D.R. v. Contra Costa County CA

Background

The plaintiffs’ underlying action asserts wrongful-death, negligence, and claims under 42 U.S.C. § 1983 based on the death of Plaintiff D.R. while in the custody of Contra Costa Children and Family Services. The cause of death is disputed. The Contra Costa coroner listed “Probable Cardiac Rhythm Disorder (Dysrhythmia),” while the plaintiffs contend that D.R. died from positional asphyxiation.

The plaintiffs moved to compel three forms of discovery: (1) a report from the defendants’ expert, Dr. Judy Melinek, concerning her review of tissue samples or digital images obtained from the Contra Costa coroner’s office; (2) digital copies of Dr. Melinek’s slides or access for the plaintiffs’ expert, Dr. Omalu, to tissue preserved by the coroner’s office; and (3) permission for Dr. Omalu to supplement his expert report with findings from examining the tissue samples.

The scheduling order set June 9, 2023, as the close of fact discovery and December 18, 2023, as the close of expert discovery. The plaintiffs filed the motion on December 22, 2023. The court explained that materials used by an expert to conduct an analysis and prepare a report are fact discovery, while expert discovery includes expert reports and related information and depositions. A discovery motion filed after the applicable deadline is not enforceable unless the court orders otherwise for good cause.

Analysis

The court treated Dr. Melinek’s report and any required supplement as expert discovery. Her report stated that certain brain and other tissue would be scanned and reviewed digitally, and the plaintiffs had requested a report about that review. The defendants did not address the supplementation request or state whether Dr. Melinek had reviewed the tissue. The court therefore granted the motion to compel the defendants’ expert to supplement her report concerning any review of the tissue samples or digital images. If there was nothing further to report, the defendants were required to inform the plaintiffs in writing.

The court treated the request for the tissue samples, digital images, or access to the preserved tissue as fact discovery. It held that this request was untimely because fact discovery had closed months earlier. The plaintiffs also had not served a discovery request seeking those materials. The court rejected the plaintiffs’ reliance on Federal Rule of Civil Procedure 35, explaining that they had not shown that allowing another person access to autopsy tissue or digital slides would constitute a new Rule 35 examination.

The plaintiffs also argued that good cause existed under Rule 16(b)(4) to modify the scheduling order because they retained their expert after settlement discussions failed and later learned that examining the decedent’s brain might help establish the cause of death. The court stated that any motion to modify the scheduling order had to be directed to Judge Maxine Chesney; Judge Hixson’s role in this order was to enforce the existing schedule.

Disposition

The court granted the plaintiffs’ motion to compel the defendants’ expert to supplement her report regarding any review of tissue samples or digital images obtained from the coroner’s office. In all other respects, it denied the motion, including the requests for digital slide copies or access to the preserved tissue and the request to allow Dr. Omalu to supplement his report based on examining those samples.