The opinion of the court was delivered by: John T. Elfvin S.U.S.D.J.
Plaintiff, a train locomotive engineer, was injured on May 29, 1998 when the train he was operating hit a truck and "low boy" trailer that was carrying an oversize load and was stuck on the railroad tracks at the Colby Road railroad crossing in the town of Pembroke, N.Y. He commenced this negligence action on April 25, 2000 against Consolidated Rail Corp. ("Conrail") - the railroad -, Canadian American Transportation, Inc. ("CAT") - the owner of the truck and trailer -, Pierre DesMeules ("DesMeules") - an employee of CAT and the driver of the truck hauling the oversize load -, Nova Permit &Pilot Cars ("Nova") - the company hired to provide permit acquisition and escort services allowing the load to travel on the various roads along its route and to its destination in the United States - and D&T Escort Service ("D&T") - the service hired to escort the load on its route and to its destination. Defendants filed various cross-claims against one another.
Plaintiff settled his claims against defendants and on October 13, 2005 a Stipulation of Dismissal pursuant to FRCvP 41(a) was filed only as to plaintiff's claims against defendants. (Dkt. #200). Defendants' cross-claims against each other remain.
Pending before the Court are the following motions:
1) Defendant Conrail's motion pursuant to FRCvP 26(a)(2), 34(a)(2) and 37 to strike the expert affidavit filed by CAT and DesMeules in their papers in opposition to the then pending summary judgment motions*fn2 and also to strike any reference to said expert in the arguments relative to such motions (Dkt. #171);
2) Defendant D&T's motion pursuant to FRCvP 26(a)(1), 26(a)(2), 26(a)(5) and 37, also to strike the expert affidavit and any reference to it filed by CAT and DesMeules and/or to allow D&T the opportunity for further expert disclosure both as to the CAT/DesMeules expert and the retention of its own expert (Dkt. #175);
3) Defendant Conrail's motion seeking summary judgment on all cross-claims filed against it and in favor of its cross-claims against defendants CAT, DesMeules, D&T, and Nova (Dkt. #197);
4) Defendant D&T's motion for summary judgment seeking dismissal of all cross-claims filed against it (Dkt. #193)*fn3;
5) Defendant Nova's summary judgment motion seeking dismissal of all cross-claims filed against it, excluding CAT's cross-claim (Dkt#149).
Extensive papers have been filed, oral argument has been held on numerous previous dates and all of the above motions have been deemed submitted.
The Motions to Strike the Expert Affidavit
The Case Management Scheduling Order was filed on April 6, 2004 and is the only scheduling order in this case. (Dkt. 117). It stated in plain and simple language, that "all discovery herein shall be accomplished not later than January 21, 2005," (italics added, boldface in original) and that motions for summary judgment were to be filed by February 22, 2005. (Ibid.).
Almost three months after the expiration of discovery (April 15, 2005), defendants CAT and DesMeules first identified Mr. Hrycay as an expert when they filed their opposition papers to Conrail's and D&T's first motions for summary judgment. (Dkt. #140). Prior to this date there had been significant discovery and CAT and DesMeules had provided no expert disclosure to plaintiff or any of the other defendants. Further, in the nearly two months between the date of the filing of the summary judgment motions and the date they filed the Hrycay affidavit in their response to these motions, there is no indication that CAT and DesMeules ever disclosed to the others that Hrycay had been retained. Incidentally, Hrycay's affidavit seems to suggest that he had been retained at least one month prior to the filing of said affidavit. (Dkt. #140, ¶10). This case has neither a scheduled trial date, nor has been ordered to be ready for trial.
Conrail urges that the Court strike Hrycay's affidavit and any reference to it in the consideration of the summary judgment motions or at trial. D&T argues that "[t]he Court's use of the phrase 'all discovery' was to be inclusive of expert discovery." (Dkt. #175, p. 2). While D&T joins in the motion to strike, in the alternative it has also made a motion for further discovery of Hrycay and the opportunity to retain its own expert. CAT and DesMeules have no objection to this further expert disclosure and/or discovery.
Primarily, CAT and DesMeules argue that the disclosure of Hrycay was timely under FRCvP 26(a)(2)(c). At oral argument on the motion, counsel for CAT and DesMeules stated that he was under the impression that the Case Management Scheduling Order was issued in order to address some discovery problems CAT was having with Conrail and was not intended to specifically address expert disclosure. (07/15/05 Minute Entry). He provided no specific basis for this impression and the Court knows of no reason why he would make such an assumption.
D&T is correct in that the use of the phrase "all discovery" in this Court's Case Management Scheduling Order means all discovery, including expert discovery. This Court need not, and rarely does, address specific forms of discovery in its scheduling orders. Compare, Semi-Tech Litigation LLC v. Bankers Trust Co., ___ F.Supp.2d ___, 219 F.R.D. 324 (S.D.N.Y. 2004); Auscape International v. National Geographic Society, ___ F.Supp.2d ___, 2003 WL 2004463, on reconsideration, ___ F.Supp.2d ___, 2003 WL 21146628 (S.D.N.Y. 2003)(also uses the general phrase "all discovery" in its scheduling orders and holds that such clearly includes expert discovery). The provision in FRCvP 26(a)(2)(c), allowing expert disclosure within 90 days before trial "[i]n the absence of other directions from the court, or stipulation by the parties . . .", is not applicable because the Case Management Scheduling Order was the 'direction from the Court' as contemplated by that section. Auscape, supra. Therefore, CAT's and DesMeules' expert disclosure was not timely.
CAT and DesMeules alternatively argue that, if the disclosure is held to be untimely, preclusion is not an appropriate remedy because the violation was neither willful nor prejudicial. FRCvP 37(c)(1) provides 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, at a hearing, or on any motion any witness or information not so disclosed." "[This] provision is self-executing, and places the burden on the non-disclosing party to demonstrate substantial justification and the harmlessness of the failure to disclose. Nevertheless, the imposition of sanctions under this rule is discretionary, and preclusion is ordered only rarely." Potter v. Phillips, ___ F.Supp.2d ...