UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
March 30, 2007
EMIL POLLACK, PLAINTIFF,
SAFEWAY STEEL PRODUCTS, INC., MARCH ASSOCIATES, ORANGEBURG HOLDING, LLC AND LOWE'S HOME CENTERS, INC., DEFENDANTS.
LOWE'S HOME CENTERS, INC., THIRD-PARTY PLAINTIFF,
CMC CONCRETE MASONRY, THIRD-PARTY DEFENDANT.
SAFEWAY STEEL PRODUCTS, INC., SECOND THIRD-PARTY PLAINTIFF,
CMC CONCRETE MASONRY, SECOND THIRD-PARTY DEFENDANT.
The opinion of the court was delivered by: Conner, Senior D.J.
OPINION AND ORDER
Plaintiff Emil Pollack brought this action against defendants Safeway Steel Products, Inc., ("Safeway"), March Associates ("March"), Orangeburg Holding, LLC ("Orangeburg") and Lowe's Home Centers, Inc. ("Lowe's") (collectively, "defendants") for violations of New York State Labor Law §§ 240(1), 241(6) and 200 and claims for common law negligence and strict products liability. Both Lowe's and Safeway brought third-party actions against CMC Concrete Masonry ("CMC") for contribution and indemnification. The parties filed motions for summary judgment pursuant to FED. R. CIV. P. 56 and, in an Opinion and Order dated September 29, 2006 (the "Opinion and Order"), we denied each motion in its entirety, except for Safeway's motion for summary judgment on plaintiff's claim under New York State Labor Law § 200, which we granted. Safeway now "moves for reconsideration" of an issue that was briefed in its opposition to plaintiff's Motion for Summary Judgment, but not addressed in our prior Opinion and Order. Specifically, Safeway contends that plaintiff's expert witness, Steven Pietropaolo ("Pietropaolo"), should be precluded from testifying at trial in light of plaintiff's alleged failure to disclose him as an expert as required by FED. R. CIV. P. 16 ("Rule 16")*fn1 and FED. R. CIV. P. 26(a)(2)(B) ("Rule 26").*fn2 For the following reasons, its motion is denied.
The facts relevant to this lawsuit are set forth in detail in our prior Opinion and Order, familiarity with which is presumed. In brief, plaintiff was hired by CMC as a mason tender to assist in the construction of a Lowe's home improvement and hardware store. While distributing cement to masons on a scaffolding, he fell and was seriously injured. Presently, the only question is whether plaintiff complied with the applicable discovery rules in disclosing the identity of its testifying expert witness and, if not, whether that expert should be precluded from testifying at trial. The relevant facts are as follows.
Culminating in September 2006, the parties engaged in extensive motion practice, including summary judgment motions filed by plaintiff and all defendants. In support of plaintiff's motion for summary judgment, plaintiff's counsel submitted the affidavit of Pietropaolo, disclosing for the first time his intention to call Pietropaolo as an expert witness. Pietropaolo is a professional engineer licensed to practice in New York and has served on numerous occasions as an expert in cases involving construction accidents. (See Hymowitz Aff., Ex. A. (Pietropaolo Aff. ¶ 1).) In his affidavit, Pietropaolo opined that:
The plaintiff's fall and resulting injuries were due to the lack of a properly designed, installed, and fastened railing system for the subject Sectional Scaffolding provided and installed by Safeway. . . . The railing did not conform to the requirements and codes set forth in the Labor Law and Industrial Code of New York State, nor the Federal requirements from OSHA because the system could not support the lateral load from the plaintiff when he touched the rail, and the rail was constructed of a makeshift 1x2 member not properly supported or tied. . . . The Owner and General Contractor did not provide a safe working scaffolding as required by the New York State Labor Law sections 240 and 241, and the Industrial Code of New York State.
The Owner and General Contractor did not provide a safe place to work. . . . The scaffolding supplier did not provide, install and erect a proper railing system in accordance with their own specifications and the requirements promulgated by the rules and laws of the New York State Labor Law and Industrial Code . . . . The plaintiff's employer did not provide adequate fall protection safety measures on the job. (See Hymowitz Aff., Ex. A. (Pietropaolo Aff. ¶ 11).) Attached to Pietropaolo's affidavit was his curriculum vitae consisting of six pages, including his educational background, information regarding his professional license, his certifications, the professional development seminars and training sessions that he attended, his professional experience and professional affiliations. (See id. (Curriculum Vitae).) Also attached was a detailed list of cases in which Pietropaolo testified as an expert. (See id. (Expert Case Testimony).)
Plaintiff had not disclosed to Safeway that it had retained Pietropaolo as a testifying expert, as required by Rule 26, prior to the filing of Pietropaolo's affidavit in support of his summary judgment motion, which was on May 24, 2006 -- more than two months after the close of expert discovery.*fn3 Accordingly, in its opposition to plaintiff's motion, Safeway requested that the Court preclude plaintiff from offering Pietropaolo's affidavit or testimony.*fn4 (See Bushway 6/2/06 Aff. ¶ 22.) Safeway, however, did not file a motion to strike at this time, and its informal request was one of five arguments briefed in its June 2, 2006 affidavit. In our Opinion and Order, we did not rely upon Pietropaolo's affidavit and therefore did not address whether his affidavit should be stricken.
Safeway thereafter filed the present motion for reconsideration, requesting that we preclude plaintiff from offering Pietropaolo's testimony at trial due to plaintiff's failure to comply with the discovery deadline and disclosure requirements of Rule 26. Plaintiff, in response, argues that he complied with Rule 26's disclosure requirements and that Safeway has ample time to depose Pietropaolo and retain a rebutal witness prior to trial. We agree with plaintiff.
I. Legal Standard
A motion for reconsideration is governed by Local Rule 6.3*fn5 and should be granted only when the moving party demonstrates that the court overlooked "controlling decisions or factual matters that were put before it on the underlying motion . . . and which, had they been considered, might have reasonably altered the result before the court." In re Methyl Tertiary Butyl Ether Prods. Liab. Litig., No. 00 Civ. 1898, 2001 U.S. Dist. LEXIS 13886, at *1 (S.D.N.Y. Sept. 7, 2001) (internal quotation marks and citations omitted). The decision of whether to grant or deny a motion for reconsideration lies within "the sound discretion of a district court judge." Bennett v. Watson Wyatt & Co., 156 F. Supp. 2d 270, 271-72 (S.D.N.Y. 2001) (quoting McCarthy v. Manson, 714 F.2d 234, 237 (2d Cir. 1983)). The Second Circuit has stated that "the standard for granting [a motion for reconsideration] is strict, and reconsideration will generally be denied." Shrader v. CSX Transp. Inc., 70 F.3d 255, 257 (2d Cir. 1995); see also In re Health Mgmt. Sys., Inc. Sec. Litig., 113 F. Supp. 2d 613, 614 (S.D.N.Y. 2000) ("'reconsideration of a previous order is an extraordinary remedy to be employed sparingly in the interests of finality and conservation of scarce judicial resources.'"
(internal citation omitted)). Accordingly, in the district courts, "reconsideration is . . . narrowly construed and strictly applied so as to avoid repetitive arguments." Ursa Minor Ltd. v. Aon Fin. Prods., Inc., No. 00 Civ. 2474, 2000 U.S. Dist. LEXIS 12968, at *2 (S.D.N.Y. Sept. 7, 2000) (internal quotation marks omitted). However, a court may grant a motion for reconsideration "to correct a clear error or prevent manifest injustice." Virgin Atlantic Airways, Ltd. v. Nat'l Mediation Bd., 956 F.2d 1245, 1255 (2d Cir. 1992); see also Seippel v. Jenkens & Gilchrist, P.C., No. 03 Civ. 6942, 2004 U.S. Dist. LEXIS 21589, at *1 (S.D.N.Y. Oct. 26, 2004); U.S. Titan, Inc. v. Guangzhou Zhen Hua Shipping Co., 182 F.R.D. 97, 100 (S.D.N.Y. 1998) (Conner, J.), aff'd, 241 F.3d 135 (2d Cir. 2001) ("Local Civil Rule 6.3 provides the Court with an opportunity to correct manifest errors of law or fact, hear newly discovered evidence, consider a change in the applicable law or prevent manifest injustice.").
Safeway's present motion requests that we reconsider an issue that we did not previously address and thus it is not properly termed a motion for reconsideration. During the previous motion practice, Safeway did not file a formal motion to preclude the expert's testimony but merely made an argument to that effect in its affidavit, among several other arguments in opposition to plaintiff's motion for summary judgment. We did not consider the argument to preclude the expert's testimony because it was not necessary to our decision and, consequently, there is no ruling to reconsider.
II. Rule 26
Overlooking this procedural defect,*fn6 Safeway's motion must be denied. Safeway argues that plaintiff did not comply with Rule 26's disclosure requirements and that it failed to disclose Pietropaolo as its expert until after the close of expert discovery. It contends that if we were to allow Pietropaolo to testify, it would be unduly prejudiced. We disagree.
Rule 26 provides:
[A] party shall disclose to other parties the identity of any person who may be used at trial to present evidence under Rules 702, 703, or 705 of the Federal Rules of Evidence.  Except as otherwise stipulated or directed by the court, this disclosure shall, with respect to a witness who is retained or specially employed to provide expert testimony in the case or whose duties as an employee of the party regularly involve giving expert testimony, be accompanied by a written report prepared and signed by the witness. The report shall contain a complete statement of all opinions to be expressed and the basis and reasons therefor; the data or other information considered by the witness in forming the opinions; any exhibits to be used as a summary of or support for the opinions; the qualifications of the witness, including a list of all publications authored by the witness within the preceding ten years; the compensation to be paid for the study and testimony; and a listing of any other cases in which the witness has testified as an expert at trial or by deposition within the preceding four years.
In the present case, Pietropaolo's affidavit contained almost all of the information required by Rule 26. Specifically, it stated that Pietropaolo was retained to "review this matter on behalf of the plaintiff and to render an opinion with regard to the general condition of the scaffolding at the time of the accident and whether there were any applicable statutory violations of the New York State Labor Law, OSHA and the New York State Industrial Code." (See Hymowtiz Aff., Ex. A. (Pietropaolo Aff. ¶ 1).) It listed the various documents upon which Pietropaolo relied in forming his opinion, including the Verified Complaint, Verified Bill of Particulars, Police Incident Report, Worker's Compensation form C-3, color photographs of the scaffolding, transcripts of the depositions of plaintiff and of Charles Neubig from Safeway, Joseph Caravella and Michael Kolasa from CMC and Michael Sette from March, the contract between March and CMC, Safeway's motion for summary judgment, and disclosures by CMC and Safeway. (See id. (Pietropaolo Aff. ¶ 2).) It also summarized the relevant facts and offered a detailed opinion on the defectiveness of the scaffolding. (See id. (Pietropaolo Aff. ¶¶ 3-6).) Lastly, the affidavit outlined the applicable law and concluded, inter alia, that "plaintiff's fall and resulting injuries were due to the lack of a properly designed, installed, and fastened railing system for the subject Sectional Scaffolding provided and installed by Safeway." (See id. (Pietropaolo Aff. ¶¶ 6-11).) See supra p. 2. As noted, the affidavit also attached his curriculum vitae and a list of cases in which Pietropaolo testified as an expert. (See id. (Pietropaolo Aff., Curriculum Vitae and Expert Case Testimony).) The only shortcoming, which is not cited by Safeway, is the failure to disclose the amount of Pietropaolo's fee.
However, Safeway is correct that the discovery deadline for expert depositions was March 15, 2006 and that plaintiff's disclosure was untimely.*fn7 See, e.g., Dippel v. Farrell Lines Inc., No. 03 Civ. 130, 2004 WL 369140, at *1 (S.D.N.Y. Feb. 27, 2004) ("a party must disclose . . . an expert it has retained at the time directed by the Court.") The Court, however, declines to impose the harsh remedy of exclusion for either plaintiff's delay or the expert's failure to disclose his fee schedule in the report.
FED. R. CIV. P. 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 . . . any witness or information not so disclosed." As one district court explained:
This rule provides for the automatic exclusion of a witness who was not disclosed despite a party's duty to disclose. See Advisory Committee Notes, 146 F.R.D. 682, 691 (1993). However, the impact of this exclusion is softened if the offending party's failure to disclose was "substantially justified". Furthermore, even if the failure to disclose was not substantially justified, the exclusion will not apply if the failure was harmless. Courts have held that imposition of Rule 37 sanctions is a "drastic remedy" that should only be applied "in those rare cases where a party's conduct represents flagrant bad faith and callous disregard of the Federal Rules of Civil Procedure." Hinton v. Patnaude, 162 F.R.D. 435, 439 (N.D.N.Y. 1995) (emphasis added); see also McNerney v. Archer Daniels Midland Co., 164 F.R.D. 584 (W.D.N.Y. 1995); Sterling v. Interlake Ind., Inc., 154 F.R.D. 579 (E.D.N.Y. 1994).
Grdinich v. Bradlees,187 F.R.D. 77, 79 (S.D.N.Y. 1999) (emphasis in original). Safeway does not assert that plaintiff acted in bad faith, and the interests of justice are better served by permitting plaintiff's expert to testify about the defectiveness of the scaffolding -- an issue at the center of this litigation. See Dippel, 2004 WL 369140, at *2.
Moreover, Safeway will not be prejudiced if we allow Pietropaolo to testify at trial. Safeway has known of plaintiff's intention to call him as an expert since March 2006, and if Safeway wishes to depose Pietropaolo and/or retain an expert to rebut his testimony, it has ample time to do so prior to the June 25, 2007 trial date. In any event, the parties, with the Court's permission, have not yet completed their expert discovery.*fn8
We must emphasize that the discovery period is not being re-opened for all purposes; any additional discovery must be limited*fn9 to the depositions of Pietropaolo and Safeway's rebuttal witness, if any, and the required Rule 26 disclosures in connection therewith.*fn10 All expert disclosures should be served by May 15, 2007 and all depositions should be completed by May 25, 2007.
For the foregoing reasons, defendant Safway Steel Products, Inc. ("Safway")'s motion for reconsideration is denied. Safway may retain an expert witness to rebut plaintiff Emil Pollack's expert witness, Steven Pietropaolo ("Pietropaolo"). All disclosures pursuant to FED. R. CIV. P. 26 in connection with Pietropaolo and Safway's rebuttal witness, if any, must be served by May 15, 2007. All depositions of Pietropaolo and defendant's rebuttal witness, if any, must be completed by May 25, 2007.