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FURLONG v. CIRCLE LINE STATUE OF LIBERTY FERRY

October 31, 1995

MICHAEL FURLONG, JR., Plaintiff, against CIRCLE LINE STATUE OF LIBERTY FERRY, INC., Defendant.


The opinion of the court was delivered by: CHIN

 CHIN, D.J.

 In this Jones Act case, plaintiff Michael Furlong, Jr. ("Furlong" or "plaintiff") seeks recovery for injuries sustained when his right hand was crushed by a gangway as it was brought aboard the vessel upon which he worked. Three matters are before the Court. First, defendant Circle Line Statue of Liberty Ferry, Inc. ("Circle Line") listed two potential witnesses, John Scarbrough, Ph.D. and Steve Phelan, in the Joint Pretrial Order submitted on June 14, 1995. Furlong objects to these witnesses on the grounds that they are expert witnesses and Circle Line failed to meet discovery deadlines with respect to such witnesses. Circle Line moves in limine to overrule Furlong's objections to these witnesses. Second, Circle Line seeks to amend the Joint Pretrial Order to add an exhibit and an additional witness. Third, Circle Line moves for an order pursuant to Federal Rule of Civil Procedure 35(a) directing Furlong to submit to an independent medical examination. Furlong opposes these motions.

 DISCUSSION

 I. Expert Witness Dr. Scarbrough

 Circle Line seeks to call an expert economist, John Scarbrough, Ph.D. ("Scarbrough"), to rebut testimony by Furlong's expert economist, Richard Ruth, Ph.D., regarding Furlong's allegation of nearly $ 1,000,000 in damages. Under Judge Stanton's *fn1" original scheduling order, dated March 6, 1992 (the "Original Scheduling Order"), the parties were to exchange all expert reports on or before September 1, 1992. Subsequent scheduling orders extended the discovery deadline but did not specifically mention discovery regarding expert witnesses. *fn2"

 Circle Line identified its expert economist Scarbrough in the Joint Pretrial Order submitted June 14, 1995, but did not provide Furlong's counsel with a copy of Scarbrough's report, dated August 31, 1995, until two and one-half months later, well beyond the deadline for discovery set in the final Scheduling Order.

 Circle Line argues that because the Original Scheduling Order was vacated by Judge Stanton on September 28, 1992, and none of the subsequent orders specifically addressed expert disclosure, there was no deadline for exchange of expert reports. This argument is specious. The fact that the later orders, which simply served to extend the discovery deadline, did not specifically address the issue of expert discovery does not mean that Circle Line's obligation to provide expert discovery was eliminated.

 Circle Line has known since September 1994 that plaintiff intended to call an economics expert, as plaintiff produced a report from his economist at that time. Yet, Circle Line waited until submission of the Joint Pretrial Order to identify its own economist, and then it failed to produce an expert's report until two and one-half months later. Plaintiff would be prejudiced if Circle Line's expert were permitted to testify, since discovery has been complete for months and the Joint Pretrial Order was submitted in June 1995. While I could re-open discovery, this case is almost four years old and is otherwise ready for trial. Hence, it would be unfair to further delay the case because of Circle Line's failure to produce expert discovery in a timely manner. Accordingly, Circle Line may not call Dr. Scarbrough to testify.

 Circle Line seeks to call Steve Phelan ("Phelan"), employed as a Port Engineer by Circle Line, to testify as a fact witness regarding the normal procedure for handling gangways on Circle Line ferry boats at the time of the accident giving rise to this dispute. Phelan has not prepared a report in this matter, and, like Scarbrough, Phelan was identified as a witness in the Joint Pretrial Order. Furlong contends that Circle Line is attempting to circumvent the expert witness disclosure requirements by calling Phelan to render expert maritime testimony under the guise of a fact witness. Circle Line asserts that Phelan will testify based upon his own observations and experience as a Circle Line employee for 37 years and that he is not being offered as an expert witness.

 Circle Line correctly observes that the Original Scheduling Order did not address the disclosure of fact witnesses, and states that Furlong never requested such information from Circle Line in this matter. Because Furlong did not request a list of Circle Line's fact witnesses, and Circle Line identified Phelan as a witness in the Joint Pretrial Order, Circle Line may call Phelan as a fact witness, but Phelan may not render expert testimony. Phelan may only testify as to the normal procedures for handling gangways on Circle Line ferry boats. He may not give an opinion as to whether plaintiff acted negligently or carelessly. Furlong's request to depose Phelan is denied.

 III. Motion to Add Exhibit and Witness

 Circle Line seeks to amend the Joint Pretrial Order to permit it to (1) offer medical records from H.S. Systems, Inc., and (2) call Arthur Morse, M.D. ("Dr. Morse") to testify regarding his examination of Furlong. The medical records, which pertain to Dr. Morse's physical examination of Furlong on March 31, 1994 in connection with Furlong's application for welfare benefits, contain drug screen results indicating that the examinee tested positive for cocaine usage. Although the results bear Furlong's patient number, the drug test report indicates that the examinee was a female, while Furlong is a male. *fn3" In light of the serious doubts raised regarding the authenticity of this drug test, the medical ...


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