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Jean Toborg v. United States of America

August 23, 2012


The opinion of the court was delivered by: Gary L. Sharpe Chief Judge


I. Introduction

Plaintiff Jean Toborg, individually and as administratrix of the estate of William Toborg, commenced this action pursuant to the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b), 2671-2680. (See Compl., Dkt. No. 1.) Pending is defendant United States of America's motion for summary judgment.*fn1 (See Dkt. No. 12.) For the reasons that follow, the motion is granted to the extent that it seeks sanctions for failure to comply with the discovery order.

II. Background*fn2

Toborg commenced this wrongful death action as a result of alleged "neglect and negligent treatment" received by her now deceased husband William Toborg while at the Stratton VA Medical Center. (Def.'s Statement of Material Facts (SMF) ¶¶ 1, 4, Dkt. No. 12, Attach. 2.) According to Toborg, her husband suffered various injuries, including a fractured hip and decubitus ulcers, while he was a patient at the VA. (See id. ¶¶ 2-3.) These injuries, which Toborg avers resulted from the government's "carelessness and negligence," ultimately led to her husband's death on February 24, 2009. (Id. ¶¶ 3-4.)

A Rule 16 conference was conducted by Magistrate Judge Randolph F. Treece on June 16, 2011, wherein he set certain discovery deadlines, including Toborg's Expert Disclosure deadline of January 2, 2012. (See id. ¶ 6.) On August 9, 2011, the government forwarded Interrogatories and a Notice to Produce to Toborg by mail. (See id. ¶ 7.) Toborg "never responded in any fashion whatsoever" to the discovery demands. (Id. ¶ 8.) In fact, Toborg also failed to respond to the government's three subsequent letters of October, November and December 2011, each of which reiterated this demand. (See id. ¶¶ 9-12, 14.) Although the government provided its expert report in February 2012, as of March 30, 2012-the date discovery closed in this case-Toborg had yet to respond to any of the government's letters, produce any documents in response to the discovery demands, or file her expert disclosure. (See id. ¶¶ 14-15.)

In the absence of any expert evidence, the government filed a motion for summary judgment on May 4, 2012. (See id. ¶ 16;Dkt. No. 12.) Toborg sought an extension of time to respond to the motion, which was granted by Judge Treece on May 14, 2012. (See Dkt. Nos. 13, 14.) On May 30, 2012, Toborg filed a response to the motion, in which her counsel avers that since May 4, 2012, he fulfilled all outstanding discovery obligations. (See Dkt. No. 15 at 1-2.)

III. Standard of Review

The standard of review under Fed. R. Civ. P. 56 is well established and will not be repeated here. For a full discussion of the standard, the court refers the parties to its decision in Wagner v. Swarts, 827 F. Supp. 2d 85, 92 (N.D.N.Y. 2011).

IV. Discussion

The government argues that Toborg should be precluded from offering expert medical testimony because she failed to disclose her experts in accordance with Fed. R. Civ. P. 26(a)(2). (See Dkt. No. 12, Attach. 1 at 5-9.) It further asserts that without expert testimony, Toborg cannot prove a prima facie case of medical malpractice under New York law, and thus, her Complaint should be dismissed. (See id.) In response, Toborg's counsel, Jonathan Fairbanks, admits that he alone was responsible for failing to comply with the discovery schedule, (see Dkt. No. 16, Attach. 1 ¶¶ 4, 6); he nonetheless seeks an ex post facto modification of that schedule to accommodate his untimely submissions, (see id. ¶¶ 11-12.) Construing the government's motion as one for sanctions, the court first addresses the requested scheduling modification, and then, the appropriateness of sanctions.

A. The Discovery Schedule

It is well-settled that the court, in its discretion, may modify the discovery schedule "for good cause." Fed. R. Civ. P. 16(b)(4). "Good cause," however, is a far more demanding standard than mere "excusable neglect." Whitesell v. N.Y. State Marine Highway Transp., LLC., No. 09-cv-656, 2010 WL 4363569, at *2 (N.D.N.Y. Oct. 27, 2010) (internal quotation marks and citation omitted). Rather, to establish "good cause," the party seeking the modification must "show that the deadlines [could not] reasonably be met despite [its] diligence." Robinson v. Town of Colonie, No. 91-CV-1355, 1993 WL 191166, at *3 (N.D.N.Y. June 3, 1993) (internal quotations marks and citation omitted) (emphasis added); see also Carnrite v. Granada Hosp. Group, Inc., 175 F.R.D. 439, 448 (W.D.N.Y. 1997) (finding that counsel's "'inadvertence' or oversight is not good cause for purposes of Rule [16(b)]").

Here, "diligence" on the part of Toborg's counsel is precisely what was lacking. Notwithstanding the government's four separate discovery requests, neither the government-nor the court-received any communication, of any kind, from Fairbanks, or anyone at his firm, until May 4, 2012, the date the government filed its motion for summary judgment. Though he has since fulfilled his client's initial discovery obligations,*fn3 Fairbanks' affidavit is silent on the steps he took to comply with the discovery schedule, and/or further this case prior to receiving the government's motion. (See generally Dkt. No. 16, Attach. 1.) While Fairbanks' personal circumstances are unfortunate, (see ...

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