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DiFrancesco v. Win-Sum SKI Corp.

United States District Court, W.D. New York

April 20, 2017

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



         Before 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).


         This is 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.

         During 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).

         Plaintiffs 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. 82).

         Defendants 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).

         Next, 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).

         Applying 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).

         While 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).


         I. Extension of Plaintiffs' Discovery Deadline (Docket No. 77)

         Judge 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.

         Considering 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 ...

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