Barnett v. Connecticut Light & Power Company et al
Filing
107
ORDER denying 68 Motion in Limine; denying 74 Motion in Limine. See attached order. Signed by Judge Vanessa L. Bryant on 3/25/2013. (Fernandez, Melissa)
DISTRICT OF CONNECTICUT
JUDY PRESCOTT BARNETT,
Plaintiff,
v.
CONNECTICUT LIGHT & POWER
COMPANY, NORTHEAST UTILITIES,
NORTHEAST UTILITIES SERVICE
COMPANY, THE UNITED ILLUMINATING
COMPANY,
Defendants.
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CIVIL ACTION NO.
3:11-cv-1037 (VLB)
March 25, 2013
ORDER DENYING DEFENDANTS’ [DKT. #68] MOTION IN LIMINE AND DENYING
PLAINTIFF’S [DKT.#74] MOTION IN LIMINE
A. Plaintiff’s [Dkt. #74] motion in limine to preclude deposition testimony of
Dr. Karen Schorn
The Plaintiff moves to preclude the deposition testimony of Dr. Karen
Schorn, the Plaintiff’s treating physician, from use at trial or for any other
purpose. First, the Plaintiff argues that preclusion is warranted because Dr.
Shorn was designated as a fact witness and she was untimely deposed a few
weeks after the close of fact discovery. The Plaintiff indicates that the
Defendants proceeded with the deposition over her objection on the basis that
Dr. Schorn, in their view, was an expert and not just a fact witness. Second, the
Plaintiff complains that Defendants asked leading questions to Dr. Schorn and
elicited expert opinions from her despite the fact that she was designated solely
as a fact witness. Defendants disagree that Dr. Shorn is strictly a fact witness
and therefore argue that she was timely deposed during the period for deposing
Plaintiff’s expert witnesses and further noted that the Plaintiff failed to move for a
protective order at the time of the deposition.
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Courts in the Second Circuit consider the factors set forth in Softel, Inc. v.
Dragon Med. & Scientific Comm., Inc., 118 F.3d 955 (2d Cir.1997), for determining
whether to preclude expert testimony. These factors are: “(1) the party's
explanation for the failure to comply with the discovery order; (2) the importance
of the testimony of the precluded witness; (3) the prejudice suffered by the
opposing party as a result of having to prepare to meet the new testimony; and
(4) the possibility of a continuance.” Softel, 118 F.3d at 961 (citing Outley v. City
of New York, 837 F.2d 587, 590–91 (2d Cir.1988)); see also Patterson v. Balsamico,
440 F.3d 104, 117 (2d Cir.2004). Further Preclusion is a “harsh remedy” that
“should only be imposed in rare situations.” Izzo v. ING Life Ins. & Annuity Co.,
235 F.R.D. 177, 186 (E.D.N.Y.2005) (quoting Update Art, Inc. v. Modiin Publ'g, Ltd.,
843 F.2d 67, 71 (2d Cir.1988)). “Courts enjoy broad discretion in deciding
whether and how to fashion a sanction pursuant to Rule 37.” Lujan v. Cabana
Management, Inc., 284 F.R.D. 50, 68 (E.D.N.Y. 2010) (citation omitted). The Court
finds these factors relevant to consider in the present matter despite the parties’
disagreement over whether Dr. Schorn should be considered an expert or simply
a fact witness as the factors balance the “integrity of the adversarial process”
which depends on the presentation of reliable evidence and the right to offer
testimony of witnesses in a party’s favor with the “interest in the fair and efficient
administration of justice” which underlie our modern discovery rules, and the
“potential prejudice to the truth-determining function of the trial process.” See
Taylor v. Illinois, 484 U.S. 400, 656 (1988).
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In view of these factors, the Court finds that the drastic remedy of
preclusion is not warranted. First, the testimony of Dr. Schorn is crucial to the
claims at issue. Second, the Defendants’ explanation for not deposing Dr.
Schorn during the fact discovery period was based on their good faith belief that
Dr. Schorn qualified as an expert witness under relevant caselaw and the Federal
Rules of Evidence and therefore they believed that they were complying with the
scheduling order. Third, the prejudice suffered by the Plaintiff as a result of
having to prepare to meet this testimony is minimal as the Plaintiff was already
relying on Dr. Schorn’s testimony in her case in chief in her capacity as a “fact
witness.” In addition, prejudice is absent as the Defendants have not yet sought
to offer this deposition testimony. Lastly, as no trial date has been set there is a
possibility of a continuance. Moreover even assuming that the Plaintiff is correct
in her viewpoint that Dr. Schorn can only be considered a “fact witness” despite
the fact that Dr. Schorn’s testimony would necessarily be based on her
specialized education, training and experience which are the hallmarks of expert
testimony under the rules of evidence, the Court would have entertained and
granted an extension of the fact discovery deadline in view of the fact that the
Defendants sought to schedule Dr. Schorn’s deposition shortly after the
conclusion of the fact discovery period. The Court is well within its discretion to
not preclude a witness or exhibit if the proponent has failed to abide by an order
with an adequate excuse, particularly whereas here the opposing party is not
prejudiced. See e.g., Park West Radiology v. CareCore Nat. LLC, 675 F.Supp. 2d
314, 326 (S.D.N.Y. 2009) (denying motion to exclude expert report where party
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could redepose expert and submit sur-rebuttal report); S.W. v. City of New York,
No. CV2009-1777(ENV) (MDG), 2011 WL 3038776, at *4 (E.D.N.Y. July 25, 2011)
(holding that preclusion of testimony was not appropriate because “even
assuming that portions of plaintiffs' experts' reports should have been included
in their initial reports, there is no prejudice to the City by permitting plaintiffs'
experts to serve these reports since expert depositions have not been taken and
no trial date has been set.”). In view of the fact that the Defendants have not
sought to offer the deposition testimony, the Plaintiff’s motion to in limine to
preclude is denied without prejudice to filing another motion in limine, citing
particularized objections to a noticed use of the deposition transcript for
purposes other than impeachment or rebuttal at trial.
B. Defendants’ [Dkt. #68] motion in limine to preclude evidence and testimony
of late disclosed expert opinions of David. O. Carpenter, M.D.
Defendants move to preclude the Plaintiff’s expert witness, David O.
Carpenter, M.D., from testifying at trial and with respect to new bases for opinions
regarding his belief that the Plaintiff suffered from “electromagnetic
hypersensitivity” (“EHS”) which was not disclosed in his October 21, 2011
declaration. Defendants explain that Dr. Carpenter declared on October 21, 2011
that he would testify that Plaintiff suffered from probable Alzheimer’s Disease
caused by chronic exposure to magnetic fields. Subsequently, the Plaintiff
arranged to undergo an examination by Dr. G. Alex Hishaw, who then concluded
that there was no reason to think that the Plaintiff suffered from degenerative
dementia such as Alzheimer’s Disease. Dr. Carpenter was then deposed by the
Defendants on April 6, 2012 where for the first time he opined that the Plaintiff
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suffered from EHS in light of Dr. Hishaw’s conclusion that the Plaintiff did not
have Alzheimer’s Disease and on the basis of one article that was published six
months prior to the disclosure of his initial declaration. The Defendants argue
that preclusion of Dr. Carpenter’s late-disclosed opinions concerning EHS are
warranted as those opinions were not included in his original report and not
disclosed until his deposition well after the expert disclosure deadline.
As discussed above, courts in the Second Circuit consider the Softel
factors for determining whether to preclude expert testimony which are: “(1) the
party's explanation for the failure to comply with the discovery order; (2) the
importance of the testimony of the precluded witness; (3) the prejudice suffered
by the opposing party as a result of having to prepare to meet the new testimony;
and (4) the possibility of a continuance.” Softel, 118 F.3d at 961. An examination
of these factors again demonstrates that the drastic remedy of preclusion is not
warranted. First, Dr. Carpenter’s testimony is central to the Plaintiff’s claims at
issue. Second, Dr. Carpenter explained that he failed to include this opinion in
his original declaration despite the fact that the article he based his new opinion
on was available before he issued the declaration because he was responding to
the subsequently issued report of Dr. Hishaw. Although this explanation for
failing to disclose the opinion in his original declaration casts doubt on the
credibility of the new opinion, there is no indication that the delay was in bad faith
or in callous disregard of the discovery rules. Third as noted above, as no trial
date has been scheduled there is a possibility of continuance. Since continuance
is possible, the Defendants may move to reopen expert discovery and would have
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good cause to do so which would mitigate any prejudice suffered by having to
prepare to meet Dr. Carpenter’s new testimony regarding EHS. Furthermore, the
Defendants would be well within their rights to move for sanctions seeking to
recover any expenses incurred in having to meet the new testimony, for example
the costs incurred in having to depose Dr. Carpenter again. As explained above,
the Court is well within its discretion to not preclude a witness or exhibit if the
proponent has failed to abide by an order whereas here the opposing party is not
prejudiced. The Court therefore denies the Defendants’ motion in limine.
IT IS SO ORDERED.
_______/s/ ___________
Hon. Vanessa L. Bryant
United States District Judge
Dated at Hartford, Connecticut: March 25, 2013
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