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Norton v. Midwest Airlines

January 4, 2008


The opinion of the court was delivered by: Joel Schneider United States Magistrate Judge


This matter is before the Court on plaintiffs' "Motion for Limited Extension of Discovery, for Expert Discovery, to Compel Deposition of Pilot and for Appointment of Mediator" [Doc. No. 33], filed by Mark S. Guralnick, Esquire, counsel for plaintiff. In response to the motion defendants filed the Certification [Doc. No. 34] of Timothy Hourican, Esquire, of Brown Gavalas & Fromm LLP, attorneys for defendants, Midwest Airlines, Inc., Midwest Express Airlines, Inc. d/b/a Astral Aviation, Inc. and/or Skyway Airlines, Inc., Midwest Connect, Skyway Airlines, Inc., Atral Aviation, Inc., Midwest Express Holdings, Inc. and James Rankin. (Hereinafter collectively referred to as "defendants" or "Midwest"). The Court has exercised its discretion pursuant to Fed. R. Civ. 78 and L. Civ. R. 7.1(b)(4) to decide plaintiffs' motion without oral argument. For the reasons to be discussed, plaintiffs' motion is DENIED.


Plaintiffs filed their Complaint on July 20, 2005 [Doc. No. 1]. Plaintiffs allege that on July 23, 2003, John H. Norton ("Norton") was a passenger on an airplane owned and operated by Midwest. See Complaint at ¶20, Doc. No. 1. Plaintiffs contend that when the flight was en route between Milwaukee and Philadelphia, "it severely decreased altitude in such precipitous and sudden manner that Plaintiff John H. Norton was caused to be thrown about violently sustaining ... injuries ...." Id. at ¶22. Plaintiffs allege Norton "suffered severe head trauma and brain injury, resulting in memory loss and other neurological deficits, severe migraine headaches, spinal trauma, including disc herniations ... [and] other severe, lasting and permanent injuries of a physical, mental and psychological character." Id. at ¶24.

In order to put plaintiffs' motion in context, it is helpful to understand the scheduling history in this case. After the Complaint was filed on July 20, 2005, the case was referred to arbitration on July 28, 2005. See Docket Entries. At the Fed. R. Civ. P. 16 Scheduling Conference held on February 21, 2006, the Court established a fact discovery deadline of September 30, 2006. [Doc. No. 13]. Subsequent to the conference, defendants experienced difficulty obtaining relevant discovery from plaintiffs. This resulted in an August 21, 2006 Order compelling plaintiffs to respond to defendants' written discovery and to appear for deposition or their complaint would be dismissed. [Doc. No. 17]. Plaintiffs did not comply with the Court's Order compelling discovery. However, after plaintiffs alleged they did not receive the Court's August 21, 2006 Order, the Court denied defendants' request to dismiss the Complaint. [Doc. No. 20].*fn1 Notwithstanding these events, plaintiffs still did not comply with the applicable discovery rules. This resulted in an Order compelling plaintiffs to answer defendants' written discovery by November 22, 2006. See Doc. 21 at ¶1. The Court also set a fact discovery deadline of February 28, 2007. Id. at ¶2. When the parties next appeared before the Court on March 20, 2007 for a status conference, they informed the Court they did not complete discovery in compliance with the Court's deadlines. Thereafter, on March 22, 2007 [Doc. No. 24], the Court Ordered, inter alia, that the depositions of Agnar Fjordholm (pilot) and Lorie O'Connor (flight attendant) shall be taken on April 4 and 5, 2007. The Court's Order provided that "[i]f plaintiffs do not take the depositions of Mr. Fjordholm and Ms. O'Connor as scheduled, they will be barred from taking the depositions." At the parties' request, on April 23, 2007, the Court extended the fact discovery deadline to May 31, 2007. See Doc. No. 27. The Order also required plaintiffs to serve their expert reports by June 15, 2007. Id. On September 26, 2007, an arbitration award was filed under seal. On November 16, 2007, plaintiffs requested a trial de novo pursuant to L. Civ. R. 201.1(h). [Doc. No. 30]. On November 1, 2007, the Court entered a final Scheduling Order setting the Final Pretrial Conference for January 28, 2008. [Doc. No. 32].

Plaintiffs filed the instant motion on November 9, 2007. [Doc. No. 33]. Plaintiffs' motion seeks leave of court to conduct the following post-arbitration discovery:

1. Service of an expert report from Jonathan Furrow, C.P.A., C.V.A., C.F.P., "an accounting expert to access [Norton's] ... reduced earnings and earning capacity as a result of the injuries he suffered in the aircraft accident";

2. Service of an expert report of Erik Rigler, President of G Force, Inc., an "aviation expert and aircraft accident deconstructionist";

3. Additional "follow-up discovery" which includes a request for additional maintenance records, passenger lists and downloaded data from the "black box"; and

4. Deposition of Midwest's "Captain (pilot)" (presumably Agnar Fjordholm).

Plaintiff also asks the Court to Order the parties to mediation pursuant to L. Civ. R. 301.1.


Although not cited in plaintiffs' motion, the Court's decision is framed by L. Civ. R. 201.1(h)(2), which provides:

Upon the filing a demand for a trial de novo, the action shall be placed on the calendar of the Court and treated for all purposes as if it had not been referred to arbitration, except that no additional pretrial discovery shall be permitted ...

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