United States District Court, N.D. New York
KURT E. PETERSON, Plaintiff,
PAN AM RAILWAYS, INC., et al., Defendants.
MEMORANDUM-DECISION and ORDER
LAWRENCE E. KAHN, District Judge.
Plaintiff Kurt E. Peterson ("Plaintiff") commenced this action under the Federal Employers Liability Act ("FELA"), 45 U.S.C. § 51 et seq., to recover damages for personal injuries sustained while employed by Defendants Pan Am Railways, Inc. ("Pan Am") and Springfield Terminal Railway Company ("Springfield") (collectively, "Defendants"). Dkt. Nos. 1; 52 ("Second Amended Complaint"). Presently before the Court is Plaintiff's Motion for summary judgment and preclusion of Defendants' expert witness and fact witnesses pursuant to Federal Rules of Civil Procedure 16 and 37. Dkt. Nos. 58 ("Motion for Summary Judgment"); 58-7 ("Plaintiff's Summary Judgment Memorandum"). Defendants have filed a Response in opposition. Dkt. Nos. 71 ("Response"); 71-13 ("Defendants' Response Memorandum"). Defendants have also filed a Motion to continue discovery to conduct expert depositions and a Motion for sanctions. Dkt. Nos. 69 ("Motion to Continue"); 69-7 ("Motion to Continue Memorandum"); 76 ("Motion for Sanctions"). Plaintiff has moved to strike Defendants' Motion for sanctions as an unauthorized sur-reply. Dkt. No. 77 ("Motion to Strike").
On or about December 18, 2009, Plaintiff was employed by Defendants as Superintendent of the Mechanical Division West. Dkt. Nos. 58-1 ("Plaintiff's Statement of Material Facts") ¶ 3; 71-14 ("Defendants' Response Statement of Material Facts") ¶ 3. Plaintiff's responsibilities included the repair and maintenance of railroad equipment, and supervision of employee compliance with safety rules. Pl.'s SMF ¶ 4.
On December 17, 2009, Plaintiff was directed to complete an inventory of freight cars in various locations. Id. ¶ 7. On December 18, 2009, while taking inventory at Defendants' freight yard at Eagle Bridge, New York, Plaintiff slipped and fell on ice, injuring his lower back and hip. Id. ¶¶ 8-9. There were no witnesses to the accident. Defs.' Resp. SMF ¶ 8. At the time of the accident, Plaintiff was not wearing "ice creepers, " which are worn by employees over their boots in order to provide traction in snowy or icy conditions. Pl.'s SMF ¶¶ 16, 19; Defs.' Resp. SMF ¶¶ 16, 19. Ice creepers are issued to new employees at their orientations and replaced by Defendants as needed. Pl.'s SMF ¶ 20; Defs.' Resp. SMF ¶ 20.
Plaintiff alleges that he was not wearing ice creepers at the time of the accident because Defendants had not provided a sufficient number for his department, and he had given his last two pairs to new employees. Pl.'s SMF ¶¶ 17-18. Plaintiff claims that he had submitted a request to Defendants on October 28, 2009, for thirty-five pairs of ice creepers and asked that the request be filled "ASAP." Id. ¶¶ 21, 22. Plaintiff also states that he notified his supervisor, Mike Walsh ("Walsh"), that he had given away his last two pairs of ice creepers. Id. ¶ 23. Defendants dispute that Plaintiff properly submitted a request for ice creepers on October 28, 2009. Defs.' Resp. SMF ¶ 18. On December 23, 2009, Plaintiff sent an email regarding the request for ice creepers, and the request was filled the same day. Id.
The day after the accident, on December 19, 2009, Plaintiff submitted an accident report by fax. Pl.'s SMF ¶ 11; Defs.' Resp. SMF ¶ 11. Plaintiff also states that he told Walsh about the accident and injury. Pl.'s SMF ¶ 13; Defs.' Resp. SMF ¶ 13. Defendants dispute that the fax was received and state that Defendants only received the report when Plaintiff mailed a copy on or about March 12, 2010. Defs.' Resp. SMF ¶ 91.
III. DISCOVERY MOTIONS
The Court first addresses the pending Motions on discovery matters, because they are relevant to the evidence the Court may consider on Plaintiff's Motion for summary judgment. Plaintiff moves to preclude Defendants' fact witnesses on the grounds that they were not disclosed in Defendants' initial disclosures and Defendants' expert witness because Defendants' expert report was untimely served. Pl.'s SJ Mem. at 10-15. Defendants oppose Plaintiff's Motion to preclude Defendants' expert witness, and alternatively, request a continuance of discovery to allow the parties to depose each other's experts. Defs.' Resp. Mem. at 11-13; Mot. Cont. Mem.
A. Legal Standard
Federal Rule of Civil Procedure 26(a)(1) requires that a party provide, in an initial disclosure, the name "of each individual... that the disclosing party may use to support its claims or defenses." FED. R. CIV. P. 26(a)(1)(i). A party must also supplement its disclosures "in a timely manner... if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing." FED. R. CIV. P. 26(e)(1)(A).
"[I]f a party fails to... identify a witness as required by Rule 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)(1). "Substantial justification' may be demonstrated where there is justification to a degree that could satisfy a reasonable person that parties could differ as to whether'... there exists a genuine dispute regarding compliance.'" Ritchie Risk-Linked Strategies Trading (Ir.), Ltd. v. Coventry First LLC, 280 F.R.D. 147, 159 (S.D.N.Y. 2012) (quoting AIG Global Asset Mgmt. Holdings Corp. v. Branch, No. 04 Civ. 8803, 2005 WL 425494, at *1 (S.D.N.Y. Feb. 18, 2005)). Failure to disclose is "harmless" where there is "an absence of prejudice." Id. The burden to prove either substantial justification or harmlessness is on the party facing sanctions. Am. Stock Exch., LLC v. Mopex, Inc., 215 F.R.D. 87, 93 (S.D.N.Y. 2002).
"[T]he imposition of sanctions under Rule 37(c)(1) is a matter within the trial court's discretion.'" Jockey Int'l, Inc. v. M/V "LEVERKUSEN EXPRESS", 217 F.Supp.2d 447, 452 (S.D.N.Y. 2002) (quoting Ward v. Nat'l Geographic Soc'y, No. 99 Civ. 12385, 2002 WL 27777, at *2 (S.D.N.Y. Jan. 11, 2002)). "Preclusion of evidence is generally a disfavored action." Am. Stock Exch., 215 F.R.D. at 93; see also Lujan v. Cabana Mgmt., Inc., 284 F.R.D. 50, 68 (E.D.N.Y. 2012). In determining whether to preclude a witness, a court must consider "(1) the party's explanation for the failure to comply with the [disclosure requirement]; (2) the importance of the testimony of the precluded witness[es]; (3) the prejudice suffered by the opposing party as a result of having to prepare to meet the new testimony; and (4) the possibility of a continuance." Patterson v. Balsamico, 440 F.3d 104, 117 (2d Cir. 2006) (quoting Softel, Inc. v. Dragon Med. & Scientific Commc'ns, Inc., 118 F.3d 955, 961 (2d Cir. 1997)).
B. Defendants' Fact Witnesses
Plaintiff argues that none of Defendants' fact witnesses were properly disclosed under Rule 26, and that, accordingly, these witnesses should be precluded under Rule 37. Pl.'s SJ Mem. at 10-13; Dkt. No. 73 ("Plaintiff's Reply") at 2-3. In their initial pre-trial disclosure, served on February 21, 2014, Defendants identified James F. Olson ("Olson"), VP Mechanical for Springfield Terminal Railway Company, and James C. Rae ("Rae"), Superintendent Mechanical for Springfield Terminal Railway Company, as potential witnesses Defendants may call to testify at trial. Dkt. No. 58-3 ¶ 13. The disclosure did not identify the subject matter of the witnesses' testimony. Id. On July 17, 2014, after the close of discovery, Defendants supplemented their disclosure, identifying as potential trial witnesses, "[a]ny witness ...