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. and HOLIDAY VALLEY, INC., Defendants.
HUGH B. SCOTT, UNITED STATES MAGISTRATE JUDGE
the Court is plaintiffs' motion to extend their discovery
deadline by 30 days from the April 5, 2017, deadline (Docket
No. 77). Responses to this motion were due by April 13, 2017
(Docket No. 79; see also Docket No. 78), which
defendants submitted (Docket No. 81), and the motion was
argued during the pretrial conference held on April 19, 2017
(Docket No. 82).
a personal injury action under this Court's diversity
jurisdiction arising from plaintiff LD's fall from a
chairlift in 2010. The parties consented to proceed to trial
before the undersigned (Docket No. 37) and trial is scheduled
to commence on July 17, 2017 (Docket Nos. 69, 70, 71).
Familiarity with proceedings to date is presumed. Under the
Scheduling Order (as amended) discovery concluded on April
30, 2015 (Docket No. 27), with no motions to compel filed. It
is notable that there was little pretrial activity with this
Court in this case until the Final Pretrial Conference.
what is now the first round of motions in limine and pretrial
submissions, defendants sought to preclude evidence of
non-disclosed expert testimony (see Docket No. 58),
noting that plaintiffs had not established that LD had a need
for future medical care. This Court held that this motion was
moot because of the parties' agreement to supplement
discovery and disclosure, as argued during oral argument of
that and other motions (Docket No. 73, Order of Mar. 20,
2017, at 40-41; see Docket No. 69). Under
plaintiffs' motion (Docket No. 43) to quash certain
subpoenas, this Court set a discovery cut off of April 5,
2017, to conclude supplemental discovery (Docket No. 70,
Order of Feb. 22, 2017, at 21, 22).
next moved to extend time to complete their supplemental
production (Docket No. 77). At oral argument, they announced
that they also would produce an economic expert with this
supplementation (see Docket No. 82). Plaintiffs in
their motion claimed that LD's physical condition in the
“future is bleak since the nature of her injuries are
progressive and potentially devastating to her future quality
of life” (Docket No. 77, Pls. Atty. Affirm. ¶ 5).
Defendants note, however (Docket No. 81, Defs. Memo. at
1st-2d unnumbered pages), that plaintiffs' counsel makes
this statement without doctors or other factual
substantiation. During oral argument, plaintiffs contended
that LD's legs were different lengths. Plaintiffs'
counsel argued that they needed time to gather materials from
LD's medical providers and other experts, offering to
complete this task by April 30, 2017 (see Docket No.
argued that an extension of time was not warranted here
(Docket No. 81, Defs. Memo.). First, LD's doctors advised
that she could continue her athletic activities without
restriction, while a subsequent treating physician treated
LD's complaint of pain in her hip with prescribed
exercise (with LD not having further appointments or more
extensive treatment) (id. at 2d through 3d
unnumbered pages). Defendants provided in camera
LD's supplemented medical record (id., Exs. A-E)
and filed photographs taken of LD in various physical
activities after the 2010 accident (id., Exs. F-S).
The photographs depict LD running in cross country race,
playing soccer and volleyball, riding horses, skiing, and
climbing rock walls (Docket No. 81, Defs. Exs. F-S).
defendants complain that one doctor, Dr. Ayeni, recently has
been identified as a plaintiffs' expert and this doctor
was not disclosed either in plaintiffs' initial Rule
26(a) disclosure or in Interrogatory answers (id.,
Defs. Memo. at 2d-3d unnumbered pages).
Judge Elizabeth Wolford's four-factor standard for
determining whether a belated production of an expert should
be allowed, see Mikulec v. Town of Cheektowaga, 302
F.R.D. 25, 29-30 (W.D.N.Y. 2014), defendants contend that
plaintiffs are not justified in being given leave to use
these experts. First, they argue that no excuse was given for
the belated disclosure and identification of the expert at
the eleventh hour. Next, defendants believe that plaintiffs
failed to establish proof of future medical treatment for LD
as even necessary. Third, defendants contend that they would
be prejudiced by this belated disclosure, at almost the eve
of trial of a 2013 action. Finally, they argue that the age
of the case (a seven year old claim filed in 2013 and
scheduled for trial this July) weighs against granting the
continuance sought (id. at
4th-7th unnumbered pages).
this motion was pending, subpoenaed papers from Holimont ski
resort were received by this Court for in camera
review (see Docket No. 70, Order at 17-19).
Extension of Plaintiffs' Discovery Deadline (Docket No.
Wolford in another recent case found two issues in seeking
leave to modify a Scheduling or Case Management Order for
good cause, and whether there should be preclusion from
offering the newly retained expert under Rules 16 and 37,
respectively. She noted that analysis under those rules
overlap and focus on the movant's reasons for the late
disclosure and whether there is prejudice to a party,
Paulus v. Holimont, Inc., 315 F.R.D. 13, 15
(W.D.N.Y. 2016) (Docket No. 81, Defs. Memo. at 4th
unnumbered page). In Mikulec, after being advised
repeatedly to supplement plaintiff's disclosure with a
computation of lost wages and plaintiff having failed to do
so, Judge Wolford granted defendants' motion to preclude
evidence of lost wages, 302 F.R.D. at 27-28. There, she noted
the Court's “wide discretion” in imposing
sanctions, including preclusion, for failure to meet
discovery obligations, id. at 29, while noting that
preclusion is a drastic remedy that is rarely imposed,
id., quoting Babcock v. Rezak, No. 96CV394,
2002 U.S. Dist. LEXIS 22652, at *4 (W.D.N.Y. Nov. 6, 2002)
(Elfvin, J.). In Mikulec, Judge Wolford applied the
four-factor test, 315 F.R.D. at 29-30, and found that
plaintiff had not met his burden by not explaining the
omission or that this failure was substantially justified,
id. at 30.
the factors listed in Mikulec in this case, the
extension of time sought by plaintiffs here is not warranted.
Plaintiffs have not excused their belated disclosure of
experts regarding future medical expenses or LD's
economic losses. Although this case had little judicial
intervention and moved quickly to trial readiness, many of
the items such as plaintiffs' supplemental disclosures
could have been done months ago. If plaintiffs were claiming
future medical needs for LD and (now apparently) future
economic losses as a result of those needs, plaintiffs could
have identified experts and offered their opinions well
before this. From the materials ...