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Difrancesco v. Win-Sum Ski Corp.

United States District Court, W.D. New York

May 16, 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 the following motions for this case presently scheduled for a jury trial on July 17, 2017. First is defendants' motion to compel plaintiffs to produce photographs of plaintiff LD from the cell phone of Natasha DiFrancesco (Docket No. 84), LD's mother and wife of plaintiff Bryan DiFrancesco. Plaintiffs moved to extend their discovery deadline of May 2, 2017 (Docket No. 86, motion of May 3, 2017). Finally, plaintiffs moved for a protective Order in response to defense motion to compel (Docket No. 88).

         Responses to defendants' motion to compel were due by May 5, 2017, with replies due May 9, 2017, and argument scheduled for May 10, 2017 (Docket No. 85). Plaintiffs responded with their crossing motion for a protective Order (Docket No. 88). Responses from defendants to that motion were due by May 9, 2017, with argument again on May 10, 2017 (Docket No. 89). Defendants then responded (Docket No. 91). Conceding that plaintiffs submitted the photographs sought, defendants abandoned the substantive relief sought in their motion to compel but still claim recovery of their motion costs. They contend that plaintiffs failed to produce photographs when initially sought in 2013 and only produced them at the eve of the scheduled trial and leading to the issue whether Mrs. DiFrancesco had photographs that were not yet produced. (See generally Docket No. 21, Defs. Memo.)

         Meanwhile, responses to plaintiffs' motion for extension of time also were due on May 9, 2017, with argument on the next day (Docket No. 87) with the other motions. Defendants duly responded (Docket No. 90) and plaintiffs replied (Docket No. 92).

         Familiarity with prior proceedings in this action is presumed.


         This is a personal injury action under this Court's diversity jurisdiction arising from five-year-old plaintiff LD's fall from a chairlift in 2010. The parties consented to proceed to trial before the undersigned (Docket No. 37) and trial was scheduled to commence on July 17, 2017 (Docket Nos. 69, 70, 71).

         Under the Scheduling Order (as amended) discovery concluded back on April 30, 2015 (Docket No. 27), with no motions to compel filed until just prior to trial. It is notable that there was little pretrial intervention of this Court until the Final Pretrial Conference (Docket Nos. 38, 39) where the parties reported their readiness for trial.

         During what is now the first round of motions in limine (Docket Nos. 43, 45, 53, 56, 58) and pretrial submissions (see Docket Nos. 48-52, 54-55), 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 (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 supplemental discovery cutoff date of April 5, 2017 (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), which was reluctantly granted (Docket No. 83) to May 2, 2017. 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 noted (Docket No. 81, Defs. Memo. at 1st-2d unnumbered pages) that plaintiffs' counsel made 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.), later repeating these arguments against plaintiffs' present motion (Docket No. 90, Defs. Memo. at 4th to 9th unnumbered pages). 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) (Docket No. 81, Defs. Memo. 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 a cross country race, playing soccer and volleyball, riding horses, skiing, and climbing rock walls (Docket No. 81, Defs. Exs. F-S).

         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 argued that plaintiffs were not justified in being given leave to use these experts. First, they noted that no excuse was given for the belated disclosure and identification of the expert at the eleventh hour. Next, defendants believed that plaintiffs failed to establish proof of future medical treatment for LD as even necessary. Third, defendants contended that they would be prejudiced by this belated disclosure, at almost the eve of trial of a 2013 action. Finally, they concluded 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).

         Plaintiffs' Second Motion for Extension of Time to Complete Discovery

         As the May 2 deadline approached, plaintiffs claimed to have had difficulties obtaining medical and financial expert opinions for a timely submission, hence the present motion for a further extension of time (see Docket No. 86). They later reported receiving the medical report that they intended to forward to their economic expert (Docket No. 92, Pls. Atty. Reply Decl. ΒΆΒΆ 4-6, 7, Ex. A). Plaintiffs, however, do not state how long they need to complete their ...

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