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DiFrancesco v. Win-Sum Ski Corp.

United States District Court, W.D. New York

February 22, 2017

BRYAN DiFRANCESCO as father and natural guardian of the infant minor, LD, Plaintiffs,


          Hon. Hugh B. Scott United States Magistrate Judge

         Before 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)).

         Separately, this Court will address the parties' respective motions in limine (Docket Nos. 53, 58 (defendants' motions), 56 (plaintiffs' motions).


         This is 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.

         According 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).

         The 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).

         Defendants 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).

         Plaintiffs 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).

         Plaintiffs 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).

         Plaintiffs 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).

         Defendants 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.

         Defendants 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).

         Plaintiffs 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).

         During 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.

         During this argument, the parties and Court agreed to reschedule jury selection and trial to begin on Monday, July 17, 2017 (Docket No. 69).


         I. ...

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