The opinion of the court was delivered by: Thomas J. McAVOY, Senior United States District Judge
Plaintiffs Richard Gould and Starr Gould ("Plaintiffs") commenced this personal injury action against Defendants Rexon Industrial Corp, LTD. and Rexon America Corp. (collectively "Defendants" or "Rexon") arising out of an accident involving a table saw. This matter was previously the subject of a Decision & Order in connection with Defendants' motion for summary judgment, familiarity with which is assumed. Presently before the Court is Defendants' motion to:
(1) preclude Plaintiff from reopening discovery; (2) preclude Plaintiff's expert from testifying with respect to alternative designs; and (3) to dismiss the Complaint. Plaintiff has timely opposed the motion.
The source of the instant disputes arises out of the fact that, although Plaintiff's Complaint arguably alleges a design defect claim, Plaintiff, by his own admission, never actively pursued such a claim. This includes Plaintiff's failure to pursue this theory through the discovery process. Instead, Plaintiff opted to pursue a failure to warn theory. Plaintiff obtained an expert on the failure to warn theory, but did not timely obtain an expert opinion on the design defect theory.
By Decision & Order dated August 8, 2006, the Court granted Defendants' motion for summary judgment with respect to the failure to warn claim, but denied Defendants' motion for summary judgment with respect to the design defect claim. As a result of this decision, Plaintiff renewed his interest in pursuing the design defect claim. Consequently, Plaintiff returned to his previously retained expert, Wilbur Meredith, III (who previously issued an opinion on the failure to warn theory) and asked for an opinion on the design defect theory.
On or about September 6, 2006, Plaintiff served a supplemental expert disclosure. In the supplemental disclosure, Plaintiff's expert opined that a certain device (a SawStop) became available in 2000 that would have prevented the injuries sustained by Plaintiff. Plaintiff offered Defendant the opportunity to depose Mr. Meredith on the supplemental disclosure. Defendant refused the supplemental disclosure and the offer to depose Mr. Meredith on the ground that the supplemental disclosure was untimely and discovery was closed. The disagreement over the supplemental disclosure was addressed in a conference with Magistrate Judge Peebles who, by Order dated September 28, 2006, denied Plaintiff's request to reopen discovery and to extend the period for making expert disclosures. In his Order, Magistrate Judge Peebles expressly stated that "[t]his ruling does not preclude the plaintiff from submitting the question of whether or not to permit previously undisclosed testimony on the issue of design defect to [the District Court]."
To the extent Plaintiff seeks to reopen discovery, this issue already has been addressed by Magistrate Judge Peebles. The request to reopen discovery and extend the deadline for serving expert disclosures was denied. No appeal was taken of that decision. Accordingly, discovery will not be reopened and the time for serving expert disclosures will not be extended.
B. Testimony on Design Defect
Pursuant to Fed. R. Civ. P. 37(c)(1), "[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 trial, at a hearing, or on a motion any witness or information not so disclosed."Exclusion is automatic unless Plaintiff can demonstrate substantial justification for the failure to disclose or that the failure to disclose is harmless. The Second Circuit has instructed courts to apply the following factors: (1) the party's explanation for the failure to comply with the disclosure requirement; (2) the importance of the testimony of the precluded witness; (3) the prejudice suffered by the opposing party as a result of having to prepare to meet the new testimony; and (4) the possibility of a continuance. Patterson v. Balsamico, 440 F.3d 104, 117 (2d Cir. 2006).
1. Plaintiff's Explanation for Failure to Comply with the Disclosure Requirement
In his responsive papers, Plaintiff concedes that "Plaintiff's position is weakest with respect to this factor." Pl. Tr. Br. at 1-2. Plaintiff admits that, although he did timely submit an expert disclosure, "the focus of the same was on the failure to warn claim." Pl. Tr. Br. at 1. Plaintiff further states that he "should have been aware of the need to present expert testimony on the design defect claim since the amended complaint filed December 5, 2005 clearly pled plaintiff would be presenting evidence on ...