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Scott v. CSX Transportation, Inc.

United States District Court, N.D. New York

January 31, 2014

M.B. an infant by parent and natural guardian MAUREEN SCOTT and MAUREEN SCOTT, individually, Plaintiffs,

JOHN A. CORNING LAW OFFICE, JOHN A. CORRING, ESQ., New York, New York, Attorney for Plaintiffs.

ECKERT SEAMANS LAW FIRM, LAWRENCE R. BAILEY, JR., ESQ., White Plains, New York, Attorney for Defendant.


RANDOLPH F. TREECE, Magistrate Judge.

Experience and intuition strongly suggest that compliance with the Scheduling and Discovery Orders in this case would ultimately have to be addressed by a motion. Over an eight-month period, amendments to the Scheduling Order were granted in order to mollify the Plaintiffs' failure to timely serve expert reports. Finally exasperated with Plaintiffs' repeated and fundamental anemic abidance with the Discovery/Scheduling Orders, Defendant files a Motion to Preclude Plaintiffs' Experts, pursuant to both the Federal Rules of Civil Procedure and this District's Local Rules, and it seeks an extension of time to serve its expert disclosures. Dkt. No. 36, Def.'s Mot. to Preclude, dated Dec. 2, 2012. Plaintiffs oppose Defendant's Motion. Dkt. No. 38, John A. Corring, Esq., Decl., dated Dec. 16, 2013. Notwithstanding the parties' familiarity with the facts of this Motion, in order to appreciate the Court's Decision, a history of this litigation is warranted.


Originally, this action was commenced in New York State Supreme Court, County of Ulster, on or about March 23, 2012. Because of diversity jurisdiction, pursuant to 28 U.S.C. § 1332(a), this lawsuit was moved to the Northern District of New York. Dkt. No. 1, Notice of Removal, dated May 18, 2012. Succinctly, it is alleged that on November 27, 2010, while crossing the railroad tracks located in Kingston, New York, infant M.B. was struck by a train owned and operated by the Defendant. See Dkt. No. 1-1, Compl. at ¶¶ 10-17.

Initially, a Scheduling Order would have been issued on or about October 4, 2012, however, the Rule 16 Conference was adjourned for purposes of pursuing a settlement conference. The settlement conference held on October 26, 2012, was unsuccessful requiring the Court to re-schedule the Rule 16 Conference. Customarily during Rule 16 conferences, the Court raises issues relative to medical proof and experts with the parties. Realizing the gravity of M.B.'s injuries, the Court advised Plaintiffs' Counsel that if damages encompassed an opinion regarding permanent injuries, a full expert report, pursuant to FED. R. CIV. P. 26(a)(2)(A) & (B), would be required. Consistent with the Civil Case Management Plan, Dkt. No. 8, and afer further discussion with the parties, a Scheduling Order was issued on October 26, 2013. Dkt. No. 13, Scheduling Order. The Scheduling Order advised the parties that the discovery deadline would be July 31, 2013, and that Plaintiffs' expert report would be due ninety (90) days prior to the expiration of the discovery period; said date for this disclosure would have been April 30, 2013. Id. at p. 2; see also Dkt. No. 36-2, Ex. A, Scheduling Order.

On February 21, 2013, the Defendant informed the Court that even though four months had elapsed since the issuance of the Scheduling Order, no discovery had occurred. Dkt. No. 14, Def.'s Status Rep., dated Feb. 21, 2013. Plaintiffs brushed off Defendant's claim nothing however that "discovery is far from complete" and thus requested a "short extension." Dkt. No. 17, Pls.' Status Rep., dated Feb. 28, 2013. After holding a telephone conference with the parties, the Court issued a Text Order extending the discovery deadline an additional sixty (60) days to September 30, 2013, and further noting that this Order extending the deadline would be a "final extension." Dkt. No. 19, Text Order, dated Mar. 7, 2013. By extending the discovery deadline, Plaintiffs were obligated to serve their expert reports by June 30, 2013.

In June, as the parties approached the modified discovery deadline, the Defendant was compelled to alert the Court that discovery, once again, had been stymied. The Defendant claimed that Plaintiffs had not timely served the required authorizations, medical records, and, interestingly, Plaintiffs had not served a single demand on the Defendant. Dkt. No. 20, Def.'s Lt.-Mot., dated June 12, 2013. Responding to Defendant's Letter-Motion, Plaintiffs proffered excuses for their delay in fully complying with the Defendant's Demands, asserted that "the September 30, 2013 cut off discovery is sufficient and will be met, " and yet sought, once again, "a short extension for the exchange of expert witness information (engineering and medical)." Dkt. No. 23, Pls.' Lt.-Br., dated June 17, 2013.[1]

Reacting to the parties' correspondence, the Court set up another discovery telephone conference. After a lengthy discourse, the Court issued a Discovery Order amending, once again, the Scheduling Order in order to accommodate Plaintiffs' discovery lapses. The revised discovery deadline was set for October 30, 2013, and Plaintiffs' expert reports were required to be served by July 22, 2013. Dkt. No. 25, Discovery Order, dated June 20, 2013. This Discovery Order also noted that there would be "no further extensions." Id.

Now, becoming a rite of passage with this case, the Defendant filed another Status Report outlining how the infant Plaintiff failed to timely appear for his independent medical examination, requiring it to be rescheduled, and noting that, notwithstanding the extension of the discovery and expert deadlines, no expert disclosure was served on July 22, 2013, nor, by the date of the Status Report. Dkt. No. 26, Def.'s Lt.-Mot., dated Sept. 27, 2013. Because of Plaintiffs' inaction and omissions, the Defendant sought to preclude Plaintiffs from offering expert testimony at trial. Id. And, once again, the Court had to resort to yet another telephone conference with the expectations of ascertaining why there exists so many issues relevant to discovery, and expert disclosures in particular. On October 9, 2013, during the telephonic conference, which was held on the record, Plaintiffs advised the Court that they had not conducted the deposition of the operating locomotive engineer as previously promised, see supra note 1, and, as expected, no expert reports were served nor forthcoming in the near future. The Court's exasperation rings loudly in the Text Order amending the Scheduling Order once again:

Considering that the Court had already granted an extension of the discovery deadline and stated that there would be no further extensions... the Court was not inclined to grant yet another extension of the deadlines. However, the Plaintiffs had yet to serve expert reports and pursuant to the current Scheduling Order, said reports are woefully late and subject to preclusion. Precluding a party from serving an expert report is a drastic remedy to be avoided, if possible. In order to avoid this remedy, another extension, albeit very brief is warranted. The Court relents and will grant this FINAL amendment to the Scheduling Order.... the engineer's deposition shall be completed by October 30, 2013... [and] Plaintiffs' expert report shall be served by November 22, 2013.... NO FURTHER EXTENSIONS. SO ORDERED.

Text Order, dated Oct. 9, 2013.

Notwithstanding the Court's repeated admonitions, the pattern of lassiez-faire discovery persisted. Once again, the Defendant filed another Status Report informing the Court that Plaintiffs did not serve any expert report until November 25, 2013. Dkt. No. 34, Def.'s Lt.-Mot., dated Nov. 26, 2013. Although Plaintiffs identified their liability and medical experts, neither report contained any expert opinion. Plaintiffs' rejoinder was that a supplemental disclosure would be served on or before December 15, 2013. Id. Weighing this new revelation, the Court did not hold another telephone conference, but, instead, issued an order granting the Defendant ...

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