The opinion of the court was delivered by: H. Kenneth Schroeder, Jr. United States Magistrate Judge
In accordance with 28 U.S.C. § 636(c), the parties have consented to have the undersigned conduct all further proceedings in this case, including entry of final judgment. Dkt. #17.
Currently before the Court is defendants', Schindler Elevator Corporation Management and Millar Elevator Service Company, motion for summary judgment (Dkt. #19) and request for the preclusion of plaintiffs' expert witness (Dkt. #29-1). For the following reasons, defendants' motion for summary judgment is denied and defendants' request for the preclusion of plaintiffs' expert witness and an Order striking plaintiffs' expert "report" is granted.
On or about February 8, 2005, plaintiffs Cynthia Vona and Jay Vona commenced this action in New York State Supreme Court, Erie County against defendants Schindler Elevator Corporation Management and Millar Elevator Service Company (collectively, "Schindler") seeking damages for Schindler's negligence, strict products liability, breach of warranty, failure to warn and loss of consortium. Dkt. #1-2. Thereafter, on or about February 25, 2005, Schindler removed the action to the United States District Court for the Western District of New York. Dkt. #1. Schindler filed its answer to the complaint on or about March 11, 2005. Dkt. #2. A Preliminary Pretrial Conference was held with this Court on May 23, 2005 wherein a Case Management Order was put in place. Dkt. ##6 and 7.
The Case Management Order provided, inter alia, that
4. Plaintiff shall identify any expert witness who may be used at trial and provide reports pursuant to Fed.R.Civ.P. 26(a)(2)(B) by March 1, 2006. Defendant shall identify any expert witnesses who may be used at trial and provide reports pursuant to Fed.R.Civ.P. 26(a)(2)(B) by April 1, 2006. Such disclosures shall be served on all counsel. See also Local Rule 26.
5. All expert depositions shall be completed no later than June 1, 2006.
6. All discovery in this case shall be completed no later than June 1, 2006.
Dkt. #7. By letter dated May 31, 2006, plaintiffs' counsel requested an extension of time to complete all remaining discovery to August 1, 2006. This Court issued an Amended Case Management Order on May 31, 2006 which, consistent with plaintiffs' counsel's request, provided for all discovery to be completed no later than August 1, 2006. Dkt. #14. The Amended Case Management Order further provided that dispositive motions by all parties shall be filed and served no later than September 29, 2006. Id. Neither plaintiffs nor defendants designated an expert witness at any time during the pendency of discovery. A settlement conference was held on September 19, 2006, wherein counsel for Schindler advised that a motion for summary judgment would be forthcoming. By letter dated September 27, 2006, counsel for Schindler requested that this Court further amend the Case Management Order to allow dispositive motions to be filed by October 6, 2006. On September 27, 2006, this Court issued a Text Order extending the deadline for the filing of dispositive motions to October 6, 2006. Dkt. #18.
Schindler filed its motion for summary judgment on October 6, 2006. Dkt. #19. Thereafter, this Court issued a Text Order providing that papers in response to Schindler's motion for summary judgment shall be served and filed no later than October 27, 2006 and reply papers, if any, shall be served and filed no later than November 20, 2006. Dkt. #20. Oral argument was originally scheduled for November 17, 2006, however, the Court re-scheduled oral argument to November 30, 2006. Dkt. ##20 and 21. Thereafter, by letter dated October 26, 2006, counsel for plaintiffs requested, with the consent of defense counsel, that plaintiffs' time to respond to Schindler's motion for summary judgment be extended to November 16, 2006 and that Schindler's time to reply also be extended to November 27, 2006. This Court granted plaintiffs' counsel's request on October 27, 2006. Dkt. #22.
On November 16, 2006, plaintiffs' counsel filed a Memorandum of Law in Opposition to Defendants' Motion for Summary Judgment. Dkt. #23. One day after their time to file a response had passed, on November 17, 2006, plaintiffs filed a Local Rule 56.1(b) Statement of Facts (Dkt. #25) together with an Appendix to Local Rule 56.1(b) Statement of Facts (Dkt. ##26-28). On page 10 at paragraph 68 of plaintiffs' Local Rule 56.1(b) Statement of Facts, plaintiffs' state, "[i]n further opposition to the motion for summary judgment, plaintiffs proffer the affidavit of expert C. Stephen Carr." Dkt. #25-2, ¶ 68. Indeed, contained within plaintiffs' lengthy Appendix, at Exhibit E, is an affidavit of C. Stephen Carr. Dkt. #27-7. Also contained within plaintiffs' Appendix, at Exhibit I, is a one-page document described by C. Stephen Carr as his "Curriculum Vitae" together with a one-page certificate stating that C. Stephen Carr "has met all the academic and practical requirements set forth by NAESA International and is therefore declared to be a Certified Elevator Safety Inspector." Dkt. #27-12.
Schindler filed its Reply Memorandum of Law, Affidavit of Harry Camardella and Affidavit of Paul G. Joyce, Esq. on November 27, 2006. Dkt. #29. In its Reply Memorandum of Law, Schindler argues that plaintiffs' expert affidavit is inadmissible, requests this Court to preclude plaintiffs' expert for plaintiffs' failure to abide by this Court's Case Management Order and to strike plaintiffs' expert affidavit (Dkt. #26-7) submitted in opposition to Schindler's motion for summary judgment. Dkt. #29-1, pp.2-9. Oral argument was held on November 30, 2006. Dkt. #30.
The allegations in plaintiffs' complaint arise out of a July 29, 2002 incident at Kenmore Mercy Hospital. Dkt. #1-2. Specifically, plaintiffs allege that on July 29, 2002 while plaintiff, Cynthia Vona, was working as a radiology/mammography technician at Kenmore Mercy Hospital, she was struck by an elevator door as she was pulling a portable x-ray machine onto an elevator. Id. Plaintiffs claim that Schindler was "negligent and careless in testing, inspecting, assembling, distributing, labeling, selling and promoting its elevator; that the elevator was defective in its design, manufacture, assembly and inspection; that Schindler breached express and implied warranties to plaintiff; and that Schindler failed to warn plaintiff about the alleged inherent dangers in the use of the subject elevator." Dkt. #19-2, ¶ 2.
At some point prior to July 29, 2002, plaintiff Cynthia Vona began her employment at Kenmore Mercy Hospital as a "radiology technologist/mammography technologist." Dkt. #26-8, p.5. In 2002, Schindler had the contract to provide maintenance on all of the elevators and escalators at Kenmore Mercy Hospital. Dkt. #19-2, ¶ 3. In 2002, Schindler's assigned technician for Kenmore Mercy Hospital was Harry Camardella. Dkt. #19-2, ¶ 4. Based on the record before this Court, there appears to be a discrepancy in the record as to which elevator was involved in the alleged incident on July 29, 2002. As a threshold matter, on the Incident Report completed by plaintiff on or about July 29, 2002, plaintiff states that the location of the accident was "Elevator going to 3East" Dkt. #28-10, p.2. Conversely, in Plaintiffs' Responses to Defendants' First Set of Interrogatories, plaintiffs state that "[t]he incident occurred on the first floor of Kenmore Mercy Hospital ... at the patient and employee elevator commonly known as Elevator 1 normally used by the hospital staff to move and transport patients and equipment, near the Café Aroma kiosk." Dkt. #19-4, p.6; Dkt. #26-5, p.4. In Plaintiffs' Local Rule 56.1(b) Statement of Facts, plaintiffs state that at the time of the incident, "[s]he [plaintiff] was on the second floor of the hospital, between the Intensive Care Unit and a ward. There are two elevators in that bay." Dkt. #25, ¶ 10. Later in the same document, plaintiffs quote the deposition testimony of a witness to the incident who states, "[w]e took the portable and got on the 3 east elevator." Dkt. #25, ¶ 27. Lastly, Harry Camardella, Schindler's technician assigned to Kenmore Mercy Hospital in 2002, did not know during his deposition taken on July 26, 2006, which elevator, number 3 or number 4, was involved in the alleged incident. Dkt. #27-2, p.4. Thereafter, in an affidavit submitted in further support of defendants' motion for summary judgment, Harry Camardella states, ["[h]aving reviewed the schematics for the elevator bay in question, and based upon the testimony of Sister Sheila Lederer [witness to incident], the elevator that is in issue in this matter is Elevator No. 4, contrary to the sworn statements of Mr. Carr [plaintiffs' expert] and Ms. Vona."*fn1 Dkt. #29-2, ¶ 5.
Schindler performed preventative maintenance on the elevators at Kenmore Mercy Hospital, including, physically going on each elevator, checking for burned-out light bulbs, verifying that the elevators stopped on the floor selected, verifying that the elevator door safety beams functioned properly by waiting for the doors the [sic] close and then intentionally interrupting the safety beam by placing my hand in the path of the doors and watching them reopen and verifying that the doors opened and closed at the proper speed and configuration.
Dkt. #19-4, ¶ 6. Harry Camardella performed preventative maintenance on all of the elevators at Kenmore Mercy Hospital on July 3, 2002, July 19, 2002, July 24, 2002 and July 25, 2002. Id. at ¶ 7. In the month after the July 29, 2002 incident, Harry Camardella performed preventative maintenance on all the elevators at Kenmore Mercy Hospital on August 2, 2002, August 9, 2002, August 15, 2002 and August 27, 2002. Id. at ¶ 8. In support of Schindler's motion for summary judgment, Harry Camardella states
I did not note any problems with the elevator's door function or safety beams during any of the above dates where [sic] I performed preventative maintenance. If I had seen any problem with any elevators' door function or safety beams while performing ...