Before the Court is Plaintiff Yunhua Gibson, individually and as mother and next friend of R.G.G., a minor's (“Gibson”) Opposed Motion to Reopen Discovery. (Dkt. 55). In her motion, Gibson asks the Court to “order re-opening of discovery for a period of 60 days” because of changes in minor plaintiff's condition that “raise[ ] the issue of future medical care, which was previously believed to be unnecessary.” (Id. at 2). Defendant United States of America (“Defendant”) opposed Gibson's request in an untimely motion. (Def.'s Opp., Dkt. 56). Having considered the parties' arguments, the evidence, and the relevant law, the Court will grant Gibson's motion.

A scheduling order may be modified only for good cause and with the court's consent. Fed. R. Civ. P. 16(b)(4). When evaluating a request to modify a scheduling order after the pertinent deadline has passed, the Court must evaluate: (1) the explanation for the failure to timely move for a modification of the scheduling order; (2) the importance of the modification; (3) potential prejudice in allowing the modification; and (4) the availability of a continuance to cure such prejudice. See S & W Enters., LLC v. Southtrust Bank of Ala., NA, 315 F.3d 533, 536 (5th Cir. 2003). Although this Court may grant Gibson's motion as unopposed in light of Defendant's failure to submit a timely response, it will nonetheless address Defendant's arguments. Local Rule CV-7(e).

First, Gibson argues that she should be allowed to re-open discovery because, although R.G.G.'s physician testified at his deposition that he did not expect R.G.G. to need future medical care, counsel has recently “learned of changes in the minor plaintiff's condition which indicate the physician was not correct.” (Dkt. 55, at 1). Gibson attached a copy of a November 2020 speech evaluation and a January 2021 letter from R.G.G.'s current physician to her motion. (Speech Eval., Dkt. 55-1; Doc. Letter, Dkt. 55-2). Although the speech evaluation was performed in November of 2020, Gibson asserts that “it was not received by counsel until February 6, 2021.” (Dkt. 55, at 1). The evaluation found that R.G.G.'s voice exhibits “very severe” hoarseness and breathiness, and that R.G.G.'s “habitual volume was too soft and was difficult to hear.” (Dkt. 55-1, at 8–9).

The letter from R.G.G.'s current physician notes similar issues, adding that R.G.G.'s “[p]ast illnesses have progressed quickly” and finding “home health nursing care” to be “medically necessary.” (Dkt. 55-2). Defendant argues that there is no reason to believe that these new issues of “illegibility, hoarseness and lack of volume” would not have already been apparent, yet Gibson's motion clearly states that this is “new information” and presents a change in “this minor's situation.” (Dkt. 56, at 2; Dkt. 55, at 2). The Court has no reason to doubt Gibson's representation that this information constitutes a change in R.G.G.'s prognosis, and Defendant offers no basis for such a finding. Defendant also contends that because the January 2021 letter from R.G.G.'s physician was prepared after the deadline to designate experts, it is “hardly compelling.” (Dkt. 56). Yet Gibson failed to identify an expert regarding R.G.G.'s need for future medical care precisely because her counsel did not think future medical care would be necessary at that time. It was only after learning of the speech evaluation suggesting that R.G.G.'s impairment will “potentially impact her need for future medical care and possibly her earning capacity” that Gibson's counsel moved to reopen discovery. (Reply, Dkt. 57, at 1). This factor thus weighs in favor of re-opening discovery.

Second, Gibson contends that the importance of re-opening discovery is “self-evident” as Gibson should “be allowed to present all her cognizable damages” in light of the change to R.G.G.'s “medical condition and prognosis.” (Dkt. 55, at 2). Defendant argues that Gibson has already waived her claim to future damages and that the “only reason the relief requested would be important to Gibson is to give her another chance to identify damages experts who are vital to her case and necessary to prove an element of her claims.” (Dkt. 56, at 2). While re-opening discovery would certainly allow Gibson to identify damages experts regarding future medical expenses, it is far from the only reason Gibson provided in support of her motion. Furthermore, courts have found that changes in a plaintiff's ongoing medical condition may justify the re-opening of discovery. See, e.g., Rios v. Wal-Mart Stores, Inc., 2014 WL 1413639, at *6 (D. Nev. Apr. 11, 2014) (“[W]here there has been a material change or development in the plaintiff's medical condition or treatment after discovery has ended, the reopening of discovery on that basis may be justified.”). Given that the new information suggests that R.G.G. may require future medical care, which is of utmost importance in resolving Gibson's claims for future medical care expenses, this factor weighs in Gibson's favor.

With regard to the third and fourth factors, Gibson posits that re-opening discovery will not prejudice Defendant because the trial in this case has been cancelled due to COVID-19 concerns, and as such re-opening discovery will not “add to the delay.” (Dkt. 55, at 3). Defendant responds that re-opening discovery at this stage is “the very definition of prejudice” because it would “punish” Defendant for having moved for summary judgment on this issue and Defendant would incur additional costs. (Dkt. 56, at 2–3). Defendant cites a number of cases in support of its position, yet those cases involved situations where the plaintiff had either failed to show good cause for their requested amendment, an extension of time would have interfered with an existing trial date, or the request involved an untimely motion to intervene by third parties. See Madrid v. Wells Fargo Bank, N.A., 2015 WL 13650533, at *1 (W.D. Tex. Aug. 21, 2015) (“None of Plaintiffs' arguments demonstrate good cause.”); Bro-Tech Corp. v. Purity Water Co. of San Antonio, 2009 WL 1748539, at *9 (W.D. Tex. June 19, 2009) (denying request to extend expert report deadline where it would “potentially interfere[ ] with the ... trial date”); United States v. Real Prop. Located at 6250 WT Montgomery Rd., 2019 WL 2066115, at *1 (W.D. Tex. Jan. 9, 2019) (denying untimely motion to intervene fours years into litigation). Although Defendant's motion for summary judgment may be affected by further discovery into the issue of future damages, which will incur further cost to Defendant, the Court does not find that these impacts rise to the level of prejudice to warrant the denial of Gibson's motion. In addition, given the uncertainty surrounding an upcoming trial date, the Court finds that a continuance would be sufficient to cure any prejudice to Defendant; and in any event, Gibson's need for additional discovery outweighs any prejudice to Defendant.

Based on the foregoing, IT IS ORDERED that Gibson's Motion to Reopen Discovery, (Dkt. 55), is GRANTED.

SIGNED on March 15, 2021.