Harris v. O'Hare et al

Filing 82

ORDER: The defendants' motions to preclude (doc. 72 74 ) are denied. Applying the factors set forth in Softel, Inc. v. Dragon Med. & Scientific Communications, 118 F.3d 955, 961 (2d Cir. 1997), the first factor - the plaintiffs' explan ation - weighs in favor of preclusion. However, the remaining factors - the importance of the testimony, the prejudice suffered by the opposing party as a result of having to prepare to meet the new testimony and the possibility of a continuance - al l weigh against preclusion. The proposed testimony, especially that of Dr. Eiswerth, is not new to the defendants (having been disclosed on 4/15/09) and is critical to the plaintiffs' case. No trial date has been set and any prejudice to the d efendants can be cured through an adjustment to the scheduling order to permit them to depose the experts and possibly retain a rebuttal expert. Having considered the foregoing factors, and mindful that "[e]ven in the face of missed deadlines, excluding expert testimony can frustrate the Federal Rules' overarching objective of doing substantial justice to litigants," Sealed Plaintiff No. 1 v. Sealed Defendant No. 1, 221 F.R.D. 367, 369 (N.D.N.Y. 2004), the court finds that the "drastic remedy" of preclusion is not warranted in this case. Outley v. City of New York, 837 F.2d 587, 590 (2d Cir. 1988). See attached amended scheduling order. Signed by Judge Donna F. Martinez on 8/19/10. (Constantine, A.)

Harris v. O'Hare et al

Doc. 82

UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT GLEN HARRIS, individually and : P.P.A. as Guardian for K.H., : a minor child, : : Plaintiffs, : : V. : : JOHNMICHAEL O'HARE, : ANTHONY PIA and : CITY OF HARTFORD, : : Defendants. :

CASE NO. 3:08CV1644 (RNC)

AMENDED SCHEDULING ORDER All discovery except for discovery relating to expert

witnesses has been completed. With regard to expert witnesses, the scheduling order is amended as follows: By September 3, 2010, the

plaintiffs shall supplement their disclosures to provide both expert's cases and Dr. Deering's qualifications, publications and compensation. See Fed. R. Civ. R. 26(a)(iv), (v) and (vi).

Depositions of the plaintiff's experts, Drs. Deering and Eiswerth, shall be completed by October 4, 2010. Defendants' expert reports

shall be disclosed by November 4, 2010 and any such experts will be deposed by December 6, 2010. Joint Trial Memorandum: A joint trial memorandum in the form described below will be filed on or before December 31, 2010. Counsel signing the memorandum must certify that it is the product of consultation between the lawyers who will be trying the case. The memorandum will be in the form prescribed by the

District Court's Standing Order Regarding Trial Memoranda in Civil

Dockets.Justia.com

Cases (see Local Rules of Civil Procedure), and must be certified that it is a joint product of consultation between the lawyers trying the case, with the following modifications: a. Witnesses: Set forth the name and address of each Provide a brief summary of the

witness to be called at trial.

anticipated testimony of each witness and an estimate of the probable duration of his or her testimony (e.g. less than one hour, two to three hours, one full day). For each expert witness, set

forth the opinion to be expressed, a brief summary of the basis of the opinion and a list of the materials on which the witness intends to rely. If a party objects to all or any part of the

anticipated testimony of any witness, lay or expert, the objection must be stated in this section of the joint memorandum so that it can be addressed prior to trial. b. Exhibits: the The parties will prepare the list of exhibits Order. The list must specifically

required by

Standing

identify each exhibit by providing a brief description of the exhibit. The exhibits will be listed in numerical order starting If a party

with Plaintiff's Exhibit 1 and Defendant's Exhibit 1.

has an objection with regard to a designated exhibit, the objection must be stated in this section of the joint memorandum or it will be waived. Each party will prepare an original set of exhibits,

plus a duplicate copy for the Court and every other party, marked with exhibit tags provided by the Clerk. The duplicate sets of

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exhibits must be submitted to the Court not later than the day before the final pretrial conference. Counsel will retain the

original set of exhibits for use at trial. c. Jury Instructions: In jury cases, the parties will meet

and confer for the purpose of preparing and filing tailored jury instructions on the elements of the parties' claims and defenses. The proposed instructions will be submitted as an attachment to the joint trial memorandum. If the parties cannot agree as to the

appropriateness of a particular instruction, each party must submit a proposed instruction supported by a brief explanation of its position, including citation to applicable authority. d. Anticipated Evidentiary Problems: The parties will

attach motions in limine with memoranda of law concerning any anticipated evidentiary problems. e. Verdict Form: In jury cases the parties will submit as

an exhibit to the joint trial memorandum a proposed verdict form suitable for submission to a jury. The form may require the jury

to return a special verdict with special findings as permitted by Fed. R. Civ. P. 49(a) or a general verdict with or without written interrogatories as permitted by Fed. R. Civ. P. 49(b). If the

parties are unable to agree as to the appropriateness of a proposed form, the objecting party must state the basis for the objection and provide an alternative proposal.

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Trial Ready List: list for January 2011.

The case will be placed on the trial ready

SO ORDERED at Hartford, Connecticut this 19th day of August, 2010. _________/s/__________________ Donna F. Martinez United States Magistrate Judge

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