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Hewitt v. Metro-North Commuter Railroad

United States District Court, S.D. New York

March 24, 2017

Donovan G. Hewitt, Plaintiff,
v.
Metro-North Commuter Railroad, Defendant.

          MEMORANDUM & ORDER

          ALISON J. NATHAN, District Judge

         Before the Court is Plaintiff Donovan Hewitt's motion to set aside Magistrate Judge Ellis's March 22, 2016 order and to preclude certain supplemental expert reports. For the following reasons, the Court denies the motion.

         I. Background

         This is a case brought under the Federal Employers' Liability Act ("FELA") by Plaintiff Hewitt against his former employer, Metro-North Commuter Railroad ("Metro-North"). Amend. Compl. ¶¶ 1-2 (Dkt No. 56). As detailed in more depth in the concurrently filed Memorandum & Order denying Metro-North's motion for partial summary judgment, Plaintiff Hewitt alleges that Metro-North failed to take reasonable steps to mitigate his exposure to ergonomic risk factors.[1] Amend. Compl. ¶¶ 13-17. According to Hewitt, Metro-North's negligence in this regard caused him to suffer several shoulder and elbow injuries. Amend. Compl. ¶ 17; Plaintiffs Rule 56.1 Statement ¶ 2 (Dkt No. 91).

         To support his claims, Hewitt hired experts. Hewitt retained the services of Dr. Robert Andres, a bioengineer and ergonomist. Plaintiffs Rule 56.1 Statement ¶¶ 118-19, 129; Opp. at 2 (Dkt No. 83). Dr. Andres opined that Hewitt's work at Metro-North exposed Hewitt to various ergonomic risk factors associated with certain injuries and that Metro-North failed to take certain steps to mitigate Hewitt's exposure. Plaintiffs Rule 56.1 Statement ¶¶ 164, 182, 186, 189; Summary Judgment Def Ex. B at 40-41 (Dkt No. 70-3). Hewitt also asked his orthopedic surgeon, Dr. Victor Sasson, to provide an expert report. Def. Ex. A (Dkt No. 84-1); Opp. at 2. Dr. Sasson opined that Hewitt's job at Metro-North "was a significant contributing cause (not the sole cause) of the injuries/conditions and symptoms" alleged in this lawsuit. Def. Ex. A at 14.[2]To combat Hewitt's claims, Metro-North also hired its own experts. Specifically, the company hired an ergonomics expert (Dennis Mitchell) to review Dr. Andres' opinions, and it hired an orthopedic surgeon (Dr. Ramesh Gidumal) to review Dr. Sasson's opinions. Opp. at 2; Maurer Affidavit ¶ 4 (Dkt No. 78); Def. Ex. B (Dkt No. 84-2); Def. Ex. D (Dkt No. 84-4).

         The motion currently pending before the Court involves the timeliness of Metro-North's expert disclosures. According to the Court's January 15, 2016 scheduling order, all discovery in this case was to be completed by February 29, 2016. Dkt No. 45. Some of Metro-North's expert disclosures complied with this order; Metro-North disclosed Mitchell's initial report on February 8, 2016, Dr. Gidumal's initial report on February 16, 2016, and a supplemental report from Mitchell on February 28, 2016. Opp. at 2; Def. Ex. B; Def. Ex. D; Def. Ex. E (Dkt No. 84-5).

         Metro-North, however, made two supplemental disclosures that violated this scheduling order. On March 3, 2016, Metro-North disclosed a supplemental report from Dr. Gidumal. Def. Ex. H (Dkt No. 84-8); Dkt Nos. 63, 64. That report stated, in its entirety, that Dr. Gidumal had "reviewed a disc titled 12/15/15 Site Inspection Video as well as two pages of Mr. Hewitt's job description. After reviewing both items [his] opinions as expressed during [his] deposition and [his] report have not changed." Def. Ex. H. On March 7, 2016, Metro-North disclosed a second supplemental report from Mitchell. Def. Ex. I (Dkt No. 84-9); Dkt Nos. 63, 64. This report stated that Mitchell had reviewed four additional documents and had concluded that those "documents do not have any relevance to [his] opinions as expressed in [his] previous reports." Def. Ex. I.

         In 2015, this case was referred to the Magistrate Judge for general pretrial and for a particular discovery dispute. Dkt No. 15. Accordingly, the Magistrate Judge was responsible for resolving all "scheduling, discovery, non-dispositive pretrial motions, and settlement" issues. Id. Judge Ellis was designated as the Magistrate Judge for this matter.

         On March 9, 2016, Magistrate Judge Ellis held a conference call with the parties. See Dkt Nos. 64-65. During that conference, both parties agreed that discovery was complete. Dkt No. 65; Mot. at 5 (Dkt No. 79); Opp. at 3-4. Hewitt did not raise the issue of the untimeliness of Metro-North's supplemental expert reports during this phone call. Id.

         On March 15, 2016, Hewitt filed an objection to the two supplemental expert reports. Dkt No. 63. The sole basis of the objection was that the reports were untimely. Id. On March 21, 2016, Metro-North filed a letter response to this objection. Dkt No. 64. Metro-North argued both that the objection was "baseless" and that it "should have been raised by plaintiff with the Court on March 9, 2016." Id. at 1-2.

         On March 22, 2016, Judge Ellis held a telephone conference to address Hewitt's objections. See Dkt No. 65. After the conference, Judge Ellis issued a written decision denying Hewitt's objections. Id. Judge Ellis concluded that Hewitt's objections to the untimeliness of Metro-North's supplemental expert reports were "a discovery matter." Id. Judge Ellis further concluded that "[b]ecause Hewitt failed to raise the objections following the close of discovery, or at the March 9 conference, his objections are untimely." Id. And because Hewitt had not shown good cause for the failure to raise the issue earlier, Judge Ellis ruled that "[t]he objections to Defendants' supplemental expert disclosures are therefore overruled." Id.

         On April 1, 2016, Hewitt filed a motion challenging this decision. Dkt No. 77. Metro-North opposed. Dkt No. 83. The Court now resolves that motion.

         II. Discussion

         Hewitt's motion asks the Court to set aside Magistrate Judge Ellis's March 22, 2016 decision and instead enter an order precluding Metro-North's two supplemental expert disclosures as untimely. Mot. at 8. The Court denies Hewitt's motion because Judge Ellis's conclusion that Hewitt waived the right to object to these reports by failing to raise the issue during the March 9 conference call was not "clearly erroneous" or "contrary to law." A district judge may authorize a magistrate judge to decide any non-dispositive pretrial matter. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(a). After a magistrate judge decides a nondispositive matter, a party has fourteen days to object. Fed.R.Civ.P. 72(a). A district court must review objected-to decisions, but may only "modify or set aside" the magistrate judge's order if it is "clearly erroneous or is contrary to law." Fed.R.Civ.P. 72(a); see also 28 U.S.C. ยง 636(b)(1). Here, Hewitt has objected to ...


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