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Allstate Insurance Company v. Viviane Etienne

October 20, 2011


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


Currently pending before this Court is a motion by the defendants remaining in this action -- Richard Dominick Berardi, Jr., D.O., Arco Medical NY, P.C., and Neomy Medical, P.C. (collectively, the "Berardi defendants" or "defendants") -- to "preclude" four expert reports served by plaintiff Allstate Insurance Company ("plaintiff"). See Notice of Motion to Preclude (Sept. 20, 2011) ("9/20/11 Motion to Preclude"), Electronic Case Filing Docket Entry ("D.E.") #249. In essence, the Berardi defendants complain that plaintiff has not produced the underlying documents upon which the experts relied in preparing their reports. See Defendants' Memorandum in Support of Motion to Preclude (Sept. 20, 2011) ("Def. Mem.") at 1-2, D.E. #251.

On two prior occasions, the Berardi defendants filed essentially the same motion -- once before the undersigned magistrate judge, on August 19, 2011, as a motion to preclude, and once before the Honorable Sandra L. Townes, on September 16, 2011, as a motion to strike. This Court rejected both as procedurally defective, because defendants' counsel failed to certify, as required by both Rule 37(a)(1) of the Federal Rules of Civil Procedure ("FRCP") and Local Civil Rule 37.3(a), that he had conferred in good faith with plaintiff's counsel to resolve the dispute prior to filing defendants' motion. See Memorandum and Order (Aug. 19, 2011) ("8/19/11 M&O") at 1-2, D.E. # 246; Memorandum and Order (Sept. 19, 2011) ("9/19/11 M&O") at 1-2, D.E. #248.

On September 20, 2011, the Berardi defendants for the third time filed their motion to "preclude" plaintiff's expert reports. See 9/20/11 Motion to Preclude. This time, in the initial moving papers, defendants' counsel declared, without more, that he had attempted in good faith to confer with plaintiff's counsel concerning the discovery dispute. See Declaration of Matthew J. Conroy ("Conroy Decl.") ¶ 12, D.E. #250.

Plaintiff filed its opposing papers the following week; relying on a detailed chronology of events set forth in plaintiff's counsel's accompanying declaration, see Declaration of Barry

I. Levy (Sept. 27, 2011) ("Levy Decl."), D.E. #253, plaintiff argued that the Berardi defendants have either had access all along to the underlying documentation relied upon by the experts or have been offered the material multiple times by plaintiff. See Memorandum in Opposition to Defendants' Motion to Strike or Preclude (Sept. 27, 2011) ("Pl. Opp."), D.E. #252. Plaintiff further posited that the Berardi defendants' motion was a "backhanded attempt" to seek an extension of discovery, as the Berardi defendants failed to depose any of plaintiff's experts by the close of expert discovery on September 15, 2011, and failed to serve their own expert reports by the court-ordered deadline of August 19, 2011. See Pl. Opp. at 13; see also Minute Entry (docketed May 18, 2011) ("5/18/11 Minute Entry"), D.E. #241 (setting schedule for expert discovery); Conroy Decl. ¶ 28 (belatedly requesting extension of defendants' deadline for serving expert disclosure "due to Plaintiff's failure to disclose").

On October 4, 2011, at the Court's direction, defendants submitted a reply in response to plaintiff's opposition. See Reply Memorandum in Further Support of Defendants' Motion to Preclude (Oct. 4, 2011) ("Def. Reply"), D.E. #258. In their reply, defendants' counsel for the first time admitted that "[p]laintiff's contention that documents have been made available to [d]efendants is undisputed," but he still insisted that defendants "had no choice but to bring the instant motion." Id. at 2-3.

For the reasons that follow, the Court denies the Berardi defendants' motion in its entirety. Further, as all expert discovery closed on September 15, 2011, and the Berardi defendants have neither timely sought an extension nor established good cause for any such scheduling modification, they are foreclosed from taking the depositions of plaintiff's experts or serving their own expert disclosure.


On July 1, 2011, plaintiff timely served the Berardi defendants with four expert reports. See Conroy Decl., Exhibits A-D; see also 5/18/11 Minute Entry. Pursuant to this Court's order, the Berardi defendants' expert disclosure was due by August 19, 2011. See id. On August 19, 2011, rather than serve their expert disclosure on plaintiff, the Berardi defendants filed a motion (the "8/19/11 Motion") to preclude plaintiff's experts based on plaintiff's alleged failure to produce medical records upon which plaintiff's experts relied. See [Defendants'] Memorandum of Law (Aug. 19, 2011) ("8/19/11 Mem."), D.E. #245 at 7-8. In the alternative, the Berardi defendants requested a compulsion order. See Affirmation in Support of Motion (Aug. 19, 2011) ("Goralski Aff.") ¶ 19, D.E. #245 at 5. Because the Berardi defendants' motion did not certify that their counsel had conferred with plaintiff's counsel prior to filing their discovery-related motion, this Court denied the 8/19/11 Motion without prejudice. See 8/19/11 M&O. Thereafter, the September 15, 2011 deadline for completing expert depositions passed without the Berardi defendants resubmitting a proper motion to preclude or requesting an extension of discovery.

Rather than renewing their motion before the undersigned magistrate with the requisite meet-and-confer certification, the Berardi defendants wrote to the Honorable Sandra L. Townes on September 16, 2011, requesting that she strike the expert reports under Rule 12(f) of the FRCP. See Letter by Matthew J. Conroy (Sept. 16, 2011) ("9/16/11 Def. Letter"), D.E. #247. In their September 16 letter, the Berardi defendants acknowledged that they had made a similar application to the undersigned magistrate on August 19, but stated that this Court had "mischaracterized [the 8/19/11 Motion] as a discovery motion." Id. at 2. In addition, the Berardi defendants also requested that Judge Townes stay discovery "pending determination of the motion." Id. They did not, however, disclose to Judge Townes that the deadline for discovery had already passed. See generally id.

In a Memorandum and Order issued on September 19, 2011, this Court denied defendants' September 16 letter-motion. See 9/19/11 M&O at 2. The undersigned magistrate judge admonished the Berardi defendants for, inter alia, having taken no steps in the intervening month to confer with plaintiff's counsel; having filed a second procedurally defective motion; and claiming that this Court had "mischaracterized [their 8/19/11 Motion] as a discovery motion," when in fact defendants had sought either a preclusion order or a compulsion order. See id. at 1-2. In addition, this Court denied defendants' request to "stay" discovery, which had already closed. See id. at 2.

The next day, the Berardi defendants filed the pending formal motion to preclude. See generally Def. Mem. In their current motion, defendants raise essentially the same issues posed in their two previous motions. First, defendants seek to preclude expert information from all four of plaintiff's experts, on the ground that plaintiff failed to disclose the documentation upon which the experts relied. See id. at 1. The allegedly undisclosed documents were nerve conduction velocity ("NCV") test data from nonparty health providers that "exactly matched" NCV test data generated by the Berardi defendants. See Pl. Opp. at 2. Defendants contend that this failure to disclose the nonparty matching NCV tests prejudices their ability to rebut plaintiff's experts' opinions and thus defend ...

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