MEMORANDUM-DECISION AND ORDER
Plaintiff Jason Haas ("Plaintiff") was injured while working for Defendant Delaware and Hudson Railway Company, Inc. d/b/a CP Rail System ("D&H" or "Defendant") and commenced this action, pursuant to the Federal Employers' Liability Act ("FELA"), 45 U.S.C. § 51 et seq., for Defendant's failure to provide him with a safe place to work. Compl. (Dkt. No. 1). Presently before the Court is Defendant's Motion for summary judgment based on: (1) Plaintiff's failure to offer proof of a specific defect in the railroad switch that caused or contributed to his injury, (2) Plaintiff's failure to support his allegations of Defendant's negligence; and (3) the fact that the incident was not foreseeable because Defendant had no notice of any defect. Deft's Mem. of Law (Dkt. No. 9, Attach. 17) at 1.
D&H employed Plaintiff as a conductor and, on May 1, 2004, he was assigned to D&H's railroad yard in Binghamton, New York. Deft's Stmnt of Mat. Facts (Dkt. No. 9, Attach. 16) at ¶ 1. Between 4:30 and 5:00am that day, Plaintiff manually operated a rail switch in the yard known as the "north lead switch" or "new lead switch" (hereinafter, the "Switch").*fn1 Id. at ¶ 2. While Plaintiff could not identify anything wrong with the Switch, id. at ¶ 3, he testified that he had to use more force than normal when he threw the Switch that morning, which he asserts led to his injuries. Plntf's Add. Stmnt of Mat. Facts (Dkt. No. 12) at ¶¶ 1, 3. Plaintiff had operated the Switch before without incident and was not aware of any defect in it. Deft's Stmnt of Mat. Facts (Dkt. No. 9, Attach. 16) at ¶¶ 4-6.
Plaintiff did not report the injury to his shoulder to anyone on the day of the incident. Id. at ¶ 7. Plaintiff did not seek any first aid, completed the remained of his shift on May 1, and was able to work the next day as well. Id. at ¶ 8. However, Plaintiff testified that he felt a "little pull, a sharp pain" after throwing the Switch. Plntf's Add. Stmnt of Mat. Facts (Dkt. No. 12) at ¶ 4. Plaintiff also explained in his deposition that once he completed his shift around midnight on May 2, he immediately went back to his hotel room to get some rest so he would be able to go back to work, as expected, only eight (8) hours later at 8:00am. Id. at ¶ 5. Plaintiff recalled that he did tell his co-workers the following morning, May 2, that the pain in his shoulder caused him to sleep badly the previous night. Id. at ¶ 6. Moreover, Plaintiff explained that he was able to work a full eight (8) hour shift on May 2 because of the light workload at the yard that day. Id. at
¶ 7. Plaintiff testified that he realized the evening of May 2 that he was injured, and not just sore, when he was unable to move his arm during dinner with his family. Id. at ¶ 8.
At 11:30am on May 3, Plaintiff called William Farley ("Farley"), the terminal coordinator at the yard, and reported that he had been injured. Deft's Stmnt of Mat. Facts (Dkt. No. 9, Attach. 16) at ¶ 10. Farley testified that Plaintiff told him that he did not know how he hurt his shoulder, but Plaintiff did tell him that the Switch had been hard to throw. Id. at ¶ 11; Farley Dep. (Dkt. No. 9, Attach. 12, Ex. I) at 9-10. During their telephone conversation, Plaintiff told Farley that he had not reported his injury the day it occurred, as he was required to by D&H's rules, because he did not know he was injured or where he had been injured. Farley Dep. (Dkt. No. 9, Attach. 12, Ex. I) at 9. However, Plaintiff did inform Farley that the only difficulty he had on the day of the incident was that the Switch had been hard to throw. Farley Report (Dkt. No. 9, Attach. 13, Ex. J). After their conversation, at approximately 1:00pm, Farley visually inspected the Switch, did not observe anything blocking it, and also threw it and determined that it was operating normally. Deft's Stmnt of Mat. Facts (Dkt. No. 9, Attach. 16) at ¶ 12; Farley Dep. (Dkt. No. 9, Attach. 12, Ex. I) at 6. On May 4, Plaintiff sought treatment for his injury from Drs. Robert Hedderman and Hani Midani. Deft's Stmnt of Mat. Facts (Dkt. No. 9, Attach. 16) at ¶ 14.
Pursuant to federal regulations, the Switch would have been inspected, generally towards the end of every month, by Paul Spisak ("Spisak"), a track foreman, who prepared reports to document his inspections. Id. at ¶¶ 15, 18. A switch would also be inspected if a report was received that it was hard to throw. Id. at ¶ 15. The rail switches in the yard are oiled once a week. Id. at ¶ 16.
D&H claims that the Switch at issue was fairly new (less than five (5) years old) and thrown infrequently, which would mean that it needed less maintenance than other rail switches. See id. at ¶ 17. Spisak inspected the Switch on February 26, March 31, and April 27, 2004 and found that it was operating properly. Id. at 19. Moreover, in his deposition, Spisak stated that he was not aware of anyone complaining about the Switch. Spisak Dep. (Dkt. No. 9, Attach. 14, Ex. K) at 24. In response to Defendant's Motion, Plaintiff submitted an affidavit from Gary Sheehan ("Sheehan"), one of his co-workers and a union representative for the United Transportation Union. Sheehan Aff. (Dkt. No. 11, Attach. 5). Sheehan made several representations in his affidavit regarding the condition of the Switch and complaints made to Defendant. Id. However, as discussed below, the Court has not considered Sheehan's affidavit and does not recount its specifics here.
A. Motion to Preclude Sheehan Affidavit
Defendant argues that the Court should disregard Sheehan's affidavit because Plaintiff failed to disclose Sheehan as a witness at any point during discovery in this case. Deft's Reply (Dkt. No. 16, Attach. 1) at 2. D&H asserts that Plaintiff failed to supplement or correct his discovery response, as he is required to do under Rule 26(e) of the Federal Rules of Civil Procedure, when he learned that his answers were materially incomplete or incorrect. Id. at 3. D&H only learned of Plaintiff's reliance on Sheehan's affidavit in his response to the Motion for summary judgment.
Rule 37(c)(1) of the Federal Rules of Civil Procedure provides, in relevant part: "A party that without substantial justification fails to disclose information as required by . . . Rule 26(e)(1), or to amend a prior response to discovery as required by Rule 26(e)(2), is not, unless such failure is harmless, permitted to use as evidence at a trial, at a hearing, or on a motion any witness or information not so disclosed." FED. R. CIV. P. 37(c)(1). This rule prevents a party from using information in summary judgment motions not previously disclosed to opposing counsel. Fleming v. Verizon N.Y., Inc., No. 03 Civ. 5639 (WHP), 2006 U.S. Dist. LEXIS 68632, at *22 (S.D.N.Y. Sept. 25, 2006). The intention behind this preclusionary rule is to prevent the practice of "sandbagging" an adversary with new evidence. Id. (quoting Ventra v. United States, 121 F. Supp. 2d 326, 332 (S.D.N.Y. 2000)). However, courts have recognized that preclusion of evidence is a "drastic remedy and should be exercised with caution." Id.
Courts disagree regarding the requirements for excluding nondisclosed information at trial and on a motion. Hein v. Cuprum, S.A., 53 Fed. Appx. 134, 137 (2d Cir. 2002) (unpublished). While some trial courts in this Circuit have read a bad-faith requirement into Rule 37(c)(1), the Second Circuit has not expressed an opinion regarding whether such a showing is necessary before evidence may be excluded under the rule. Id. Rule 37(c)(1) is written in mandatory terms, and is designed to provide strong inducement for disclosure of information, however, the rule does expressly provide that the information should not be excluded if the failure to disclose was harmless or if a substantial justification exists for such a failure. Design Strategies, Inc. v. Davis, 367 F. Supp. 2d 630, 634 (S.D.N.Y. 2005) (citing Newman v. GHS Osteopathic, Inc., 60 F.3d 153, 156 (3d Cir. 1995)). As a result, the Court will preclude the use of Sheehan's affidavit if there was not a substantial justification for Plaintiff's failure to disclose his information or unless the failure to disclose was harmless. Id.
D&H explains that it served interrogatories on Plaintiff's attorney requesting the "name, address and present whereabouts of anyone whom [Plaintiff] believe[s] was not a witness to [his] accident but has knowledge of it." Deft's Reply (Dkt. No. 16, Attach. 1) at 2; Plntf's Interrogatory Answers (Dkt. No. 9, Attach. 5, Ex. C) at ¶ 5. Plaintiff's reply refers to George McNulty, a trainee with McNulty, Bill Coleman, his treating physicians, and D&H's claims agents. Id. D&H also states that it asked Plaintiff to identify whether there was actual or constructive notice of the Switch's condition and the names and addresses of any witnesses Plaintiff intended to call at trial regarding the notice issue. Deft's Reply (Dkt. No. 16, ...