Holmes v. Estock

7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA CHARLES HOLMES, Case No.: 16-cv-2458-MMA (BLM) 11 Plaintiff, ORDER GRANTING PLAINTIFF’S 12 vs. UNOPPOSED MOTION FOR LEAVE TO FILE A DAUBERT MOTION ESTOCK, et al., 14 Defendants. [Doc. No. 187] 17 Plaintiff Charles Holmes, a California inmate, brings this civil rights action pursuant to 42 U.S.C. § 1983 alleging violations of his Eighth Amendment right to adequate medical care. On June 16, 2022, the Court appointed Plaintiff Pro Bono Counsel pursuant to 28 U.S.C. § 1915(e)(1) and General Order 596. See Doc. No. 169.

21 Plaintiff now moves the Court for leave to file a motion challenging Defendants’ experts pursuant to Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 582 (1993).

23 Pursuant to the Rule 16 Scheduling Order and the undersigned’s Civil Chambers Rules, Daubert motions were due no later than October 4, 2019. See Doc. No. 93; Civ. Chambers R. IX fn. 3. Although Plaintiff seeks to file a Daubert motion more than three years late, his prior counsel’s failures, including his failure to file a Daubert motion and timely oppose summary judgment, are well-documented. See Doc. Nos. 157, 168.

28 Further, the record demonstrates that since appointment, Plaintiff’s current counsel have 1 diligent in pursuing discovery and readying this case for trial. Accordingly, the || Court finds good cause to modify the Rule 16 Scheduling Order to permit Plaintiff to file 3 Daubert motion. See Fed. R. Civ. P. 16(b)(4) (“A schedule may be modified only for || good cause and with the judge’s consent.”); see also Valentine v. Nielsen, No. 16cv2357- || W(KSC), 2018 U.S. Dist. LEXIS 39285, at *12 (S.D. Cal. Mar. 9, 2018) (“Parties may be || able to satisfy the ‘good cause’ standard if they can show that a prior attorney’s actions || were “grossly negligent.’”’) (quoting Community Dental Servs. v. Tani, 282 F.3d 1164, 8 (9th Cir. 2002)). The Court therefore GRANTS Plaintiff's unopposed motion and SETS the following schedule and limitations: 10 1. Plaintiff may file one omnibus motion, not to exceed twenty-five (25) pages, 11 asserting all Daubert challenges on or before July 14, 2023.

12 2. Defendants’ opposition, not to exceed twenty-five (25) pages, is due on or 13 before July 28, 2023.

14 3. No reply briefs will be accepted.

15 4. The Court will hear oral argument on Plaintiff's Daubert motion at the Final || Pretrial Conference, September 11, 2023 at 1:30 p.m.

17 IT IS SO ORDERED.

18 ||Dated: May 25, 2023 19 Mikel Ub Clinhls MA “£4 20 HON. MICHAEL M. ANELLO United States District Judge A Th ACO REREA □□□