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Robert Motta v. First Unum Life Insurance Company

September 19, 2011


The opinion of the court was delivered by: A. Kathleen Tomlinson, Magistrate Judge:



Presently before the Court is Plaintiff's letter motion seeking permission from the Court to include in the joint Pre-Trial Order two reports by Dr. Edward J. Barnoski ("Barnoski reports") which Plaintiff seeks to offer as trial exhibits. Dr. Barnoski is a neuropsychologist who examined Plaintiff on April 28, 2010 and June 25, 2010. Plaintiff also seeks permission, to the extent Plaintiff's treating physician, Mark Gudesblatt, M.D., relied on the Barnoski reports, to testify about them as well. For the reasons set forth below, Plaintiff's motion is DENIED.


The first mention of Dr. Barnoski is found in the August 19, 2010 letter of Plaintiff's counsel where the Court was informed that Plaintiff was referred to Dr. Barnoski by Dr. Gudesblatt. Dr. Barnoski examined Plaintiff on two occasions and drafted two reports regarding those examinations. Plaintiff's counsel further mentioned that he only came into possession of the reports on August 2, 2010, and expects that Dr. Gudesblatt would testify at his deposition with respect to these reports.

In response to this letter, Defendant's counsel confirmed to the Court that he had received the reports on August 13, 2010. However, counsel argued that the Defendant would be severely prejudiced by this late production since the reports were available for disclosure prior to the expiration of the discovery deadlines set forth in the Amended Case Management and Scheduling Order ("ACMSO").*fn1 Counsel also noted that Dr. Barnoski was not disclosed in Plaintiff's Rule 26(a) initial disclosures.

Subsequent to these letters, the parties submitted a joint Pre-Trial Order. Dr. Barnoski was not listed as a witness whom Plaintiff intended to call at trial. However, the Plaintiff identified, as exhibits, the Barnoski reports. See DE 25 ("Pre-Trial Order") at 16. The Defendant objected to these exhibits in the Pre-Trial Order on multiple grounds, including their not being timely produced pursuant to the ACMSO. After hearing some argument on this issue at the December 29, 2010 Pre-Trial Conference, the Court directed Plaintiff to file a letter motion outlining the relief he was seeking, namely, to include Dr. Barnoski's reports, and to provide caselaw supporting his arguments.


As an initial matter, the Court finds the parties' respective submissions troubling. Surprisingly, neither party attached the Barnoski reports as an exhibit to the motion papers. In addition, Plaintiff's "letter motion" is one page in length and completely lacks any legal support for counsel's position. Equally deficient is Defendant's opposition, totaling eight (8) pages in length, which not only violated this Court's Individual Practice Rules' limitation on letter motions to three (3) pages, but also addressed issues no longer contested by Plaintiff. For instance, Plaintiff's counsel has indicated, on more than one occasion, that he will not call Dr. Barnoski as either an expert witness or treating physician at trial. See Dec. 29 Tr. at 3:21 ("Now, I don't intend to call him as a witness."); see also DE 27 at 2 ("The plaintiff does hereby acknowledge that he will not call Dr. Barnoski as either a treating or expert witness."). Therefore, Defendant's argument in support of barring any testimony from Dr. Barnoski is, for all intent and purposes, irrelevant. In addition, Defendant presents multiple arguments premised on Dr. Gudesblatt being offered as an expert witness. However, Plaintiff acknowledged at the Pre-Trial Conference that Dr. Gudesblatt is not an expert witness and is only being offered as a treating physician.*fn2 Dec. 29 Tr. at 4:4-14. Despite these procedural and substantive irregularities (and the limited information provided), the Court will nevertheless address the pending dispute.

A. Barnoski Reports

Plaintiff's counsel maintains that he only first became aware of the Barnoski reports on August 2, 2010, and that he promptly provided those reports to Defendant on August 11, 2010. Notwithstanding this fact, the Defendant argues that the Barnoski reports should be barred as untimely pursuant to Rule 37(c) of the Federal Rules of Civil Procedure.*fn3 Rule 37(c) states the following:

If a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence . . . at a trial, unless the failure was substantially justified or is harmless.

Fed. R. Civ. P. 37 (c)(1). The Second Circuit has made clear that preclusion under Rule 37(c) is not mandatory. See Design Strategy, Inc. v. Davis, 469 F.3d 284, 297 (2d Cir. 2006) (finding that the district court erred in its determination that "preclusion is mandatory" under Rule 37(c)(1)). In fact, courts have "wide discretion to impose sanctions" under Rule 37. Id. at 294.

Defendant argues that Plaintiff failed to list Dr. Barnoski's reports as documents that Plaintiff intended to use at trial in his Rule 26(a) initial disclosures and/or failed to supplement those disclosures. The Court first notes that Plaintiff's visits to Dr. Barnoski occurred after Plaintiff served his initial disclosures on February 3, 2010. As such, the Barnoski reports could not have been part of Plaintiff's initial disclosures. In addition, while Plaintiff has a continuing obligation under Rule 26(e) to supplement his disclosures, Plaintiff provided Defendant with the Barnoski reports before the close of discovery. Pursuant to the ACMSO, the deadline by which all discovery was to be completed was September 10, 2010. While the Court in no way condones the apparent delay in Plaintiff providing his counsel with the Barnoski reports, the ultimate production to Defendant's counsel was effected within the deadline. Moreover, to the extent the Defendant contends that this report was untimely in light of the July 1, ...

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