United States District Court, S.D. New York
Donovan G. Hewitt, Plaintiff,
Metro-North Commuter Railroad, Defendant.
MEMORANDUM & ORDER
J. NATHAN, District Judge
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.
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. 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).
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.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.
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).
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.
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
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.
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.
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.
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.
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. §
636(b)(1). Here, Hewitt has objected to ...