Knox v. USA

Filing 126

RULING granting, in part, and denying, in part, 94 Motion for Sanctions of Dismissal of the Lawsuit with Prejudice; and terminating 109 First Motion to Continue Proceedings. See attached Ruling for details. Signed by Judge Sarah A. L. Merriam on 7/27/2016. (Katz, S.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
------------------------------x
:
ANITRA KNOX
:
:
v.
:
:
UNITED STATES
:
:
------------------------------x

Civ. No. 3:12CV01741(SALM)

July 27, 2016

RULING ON DEFENDANT’S MOTION FOR SANCTIONS [Doc. #94]
Pending before the Court is the motion of defendant the
United States (“defendant”) for sanctions against plaintiff
Anitra Knox (“plaintiff”). [Doc. #94]. Plaintiff, appearing pro
se, has filed a “Motion to Continue Proceedings,” which the
Court construes as plaintiff‟s response to the Motion for
Sanctions. [Doc. #109].1 Defendant filed a Reply brief on June
28, 2016. [Doc. #112]. For the reasons articulated below, the
Court GRANTS, in part, and DENIES, in part, defendant‟s Motion
for Sanctions [Doc. #94].
I.

Background
On December 12, 2012, plaintiff, through her then-counsel

Anthony Lasala, initiated this matter pursuant to the Federal

The Court TERMINATES plaintiff‟s motion [Doc. #109], in light
of the Court construing this document as plaintiff‟s response to
the Motion for Sanctions.
1

1

Tort Claims Act against the United States. [Doc. #1].2 Plaintiff
alleges that she slipped and fell at the West Haven Veterans
Administration Hospital (the “VA”), and as a result, sustained
injuries. Id. Specifically, plaintiff alleges that she “suffered
and sustained the following injuries and losses ... (a) radial
head fracture of the right elbow; (b) injuries to the right
wrist, arm, elbow and shoulder; (c) sprain/strain of the lumbar
spine; (d) sprain/strain of the cervical spine; (e) injuries to
the right knee; [and] injuries to the contiguous muscles,
ligaments, nerves, soft tissues, glands, bones and joints of the
injured parts.” [Doc. #1, at ¶11]. On February 28, 2013,
defendant appeared and filed its Answer to the Complaint. [Doc.
##7, 8]. The parties filed their Rule 26(f) Report on July 3,
2013. [Doc. #13]. Thereafter, the parties engaged in discovery
and settlement discussions through December 2015. The parties
consented to the jurisdiction of a United States Magistrate
Judge on January 15, 2016. [Doc. #50]. On February 1, 2016, this
matter was transferred to the undersigned. [Doc. #52]. Neither
party has filed dispositive motions.
In response to this Court‟s final pretrial order [Doc.
#55], on March 1, 2016, the parties filed their Joint Trial
Attorney William B. Wynne filed an appearance on behalf of
plaintiff on May 6, 2015. [Doc. #35]. As will be discussed
further below, on May 19, 2016, the Court granted Attorney
Lasala and Attorney Wynne‟s Motions to withdraw as counsel.
[Doc. #100].
2

2

Memorandum. [Doc. #57]. Defendant also filed a motion in limine,
which sought to preclude plaintiff‟s late-disclosed expert
witness, Dr. Jonathan Grauer, M.D., from testifying at trial
[Doc. #58]. On March 30, 2016, the Court granted this motion,
absent objection, and precluded Dr. Grauer from testifying in an
expert capacity, but not as a fact witness. [Doc. #64].3 Shortly
after issuing this Ruling, the Court scheduled a telephonic
conference for April 20, 2016, to address the appropriate
parameters of Dr. Grauer‟s trial testimony as a fact witness.
[Doc. #65].
During this telephonic conference, on April 20, 2016,
counsel for plaintiff, Anthony Lasala informed the Court that on
April 18, 2016, plaintiff had contacted him and Attorney Wynne
in writing and terminated their services as her counsel. [Doc.
#68]. In light of this development, the Court scheduled an inperson hearing for April 25, 2016, to address plaintiff‟s
termination of her counsel‟s services and her plans for
proceeding with trial. [Doc. ##68, 69]. The Court required
plaintiff‟s personal appearance at this hearing. Id.
On April 21, 2016, defendant filed a “Report to the Court”
regarding plaintiff‟s proffered witness, Dr. Grauer, and newly
discovered evidence which purportedly impacted the extent of Dr.
Prior to granting the motion in limine, the Court scheduled a
bench trial to occur on May 12 and 13, 2016. [Doc. #63].
3

3

Grauer‟s testimony (hereinafter the “Report”). [Doc. #79].4 In
this Report, defendant represents that it “recently discovered a
prior lawsuit the plaintiff was involved which establishes that
the plaintiff suffered from prior injuries to her back.” Id. at
3 (sic). Defendant continues: “This lawsuit as well as the
plaintiff‟s prior back injuries were never disclosed to the
defendant. Moreover the plaintiff denied, under oath during her
deposition, that she had filed a prior lawsuit or suffered prior
back injuries and the plaintiff‟s prior back injuries and
accidents were not disclosed to her treating physicians, the
most important being Dr. Grauer.” [Doc. #79 at 3]. In light of
this information, defendant contended that Dr. Grauer‟s
testimony, even as a fact witness, was unreliable, and that, as
will be discussed further below, plaintiff would be unable to
sustain her burden of proving damages.
Also on April 21, 2016, plaintiff filed a Motion for
Permission to attend the April 25, 2016, hearing by video
conference. [Doc. #76]. The Court scheduled a telephone
conference for April 22, 2016, to address this motion and
required both plaintiff and her counsel participate in this

In anticipation of the April 20, 2016, telephonic status
conference, defendant initially hand-delivered a copy of this
Report to the undersigned‟s chambers on April 19, 2016. During
the April 20, 2016, status conference, the Court ordered
defendant to file this document on the public docket. See Doc.
#70.
4

4

telephonic conference. [Doc. #78]. During this conference,
plaintiff orally sought a six month continuance of the May 12
and 13, 2016, trial dates. [Doc. #83]. The Court granted this
motion, in part, and rescheduled the bench trial to August 9 and
10, 2016. [Doc. ##84, 85]. At this time, the Court also
addressed the then-pending motions filed by Attorneys Lasala and
Wynne, and set a deadline of May 13, 2016, for plaintiff‟s
replacement counsel, or plaintiff appearing pro se, to file an
appearance. [Doc. #85]. The Court directed defendant to file any
motions relating to matters raised in its April 21, 2016, Report
no later than May 20, 2015. [Doc. #85]. Plaintiff filed her pro
se appearance on May 12, 2016. [Doc. #93]. On that same date,
defendant filed the motion for sanctions now at issue. [Doc.
#94].
Plaintiff‟s pro se appearance was improperly faxed to the
District of Connecticut Clerk‟s office and filed on a State
Superior Court form. See Doc. #93. Accordingly, the Court
entered an Order directing plaintiff to re-file her appearance
on the proper form, a copy of which was provided in the docket.
[Doc. #95]. The Court further required plaintiff to participate
in electronic filing, and provided for her completion a Consent
to Electronic Notice by Pro Se Litigant. Id. The Court scheduled
yet another telephonic conference for May 19, 2016, to address
plaintiff‟s pro se appearance in this matter. [Doc. ##95, 96].
5

During the May 19, 2016, telephonic status conference, the
Court granted the Motions to Withdraw previously filed by
Attorneys Lasala and Wynne. [Doc. ##96, 100]. The Court
additionally entered a scheduling order requiring any amendments
to the Joint Trial Memorandum, in light of the newly discovered
evidence, to be filed on or before the close of business on June
30, 2016. [Doc. #98]. During this conference, the Court also
advised plaintiff that her response to defendant‟s motion for
sanctions was due on or before June 2, 2016. Plaintiff expressed
her understanding.
On May 24, 2016, plaintiff re-filed her Notice of Pro Se
Appearance, as well as a Motion to Participate in Electronic
Filing, and Consent to Electronic Notice. [Doc. ##101, 102,
103]. The Court granted plaintiff‟s Motion to Participate in
Electronic Filing on May 25, 2016. [Doc. #104]. The Clerk‟s
Office provided plaintiff with the materials and hyperlinks
necessary to complete the online PACER training program, the
completion of which was a prerequisite to plaintiff receiving an
ECF login and password. See Doc. #106. On June 10, 2016, the
Court entered an order requiring plaintiff to notify the Clerk‟s
office that she had completed the PACER training so that she
could receive an ECF login and password. Id. The Court also
entered an Order requiring plaintiff to file her response to
defendant‟s motion for sanctions forthwith, or risk having the
6

Court grant the motion, in whole or in part, absent objection.
[Doc. #107]. The Clerk‟s office provided plaintiff with her ECF
login and password on June 13, 2016. [Doc. #108]. The Court,
having received no response to the motion for sanctions, entered
a second order providing plaintiff with a final opportunity to
oppose the motion for sanctions, and set a June 15, 2016,
response deadline. Id.
In accordance with this Order, on June 15, 2016, plaintiff
filed her Motion to Continue Proceedings, which the Court
construes as her response to the pending motion for sanctions.
[Doc. #109]. The motion for sanctions seeks dismissal of this
matter, with prejudice. [Doc. #94]. Alternatively, defendant
requests that the Court preclude plaintiff from introducing any
evidence of her alleged back injury. Id. The Court will further
address the contentions of the parties below.
II.

Discussion
Defendant seeks to impose sanctions under two different

theories: under the Court‟s inherent authority, and under Rule
37 of the Federal Rules of Civil Procedure. The basis for
defendant‟s request is that counsel for defendant “discovered
new evidence that greatly impacted Dr. Grauer‟s testimony as

7

well as the overall merits of this lawsuit.” [Doc. #94-1 at 4].5
“During the final preparation for the plaintiff‟s cross
examination for trial,” defense counsel discovered a summary
judgment ruling issued by District Judge Robert N. Chatigny, in
a case where plaintiff claimed she was denied a position as a
City of New Haven firefighter as a result of gender and race
discrimination. [Doc. #94-1 at 8]; see also Knox v. New Haven,
357 F. Supp. 2d 449 (D. Conn. 2005).6 Judge Chatigny found the
following facts established for purposes of summary judgment:
“Plaintiff was examined on February 25, 2002. In connection with
the examination, she reported that she had injured her back in
1993 and again in 2000, and that she was currently having back
pain due to a bulging disc sustained in a car accident.” Id. at
450. (internal citation to record omitted). Defendant represents
that these prior back injuries are in the same location where
plaintiff claims to have injured herself in the present matter.
[Doc. #94-1]. The record supports this representation. Compare,
e.g., Doc. #94-6 (August 30, 2015, Dr. Grauer report noting,
inter alia: “no documentation of preexisting condition”;
degenerative changes and disc herniation at L5-S1 of plaintiff‟s
lumbar spine; and that “[b]y histories provided and records
Dr. Grauer is plaintiff‟s disclosed expert on the subject of
her alleged back injuries. The Court has precluded Dr. Grauer
from testifying in an expert capacity. See Doc. #64.
5

6

Docketed in this District under case number 3:03CV01408(RNC).
8

reviewed, the onset of symptoms are temporally linked to the
injury in question [i.e., the slip and fall at the VA]”), with
Doc. #80-1 at 2, 6 (plaintiff‟s medical records noting that she
sustained a herniated disc in L5 as a result of the 1993 car
accident). Compare, e.g., Doc. #1 at ¶11(d) (Complaint alleging
plaintiff sustained a “sprain/strain of the cervical spine” as a
result of the slip and fall at the VA), with Doc. #80-1 at 7
(plaintiff‟s medical records noting assessment of “Cervical
Sprain Strain” as result of 2001 car accident). Accordingly,
because plaintiff‟s prior back injuries and prior lawsuit were
never disclosed, defendant now seeks the imposition of
sanctions, including dismissal. The Court turns first to whether
sanctions are warranted under the Court‟s inherent authority.
A. Sanctions Under the Court’s Inherent Authority
In addition to seeking sanctions under Rule 37, defendant,
although not specifically referring to it as such, also seeks to
invoke the inherent authority of the Court to impose sanctions
on the theory that plaintiff has perpetrated a “fraud on the
Court[.]” [Doc. #94-1 at 14]. See Jung v. Neschis, No.
01CV6993(RMB)(THK), 2009 WL 762835, at *13 (S.D.N.Y. Mar. 23,
2009) (“In the instant situation, where Defendants contend that
Plaintiffs have committed fraud on the court by fabricating
evidence and making misrepresentations to the Court, it is the

9

Court‟s inherent authority that provides the primary basis on
which to act.”).
1. Legal Standard
The “Court has the inherent power to do whatever is
reasonably necessary to deter abuse of the judicial process and
assure a level playing field for all litigants.” Shangold v.
Walt Disney Co., No. 03CV9522(WHP), 2006 WL 71672, at *4
(S.D.N.Y. Jan. 12, 2006) (citing Chambers v. NASCO, Inc., 501
U.S. 32, 44 (1991)). “Because of their very potency, inherent
powers must be exercised with restraint and discretion.”
Chambers, 501 U.S. at 44 (citing Roadway Express, Inc. v. Piper,
447 U.S. 752, 764 (1980)). “Sanctions for fraud are warranted if
it is established by clear and convincing evidence that [a
party] has sentiently set in motion some unconscionable scheme
calculated to interfere with the judicial system‟s ability
impartially to adjudicate the action.” N.Y. Credit & Fin. Mgmt.
Grp. v. Parson Ctr. Pharmacy, Inc., 432 F. App‟x 25 (2d Cir.
2011) (citation and internal quotation marks omitted)
(alteration modified); see also Almeciga v. Ctr. for
Investigative Reporting, Inc., No. 15CV4319(JSR), 2016 WL
2621131, at *17 (S.D.N.Y. May 6, 2016) (“[A]s a general matter,
a court should not impose sanctions on a party or attorney
pursuant to its inherent authority unless it finds, by clear and
convincing evidence, that the party or attorney knowingly
10

submitted a materially false or misleading pleading, or
knowingly failed to correct false statements, as part of a
deliberate and unconscionable scheme to interfere with the
Court‟s ability to adjudicate the case fairly.” (citation
omitted)).
“The essence of fraud on the court is when a party lies to
the court and his adversary intentionally, repeatedly, and about
issues that are central to the truth-finding process.” Cent. N.Y.
Laborers‟ Health & Welfare Fund v. Fahs Constr. Grp., Inc., No.
5:13CV226, 2016 WL 1106445, at *4 (N.D.N.Y. Mar. 21, 2016)
(citation and internal quotation marks omitted). “[T]he concept
[of fraud upon the court] should embrace only that species of
fraud which does or attempts to, defile the court itself, or is
a fraud perpetrated by officers of the court so that the
judicial machinery cannot perform in the usual manner its
impartial task of adjudging cases that are presented for
adjudication.” Kupferman v. Consol. Research & Mfg. Corp., 459
F.2d 1072, 1078 (2d Cir. 1972) (citation and internal quotation
marks omitted) (alterations added).
2. Analysis
Defendant contends that plaintiff perpetrated a fraud on
the court by: (1) providing false testimony at her deposition;
(2) failing to disclose her prior back injury throughout the
course of this litigation, including discovery; and (3) making
11

false representations about her injuries to United States
Magistrate Judge Donna F. Martinez during a settlement
conference.7 [Doc. #94-1 at 21-23]. Plaintiff responds:
I did not willfully or intentionally answer. I forgot
about a 20-year old diagnosis that has not inhibited
any part of my life[.] I thought the question to be in
direct relation to the VA and injuries sustained
there.
[Doc. #109 at 1]. Plaintiff continues:
Discovery abuse was unaware and unintentional by
plaintiff. Not disclosed by plaintiff‟s own previous
counsel still to date, discovered by defendant. ...
Accurate, honest testimony given by plaintiff of what
was believed to be in reference only to this case and
issues of back injury or lawsuits filed. Previous
counsel
never
corrected
or
informed
plaintiff,
questioning was generalized, not case or back injury
specific as she believed.
[Doc. #109-1 at 1 (sic)]. In reply, and for substantially the
same reasons set forth in their motion for sanctions, defendant
contends that plaintiff‟s arguments are without merit. See
generally Doc. #112. For the reasons articulated below, the
Court declines to dismiss this case under its inherent
authority.
“Our judicial system generally relies on litigants to tell
the truth and participate in discovery in good faith.” McMunn v.
Mem‟l Sloan-Kettering Cancer Ctr., 191 F. Supp. 2d 440, 445
Defendant does not develop the argument that plaintiff made
false representations about her injuries to Judge Martinez
during the course of settlement negotiations. Although a serious
accusation, because defendant does not develop this argument,
the Court does not consider it here.
7

12

(S.D.N.Y. 2002) (collecting cases). “Thus, when a party lies to
the court and his adversary intentionally, repeatedly, and about
issues that are central to the truth-finding process, it can
fairly be said that he has forfeited his right to have his claim
decided on the merits.” Id. Here, although the Court has
concerns regarding the conduct of plaintiff and her former
attorneys, the record fails to reflect the “clear and convincing
evidence” necessary to support the dismissal of this matter,
with prejudice, under the Court‟s inherent authority.8
As an initial matter, defendant alleges only one instance
of perjury committed by plaintiff. “Perjury „is false testimony
concerning a material matter with the willful intent to provide
false testimony, rather than as a result of confusion, mistake,
or faulty memory.‟” Radecki v. GlaxoSmithKline, 646 F. Supp. 2d
310, 315 (D. Conn. 2009) (quoting U.S. v. Dunnigan, 507 U.S. 87,
94 (1993)), aff‟d, 375 F. App‟x 46 (2d Cir. 2010). Plaintiff,
now pro se, represents that her deposition testimony was not
made with the willful intent to provide false testimony, but
rather a result of impaired memory and confusion. See generally
Doc. #109 at 1; 109-1 at 1. Defendant responds that plaintiff‟s

In that regard, the Court declines to hold an evidentiary
hearing for such purposes, as it does not have reason to believe
that relevant evidence would be presented that would serve to
further clarify the issues before the Court.
8

13

deposition transcript demonstrates plaintiff understood the
questions posed to her. [Doc. #112 at 7].
Upon review of plaintiff‟s deposition transcript, the Court
is hard pressed to discern how plaintiff was confused by the
line of questioning posed by defense counsel with respect to her
prior injuries. For example, following defense counsel‟s inquiry
into plaintiff‟s Achilles injury, the following exchange
occurred:
Q:

No other accidents? No other falls, car accidents?

A:

No.

Q:

No other –

A:

I‟m not usually accident prone or injured.

...
Q:

So, no other injuries?

A:

No. I had the Achilles and – I‟m usually pretty
healthy.

[Doc. #94-3, Sept. 4, 2014, Depo. of Anitra Knox, 34:13-19;
35:1-3].9 Defense counsel‟s questioning was not limited to
plaintiff‟s Achilles injury. Nor can it be implied, as contended
Plaintiff was represented by counsel during her deposition.
Notably, counsel for plaintiff did not seek to clarify
plaintiff‟s testimony, or otherwise request a break in order to
possibly refresh her memory concerning the prior incidents at
issue. Allegedly, and although plaintiff‟s counsel represented
her in connection with at least one of these accidents,
plaintiff‟s counsel did not disclose the prior injuries and
lawsuit until shortly before plaintiff terminated their services
on April 18, 2016, when counsel for defendant independently
discovered the prior suit.
9

14

by plaintiff, that the questioning was related to the injuries
she allegedly sustained “in direct relation to the VA[.]” [Doc.
#109 at 1]. Indeed, the record before the Court indicates that
plaintiff was involved in at least two car accidents, see Doc.
#94-2 at 3; #94-5; #80-1, and that she failed to disclose these
during her deposition. Notwithstanding the foregoing, the Court
is cognizant that plaintiff‟s deposition occurred on September
4, 2014, over twenty years after her 1993 accident and related
injuries, and thirteen years after her 2001 accident and related
injuries. [Doc. #94-3]. This gap in time could reasonably, in
the Court‟s estimation, cause an individual to overlook certain
events, particularly where, as plaintiff contends, such injuries
had “not inhibited any part of [her] life[.]” [Doc. #109 at 1].
Accordingly, on the current record, the Court finds that
plaintiff‟s testimony, in light of the time elapsed between her
injuries and her deposition, could have reasonably resulted from
plaintiff‟s lapse in memory.10
With respect to whether plaintiff had filed any previous
lawsuits, however, the Court‟s review of plaintiff‟s deposition

The fact that plaintiff failed to disclose these prior injuries
to her treating physician could further support a finding that
plaintiff suffered from a faulty memory in this respect. Of
course, defendant would argue that plaintiff tried to mislead
both her doctor and the Court by omitting such information, but
the reasonable response to this is that plaintiff simply forgot.
Other documents in the record, filed under seal, further support
this conclusion. See Doc. #89.
10

15

transcript is not as clear. Following defense counsel‟s inquiry
into plaintiff‟s prior injuries recited above, defense counsel
asked: “And no other lawsuits?” [Doc. #94-3, Sept. 4, 2014,
Depo. of Anitra Knox, 35:4]. To which plaintiff responded: “I
haven‟t filed another lawsuit, no.” [Id. at 35:5]. Reading the
deposition transcript the Court finds that plaintiff reasonably
could have interpreted this question to relate to other lawsuits
with respect to the injuries she allegedly sustained at the VA.
Plaintiff did not testify that she had not filed “other
lawsuits” or “any other lawsuit,” she testified that she had not
filed “another lawsuit,” which the Court construes as plaintiff
testifying that she had not filed another lawsuit related to
that now pending. If anything, plaintiff‟s response warranted
additional follow-up or clarification by defense counsel.
Accordingly, clear and convincing evidence does not support a
finding that plaintiff committed perjury on this matter.
Even assuming plaintiff did commit perjury, as that term is
defined above, that would not lead the Court to dismiss her
case. “It is well-settled ... that an isolated instance of
perjury, standing alone, will not constitute a fraud upon the
court.” McMunn, 191 F. Supp. 2d at 445 (citing Gleason v.
Jandrucko, 860 F.2d 556, 559 (2d Cir. 1988)). Although defendant
submits that plaintiff‟s failure to disclose her prior lawsuit
and injuries compounds the circumstances under which she
16

testified, the Court is still without the clear and convincing
evidence necessary to support a finding that plaintiff
perpetrated a fraud upon the Court. It is concerning that
defendant never received this information in discovery; however,
defendant has failed to provide the Court with any evidence that
it ever affirmatively requested the information. Such
information might have been produced in plaintiff‟s initial
disclosures,11 but given that it apparently was not, defense
counsel could have posed an interrogatory or request for
production concerning any prior lawsuits or injuries to
reasonably assure that all relevant information had been
disclosed. There is nothing in the record to suggest counsel did
so.
“[D]ismissal is a „harsh remedy, not to be utilized without
a careful weighing of its appropriateness ... [and] one of the
factors that should inform a trial court‟s decision is the
Under Rule 26(a), information concerning plaintiff‟s prior
injuries should have been turned over as part of her Rule 26
initial disclosures. That section provides: “Except as exempted
by Rule 26(a)(1)(B) or as otherwise stipulated or ordered by the
court, a party must, without awaiting a discovery request,
provide to the other parties: ... (iii) a computation of each
category of damages claimed by the disclosing party -- who must
also make available for inspection and copying as under Rule 34
the documents or other evidentiary material, unless privileged
or protected from disclosure, on which each computation is
based, including materials bearing on the nature and extent of
injuries suffered[.]” Fed. R. Civ. P. 26(a)(1)(A)(iii) (emphasis
added). Plaintiff‟s medical records relating to prior injuries
bear on the extent of injuries plaintiff claims to have suffered
as a result of the slip and fall at the VA.
11

17

suitability of lesser sanctions.‟” DAG Jewish Directories, Inc.
v. Y & R Media, LLC, No. 09CV7802(RJH), 2010 WL 3219292, at *3
(S.D.N.Y. Aug. 12, 2010) (quoting Dodson v. Runyon, 86 F.3d 37,
39 (2d Cir. 1996)). Here, the Court does not find that dismissal
of plaintiff‟s case, with prejudice, is warranted under the
Court‟s inherent authority, particularly in light of other
available sanctions under Rule 37 of the Federal Rules of Civil
Procedure. See Chambers, 501 U.S. at 50 (“[W]hen there is badfaith conduct in the course of litigation that could be
adequately sanctioned under the Rules, the court ordinarily
should rely on the Rules rather than the inherent power. But if
in the informed discretion of the court, neither the statute nor
the Rules are up to the task, the court may safely rely on its
inherent power.”).
B. Sanctions Under Rule 37
The Court next turns to defendant‟s request pursuant to
Rule 37(b)(2)(A) for the imposition of sanctions. Defendant
appears to seek sanctions pursuant to Rule 37(b), which provides
that the Court may sanction a party for failing to obey an order
to provide or permit discovery. See Doc. #94-1 at 8. However,
the claim here is not that plaintiff failed to obey a discovery
order, but rather that she completely failed to disclose
information relating to her prior back injury and lawsuits.
Accordingly, it would appear that defendant‟s request for
18

sanctions would fall under the purview of Rule 37(c), which
permits a court, in its discretion, to impose those sanctions
listed in Federal Rule of Civil Procedure 37(b)(2)(A), for
violations of Rule 26(a).
1. Legal Standard
Rule 37(c)(1) describes the available remedies when a party
fails to provide information pursuant to Rule 26(a) or (e):
If a party fails to provide information ... as
required by Rule 26(a) or (e), the party is not
allowed to use that information ... to supply evidence
on a motion, at a hearing, or at a trial, unless the
failure was substantially justified or is harmless. In
addition to or instead of this sanction, the court, on
motion and after giving an opportunity to be heard:
... may impose other appropriate sanctions, including
any of the orders listed in Rule 37(b)(2)(A)(i)-(vi).
Fed. R. Civ. P. 37(c)(1)(C). Rule 26(a) governs, amongst other
required disclosures, the parties‟ mandatory initial
disclosures. Pertinent to the discussion below, Rule
26(a)(1)(A)(iii) requires disclosure of:
a computation of each category of damages claimed by
the disclosing party--who must also make available for
inspection and copying as under Rule 34 the documents
or other evidentiary material, unless privileged or
protected from disclosure, on which each computation
is based, including materials bearing on the nature
and extent of injuries suffered[.]
Fed. R. Civ. P. 26(a)(1)(A)(iii). This information is to be
provided “without awaiting a discovery request[.]” Fed. R. Civ.
P. 26(a)(1)(A). Further, “[a] party must make its initial
disclosures based on the information then reasonably available
19

to it. A party is not excused from making its disclosures
because it has not fully investigated the case[.]” Fed. R. Civ.
P. 26(a)(1)(E).
“The party requesting sanctions under Rule 37 bears the
burden of showing that the opposing party failed to timely
disclose [the] information” sought. Vineyard Vines, LLC v.
Macbeth Collection, LLC, No. 3:14CV1096(JCH), 2015 WL 2179775,
at *1 (D. Conn. May 8, 2015); see also Lodge v. United Homes,
LLC, 787 F. Supp. 2d 247, 258 (E.D.N.Y. 2011). “To meet this
burden the party must establish (1) that the party having
control over the evidence had an obligation to timely produce
it; (2) that the party that failed to timely produce the
evidence had a culpable state of mind; and (3) that the missing
evidence is relevant to the party‟s claim or defense such that a
reasonable trier of fact could find it would support that claim
or defense.” In re Sept. 11th Liab. Ins. Coverage Cases, 243
F.R.D. 114, 125 (S.D.N.Y. 2007) (citing Residential Funding
Corp. v. DeGeorge Fin. Corp., 306 F.3d 99, 107 (2d Cir. 2007)).
“The imposition of sanctions under Rule 37(c)(1) is a
matter within the trial court‟s discretion. Moreover, refusing
to admit evidence that was not disclosed in discovery is a
drastic remedy and will apply only in situations where the
failure to disclose represents a flagrant bad faith and callous
disregard of the rules.” Johnson Elec. N. Am. Inc. v. Mabuchi
20

Motor Am. Corp., 77 F. Supp. 2d 446, 458 (S.D.N.Y. 1999)
(internal citations omitted); see also Agiwal v. Mid Island
Mortg. Corp., 555 F.3d 298, 302 (2d Cir. 2009) (A district
court‟s imposition of sanctions under Rule 37, including
dismissal, is reviewed for an abuse of discretion.).
Nevertheless, “[d]espite the mandatory language of Rule
37(c)(1), the Second Circuit has held that preclusion is a
discretionary remedy, even if „the trial court finds that there
is no substantial justification and the failure to disclose is
not harmless.‟” Nosal v. Granite Park LLC, 269 F.R.D. 284, 289
(S.D.N.Y. 2010) (quoting Design Strategy, Inc. v. Davis, 469
F.3d 584, 297 (2d Cir. 2006)).
Sanctions under Rule 37 are designed to effectuate three
goals: “First, they ensure that a party will not benefit from
its own failure to comply. Second, they are specific deterrents
and seek to obtain compliance with the particular order issued.
Third, they are intended to serve a general deterrent effect on
the case at hand and on other litigation, provided that the
party against whom they are imposed is in some sense at fault.”
Update Art, Inc. v. Modiin Pub., Ltd., 843 F.2d 67, 71 (2d Cir.
1988).

21

2. Analysis
Here, plaintiff, by the acts of her former counsel,12 has
failed to comply with the initial disclosure requirements of
Rule 26(a) by not disclosing her prior back injuries, which
“bear[] on the nature and extent of injuries suffered” when she
slipped and fell at the VA. Plaintiff presumably had control
over this information,13 and was obligated to produce it pursuant
to Rule 26(a). Plaintiff failed to do so. She also failed to
disclose the prior injuries at her deposition. As a result,
defendant requests that the Court dismiss plaintiff‟s complaint
in its entirety, or alternatively, preclude any evidence of
plaintiff‟s back injury.
Having found that plaintiff failed to meet her obligations
under Rule 26(a), the Court turns next to whether plaintiff had
a culpable state of mind. The Eastern District of New York has
comprehensively discussed this element:

12

“[L]itigants are generally bound by the professional conduct
of the attorneys they choose to represent them, although the
conduct of counsel may give rise to a claim for malpractice by
the client.” Davidowitz v. Patridge, No. 08CV6962 (NRB), 2010 WL
1779279, at *4 (S.D.N.Y. Apr. 23, 2010) (citation and internal
quotation marks omitted); see also McMunn, 191 F. Supp. 2d at
452 (a party “is held accountable for the acts or omissions of
her freely-chosen attorney[]” (citing Link v. Wabash R. Co., 370
U.S. 626, 633-34 (1962))).
Indeed, attached to plaintiff‟s response to the motion for
sanctions are medical records relating to plaintiff‟s 2001
accident and injury. See Doc. ##109-3, 109-4.
13

22

The culpable state of mind element is satisfied by a
showing that a party has breached a discovery
obligation through bad faith or gross negligence or
ordinary negligence. Failures to produce relevant
evidence occur along a continuum of fault - ranging
from innocence through the degrees of negligence to
intentionality, and courts must therefore take a caseby-case
approach
in
determining
the
level
of
culpability. In the discovery context, negligence is a
failure to conform to the standard of what a party
must do to meet its obligation to participate
meaningfully and fairly in the discovery phase of a
judicial proceeding. A party is negligent even if the
failure results from a pure heart and an empty head.
Markey v. Lapolla Indus., Inc., No. 12CV4622(JS)(AKT), 2015 WL
5027522, at *17 (E.D.N.Y. Aug. 25, 2015) (internal citations and
quotation marks omitted), report and recommendation adopted, No.
12CV4622(JS)(AKT), 2016 WL 324968 (Jan. 26, 2016). The Court
cannot conclusively state that the failure to disclose
plaintiff‟s prior back injuries was the result of bad faith.
However, the failure to disclose appears to at least satisfy the
definition of negligence, as explicated by the Markey court. See
id. This conclusion is further supported by the fact that
plaintiff‟s former counsel, Attorney Lasala and Attorney Wynne,
represented her in connection with the May 16, 2001, car
accident that resulted in injuries to her back. See Doc. #80-1
at 14, 15, 16 (medical records relating to plaintiff‟s May 16,
2001 car accident, bearing: “Cc: Attorney Anthony Lasala”); Doc.
#109-1 (Exhibit 1 to plaintiff‟s response: “Car accident of May
2001, in which the plaintiff was represented by previous counsel

23

of William Wynn and Tony LaSala[.]” (sic)). Moreover, “[t] he
fact that counsel may have engaged in discovery in good faith
does not, however, absolve its culpable conduct because the
relevant state of mind for sanctions under Rule 37(c) is
ordinary negligence, not intentional conduct.” Markey, 2015 WL
5027522, at *22 (citation and internal quotation marks omitted).
With respect to plaintiff‟s 1993 car accident and prior federal
lawsuit, defense counsel represents that plaintiff‟s former
counsel did not learn of this until fairly recently.14 However,
this “purported ignorance only serves to highlight [counsel‟s]
failure to perform [their] obligations with the necessary
diligence required under Rule 26(g)(1)‟s „reasonable inquiry‟
requirement.” Id. Accordingly, the Court finds that the second
element supporting an award of Rule 37 sanctions has been
satisfied.
Turning to the final element of relevance, “the standard of
proof depends on the level of culpability.” Id. at *17. Giving
plaintiff the benefit of the doubt that counsel was merely

Defendant represents: “Counsel for the plaintiff, Attorney
Anthony Lasala admitted that he recently heard about the lawsuit
the plaintiff filed against the City of New Haven, after being
told about it by his co-counsel Attorney William Wynne, but that
he never read the decision and was therefore not aware of the
plaintiff‟s prior back injuries. Although Attorney Wynne
„discovered‟ the prior lawsuit, neither counsel notified counsel
for the defendant or this Court of the decision which
established plaintiff‟s prior back injuries.” [Doc. #94-1 at
10].
14

24

negligent, “[w]here the breach of discovery obligations was
merely negligent, the term „relevant‟ in the context of Rule 37
means something more than sufficiently probative to satisfy Rule
401 of the Federal Rules of Evidence. That is, the evidence must
be such that a reasonable trier of fact could find that it would
support that claim or defense.” Markey, 2015 WL 5027522, at *17
(internal citations and quotation marks omitted) (footnote
omitted). Here the undisclosed evidence of plaintiff‟s prior
back injuries is directly relevant to plaintiff‟s claims of
injuries sustained as a result of a slip and fall at the VA. As
discussed above, the record reflects that plaintiff‟s prior
injuries affected the same area of the back where plaintiff now
claims to be injured. Such evidence would thus support a defense
that plaintiff‟s injuries were not proximately caused by the
slip and fall at the VA. See Doc. #8 at 3-4. It also bears on
the nature and extent of injuries allegedly suffered by
plaintiff as a result of the slip and fall. Accordingly, the
Court finds that the third element of relevance has also been
satisfied.
Finding that defendant has met its burden to support the
imposition of Rule 37 sanctions, the Court now turns to whether
plaintiff‟s failure to comply was “substantially justified” or
“harmless.” See Ritchie Risk-Linked Strategies Trading
(Ireland), Ltd. v. Coventry First LLC, 280 F.R.D. 147, 158-59
25

(S.D.N.Y. 2012) (“Even where there is violation of Rule 26(a) or
(e), courts may not impose sanctions under Rule 37(c)(1) where a
party‟s failure to comply was „substantially justified‟ or where
the conduct was „harmless.‟” (citing Fed. R. Civ. P. 37(c)(1))).
Plaintiff bears the burden of proving that her non-compliance
was substantially justified and harmless. See id. at 159.
“Substantial justification may be demonstrated where there
is justification to a degree that could satisfy a reasonable
person that parties could differ as to whether the party was
required to comply with the disclosure [requirement], or if
there exists a genuine dispute concerning compliance.” Id.
(citation and internal quotation marks omitted). Here, plaintiff
has failed to proffer circumstances amounting to substantial
justification. Plaintiff contends that her previous counsel
“improperly, inadequately and ineffectively represented [her]”
and that “[d]iscovery abuse was unaware and unintentional by
plaintiff.” [Doc. #109-1]. Despite plaintiff‟s misgivings
regarding her former counsel, this argument is unavailing.
“Absent extraordinary circumstances, a client assumes the risk
of his attorney‟s actions and is bound even by the consequences
of his attorney‟s negligence.” Bruce Lee Enters., LLC v.
A.V.E.L.A., Inc., No. 10CV2333(KMW), 2013 WL 364210, at *2
(S.D.N.Y. Jan. 30, 2013) (citation omitted). Plaintiff has
failed to present extraordinary circumstances, such as fraud or
26

some other outrageous intentional act, which would serve to
excuse plaintiff from her former counsel‟s actions. See, e.g.,
Mpala v. Funaro, No. 3:13CV00252(SALM), 2015 WL 7312427, at *6
(D. Conn. Nov. 19, 2015), reconsideration denied, No.
3:13CV00252(SALM), 2016 WL 74391 (Jan. 6, 2016), appeal
docketed, No. 16-62 (2d Cir. Jan. 8, 2016); Lastra v. Weil,
Gotshal & Manges LLP, No. 03CV8756(RJH)(RLE), 2005 WL 551996, at
*4 (S.D.N.Y. Mar. 8, 2005) (“Claims by a litigant that he should
be excused from his attorney‟s actions because of alleged
fraudulent conduct and disobeyance of the litigant‟s orders may
give rise to a claim for malpractice, but does not constitute an
extraordinary circumstance or excusable neglect.”).15
Plaintiff has also failed to demonstrate how the nondisclosure of this information was harmless. “Harmlessness means
an absence of prejudice to the defendant.” Ritchie Risk, 280
F.R.D. at 159 (citation omitted). Plaintiff cannot submit, and
does not appear to argue, that the failure to disclose the

The Court notes that the shift of plaintiff‟s status to pro se
litigant confers some benefits. For example, the Court now
interprets her briefing “liberally” and reads her filings “to
raise the strongest arguments that they suggest.” Burgos v.
Hopkins, 14 F.3d 787, 790 (2d Cir. 1994) (citing Mikinberg v.
Baltic S.S. Co., 988 F.2d 327, 330 (2d Cir. 1993)).
Additionally, it appears that a dispute over the very issue now
before the Court contributed to the plaintiff‟s dismissal of her
prior counsel, which ostensibly could be construed as supporting
her argument that the fault lies with counsel. Nevertheless,
plaintiff has failed to present the extraordinary circumstances
which would excuse her from her prior counsel‟s actions.
15

27

information at issue did not prejudice defendant. Defendant has
litigated this case over the course of nearly four years without
the benefit of plaintiff‟s prior medical records. The defendant
has now deposed plaintiff and has not been able to inquire about
the nature of these prior injuries. Defendant‟s expert also did
not have the benefit of this information which likely would have
impacted his opinion. Even plaintiff‟s proffered expert was not
provided this information, thereby likely affecting his
anticipated testimony as well. Although defendant has now been
provided an opportunity for its expert to submit an addendum to
his report to account for this new information, defendant still
suffers prejudice in that it will potentially be forced to bear
the costs for the preparation of the addendum.16 It will also be
prejudiced in that it will have to bear the costs of taking a
deposition of plaintiff‟s witness, Dr. Grauer.17 In sum,

The Court uses the term “potentially” in light of its proposed
sanctions, discussed, infra.
16

On July 22, 2016, the Court held a telephonic status conference
to address plaintiff‟s proposed amendments to the Joint Trial
Memorandum. [Doc. ##117, 122, 123]. During this conference, the
Court informed defendant of its intention to deny the motion for
sanctions to the extent it sought dismissal and/or preclusion of
evidence relating to plaintiff‟s back injury. [Doc. #123 at 2
n.1]. As such, the defendant orally moved for leave to permit
its expert, Dr. Skolnick, to amend his expert report in light of
the new information. [Doc. #121]. The Court granted this motion
and stated that it would allow Dr. Skolnick to provide an
addendum to his original report in light of the circumstances.
[Doc. ##122, 123 at 2 n.1]. Defendant also orally moved to
depose Dr. Grauer in light of this same information and the
17

28

defendant was not provided a fair opportunity to prepare its
defense without the benefit of the information it inadvertently
discovered while preparing for trial. Accordingly, the Court
finds that plaintiff has not satisfied her burden of
demonstrating that the non-disclosure was substantially
justified or harmless.18
Therefore, the Court finds that Sanctions under Rule 37 are
warranted under the circumstances of this case. The Court next
turns to whether dismissal of plaintiff‟s complaint is an
appropriate sanction.
a. Dismissal
In considering whether to enter the sanction of dismissal
for non-compliance with discovery, the Court considers the
following factors: “(1) the willfulness of the non-compliant
party or the reason for noncompliance; (2) the efficacy of
lesser sanctions; (3) the duration of the period of
noncompliance, and (4) whether the non-compliant party had been
Court‟s intention to proceed with the case. [Doc. #119]. The
Court granted this motion on the record and encouraged defendant
to use its best efforts to complete this deposition before the
August trial date. [Doc. ##122, 123 at 2-3 n.1].
To the extent plaintiff‟s response could be construed as
arguing that because her prior injuries left her with no
impairment(s), and therefore the failure to disclose is
harmless, the Court finds this argument without merit.
Regardless of how plaintiff describes her prior injuries, the
fact remains that the medical evidence of record in fact shows
that plaintiff suffered prior injuries to her back, which are
relevant to the issues and damages in this case.
18

29

warned of the consequences of noncompliance.” Agiwal, 555 F.3d
at 302-03 (citation and internal quotation marks omitted); c.f.
Hinterberger v. Catholic Health Sys., Inc., 284 F.R.D. 94, 105
(W.D.N.Y. 2012) (discussing dismissal in the context of Rule
37(c)). The Court further bears in mind that dismissal is an
“extreme sanction[], to be deployed only in rare situations.”
Cine Forty–Second St. Theater Corp. v. Allied Artists Pictures
Corp., 602 F.2d 1062, 1063 (2d Cir. 1979).
With respect to the first factor, willfulness or the reason
for noncompliance, there is nothing before the Court to suggest
that the failure to disclose plaintiff‟s prior lawsuit and/or
injuries was willful. Rather, as noted above, such noncompliance
appears to have been the result of plaintiff‟s former counsel‟s
negligence. The only reasons proffered to the Court for this
failure are plaintiff‟s contentions that previous counsel
“improperly, inadequately and ineffectively represented [her]”
and that “[d]iscovery abuse was unaware and unintentional by
plaintiff.” [Doc. #109-1]. “Dismissal is appropriate only where
the noncompliance is due to willfulness, bad faith, fault or
gross negligence rather than inability to comply or mere
oversight.” Nieves v. City of New York, 208 F.R.D. 531, 537
(S.D.N.Y. 2002) (collecting cases). Accordingly, because the
record does not support a finding of willfulness or bad faith,
this factor does not weigh in favor of dismissal.
30

The Court next considers the duration of plaintiff‟s
noncompliance, which has been lengthy. Plaintiff has essentially
been noncompliant with her initial disclosure requirements since
August 1, 2013, the date on which her initial disclosure
requirements were due. See Doc. #13 at ¶V.E.1. (Rule 26(f)
Report: “The parties should be allowed until August 1, 2013 to
produce Initial Disclosures mandated by Fed. R. Civ. P.
26(a).”); Doc. #15 (Case Management Order: “The parties will
make the disclosures required by Fed. R. Civ. P. 26(a)(1) on or
before August 1, 2013.”). This non-compliance continues to
endure; there is no indication plaintiff has supplemented her
initial disclosures, meaning that plaintiff‟s non-compliance has
lasted nearly three years. In fact, if not for defendant
conducting its own investigation, this information might never
never been discovered. This is hardly insignificant.
Accordingly, the Court considers this factor to weigh in favor
of dismissal. See Paine, Webber v. Inmobiliaria Melia de P.R.,
Inc., 543 F.2d 3, 6 (2d Cir. 1976) (finding sanction of default
judgment appropriate where party “willfully failed to appear for
his deposition for more than seven months”).
Next, the Court considers whether plaintiff had been warned
of the consequences for non-compliance. This presents a thorny
issue as there was no reason to believe plaintiff had been noncompliant with her initial disclosure requirements until
31

defendant filed its Notice regarding newly discovered evidence.
[Doc. #79]. Although the Court has warned plaintiff in other
contexts that failure to comply with the Court‟s orders could
result in dismissal of her case, there has yet to issue a formal
warning that failure to comply with her discovery/initial
disclosure requirements would yield the same result.
Accordingly, this factor weighs against the sanction of
dismissal. See Hinterberger, 284 F.R.D. at 105 (“[D]ismissal of
an action as a sanction generally is not imposed absent the
giving of a warning that noncompliance may result in dismissal.”
(citing Valentine v. Museum of Modern Art, 29 F.3d 47, 50 (2d
Cir. 1994))).
Although a finding of prejudice is not required for the
imposition of Rule 37 sanctions, Aliki Foods, LLC v. Otter
Valley Foods, Inc., 726 F. Supp. 2d 159, 178 (D. Conn. 2010),
the Court finds that defendant has been prejudiced by
plaintiff‟s non-compliance. Failure to disclose plaintiff‟s
prior lawsuit and related injuries impacted the course of
discovery in this matter. It also impacted the reports of both
proposed experts, to whom plaintiff‟s prior injuries were never
disclosed. Defendant will now have to potentially bear the costs
for the preparation of Dr. Skolnick‟s addendum, and the costs of
Dr. Grauer‟s deposition. Plaintiff‟s non-compliance also might
have impacted defendant‟s decision not to file a summary
32

judgment motion. Plaintiff‟s non-compliance essentially tainted
the entire discovery process leading to this point.
The law of this Circuit requires that the Court consider
the efficacy of lesser sanctions to effectuate the goals of Rule
37. See Morales v. Cancun Charlie‟s Rest., No. 3:07CV1836(CFD),
2009 WL 3682449, at *6 (D. Conn. Oct. 30, 2009). Here, the
factors considered by the Court above, and the availability of
lesser sanctions, tip the scales against dismissal. The Court
therefore finds, as discussed below, that the imposition of
lesser sanctions may effectuate the goals of Rule 37.
Accordingly, the Court DENIES defendant‟s request to impose the
sanction of dismissal.
b. Preclusion of Evidence Relating to Plaintiff’s Back
Injury
As an alternative to dismissal, defendant requests that the
Court preclude all evidence of plaintiff‟s back injury. Based on
the Court‟s review of the relevant factors below, the Court
finds that the sanction of preclusion is also not warranted on
the current record.
The sanction of preclusion is also an “extreme” remedy to
“be deployed only in rare situations.” Cine Forty, 602 F.2d at
1064. “Before granting the extreme sanction of preclusion, the
Court should inquire more fully into the actual difficulties
which the violation causes, and must consider less drastic

33

responses.” Ritchie Risk, 280 F.R.D. at 157 (quoting Outley v.
New York, 837 F.2d 587, 591 (2d Cir. 1988)) (internal quotation
marks omitted). Similar to the factors a court should consider
when determining whether dismissal is an appropriate sanction,
courts of the Second Circuit consider the following when
assessing whether to preclude evidence or testimony: “(1) the
party‟s explanation for the failure to comply with the discovery
requirement; (2) the importance of the precluded evidence; (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.” Ritchie Risk, 280 F.R.D. at 157
(quoting Softel, Inc. v. Dragon Med. & Sci. Commc‟ns, Inc., 118
F.3d 955, 961 (2d Cir. 1997)).
The Court has previously addressed two of these factors,
each of which weighs in favor of precluding evidence relating to
plaintiff‟s back injury. First, plaintiff‟s explanation is
lacking as it essentially seeks to shift blame to her prior
counsel. As noted above, this argument is without merit as
plaintiff is bound by her prior counsel‟s actions, as well as
inaction. See, e.g., McMunn, 191 F. Supp. 2d at 452. Second,
defendant has been prejudiced by having to prepare to meet the
new evidence at the eleventh hour. Defendant has further been
denied the opportunity to conduct discovery on this issue,
including deposing plaintiff and/or her prior physicians as to
34

this evidence.19 The expert witnesses retained in this matter
have also been deprived the opportunity to consider this
evidence in formulating their opinions.20 Accordingly, the Court
finds these two factors to weigh in favor of precluding evidence
of plaintiff‟s back injury.
Weighing against preclusion is that the Court is willing to
entertain a request by defendant for a brief continuance of this
matter. As discussed during the July 22, 2016, telephonic status
conference, in the event that Dr. Skolnick is unable to complete
the addendum before the scheduled trial dates of August 9 and
10, 2016, and/or defendant is unable to coordinate the
deposition of Dr. Grauer before this time, the Court will hold
the dates of September 1 and 2, 2016, for the bench trial in
this matter, should a continuance be necessary. See Doc. #123 at
2-3 n. 1. Nevertheless, the Court will not consider a
Nevertheless, the Court again notes that defendant has produced
no evidence of any written discovery efforts regarding this
matter. The Court would have been more inclined to impose
harsher sanctions had defendant propounded an interrogatory or
request for production related to any prior injuries or
lawsuits.
19

Some of this prejudice has been mitigated by the granting of
defendant‟s requests to depose Dr. Grauer, and to permit its
expert to provide an addendum to his report. See Doc. ##122,
123, discussed supra at note 16. See, e.g., Equant Integrations
Servs., Inc. v. United Rentals (N. Am.), Inc., 217 F.R.D. 113,
118 (D. Conn. 2003) (defendant had opportunity to cure prejudice
caused by late-disclosed expert where expert discovery deadline
had been postponed and therefore, plaintiff had an opportunity
to depose defendant‟s expert witness).
20

35

significant continuance of this matter. This case has been
pending for nearly four years and trial has already been
continued once at the request of the plaintiff. Discovery has
long closed, and the dispositive motions deadline has passed.
Accordingly, under the present circumstances, there only
presents the possibility of a brief continuance.
Also weighing against preclusion is the fact that plaintiff
will essentially be foreclosed from proving her damages if all
evidence of her back injury is precluded from trial. This
evidence is crucial to plaintiff‟s case, and foreclosing its
introduction may prove fatal to plaintiff‟s claims. Precluding
such evidence is directly contrary to “the well established
preference for resolving cases on their merits[.]” Fappiano v.
MacBeth, No. 3:09CV00043(CSH), 2010 WL 1839946, at *2 (D. Conn.
May 7, 2010); see also New York v. Green, 420 F.3d 99, 104 (2d
Cir. 2005) (noting the Second Circuit has “expressed a strong
„preference for resolving disputes on the merits[]‟” versus
entering default judgments (quoting Powerserve Int‟l, Inc. v.
Lavi, 239 F.3d 508, 514 (2d Cir. 2001))).
The Court further considers the “actual difficulties” the
violation causes. See Ritchie Risk, 280 F.R.D. at 157. Granted,
the failure to disclose plaintiff‟s prior injuries has to this
date precluded defendant from further inquiring into the same.
However, this newly revealed evidence does not harm defendant‟s
36

case, but in fact helps it. Not only does this evidence go to
the credibility of plaintiff and Dr. Grauer, but it also
substantially affects the merits of plaintiff‟s claims.
Additionally, as noted above, defendant has now been provided an
opportunity for Dr. Sklonick to provide an addendum to his
expert report, and to depose Dr. Grauer concerning this new
information. Accordingly, the actual difficulties encountered by
this evidence are not extreme. Therefore, the Court will not
preclude evidence of plaintiff‟s back injury.21
Plaintiff, however, will not go unsanctioned. The
disclosure failures in this matter have been long lasting and
have potentially altered the course of this litigation. The
Court is particularly perturbed by the fact that the disclosed
doctors in this matter formulated opinions without the benefit
of plaintiff‟s prior injuries, greatly undermining the value of
their reports and/or anticipated testimony. Defendant will now
have to bear the costs of its expert preparing an addendum to
his initial report, as well as a deposition of Dr. Grauer.
Accordingly, for the reasons stated throughout this ruling, the
Court finds that monetary sanctions in the amount paid to

The Court has further permitted defendant to amend its Joint
Trial Memorandum, as amended [Doc. #113], to include exhibits
relating to plaintiff‟s prior lawsuit, and the 1992 and 2001 car
accidents and related injuries. See Doc. #123 at 4.
21

37

defendant‟s medical expert for preparing the addendum to his
report are warranted.
On or before August 17, 2016, defendant shall file a notice
with the Court which provides proof of payment to Dr. Matthew
Skolnick for the preparation of the addendum. On or before
August 24, 2016, plaintiff shall file, with a motion to seal if
necessary, an affidavit attesting to her ability to pay the
sanctions ordered. The Court will then determine whether the
ordered sanction is within the plaintiff‟s financial means, and
determine the final sanction. See Oliveri v. Thompson, 803 F.2d
1265, 1281 (2d Cir. 1986) (“[G]iven the underlying purpose of
sanctions - to punish deviations from proper standards of
conduct with a view toward encouraging future compliance and
deterring further violations - it lies well within the district
court‟s discretion to temper the amount to be awarded against an
offending [party] by a balancing consideration of his ability to
pay.” (collecting cases)); Lopa v. Fireman‟s Fund Ins. Co., No.
11CV2973(SJ)(VMS), 2014 WL 2041822, at *4 (E.D.N.Y. May 16,
2014) (“The purpose of such a sanction was not to broadly shift
Defendant‟s attorneys‟ fees to Plaintiffs, but to fashion an
appropriately narrow sanction that would promote Plaintiffs‟
compliance; to calculate the sanction, in part, based on the
burden Plaintiffs had unfairly created for Defendant; and to
keep the sanction within the Plaintiffs‟ financial means.”).
38

III. Conclusion
Accordingly, for the reasons articulated above, the Court
GRANTS, in part, and DENIES, in part, defendants‟ Motions for
Sanctions. [Doc. #94].
This is not a recommended ruling. The parties consented to
proceed before a United States Magistrate Judge on January 15,
2016, with appeal to the Court of Appeals. [Doc. #50].
SO ORDERED in New Haven, Connecticut, this 27th day of July,
2016.
_____ /s/ ___________________
HON. SARAH A. L. MERRIAM
UNITED STATES MAGISTRATE JUDGE

39