. Calles-

Escandon’s report had been timely submitted, the outcome at the summary judgment stage may

very well have been different. Still, the estate fails to explain why this single factor outweighs

all the others, especially given that the delay in obtaining the expert report appears solely

attributable to the estate.

        Further, none of the estate’s proffered reasons for missing the expert disclosure deadline

amount to good cause. The estate first argues that, “based upon the oral pretrial with the district

court, . . . parties were to resolve discovery and deadline disputes among themselves, without

disrupting the Court.” This argument is belied by the plain language of the scheduling order,

which makes clear that “court deadlines are not changed based upon mere agreement.”


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Estate of Rodriguez v. United States

       The estate next argues that the district court should have granted its motion because

counsel for the United States agreed to the extension. The United States agreed to a forty-five-

day extension that would have given the estate until November 21 to disclose Dr. Calles-

Escandon’s report, leaving the United States nearly a month to prepare summary judgment and

Daubert motions. But the estate instead waited until December 16, three days before the

dispositive and Daubert motion deadlines, to ask for a ninety-six-day extension until January 10,

2017. The United States never agreed to this extension, and understandably so. Had the district

court granted the estate’s request, the United States would have had to depose Dr. Calles-

Escandon and significantly rewrite its summary judgment motion.                 The government’s

acquiescence to a shorter, earlier extension did not require the district court to grant the estate’s

motion for a longer, later extension.

       The estate also leans on the fact that the district court twice granted the United States’

motions to extend discovery deadlines.               But the government’s motions are readily

distinguishable from the estate’s motion, because they were unopposed and filed before the

deadline they sought to extend passed.

       Neither does Rule 26 provide the estate with any relief. In the absence of a court order,

parties must disclose expert reports at least ninety days before trial. Fed. R. Civ. P. 26(a)(2)(D).

The estate’s proposed deadline, January 10, 2017, was indeed ninety days before the trial. But

the ninety-day requirement in Rule 26(a)(2)(D) applies only when there is no contrary order in

place. Here, it is undisputed that the estate was required, per the district court’s scheduling

order, to disclose its expert report by October 6.

       Last, the estate argues it established good cause for an extension because Dr. Calles-

Escandon experienced a death in his immediate family that required him to return to Mexico in


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December 2016, while he was completing his report. Although this is certainly an unfortunate

situation, it does not excuse the estate’s failure to either have his report completed by October 6

or move for an extension prior to that date. Had the estate abided by the timeline for discovery

as set by the district court, the report would have been completed well before December.

       By waiting until the expert disclosure deadline passed to move for an extension, the

estate acted in a dilatory fashion. And when it did file a motion, it lacked good cause for an

extension. The district court therefore did not abuse its discretion by denying the estate’s motion

for additional time. See Bentkowski v. Scene Magazine, 637 F.3d 689, 696-97 (6th Cir. 2011)

(upholding district court’s denial of extension when plaintiff filed motion on the evening of the

discovery deadline, “made no effort to conduct discovery in the four and a half months allotted

for non-expert discovery and offered no explanation for his lack of diligence”).

                                                B.

       The next question is whether the district court erred by granting the United States’ motion

for summary judgment based upon the estate’s lack of expert evidence. We review a district

court’s grant of summary judgment de novo, “construing the evidence and drawing all

reasonable inferences in favor of the nonmoving party.” Rocheleau v. Elder Living Constr.,

LLC, 814 F.3d 398, 400 (6th Cir. 2016) (citation omitted).

       The estate asserted two FTCA claims against the United States for medical negligence

and wrongful death. Under the FTCA, “[t]he extent of governmental tort liability is determined

in accordance with the law of the state where the event giving rise to liability occurred.”

Milligan v. United States, 760 F.3d 686, 692 (6th Cir. 2012) (citation and internal quotation

marks omitted); see 28 U.S.C. § 1346(b)(1). In medical malpractice cases, Ohio law requires

expert testimony to establish the applicable standard of care and proximate causation. Roberts v.


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Estate of Rodriguez v. United States

Ohio Permanente Med. Group, Inc., 668 N.E.2d 480, 485 (Ohio 1996); Bruni v. Tatsumi,

346 N.E.2d 673, 677 (Ohio 1976)). The expert testimony requirement extends to wrongful death

cases premised upon medical negligence. See Ramage v. Cent. Ohio Emergency Serv., Inc.,

529 N.E.2d 828, 833 (Ohio 1992).

       The estate does not dispute that Ohio law requires expert evidence to prevail on both

claims. Instead, the estate says Dr. Calles-Escandon’s report, submitted after the district court

issued its summary judgment opinion, both establishes a standard of care and presents a triable

issue of fact on proximate causation. While that may be the case, it does not excuse the estate’s

failure to submit the report in a form that the district court could have considered at the summary

judgment stage.

       A “party opposing summary judgment must show that she can make good on the promise

of the pleadings by laying out enough evidence that will be admissible at trial to demonstrate that

a genuine issue on a material fact exists, and that a trial is necessary.” Alexander v. CareSource,

576 F.3d 551, 558 (6th Cir. 2009) (emphasis removed). The district court acted within its

discretion when it denied the estate’s motion for additional time to disclose Dr. Calles-

Escandon’s report. This decision had the practical effect of excluding the report and preventing

the estate from providing expert evidence in a form that would be admissible at trial. See Fed. R.

Civ. P. 37(c)(1) (“If a party fails to provide information . . . as required by Rule 26(a) . . . , the

party is not allowed to use that information . . . to supply evidence on a motion, at a hearing, or at

a trial, unless the failure was substantially justified or is harmless.”). The district court did not




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err in refusing to consider Dr. Calles-Escandon’s report, especially given that the report was not

in the record when the United States’ summary judgment motion became ripe for a decision.1

       Without any expert testimony, the estate lacked proof of the applicable standard of care

and proximate causation, two essential elements of its claims under Ohio law.              Roberts,

668 N.E.3d at 485; Bruni, 346 N.E.2d at 677. The district court did not err by granting summary

judgment to the United States on this basis. See Borg v. Chase Manhattan Bank USA, N.A.,

247 F. App’x 627, 637 (6th Cir. 2007) (upholding district court’s grant of summary judgment to

defendant when plaintiff’s only expert testimony regarding standard of care was properly

excluded as untimely).

                                                C.

       The final issue is whether the district court erred by denying the estate’s motion to

reconsider. “Motions to alter or amend judgment may be granted if there is a clear error of law,

newly discovered evidence, an intervening change in controlling law, or to prevent manifest

injustice.” GenCorp, Inc. v. Am. Intern. Underwriters, 178 F.3d 804, 834 (6th Cir. 1999)

(citations omitted). “A district court’s refusal to consider evidence produced for the first time on

a motion to reconsider will be reversed only if the refusal constitutes an abuse of discretion.”

Sommer v. Davis, 317 F.3d 686, 691 (6th Cir. 2003) (citations omitted).




       1
          In passing, the estate also suggests that a two-page letter from Dr. Mark B. Shoag,
submitted alongside its amended complaint, constitutes an expert report. The district court
correctly held that the letter, which briefly explains that Rodriguez’s medical treatment while
incarcerated was inadequate for a person with type-one diabetes, does not conform to the
strictures of Rule 26(a)(2)(B). Namely, the letter fails to adequately detail the facts and data
considered by Dr. Shoag, any exhibits he plans to use to support his opinions, his qualifications,
his previous work as an expert witness, or his compensation. See Fed. R. Civ. P. 26(a)(2)(B)(ii)-
(vi).

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       The estate argues that Dr. Calles-Escandon’s report, filed after the district court issued its

summary judgment opinion, was new evidence that should have caused the district court to

reconsider its earlier rulings. But “[t]o constitute ‘newly discovered evidence,’ the evidence

must have been previously unavailable.” GenCorp, Inc., 178 F.3d at 834. Here, the estate has

“provided no reason why [Dr. Calles-Escandon’s] opinion . . . could not have been produced

earlier.” Sommer, 317 F.3d at 691. The district court acted within its discretion by denying the

estate’s motion for an extension, and it correctly held that under Ohio law, the estate’s claims

could not survive without expert testimony. It was not obligated to revisit those decisions simply

because the estate tendered an expert report more than six months after the deadline for that

report passed.

       AFFIRMED.




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