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Carovski v. Jordan

July 21, 2008

DIANA CAROVSKI PLAINTIFF,
v.
RONALD JORDAN, U.S. BULK TRANSPORT, INC. DEFENDANTS.



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

Order

Before the Court are plaintiff's motions (1) to (a) compel defendants to produce copies of her neuropsychological examination (see Docket No. 31, Order) prior to defendants' expert disclosure deadline and (b) to extend the Scheduling Order (Docket No. 32*fn1 , filed May 8, 2008) and (2) defendants' cross-motion to compel plaintiff to produce authorizations and to supply omitted data from her expert (Docket No. 34*fn2 , filed June 9, 2008). Responses to plaintiffs' motions were due by June 10, 2008, with any reply due by June 17, 2008 (Docket No. 33), and those motions initially were deemed submitted (without oral argument) on June 17, 2008. That briefing Order also stayed the discovery deadlines pending resolution of these motions (id.). After defendants filed their motion, responses to that motion were due by June 24, 2008, with any reply due by July 1, 2008 (Docket No. 35). All pending motions were deemed submitted (without oral argument) on July 1, 2008, for this consolidated consideration (id.).

BACKGROUND

Plaintiff filed a Summons and Complaint (and later an Amended Summons and Complaint) in New York State Supreme Court against defendants alleging injuries from an automobile-truck accident (see Docket No. 1, Notice of Removal, Ex. A). On October 8, 2003, plaintiff was driving a motor vehicle eastbound on the New York State Thruway in the Town of Batavia when she was struck by defendant Jordan driving a vehicle owned by defendant U.S. Bulk Transfer, sustaining "severe, permanent and painful injuries" (id. Ex. A, Compl., Am. Compl.). She alleged that she sustained serious injuries pursuant to New York Insurance Law § 5120(d) (id., Ex. A, Am. Compl. ¶ SEVENTH).

Defendants removed this action to this Court (Docket No. 1) under diversity jurisdiction and filed a joint Answer (Docket No. 9). Defendants raised affirmative defenses of the negligence of others; the action being barred by the New York State No-Fault law, N.Y. Ins. Law §§ 5101 et seq.; collateral source indemnification of plaintiff's expenses; claims barred by the Graves Law, 49 U.S.C. § 30106; failure to mitigate damages; barred by statute of limitations (id.). This case then was referred to the undersigned on August 6, 2007 (Docket No. 10). Plaintiff's Motions

Defendants noticed plaintiff to undergo neuropsychological and vocational rehabilitation examinations in April 2008 (Docket No. 32, Pl. Atty. Aff. ¶¶ 5-6). As of the date of filing these motions, plaintiff had not received a copy of the reports from these examinations (id. ¶ 7), with defense counsel refusing to produce the reports before the June 18, 2008, deadline (id.). Plaintiff formally requested these reports on May 6, 2008 (id. ¶ 8, Ex. B).

The current Amended Scheduling Order had plaintiff's expert disclosure due by May 9, 2008, defense expert disclosures were due by June 18, 2008, and all discovery was to be completed by July 9, 2008 (Docket No. 19*fn3 ; see Docket No. 32, Pl. Atty. Aff. ¶ 3, Ex. A; see also Docket No. 34, Defs. Atty. Aff. Ex. A). Plaintiff seeks to extend these deadlines (and subsequent deadlines as well) due to not obtaining the reports from her examinations (Docket No. 32, Pl. Atty. Aff. ¶¶ 4, 15, 18). Plaintiff's own expert was unable to evaluate her before May 9, 2008, because of a prior commitment (id. ¶ 12).

Defendants respond that there is no merit to granting an extension of time for plaintiff to disclose her expert since she had two months to make that report (Docket No. 36, Defs. Atty. Reply Aff. ¶ 3). They argue that the purported expert, Dr. Michael Lynch, would be redundant to the opinions furnished by her already disclosed expert (id. ¶ 4). Defendants contend that disclosure from defense experts (particularly from her examinations by those experts) is irrelevant to her expert disclosure obligations (id. ¶ 5). Alternatively, defendants seek a reciprocal amount of time to make their expert disclosure if plaintiff is granted an extension (id. ¶¶ 6, 7).

Defendants report that they produced the reports from plaintiff's April examinations, rendering her request and motion to compel moot (id. ¶ 8, Ex. B). These defense expert reports were served on June 5, 2008 (id., Ex. B), in response to plaintiff's May 6, 2008, request (id., Ex. C). Defendants argue that the reports were served timely under Rule 35(b) and the Scheduling Order (id. ¶¶ 10, 11).

In reply, plaintiff now acknowledges receipt of those reports and withdraws this portion of her motion (Docket No. 38, Pl. Atty. Reply Aff. ¶ 2). She adheres to her request for additional time, even if a reciprocal amount of time is given to defendants, to complete discovery and thus extend the Scheduling Order (id. ¶ 3). Alternatively, plaintiff argues that she did not need to disclose Dr. Lynch as an expert in her initial Rule 26(a) disclosure (id. ¶¶ 4-6). An additional reason to extend the Scheduling Order is to allow plaintiff to depose Dr. Sarfaty, the doctor who recently examined plaintiff (id. ¶ 13).

Defense Motion

Defendants moved for plaintiff to provide authorizations to release medical records and other confidential documents (Docket No. 34, Defs. Notice of Motion, Defs. Atty. Aff. ¶ 5, Ex. B). Plaintiff wrote for these authorizations in April 25, 2008, called plaintiff's counsel on May 7, 2008, and has yet to receive these authorizations (id., Defs. Atty. Aff. ¶¶ 5, 7, Ex. B).

On May 8, 2008, defense counsel received plaintiff's response to expert demand pursuant to Rule 26(a)(2), identifying as plaintiff's economic expert Ronald Reiber, Ph.D. (id., Defs. Atty. Aff. ¶ 11, Ex. C). Defendants argue that this expert disclosure fails to comport with Rule 26(a)(2) since it failed to produce the data and information considered by Dr. Reiber in reaching his expert opinions, failed to identify his publications from the last ten years, and failed to disclose his compensation as an expert witness (id. ¶¶ 12-13).

In response, plaintiff states that she executed authorizations that were not materially different from the ones defendant wanted executed (Docket No. 41, Pl. Atty. Affirm. ¶¶ 6-8, Exs. B, D). She supplemented her expert disclosure regarding Dr. Reiber on June 23, 2008 (id. ¶ 9, Ex. F). She concludes that these ...


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