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Kolerski v. United States

August 13, 2007


The opinion of the court was delivered by: Hon. Hugh B. Scott


Before the Court are (a) defendant's motion to preclude plaintiffs' expert evidence, compel production of outstanding discovery, and to amend the Scheduling Order to give defendant more time to make its expert disclosure (Docket No. 26*fn1 ) and (b) plaintiff's cross-motion to amend the Scheduling Order (Docket No. 28*fn2 ). Responses to the defendant's motion were due by June 22, 2007, and reply was due by June 29, 2007 (Docket No. 27). To hear both motions together, responses to plaintiff's cross-motion also were due by June 29, 2007 (Docket No. 29). Both motions were argued on July 20, 2007 (Docket Nos. 27, 29, 32, 34, 35). Since none of these motions is dispositive, cf. 28 U.S.C. § 636(b)(1)(A), although granting defendant's motion may lead to limiting or curtailing plaintiffs' case, these motions will be consider in this Order.


Plaintiffs sued defendant the United States for the alleged negligent medical care of decedent Edward Heath by the Veterans Administration Medical Center. Plaintiffs (Heath's children and co-executors) claim that defendant's negligence resulted in Mr. Heath's death (see generally Docket No. 1, Compl.; Docket No. 6, Am. Compl.). Defendant answered the Amended Complaint (Docket No. 7) and moved for leave to amend that answer (Docket No. 15), apparently without opposition from plaintiffs (see Docket No. 19, Order of Feb. 1, 2007, at 1; see also Docket No. 20, Am. Ans.). Following a Scheduling Conference (see Docket No. 11), the Court entered a Scheduling Order in which plaintiffs' expert disclosure was due by May 16, 2007, defendant's expert disclosure was due by June 1, 2007, and all discovery was to be completed by August 7, 2007 (Docket No. 12).

Defendant then filed its first motion to compel production of initial disclosures, answers to interrogatories, and production of documents (Docket No. 22). Again, it appeared that plaintiffs did not respond to this motion, so the motion was granted (Docket No. 25, Order of May 16, 2007). Plaintiffs were ordered forthwith to produce the sought disclosure and discovery (id.).

On May 31, 2007, defendant filed its second motion (Docket No. 26), seeking to preclude plaintiffs from offering any expert evidence in this case because plaintiffs had not produced their expert disclosure. Defendant also seeks to compel production of certain outstanding medical, Social Security, and pharmacy authorizations (Docket No. 33, Def. Atty. Aff. ¶ 11(b)). As for the Scheduling Order (see Docket No. 12), defendant moves for a thirty-day extension (or to September 1, 2007) to make its expert disclosure, and extensions for subsequent discovery and scheduling dates to have discovery conclude by November 1, 2007 (Docket No. 26, Def. Atty. Aff. ¶ 33(b); cf. Docket No. 33, Def. Atty. Aff. ¶ 11(d) (seeking expert disclosure by November 1, 2007, or thirty days after plaintiffs' expert disclosure)).

Plaintiffs cross-moved to deny defendant's motion, to compel defendant to accept plaintiffs' disclosures and expert report (included with the cross-motion, Docket No. 28, Exs. A, B), and to extend the Scheduling Order to have discovery conclude by November 1, 2007, and amend the other Scheduling Order deadlines (Docket No. 30, Pl. Atty. Revised Aff. at fifth unnumbered page, "Wherefore" cls. a, b, c, d). Plaintiffs' counsel claims that she did not receive the electronically filed and served notices, orders, and motions in this action for the first six months of 2007 (Docket No. 30, Pl. Atty. Revised Aff. ¶ 5). According to counsel's information technology director, plaintiffs' counsel had a single dedicated e-mail address for federal filings but that address was not receiving e-mail, and that account last received e-mail about this case on December 2006 (Docket No. 28, Ex. C, Andres Leetmaa Aff. ¶¶ 3, 4, 7). After raising the issue of this e-mail account, on June 1, 2007, the information technology director copied the docket entries and attachments and e-mailed them to counsel at a separate address and, on June 4, fixed counsel's e-mail, which then delivered the electronic notices to her inbox (id. ¶¶ 5, 6, Ex. D). Plaintiffs eventually sent the disclosure and sought discovery to defense counsel by June 19, 2007 (id., Ex. E).

Defendant replies that plaintiffs were aware (or should have been aware) of the deadlines from plaintiffs' attendance at the Scheduling Conference where the Scheduling Order was set forth, despite plaintiffs' counsel's computer difficulties in not receiving Docket Numbers 15 through 27 (Docket No. 33, Def. Atty. Aff. ¶ 4). Their counsel was thus on notice that any extension from those deadlines needed to occur before the disclosure date (id. ¶¶ 4, 5). Defendant argues that plaintiffs were aware of discovery being outstanding from defense counsel's undisputed postal and electronic correspondence with plaintiffs' counsel (Docket No. 26, Def. Atty. Aff. ¶¶ 10, 11, 15, Exs. D, E, G), which plaintiffs' counsel responded to back in March 22, 2007 (id. ¶ 13, Ex. F). Defense counsel continued to write in April 30, 2007, to obtain complete disclosure (id. ¶ 20, Ex. H), and indicated in May 31, 2007, that rescheduled depositions could not go forward until this document production is completed (id. Ex. I). Plaintiffs eventually produced initial disclosure, supplemental answers to interrogatories, and a response to the notice to produce by June 20, 2007, and supplied medical records from Mercy Hospital by June 5, 2007, although plaintiffs' counsel had a set of these records by April 26, 2007 (id. ¶ 18; Docket No. 33, Def. Atty. Aff. ¶ 8). Plaintiffs thus produced discovery in the face of defendant's most recent motion.

Defense counsel (and the Court) was not aware that plaintiffs' counsel was not receiving electronic filings and service until plaintiffs' cross-motion.


I. Motion to Preclude

Federal Rule of Civil Procedure 37(a) allows a party to apply to the Court for an Order compelling discovery, with that motion including a certification that the movant in good faith conferred or attempted to confer with the party not making the disclosure to secure that disclosure without court intervention. Fed. R. Civ. P. 37(a)(2)(A). Even if the opposing party serves the sought discovery in the face of the motion, that party may still be liable for reasonable motion expenses as a sanction, Fed. R. Civ. P. 37(a)(4). If a party fails to obey an Order compelling production, or fails to serve interrogatory answers, that party faces additional sanctions, id. R. 37(b)(2), (d). If that party also fails, "without substantial justification," to disclose initial disclosures, that party may be precluded from using that evidence at trial, id. R. 37(c)(1). Imposition of Rule 37(b)(2) or (d) sanctions for failure to comply with discovery demands or order to compel must be weighed in light of the full record. Cine Forty-Second Street Theatre Corp. v. Allied Artists Pictures, 602 F.2d 1063, 1068 (2d Cir. 1979).

Rule 37(b)(2) and (d) each call upon the Court to make such orders in regard to disclosure failures as are just. This Court has wide discretion to impose sanctions and determine the type of sanction to be imposed under either subdivision of Rule 37. See Reilly v. NatWest Markets Group Inc., 181 F.3d 253, 267 (2d Cir. 1999). The rule lists various sanctions including preclusion or dismissal of claims. Fed. R. Civ. P. 37(d), (b)(2)(B) (refusing to allow disobedient party to support claim or defense), (C) (striking pleadings), or (D) (contempt of court for failing to produce witness, as well as payment of opponent's reasonable expenses, and attorneys' fees). This Court has precluded delinquent parties from offering expert opinions in evidence where there has not been timely disclosure, Arnold v. Krause, 232 F.R.D. 58, 67-69 (W.D.N.Y. 2004) (Foschio, Mag. J.) (where plaintiffs was unwilling to proceed with discovery, despite court issuing three scheduling orders, with last order stating that no further amendments would be ordered), aff'd, 233 F.R.D. 126 (W.D.N.Y. 2005) (Arcara, Ch.J.). Disobeying a pretrial Order has similar sanctions under Rule 16(f), see Coleman v. Dydula, 139 F. Supp. 2d 388, 396-97 (W.D.N.Y. 2001) (Curtin, J.). Magistrate Judge Foschio, in Arnold, recognized that preclusion of expert testimony in a products liability case is a drastic remedy that should be used "only where the 'party's conduct represents flagrant bad faith and callous disregard for the federal rules,'" Arnold, supra, 232 F.R.D. at 68 (quoting McNerney v. Archer Daniels Midland Company, 164 F.R.D. 584, 587 (W.D.N.Y. 1995) (Heckman, Mag. J.)).

"In deciding whether to preclude an expert's trial testimony for a party's failure to make timely expert witness disclosures pursuant to a case management order as a sanction under Rule 37(c)(1), courts consider several factors including (1) the reason for the failure to timely disclose, (2) the importance of the testimony, (3) potential prejudice in allowing the testimony, and (4) the availability of a continuance to cure such prejudice. Potomac Electric Power Co. ...

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