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United States District Court, S.D. New York

May 25, 2004.

WANTANABE REALTY CORP., et al., Plaintiffs, -against- THE CITY OF NEW YORK, et al., Defendants

The opinion of the court was delivered by: LEWIS KAPLAN, District Judge

ORDER (Corrected)
A jury previously has determined that the City of New York is liable to the plaintiff on a theory of common law trespass for the unjustified destruction of plaintiff's vintage 1926 roller coaster, the Thunderbolt, which stood unused from 1982 or 1983 until it was torn down in 2000. The matter now is on trial on the issue of damages. The matter now is before the Court on plaintiff's oral motion to strike certain of the testimony of one of defendants' expert witnesses, Edward Pribonic, on the ground that Mr. Pribonic's report neither referred to nor included a calculation that he made in an effort to estimate the cross-sectional area of a steel H-beam of the sort reportedly used in the construction of the Thunderbolt.

Fed.R.Civ.P. 26(a)(2)(B) requires the service of reports by experts and provides further, in relevant part, that such a report "shall contain a complete statement of all opinions to be expressed and the basis and reasons therefor; [and] the data or other information considered by the witness in forming the opinions . . ." Rule 37(c)(1) provides in relevant part that:

"[a] party that without substantial justification fails to disclose information required by Rule 26(a). . . is not, unless such failure is harmless, permitted to use as evidence at a trial . . . information not so disclosed. In addition to or in lieu of this sanction, the court, on motion and after affording an opportunity to be heard, may impose other appropriate sanctions[, which] may include informing the jury of the failure to make the disclosure."
Mr. Pribonic's report (DX CC) stated, inter alia, that:
"Prior to the demolition of the Thunderbolt, it had remained idle, without any maintenance or protection, reportedly from the summer of 1983 until November, 2000. The structure, machinery, buildings and rolling stock sat outdoors, along the ocean for over 17 yrs.
"As an experienced and certified amusement ride inspector, and professional engineer, I can state without reservation that left under such conditions, a wooden or steel roller coaster would be unsafe for operation and almost certainly beyond repair." DX CC, at 4
It stated that the structure was "completely useless, absolutely dangerous and totally unsalvageable." Id. It concluded: "The condition of the Thunderbolt roller coaster in November, 2000 as discussed above, was beyond any possibility of restoration." Id. at 5. It made no specific reference to corrosion or to the structural steel.

  On direct examination, Mr. Pribonic testified that he "was pretty certain that [he] would have found [the roller coaster in its immediate pre-demolition condition to be] completely without any value" had he been able to inspect it. He based this view on its age, proximity to the ocean, and lack of maintenance for many years. Tr. 577-78. He testified also that, in his opinion, the wooden and steel components of the coaster and its foundations would not have been sufficiently sound for reuse. Id. 578-86. He based the opinion concerning the steel on his knowledge of steel, the proximity of the Thunderbolt to the ocean, the fact that the Thunderbolt was a riveted structure and his view that corrosion is most rapid in small crevices and similar areas and the large potential for water to infiltrate behind rivet heads, and the inferiority to modern steel of steel produced in the era in which the Thunderbolt was constructed. Id. 582-86.

  On cross-examination, plaintiff adduced from Mr. Pribonic the fact that he had calculated the cross-sectional area of a 10 inch H-beam of the sort called for by the remaining drawings for the original Thunderbolt construction prior to completing his report.*fn1 Id. 684-86. The witness' testimony as to whether and to what extent he relied on that calculation in forming his opinion was somewhat contradictory. See id. 685, lines 13-14; 689, line 9-690, line 8.

  The Court finds that Mr. Pribonic took the calculation into account in forming his opinion that the Thunderbolt was "beyond repair" and that the steel was suspect, although it finds also that the calculation played at most a confirmatory role. It should have been included in his report. The question, then, is determination of the appropriate sanction.

  In considering the appropriate sanction in a situation such as this, the Court takes into account, among other things, (1) the prejudice or surprise in fact of the party against whom the excluded witnesses would have testified, (2) the ability of that party to cure the prejudice, and (3) the presence or absence of bad faith or willfulness in failing to comply with the rule.*fn2 E.g., In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 791 (3d Cir. 1994), cert. denied sub nom. General Eiec. Co. v. Ingram, 513 U.S. 1190 (1995) (quoting Meyers v, Pennypack Woods Home Ownership Ass'n, 559 F.2d 894 (3d Cir. 1977), overruled on other grounds, Goodman v. Lukens Steel Co., 777 F.2d 113 (3d Cir. 1985), aff'd, 482 U.S. 656 (1987)); Matter of Kreta Shipping, S.A., 181 F.R.D. 273, 277 (S.D.N.Y. 1998).

  Several factors lead the Court to the view that striking Mr. Pribonic's testimony, or the part of it relating to the repairability of the roller coaster and the condition of the steel, would be inappropriate. First, there is no basis for concluding that the omission was intentional or made in bad faith. Second, the material omitted played no more than a minor role in Mr. Pribonic's analysis; it seems quite clear that he would have come to the same conclusion without it. Third, in view of the minor role the omitted material played in his analysis, the omission is understandable although not substantially justified. Fourth, there has been no showing of substantial prejudice. Finally, plaintiff-in the 17 months since Mr. Pribonic rendered his report — never took his deposition nor, so far as the record discloses, sought any elaboration on the bases for the opinions expressed, a fact which tends to confirm the relative unimportance of the omitted material in that plaintiff did not even seek to elicit the basis for the opinions that were expressed.

  This is not to say that the failure should be disregarded. The jury will be instructed that the calculation should have been included in the report, that the failure to include it impaired plaintiff from cross-examining about it, and that the jury, to the extent it considers it appropriate to do so, may consider that in determining the weight to give to Mr. Pribonic's testimony.


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