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Gotlin v. Lederman

September 1, 2009

GARY D. GOTLIN, ET AL., PLAINTIFFS,
v.
GILBERT S. LEDERMAN, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Roanne L. Mann, United States Magistrate Judge

MEMORANDUM AND ORDER

In letter-motions dated August 4 and 5, 2009, Dr. Gilbert S. Lederman and Dr. Philip Jay Silverman, the remaining defendants in this action ("defendants"), seek an order precluding plaintiff Gary D. Gotlin, the Public Administrator suing on behalf of the remaining deceased Italian national plaintiff, Giuseppa Caramanna Bono ("Caramanna"), from using at trial Italian medical records ("the Records") belatedly produced by plaintiff. See Letter from Anthony A. Lenza, Jr., Counsel to defendant Silverman, to the Court (Aug. 5, 2009) ("Lenza Letter"), ECF Docket Entry ("D.E.") # 172; Letter from Mary E. Pearson, Counsel for defendant Lederman, to the Court (Aug. 4, 2009) ("Pearson Letter"), D.E. # 171. For the reasons that follow, the Court rules that preclusion of the Records is an appropriate discovery sanction.

BACKGROUND

The Court assumes familiarity with the prior opinions issued in this case, in particular, this Court's Memorandum and Order of May 7, 2007 ("5/7/07 M&O"), D.E. # 63, and the decision of the Honorable I. Leo Glasser affirming that ruling. See Memorandum & Order (July 17, 2007), D.E. # 66. Suffice it to say, the pending motions concern the latest in a long series of discovery derelictions on the part of plaintiffs' counsel, Jonathan Behrins ("Behrins"). As detailed in the Court's 5/7/07 M&O, Behrins took and provided virtually no discovery during the nearly eleven-month period allotted by the Court for fact discovery, and then failed to appear for the settlement conference scheduled for April 13, 2007. As Behrins offered no excuse for having failed to make a timely motion to extend discovery, the Court denied his belated motion to reopen fact discovery, but declined to impose the more severe sanctions sought by the defense -- i.e., dismissal of the plaintiffs' claims or preclusion of plaintiffs' evidence.*fn1 See 5/7/07 M&O, at 5-7.

Thereafter, this Court granted Behrins' application to extend expert discovery. See Memorandum & Order (Oct. 15, 2007), D.E. # 86, at 3. In response to defendants' complaints about their inability to obtain the various plaintiffs' medical records from Italy, the Court offered to issue an order that directed plaintiffs to produce the Italian medical records and that extended the time for defendants to serve their expert disclosure. See id. at 3. Defendants accepted the Court's invitation, and moved for production of the Italian medical records and a modification of the schedule for expert disclosure.*fn2 Behrins agreed to produce the Italian medical records, but protested that the defense timetable was unrealistic. See Letter from Jonathan Behrins, Counsel for Plaintiffs, to the Court (Oct. 22, 2007), D.E. # 91. The Court endorsed an order stating that it was "prepared to grant defendants' request (on consent) for the Italian medical records," but directed the parties to confer about the schedule for expert disclosure and to submit a joint proposed schedule to be so-ordered by the Court. See Endorsed Order (Oct. 25, 2007), D.E. # 93. As the parties could not agree upon a schedule, compare Defendants' Proposed Discovery Schedule (Nov. 1 & 2, 2007), D.E. # 96, 97, 98, with Plaintiffs' Proposed Discovery Schedule (Nov. 2, 2007), D.E. # 99, the Court entered its own schedule. See Order (Nov. 5, 2007), D.E. # 100. In that order, the Court observed that "plaintiffs have had years to secure their own medical records from Italy," and therefore rejected the prolonged schedule proposed by Behrins. See id. Although the Court neglected to expressly direct plaintiffs to produce the Italian medical records, the spirit of the Court's order, as well as the parties' correspondence, made clear that plaintiffs were obligated to do so.

Expert discovery proceeded, with the usual disputes about timing of disclosures, scheduling of expert depositions, and the adequacy of plaintiffs' expert disclosure See, e.g., Motion for Discovery filed by terminated defendant SIUH (June 10, 2008), D.E. # 117; Motion for Preclusion filed by terminated defendant SIUH (Apr. 27, 2008), D.E. # 108. During the expert discovery period, the only Caramanna-related Italian medical records that Behrins produced consisted of a nine-page report authored by Dr. Vincenzo Savaterri, which purported to summarize the as-then-unproduced underlying Italian medical records. See Transcript of Conference Before the Honorable I. Leo Glasser (Aug. 3, 2009) ("8/3/09 Tr."), at 8-9. After expert discovery was completed, all defendants moved for summary judgment. On May 21, 2009, Judge Glasser granted the defense motions in substantial part, dismissing the claims of all but two of the plaintiffs and leaving only two defendants in the case: Lederman and Silverman. See generally Memorandum & Order (May 21, 2009), D.E. # 168. Caramanna is now the sole remaining plaintiff, as the other has voluntarily dismissed her claims. See generally Order (July 16, 2009), D.E. # 170.

On August 3, 2009, Judge Glasser met with the parties, at which time defense counsel complained that days earlier, on July 28, 2009, Behrins had produced a CD-ROM containing 571 pages of previously undisclosed, untranslated Italian medical records relating to Caramanna. See 8/3/09 Tr. at 2. Not surprisingly, defense counsel objected to plaintiff's tardy production and asked Judge Glasser to enter a preclusion order. See id. at 10, 17. Judge Glasser directed the parties to address any discovery-related issue to the undersigned magistrate judge, see id. at 19, 21, and the pending letter-motions followed.

On August 12, 2009, this Court conducted a telephone conference in order to clarify the facts and hear Behrins' explanation, if any, for his latest default. Behrins confirmed that he had first received the 571 pages of Caramanna's Italian medical records in about May 2008, before plaintiffs' expert disclosure had been served. See Transcript of Telephone Conference (Aug. 12, 2009) ("8/12/09 Tr."), D.E. # 179, at 3, 6-8, 13, 19. Realizing that the Records might be relevant to expert disclosure, Behrins contacted his expert, who advised that he did not wish to review the Records. See id. at 3-4, 8. Behrins placed the Records in his file cabinet and did not disclose them to the defense until July 28, 2009, more than a year later. See id. at 3, 10-12, 18.

When questioned by the Court, Behrins conceded that he understood that he had been obligated to provide the Records to the defense when he first received them, and his only excuse for failing to do so was his "difficulty juggling 20 clients...." Id. at 4, 11. While acknowledging his violation, he nevertheless declined to agree to refrain from using the Records at trial, stating that he might want to offer those records that postdated Caramanna's treatment at SIUH. See id. at 9. Behrins has not had any of the documents translated into English and could not say how many of them involved post-SIUH treatment. See id. at 10, 13, 19. When the Court pointed out that allowing him to use the Records would effectively require the reopening of expert disclosure -- after the conclusion of expert discovery and Judge Glasser's decision on the defense summary judgment motions -- Behrins concurred that that would be his application. See id. at 11.

In the course of that same telephone conference, Behrins acknowledged that Dr. Savaterri, who authored the nine-page report that was the only Italian medical document produced to the defense prior to the exchange of expert reports, was probably not a treating physician and would not be called as a witness at trial. The defense then asked to strike Dr. Savaterri's report as "pure hearsay." See id. at 14.*fn3

DISCUSSION

I. Sanctions for Failure to Supplement Initial Disclosures and Discovery Responses

Pursuant to Rule 26(a) of the Federal Rules of Civil Procedure, "a party must, without awaiting a discovery request, provide to the other parties... a copy -- or a description by category and location -- of all documents, electronically stored information, and tangible things that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses[.]" Fed. R. Civ. P. 26(a)(1)(A)(ii). Under Rule 26(e), a party must supplement its Rule 26(a) initial disclosures, as well as its responses to discovery requests, when ordered to do so by a court and/or where a "party learns that in some material respect the disclosure or response is incomplete or incorrect, and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process[.]" See Fed. R. Civ. P. 26(e)(1)(A).

The duty to supplement "applies whether the corrective information is learned by the client or by the attorney[,]" 1993 Advisory Comm. Note to Fed. R. Civ. P. 26(e), and is triggered only where "a party[,] or more frequently [its] lawyer, obtains actual knowledge that a prior response is incorrect." Zubulake v. UBS Warburg LLC, 229 F.R.D. 422, 433 (S.D.N.Y. 2004) (internal quotation marks and citation omitted; first alteration in original). Because the duty to supplement is a continuing one, parties must undertake efforts to ensure that discoverable information is not lost or misplaced. See id. Failure ...


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