The opinion of the court was delivered by: Glasser, United States District Judge
Pending before the Court are motions in limine made by the parties as follows: By the defendant Silverman:
1. Preclude testimony of proposed witnesses Giuseppe Bono, Piera Bono, Salvatore Bono, Tanya Bono, Salvatore Conte, Carmel Reddington and Michael Grossbard, M.D.
2. Dismiss Giuseppe Bono's claim for loss of consortium if his testimony is precluded.
3. Exclude excerpts from reports of Drs. Harrison and Grossbard and various bills.
4. Exclude pain and suffering testimony by expert witness.
5. Exclude evidence of medical malpractice and loss of consortium post July 22, 2002.
6. Exclude plaintiffs' expert testimony as to decedent's cause of death.
7. Exclude plaintiffs' expert reliance upon report of Dr. Savaterri.
8. Exclude report of Dr. Savaterri.
By the defendant Lederman:
1. Joins in the foregoing motion in limine.
2. Preclude testimony regarding inducing plaintiff to travel to the United States.
3. Preclude testimony regarding the event involving Dr. Lederman and George Harrison.
The plaintiff's motions are imbedded in his opposition to those motions.
This case is now six years old. It commenced as an action on behalf of 20 Italian Nationals, all of whom succumbed to cancers, against three doctors who treated them, the hospital in which they were treated and various directors, officers and employees of the hospital. The claims asserted were for medical malpractice, negligence, lack of informed consent, consumer fraud, violation of New York General Business Law § § 349-350 and wrongful death. Over the years and through the course of 195 docket entries, the case has dwindled down to one plaintiff and two defendants. Knowledge of the facts will not be assumed nor will they be retold, having been related before. The reader is referred, instead to Gotlin v. Lederman, 616 F. Supp.2d 376 (E.D.N.Y. 2009), and Gotlin v. Lederman, 367 F. Sup.2d 349 (E.D.N.Y. 2005), in each of which the facts were set out more or less extensively.*fn1
The motions to preclude the witnesses named, being the most significant for the outcome, if not the survival of this lawsuit, will be addressed first. To put the issue in a nutshell, discovery was closed on March 31, 2007 by Order of Magistrate Judge Mann (Judge Mann), dated May 25, 2006. The names of witnesses plaintiff contemplates calling at trial was not made known to the defendants until listed in the joint pretrial order in December 2009, approximately four months before jury selection and trial were to commence, and more than two years after discovery was closed, hence this motion.
An informed determination of this motion cannot be made without an understanding of the relevant history which precedes it. The May 25th Order referenced above fixed a precise schedule for the stages of discovery, among which were: 2) All parties shall serve Rule 26 Disclosure by June 15, 2006; 3) All parties shall serve responses to limited Requests for Production of Documents . . . by June 30, 2006; 6) Plaintiff to serve Responses to Interrogatories by September 15, 2006; 9) Depositions to be completed by February 15, 2007. . . it is anticipated that approximately seventy (70) witnesses will be deposed; 10) Fact discovery to be completed by March 31, 2007. In addition, a settlement conference was scheduled for April 13, 2007 at 10:00 a.m. Document #58.
In a letter dated April 13, 2007, counsel for defendant Silverman advised Judge Mann that plaintiff did not respond to his request for production of documents; that plaintiff did not make any Rule 26 disclosure; that plaintiff made no response to interrogatories; that plaintiff failed to respond to a Notice to Produce Expert Witness Information; that plaintiff failed to provide authorization to obtain medical records; that no plaintiffs were produced or offered to be produced for their depositions. The letter concluded with a request that the plaintiff's actions should be dismissed or, alternatively, that plaintiffs be precluded from offering any evidence at trial. Docket #57.
By letter dated April 16, 2007, after fact discovery was closed, the plaintiffs' counsel requested an extension of the discovery deadline. Docket #59.
In a comprehensive Report and Recommendation (R&R) embedded in a Memorandum and Order dated May 7th, 2007, Judge Mann concluded that the plaintiffs' request to reopen discovery should be denied. She noted that all the attorneys representing the various defendants appeared at the scheduled conference on April 13th, but the plaintiffs' attorney did not. He claimed that he was unaware of the conference notwithstanding that every other attorney was. "More disturbing," she noted, was his admission "that little, if any discovery had occurred in the eleven months since the Court had adopted the parties' proposed schedule. Indeed, plaintiffs had not even served their automatic disclosure which was due June 15, 2006. Nor had they responded to any of the defendant discovery demands. Not a single deposition had been conducted." He offered no excuse for failing to make a timely motion to extend discovery before its deadline. A comprehensive review of the standard reflected in Fed. R. Civ. P. 16(b), namely, that a Court ordered schedule "shall not be modified except upon a showing of good cause" against the background of the flagrant disregard for the Court scheduling Order drove Judge Mann to conclude that his request to extend the discovery deadline should be denied notwithstanding her sensitivity to "the fact that refusing to reopen discovery might be viewed as penalizing plaintiff for the neglect of their attorney." An objection was filed to that determination and in a Memorandum and Order ...