United States District Court, W.D. New York
BRYAN DiFRANCESCO as father and natural guardian of the infant minor, LD, Plaintiffs,
WIN-SUM SKI CORP., HOLIDAY VALLEY, INC., Defendants.
Hugh B. Scott United States Magistrate Judge
the Court are plaintiffs' motion for a protective Order
pursuant to Federal Rule of Civil Procedure 26(c) and to
quash subpoenas (Docket No. 43; see id., Pls. Atty.
Decl. Ex. G). Responses initially were due by January 13,
2017, and was argued with the Final Pretrial Conference on
January 18, 2017, and deemed submitted (Docket No. 44). The
parties then consented to proceed before the undersigned as
Magistrate Judge including conducting a trial (Docket No.
37). The jury selection and trial of this case was scheduled
for February 1, 2017 (Docket No. 40, Final Pretrial Order),
but was later adjourned (Docket Nos. 63, 64). Responses to
this motion then were due by February 3, 2017 (Docket No.
63), which defendants submitted (Docket No. 65), and reply by
February 10, 2017 (Docket No. 63), which plaintiffs submitted
(Docket No. 68), and argument was held on February 16, 2017
(Docket Nos. 63, 69 (minutes)).
this Court will address the parties' respective motions
in limine (Docket Nos. 53, 58 (defendants' motions), 56
a diversity personal injury action. Plaintiffs are Canadians,
with plaintiff LD (hereinafter “LD, ”
cf. Fed.R.Civ.P. 5.2) a five-year-old who skied at
defendants' ski resort, Holiday Valley, in 2010, and her
father, Bryan DiFrancesco. Plaintiffs allege that LD was
injured falling from a chairlift at Holiday Valley (Docket
No. 1, Compl.; see Docket No. 43, Pls. Atty. Decl.
¶ 3, Ex. B). Defendants are New York corporations who
operate Holiday Valley.
to plaintiffs' motion, LD was participating in a ski
lesson at Holiday Valley on February 15, 2010, under the
supervision of a ski instructor when she fell from the
chairlift. Plaintiffs allege negligent instruction and
supervision during the course of that lesson resulting in
LD's fall. (Docket No. 43, Pls. Atty. Decl. ¶ 3;
see id., Pls. Memo. at 1-2.) According to
plaintiffs' moving papers, LD sustained injuries to her
left leg and left hip due to the fall (Docket No. 43, Pls.
Atty. Decl. ¶ 9, Ex. E).
Scheduling Order (after extensions, see Docket Nos.
14-15, 20, 23, 25, 27) in this case had discovery conclude on
April 30, 2015 (Docket No. 27; see Docket No. 43,
Pls. Atty. Decl. Ex. D). No motions to compel were filed and
the parties reported on October 5, 2015, readiness for trial
(Docket No. 30).
served two subpoenas duces tecum that plaintiffs seek quashed
and a protective Order against them (Docket No. 43, Pls.
Atty. Decl. ¶ 2, Exs. A, G). One subpoena (id.,
Ex. A) sought information from plaintiff father Bryan
DiFrancesco (hereinafter “Bryan” or
“father”) regarding LD's recreational
activities, including but not limited to skiing or
snowboarding, her athletic activities; the other subpoena was
intended for Holimont, Inc., for documents surrounding
LD's skiing activities and any skiing or snowboarding
accidents at Holimont (id., Ex. A). These subpoenas
had a return date of January 3, 2014 (id.).
Plaintiffs objected to these subpoenas, raising their
objections through their counsel's emails to defense
counsel (id. ¶ 2, Ex. F; see Docket
No. 68, Pls. Reply Memo. at 8-9).
argue, next, that these are not trial subpoenas but are more
in the nature of untimely discovery requests (since the
discovery deadline has long passed) (Docket No. 43, Pls.
Atty. Decl. ¶ 5). The subpoena for Bryan is directed at
LD's activities after the February 2010 accident, which
he testified to in his deposition on February 18, 2014
(id. ¶ 5, Ex. C, EBT Tr. Feb. 18, 2014, at
10-21, 23, 95-96). There, Bryan testified that LD
participates in various sports in school and after school
following the accident, including playing soccer, volleyball,
basketball, running cross-country, skiing, and snowboarding
(id., Ex. C, EBT Tr. at 10-11, 15, 16, 95). He said
that LD skied and snowboarded with the family at Holimont
(id., Ex. C, EBT Tr. at 16-21). Plaintiffs complain
that the subpoena for Bryan was served upon plaintiffs'
counsel and plaintiffs (as Canadians) did not consent to
service of subpoenas through counsel (id. ¶ 7;
id., Pls. Memo. at 8); service was done by email to
counsel's email address (Docket No. 43, Pls. Memo. at 3;
see Docket No. 68, Pls. Reply Memo. at 8-9).
object to the subpoena directed at Holimont since it is
directed at plaintiff LD's post-2010 accident activities
at a different ski resort, as well as her accident at
Holimont on January 2015 wherein she injured her clavicle
(Docket No. 43, Pls. Atty. Decl. ¶¶ 6, 8, 10). They
argue that the 2015 Holimont incident is irrelevant to her
2010 claims and could introduce prejudicial material leading
a jury to conclude that LD is accident prone or habitually
negligent and somehow at fault in 2010 (id. ¶
12). The Holimont records involve her clavicle, a body part
plaintiff does not claim was injured in 2010 and is
irrelevant to this case (id. ¶ 13). As a non-
party subpoena, it essentially seeks discovery from Holimont
after the April 2015 discovery deadline has passed
(id. ¶ 14).
contend that materials from Holimont would be inadmissible
under Federal Rules of Evidence 402 and 404(b) since they
lead to irrelevant and inadmissible other wrongs or acts of
LD (Docket No. 43, Pls. Memo. at 5-6). They also argue that
New York State physician-patient privilege does not permit
discovery of LD's physical condition for injuries to
parts of her body unrelated to the 2010 injuries to her leg
and hip (id. at 7).
respond that the documents sought are part of their First
Request for Production of Documents as supplemental responses
to those requests (Docket No. 65, Defs. Memo. at 11-12),
see Gorzynski v. Jet Blue Airways Corp., No.
03CV774, 2012 U.S. Dist. LEXIS 28932, at *8, 11 (W.D.N.Y.
Mar. 5, 2012) (Scott, Mag. J.). Paragraph 16 of that request
sought all documents of LD's organized athletic
activities after the 2010 accident (Docket No. 65, Defs.
Atty. Decl. ¶ 5, Ex. A, at 3, ¶ 16) and plaintiffs
responded that they did not have any responsive documents
(id., ¶ 5, Ex. B, at 5, ¶ 16). LD later
testified that she participated in organized soccer and
basketball, and defendants found an article in the
Ellicottville Times that listed LD as a member of a
Holimont freestyle ski team and participated in mogul
competitions (id.¶ 6, Ex. C (Times
article)). During oral argument, defendants state that the
Times article was found by an Internet search.
also sought photographs and videos of LD skiing (id.
¶ 8, Ex. A, ¶ 17) and plaintiffs responded that
they would “search for photographs or videos” of
LD skiing and offering to “supplement this
response” (id., ¶ 8, Ex. B, ¶ 17).
Plaintiffs, however, initially had not supplemented this
response although LD has skied and snowboarded since the 2010
accident (id. ¶ 9). They contend that the
documents sought are relevant to plaintiffs' claims of
pain and suffering and loss of enjoyment of life (Docket No.
65, Defs. Memo. at 11). Plaintiffs' reply contained
photographs of LD skiing, but of an unstated date (Docket No.
68, Pls. Atty. Decl. Ex. A). As for the 2015 Holimont
accident documents, defendants contend that New York State
law regarding whether there is a blanket waiver of the
physician-patient privilege by commencing a personal injury
action is in conflict and that this Court should not rely
upon Fourth Department decisions on this issue (Docket No.
65, Defs. Memo. at 12). The 2015 incident may reveal LD's
loss of enjoyment of life and related psychological injuries
(id. at 13). Alternatively, defendants argue that
the 2015 incident report should be submitted for in
camera review to determine the materiality of the record
(id. at 13-14). As for objections to admitting
post-accident incident, defendants find it
“curious” that plaintiffs take this position
although plaintiffs seek admission of prior and subsequent
accidents at Holiday Valley; concluding that plaintiffs
“cannot have it ‘both ways'”
(id. at 14). Plaintiffs claim that LD suffers from
post-traumatic stress and anxiety from the 2010 accident
(see id. at 12), defendants argue that evidence from
the 2015 incident is relevant to establishing whether that
post-traumatic stress and anxiety arose from the 2010 or 2015
incidents (id. at 14).
reply that they are not seeking to “have it both ways,
” rather they contend that the broken clavicle is
unrelated to LD's present claims while defendants'
relocation of the instruction signs at the chairlift was to
be used by plaintiffs only for impeachment, or in response to
the affirmative defense of culpable conduct or to show
feasibility (Docket No. 68, Pls. Reply Memo. at 7-8). They
also contend that, if this case were tried in New York State
courts, Fourth Department law regarding waiver of
physician-patient privilege (rather than Second Department
law) would apply and therefore this Court should apply Fourth
Department law (and the nonwaiver of the privilege) to uphold
the Holimont subpoena (id. at 6-7).
oral argument of February 16, 2017, plaintiffs emphasize that
defendants are seeking discovery in these subpoenas after the
discovery cutoff deadline (see Docket No. 69).
Defendants received photographs (Docket No. 68, Pls. Atty.
Decl. Ex. A), which did not state when the photographs were
taken; if taken prior to plaintiffs' depositions,
defendants now argue that these photographs should have been
produced and, if so, defendants would have questioned
plaintiffs about the provenance of these photographs. The
parties also sought supplementation of discovery (photographs
from both sides, future medical care report from LD's
treating sources) and indicated that they may need to file
further motions in limine depending upon the items produced
in this mutual supplementation. Defendants responded that
they seek information about LD's 2015 clavicle injury to
distinguish those injuries from any claimed from the 2010
accident at issue here.
this argument, the parties and Court agreed to reschedule
jury selection and trial to begin on Monday, July 17, 2017
(Docket No. 69).