Anderson v. Eastern Connecticut Health Network, Inc. et al

Filing 141

MEMORANDUM AND ORDER regarding testimony of Lori Calabrese. Signed by Judge Donna F. Martinez on 9/20/13. (Nichols, J.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
HARRY T. ANDERSON,
Plaintiff,
v.
EASTERN CT HEALTH NETWORK,
INC. et al.,
Defendants.

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CASE NO. 3:12CV785(RNC)

MEMORANDUM AND ORDER
Plaintiff, a physician, alleges that defendants unlawfully
terminated his employment on the basis of his age and
disability.
2012.

Defendants removed the case to this court in May

There have been many discovery motions and multiple

extensions of deadlines.

On August 9, 2013, the undersigned

held a telephonic conference on several requests, including
defendant's request to preclude plaintiff's treating
psychiatrist Dr. Lori Calabrese from offering expert testimony
due to untimely disclosures.

Counsel for both parties asked the

court to resolve the expert preclusion issue without proceeding
to formal motion practice.

(See doc. #133.)

Fed. R. Civ. P. 26(a)(2) sets forth explicit requirements
for expert disclosures.

Pursuant to Rule 26(a)(2)(C), which

applies to a non-retained witness such as a treating physician,
a party must disclose the subject matter on which the witness is
expected to present evidence and a summary of the facts and
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opinions to which the witness is expected to testify.

Rule

37(c)(1) provides that "[i]f a party fails to provide
information or identify a witness as required by Rule 26(a) or
(e), the party is not allowed to use that information or witness
to supply evidence on a motion, at a hearing, or at a trial,
unless the failure was substantially justified or is harmless."
On a request to preclude witness testimony, courts in the Second
Circuit consider four factors: "(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."

Barack v. American Honda Motor Co., Inc., No.

09CV565(TLM), 2013 WL 2319329, at *2 (D. Conn. May 28, 2013)
(quoting Softel, Inc. v. Dragon Med. & Sci. Commc'ns, Inc., 118
F.3d 955, 961 (2d Cir. 1997)).
Here, plaintiff's expert disclosures were due by December
31, 2012.

(Docs. #27, #63.)

More than eight months after the

expert disclosure deadline and subsequent to Dr. Calabrese's
deposition and after multiple extensions of the discovery
deadline, plaintiff has not summarized Dr. Calabrese's potential
expert testimony with sufficient detail to permit defendants to
prepare their defense.

Plaintiff has identified only one of the

opinions that Dr. Calabrese is expected to render and otherwise
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has failed to provide the straightforward summary of facts and
opinions required by Rule 26(a)(2)(C)(ii).
In light of the foregoing, plaintiff is precluded from
eliciting expert testimony from Dr. Calabrese.

See, e.g.,

Barack, 2013 WL 1688873, at *4-5 (although expert's identity was
timely disclosed, proffered summary of facts and opinions was
"last-minute" and inadequate); Puglisi v. Town of Hempstead
Sanitary Dist. No. 2, No. 11CV0445(PKC), 2013 WL 4046263, at *46 (E.D.N.Y. Aug. 08, 2013) (proffered summary of facts and
opinions was untimely and inadequate).
Defendants do not dispute that Dr. Calabrese may testify as
a fact witness.

She may "'offer opinion testimony on diagnosis,

treatment, prognosis and causation, but solely as to the
information [she] has acquired through observation of the
Plaintiff in [her] role as a treating physician limited to the
facts in Plaintiff's course of treatment.'"

Barack v. American

Honda Motor Co., Inc., --- F.R.D. ----, No. 09CV565(TLM), 2013
WL 1688873, at *2 (D. Conn. Apr. 18, 2013) (quoting Spencer v.
Int'l Shoppes, Inc., 2011 WL 4383046, at *4 (E.D.N.Y. Sept. 20,
2011) (emphasis in original)).

Dr. Calabrese "'may not

introduce information provided by other physicians to whom the
Plaintiff [was] referred nor may [she] present any medical
reports received from other physicians regarding the Plaintiff
or opine on any information provided by another doctor.'"
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Id.;

see also Motta v. First Unum Life Ins. Co., No. CV09–
3674(JS)(AKT), 2011 WL 4374544, at *3 (E.D.N.Y. Sept. 19, 2011)
("the key to what a treating physician can testify to without
being declared an expert is based on his personal knowledge from
consultation, examination and treatment of the Plaintiff, 'not
from information acquired from outside sources'").
SO ORDERED at Hartford, Connecticut this 20th day of
September, 2013.
____________/s/______________
Donna F. Martinez
United States Magistrate Judge

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