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S.W., et al v. City of New York

July 25, 2011


The opinion of the court was delivered by: Marilyn D. GO United States Magistrate Judge


Defendant City of New York moves to preclude the rebuttal report of plaintiffs' expert Mark E. Safarik and the rebuttal/supplemental reports of plaintiffs' experts Henry Gunn and Peg McCartt Hess. See ct. doc. 296.


Plaintiffs, who were classified as special needs children, bring this civil rights action against the City of New York (the "City"), the New York City Administration for Children's Services ("ACS") and several foster care agencies to recover damages for the severe abuse they suffered at the hands of their foster care and adoptive mother, Judith Leekin, with whom they were placed between 1986 and 1994. Ms. Leekin used different names and identities to accomplish her fraudulent scheme and, after adopting the plaintiffs, collected approximately $1.68 million in adoption subsidies.

On or about December 3, 2010, plaintiffs served the reports of two experts, Mr. Gunn and Dr. Hess. Dr. Hess, a child welfare consultant, concludes in her report that the failures in management and case practice of ACS, formerly the Child Welfare Administration, and the private foster care agencies enabled Leekin to perpetrate her fraudulent scheme. Mr. Gunn, also a child welfare consultant, assesses the organizational structure and management of ACS from 1984 to 1996 and opines that the systemic problems resulted in the injuries to the plaintiffs.

On January 7, 2011, the City requested an extension of time to serve its expert reports, in part, because fact discovery had not been completed. See ct. doc. 273. Plaintiffs responded that any extension of time should be conditioned on plaintiffs' experts having the opportunity to supplement their opinions based on discovery that had not yet been produced. See ct. doc. 275. By letter dated January 26, 2011, the City informed the Court that the parties had agreed to extend the time to serve defendants' expert reports but the letter does not mention whether any agreement was reached regarding the supplementation of plaintiffs' expert reports. See ct. doc. 278.

Defendants later served expert reports on March 16, 2011, including a report by Gregory D. Meacham and a report by Dr. Roger Depue. Mr. Meacham discusses the criminal aspects of Leekin's fraud and her abilities as a criminal fraudster. Dr. Depue also discusses Leekin's criminal means and methods and, from a behavioral sciences perspective, her capacity to have defrauded several organizations and individuals.

On March 28, 2011, plaintiffs filed a letter informing the Court that the parties had agreed to amend the expert discovery schedule extending defendants' time to serve their remaining expert reports and setting a date, June 16, 2011, for plaintiffs to serve rebuttal expert reports regarding issues of criminology and Leekin's criminal activities. Defendants reserved their right to object that any rebuttal report would be improper. See ct. doc. 285.

On or about April 11, 2011 and April 13, 2011, respectively, the foster care agencies and the City served the reports of Elaine M. Walsh and Richard P. Barth. Dr. Walsh finds that the agencies followed prescribed procedures for certifying and monitoring Leekin's foster home. Dr. Barth states that the fraudulent activities of Leekin were so anomalous that a typical child welfare agency would not have been expected to detect them. Dr. Barth also opines that the systemic problems identified by the plaintiffs' experts were similar to those occurring in other similar jurisdictions.

On June 14, 2011, plaintiffs served a rebuttal expert report of Mark E. Safarik, who had not previously been identified by plaintiffs as an expert. Plaintiffs also served rebuttal/supplemental expert reports of Mr. Gunn and Dr. Hess, which plaintiffs argue, respond to the reports of Dr. Barth and Dr. Walsh. Defendants have challenged the propriety of all three reports.


Rule 26(a)(2)(B)(I) of the Federal Rules of Civil Procedure requires that an expert's initial report contain "a complete statement of all opinions the witness will express and the basis and reasons for them," while Rule 26(a)(2)(C)(ii) allows the admission of rebuttal testimony that is "intended solely to contradict or rebut evidence on the same subject matter identified by another party . . . ." Fed. R. Civ. P. 26(a)(2). "Rebuttal evidence is properly admissible when it will explain, repel, counteract or disprove the evidence of the adverse party." Crowley v. Chait, 322 F. Supp. 2d 530, 551 (D.N.J. 2004).

Rule 26(e) requires that disclosures made pursuant to Rule 26(a), including expert disclosures, be supplemented when the party who made the disclosure "learns that in some material respect the disclosure . . . is incomplete or incorrect . . . ." Fed. R. Civ. P. 26(e). "It is only if the expert subsequently learns of information that was previously unknown or unavailable, that renders information previously provided in an initial report inaccurate or misleading because it was ...

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