The opinion of the court was delivered by: Honorable Michael A. Telesca United States District Judge
Darryl Holland ("Holland" or "Plaintiff"), acting pro se, instituted this action pursuant to 42 U.S.C. § 1983 against Defendants alleging violations of his rights under the First Amendment of the U.S. Constitution and the Religious Land Use and Institutionalized Persons Act ("RLUIPA").
The Court (Siragusa, D.J.) appointed counsel to represent Plaintiff.
On June 16, 2010, Defendants submitted the declarations of two employees of the New York State Department of Corrections and Community Supervision ("DOCCS"), Dr. Lester Wright and Captain Stephen Casaceli, in support of Defendants' motion for summary judgment dismissing the complaint. Plaintiff, on July 23, 2010, filed a motion (Dkt #77) to have the Declaration of Dr. Lester Wright ("the Wright Declaration") and the Declaration of Captain Stephen Casaceli ("the Casaceli Declaration") stricken because Defendants never identified Dr. Wright or Captain Casaceli in their disclosures pursuant to Rule 26 of the Federal Rules of Civil Procedure ("F.R.C.P.") and never supplemented their Rule 26 disclosures to add Dr. Wright or Captain Casaceli as potential witnesses.
Plaintiff additionally notes that in his first set of interrogatories served on October 10, 2008, he asked Defendants to identify "all persons with knowledge concerning the allegations and/or defenses raised in the Second Amended Complaint and/or the Defendants' Answer to the Second Amended Complaint[.]" Exhibit ("Ex.") 2 to Dkt. #77-2. In their February 2009 response to the October 2008 interrogatories, Defendants referred Plaintiff to their earlier Rule 26 disclosure, which did not name Dr. Wright or Captain Casaceli.
Also in the first set of interrogatories, Plaintiff asked Defendants to reveal the names of their expert witness(es). Defendants responded that "at this time, no expert is anticipated." Ex. 3 to Dkt #77-2.
Defendants have opposed Plaintiff's motion to strike in a Declaration submitted by their attorney, Gary Levine, Esq. (Dkt #84), who filed a Notice of Appearance in this action on February 2, 2010. Attorney Levine argues that because the Wright Declaration and the Casaceli Declaration do not assert facts about Plaintiff or the incident at issue, and are used solely to support the constitutionality of the challenged prison directive, Dr. Wright or Captain Casaceli are neither fact nor expert witnesses within the meaning of Federal Rule of Evidence ("F.R.E.") 701 and 702, respectively.
Plaintiff has submitted a Reply (Dkt #86), characterizing Defendant's response as "curious" and arguing that it "ignores both the fact that F.R.C.P. 26 requires disclosures of all witnesses who may have discoverable information that the disclosing party may rely upon to support its defenses, and the fact that Plaintiff expressly asked for the identity of individuals with discoverable information." Dkt #86 at 2 (emphasis supplied). Plaintiff notes that if Dr. Wright and Captain Casaceli do not have discoverable information, then striking their declarations will not prejudice Defendants. Id. n.1.
This matter was transferred to the undersigned on October 19, 2012.
F.R.E. 701 was amended in 2001 "to provide that testimony cannot be received as lay opinion if it is based on scientific, technical, or other specialized knowledge." United States v. Garcia, 413 F.3d 201, 215 (2d Cir. 2005) (citing FED. R. EVID. 701(c)). F.R.E. 701(c)'s purpose is to "prevent a party from conflating expert and lay opinion testimony" and thereby "confer an aura of expertise on a witness without satisfying the reliability standard for expert testimony set forth in [F.R.E.] 702 and the pre-trial disclosure requirements set forth" in F.R.C.P. 26. Garcia, 413 F.3d at 215.
Under F.R.C.P. 26, "a party must 'disclose to the other parties the identity of any witness it may use at trial to present evidence under Federal Rule of Evidence 702, 703, or 705,' and must make such disclosures 'at the times and in the sequence that the court orders.'" DVL, Inc. v. Niagara Mohawk Power Corp., No. 11--26--cv, 2012 WL 3125570, at *2 (2d Cir. Aug. 2, 2012) (quoting FED. R. CIV. P. 26(a)(2)(A) & (D)). F.R.C.P. 37(c) states that "[i]f a party fails to . . . identify a witness as required by [F.R.C.P.] 26(a) or (e), the party is not allowed to use that . . . witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless." FED. R. CIV. P. 37(c).
Pursuant to the Amended Scheduling Order issued by the Court (Siragusa, D.J.) dated September 18, 2008, Defendants were to identify any expert witnesses by December 8, 2008. See Dkt #50. Expert discovery was to be completed by February 11, 2009. See id. At no time prior to December 8, 2008, did Defendants identify Dr. Wright or Captain Casaceli as expert witnesses. ...