United States District Court, W.D. New York
DECISION AND ORDER
WILLIAM M. SKRETNY, District Judge.
Trial in this civil rights action which is more than five years old, will begin on August 18, 2015. Presently before this Court is Defendants' motion in limine seeking various forms of relief. (Docket No. 135.) Also pending is Plaintiff's related motion to quash certain non-party subpoenas. (Docket No. 155.) For the reasons that follow, Defendants' motion is granted in part, denied in part, and deferred in part. Plaintiff's motion is denied.
Familiarity with facts of the case and underlying arguments is presumed.
In their motion in limine, Defendants seek seven forms of relief as follows: (1) to preclude Plaintiff's medical witnesses; (2) to preclude use of the November 20, 2010 Consent Order; (3) to preclude certain opinions of Plaintiff's use-of-force expert; (4) to admit Plaintiff's plea colloquy; (5) to require Plaintiff to itemize her damages; (6) to require Plaintiff to identify her exhibits with greater specificity; and (7) to preclude Plaintiff from referencing or displaying sample flashlights not used by Defendant Redmond during the incident in question.
Plaintiff seeks to quash non-party subpoenas directed to her medical witnesses.
A. Plaintiff's Medical Witnesses and Plaintiff's Motion to Quash Non-Party Subpoenas
Defendants seek to preclude Plaintiff from offering certain medical providers as witnesses at trial because she failed to disclose them as fact witnesses under Rule 26(a)(1) or as expert witnesses under Rule 26(a)(2). Plaintiff argues that she adequately disclosed her witnesses because their identities were readily obtainable through deposition testimony, responses to Defendants' interrogatories and requests for production and inspection of documents and things, and signed authorizations Plaintiff provided to Defendants.
Rule 26(a)(1) requires a party to disclose the name and contact information "of each individual likely to have discoverable information-along with the subjects of that information-that the disclosing party may use to support its claims or defenses, unless the use would be solely for impeachment." Fed.R.Civ.P. 26(a)(1)(A)(i). This requirement is designed to alert an opposing party of the need to take discovery of the named individuals. See Pal v. New York Univ., No. 06 Civ. 5892(PAC)(FM), 2008 WL 2627614, at *4 (S.D.N.Y. June 30, 2008) (citing Alfano v. Nat'l Geographic Channel, No. 06 Civ. 3511(NG)(JO), 2007 WL 2982757, at *1 (E.D.N.Y. Oct. 5, 2007)). For that reason, it is generally not enough for a party to rely on other avenues through which an opposing party may learn of the existence of a witness; the disclosing party's obligation is fulfilled only when it affirmatively identifies and discloses its potential witnesses. See id.; see also U.S. Bank Nat. Ass'n v. PHL Variable Life Ins. Co., Nos. 12 Civ. 6811(CM), 13 Civ. 1580 (CM), 2015 WL 3932791, at *9 (S.D.N.Y. June 22, 2015) ("Fact witnesses must be disclosed by sending to the opposing party the name, address, and phone number (if known) of each potential witness .")(citations omitted)(emphasis added). Supplementation of this disclosure is required by Rule 26(e)(1)(A).
The identity of any expert witness must be disclosed under Rule 26(a)(2)(A). For expert witnesses who are not retained or specially employed to provide expert testimony, such as Plaintiff's medical witnesses here, Rule 26(a)(2)(C) requires only that the disclosing party state (1) "the subject matter on which the witness is expected to present evidence under Federal Rule of Evidence 702, 703, or 705, " and (2) "a summary of the facts and opinions to which the witness is expected to testify." See Ramsey v. Nat'l R.R. Passenger Corp., No. 12cv1999 (MHD), 2015 WL 2168062, at *9 (S.D.N.Y. May 7, 2015) (noting that treating physicians may testify as to opinions formed during their treatment, including causation, without submission of an expert report); see also Pokigo v. Target Corp., No. 13-CV-722A (Sr), 2014 WL 6885905, at *4 (W.D.N.Y. Dec. 8, 2014).
Finally, Rule 37(c)(1) provides that if a party "fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless." This is a discretionary remedy. See Design Strategy, Inc. v. Davis, 469 F.3d 284, 297 (2d Cir. 2006) (holding that preclusion is discretionary even if "the trial court finds that there is no substantial justification and the failure to disclose is not harmless"). Factors to be considered in determining whether to impose sanctions under Rule 37 include "(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 continuance." Pal, 2008 WL 2627614, at *3 (citing Patterson v. Balsamico, 440 F.3d 104, 117 (2d Cir. 2006))(alterations in original).
Upon consideration of the parties' arguments, this Court finds that Plaintiff has not complied with the disclosure requirements of Rule 26(a)(1) or Rule 26(a)(2). The rules obligate Plaintiff to disclose her witnesses to Defendants. The fact that Defendants may have had notice of Plaintiff's witnesses through other avenues does not relieve Plaintiff of her disclosure obligations. Defendants' knowledge of Plaintiff's witnesses, however, weighs against preclusion. Defendants generally do not disagree that they knew of Plaintiff's medical providers through document discovery, interrogatory responses, deposition testimony, and signed authorizations. They have also definitively known that Plaintiff intends to call these witnesses since December 16, 2014, when Plaintiff filed her witness list.
Given the importance of medical testimony in this case and the fact that Defendants had some knowledge of Plaintiff's witnesses, albeit not the disclosure required by Rule 26, Defendants' request to preclude is denied. This Court will, however, permit Defendants to conduct the depositions they have noticed. Plaintiff's motion to quash is therefore denied. This Court will further grant Defendants' request to permit their retained experts-Dr. Kenneth Condrell and Dr. Margaret Paroski-to testify at trial. (See Supplemental Declaration of Joseph S. Brown, Docket No. 160, ¶ 11.) ...