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 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.
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.)
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.
with prior proceedings in this action is presumed.
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).
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.
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).
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.
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).
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).
Second Motion for Extension of Time to Complete
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. ¶¶ 4-6, 7, Ex. A).
Plaintiffs, however, do not state how long they need to
complete their ...