United States District Court, Southern District of New York
April 21, 2003
ELSA GULINO ET AL., PLAINTIFFS,
THE BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK AND THE NEW YORK STATE EDUCATION DEPARTMENT, DEFENDANTS.
The opinion of the court was delivered by: Constance Baker Motley, United States District Judge.
MEMORANDUM OPINION AND ORDER
The court is in receipt of plaintiffs's brief letter/offer of proof in support of their request that the court allow rebuttal testimony from their expert, Dr. Frank Landy, letter briefs in opposition from both defendants and plaintiffs' letter reply.
The court is persuaded that plaintiffs are entitled to call Dr. Landy to rebut the testimony of those witnesses who succeeded him. See Robinson v. Metro-North Commuter R.R. Co., 274 F.3d 147, 161 (2d Cir. 2001) ("If the employer succeeds in establishing a business justification, however, the disparate impact claim proceeds to a third stage. . . . At this third stage, the burden of persuasion shifts back to the plaintiffs to establish the availability of an alternative policy or practice that would also satisfy the asserted business necessity, but would do so without producing the disparate effect" (citations omitted)).
Pursuant to Fed.R.Civ.P. 26(a)(2)(B), however, Dr. Landy's testimony may not exceed the scope of his expert report. Furthermore, his testimony must not be wholly cumulative.
Finally, the court agrees with defendant State Education Department ("SED") that the offer of proof provided in plaintiffs' letter is insufficient and hereby orders plaintiffs to submit a more detailed statement of the substance of Dr. Landy's testimony. The court allowed SED to submit its previous offers of proof in camera because it was the only party ordered to make such offers during its case in chief, and to allow opposing parties access to said offers would have been unfair. With regard to the offers required during the rebuttal stage, however, the court is requiring them from all parties.
Accordingly, plaintiffs' offers must be provided to the court and served on opposing parties by 1:00 p.m. Tuesday, April 22, 2003. Defendants' offers are due by 5:00 p.m. on Wednesday,
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