Knox v. USA
Filing
64
ORDER granting, absent objection, 58 Motion in Limine to Exclude Expert Witness. Signed by Judge Sarah A. L. Merriam on 3/30/2016. (Katz, S.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
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:
ANITRA KNOX
:
:
v.
:
:
UNITED STATES
:
:
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Civ. No. 3:12CV01741(SALM)
March 30, 2016
ORDER ON MOTION IN LIMINE [Doc. #58]
Pending before the Court is the motion of defendant United
States seeking to preclude plaintiff Anitra Knox’s (“plaintiff”)
proffered expert from testifying at trial. [Doc. #58]. The
plaintiff’s response to this motion was due on March 22, 2016. The
Court, having received no objection to the United States’ motion,
and for the reasons articulated below, GRANTS the United States’
Motion in Limine to Exclude Expert Witness. [Doc. #58].
BACKGROUND
Plaintiff brings this personal injury action pursuant to the
Federal Tort Claims Act, 28 U.S.C. §§1346(b), 2671, et seq.
Plaintiff alleges that she slipped and fell at the West Haven
Veterans Administration Hospital, and as a result, sustained
injuries. Plaintiff filed her complaint on December 12, 2012.
[Doc. #1]. On July 3, 2013, the parties filed their Rule 26(f)
Report of Parties’ Planning Meeting. [Doc. #13]. In that report,
plaintiff represented that she “may call expert witnesses at
trial[,]” and that she would “designate all trial experts and
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provide opposing counsel with reports from retained experts
pursuant to Fed. R. Civ. [P.] 26(a)(2) by October 1, 2013.” Id. at
6. On July 17, 2013, Judge Donna F. Martinez entered a Case
Management Order, which orders, in pertinent part:
5. Discovery Relating to Expert Witnesses: An expert
witness is anyone, including a treating physician, who
may be used at trial to present evidence under Rules
702, 703, or 705 of the Federal Rules of Evidence.
Unless otherwise ordered, a party intending to call such
a witness must disclose a report signed by the witness
containing the information required to be disclosed by
Fed. R. Civ. P. 26(a)(2)(B). All such expert reports
will be disclosed by plaintiff on or before December 1,
2013, and any such experts will be deposed on or before
January 1, 2014. All such expert reports will be
disclosed by defendant on or before February 1, 2014,
and any such experts will be deposed by March 1, 2014.
[Doc. #15 at 2]. Counsel were directed to provide a copy of this
Order to their clients. [Doc. #15 at 5]. The Case Management Order
further cautions counsel “that all deadlines and court orders must
be followed.” [Doc. #15, endorsement].
Following the entry of this Case Management Order, the
parties filed a total of seven (7) motions to extend certain pretrial deadlines, all of which were granted by Judge Martinez. See
Doc. #22, 23, 24, 25, 26, 27, 30, 31, 33, 34, 36, 37, 39, 40.
Notably, none of these motions sought an extension of the deadline
by which plaintiff was to make her expert disclosures. Discovery
closed on February 16, 2015. [Doc. #27]. On August 31, 2015,
plaintiff’s counsel disclosed an August 30, 2015, report of Dr.
Jonathan N. Grauer, M.D., to counsel for the United States via
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email. [Doc. #58-2]. On March 1, 2016, plaintiff filed her
Disclosure of Expert, which identifies Dr. Grauer as plaintiff’s
expert witness. [Doc. #56]. A bench trial is scheduled before the
undersigned on May 12 and 13, 2016. [Doc. #63].
DISCUSSION
Federal Rule of Civil Procedure 26(a)(2)(D) provides: “A
party must make [expert] disclosures at the times and in the
sequence that the court orders.” Fed. R. Civ. P. 26(a)(2)(D).
Here, Judge Martinez’s Case Management Order required that
plaintiff disclose her expert witnesses on or before December 1,
2013. [Doc. #15 at 2]. Not only did plaintiff fail to disclose her
expert within the time mandated by the Case Management Order, she
also failed to do so before the close of discovery on February 16,
2015. Indeed, it appears from the docket that no such formal
disclosure was made until earlier this month, on March 1, 2016.
[Doc. #59].1 Leave was neither sought, nor granted, for plaintiff
to disclose her expert beyond the deadline set by Judge Martinez.
In assessing whether to preclude an expert’s testimony or
report, the Court considers the following factors: “(1) the
party’s explanation for the failure to comply with the discovery
order; (2) the importance of the testimony of the precluded
1
Rule 26(a)(2)(D)(i) also provides that expert disclosures must be
made at least 90 days prior to the trial date. Here, the expert
witness disclosure was made on the docket less than 90 days before
the trial date, providing another basis for exclusion of expert
testimony from this witness.
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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, Inc. v. Dragon Med. & Sci.
Commc’ns, Inc., 118 F.3d 955, 961 (2d Cir. 1997) (citing Outley v.
City of New York, 837 F.2d 587, 590-91 (2d Cir. 1988)).
Here, the Court finds that three of these factors weigh in
favor of precluding Dr. Grauer’s expert testimony. Plaintiff has
failed to proffer any explanation for the failure to comply with
Judge Martinez’s Case Management Order. Although Dr. Grauer’s
testimony is undoubtedly important to plaintiff’s case,2 allowing
Dr. Grauer to testify as an expert would be prejudicial to the
United States, which has not had an opportunity to depose Dr.
Grauer.3 Further, the Court will not entertain the possibility of a
continuance. This case is over three years old and is set for
trial in less than two months’ time. The Court will not permit any
further delays in bringing this matter to a resolution. Indeed, it
2
The Court notes that Dr. Grauer reports that his last visit with
the plaintiff prior to his report was May 3, 2015, and he declines
to comment on a number of issues such as the likely costs of
future treatment. [Doc. #58-2 at 3-4]. Further, in response to
counsel’s inquiry regarding a causal connection between the fall
at the VA and the injuries, Dr. Grauer states only that the onset
of symptoms is “temporally linked” to the fall. [Doc. #58-2 at 4].
These issues diminish the value of the report to the plaintiff’s
case, and thus diminish the weight of this factor in the Court’s
analysis of the merits of admitting the testimony.
3
The United
witness, Dr.
no motion in
witness, the
disclosed.
States has listed in the Pretrial Memorandum an expert
Matthew Skilnick, as an expected witness at trial. As
limine has been filed by the plaintiff regarding this
Court assumes that Dr. Skilnick was properly
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would be highly prejudicial and a waste of judicial resources to
reopen discovery at this late date. See Fed. R. Civ. P. 37(c)(1)
(“If a party fails to provide information or identify a witness as
required by Rule 26(a) ..., the party is not allowed to use that
information or witness to supply evidence ... at a trial, unless
the failure was substantially justified or is harmless.”).
This Court has the authority to manage its docket by, among
other things, setting and enforcing deadlines. The plaintiff has
failed to comply with the Court-imposed deadlines for the
disclosure of expert witnesses, providing notice of this proposed
expert witness a full 27 months after the December 2013 deadline.
Accordingly, for the reasons stated, the plaintiff’s Motion in
Limine to Exclude Expert Witness is GRANTED, absent objection.
[Doc. #58]. See Hunt v. CNH Am. LLC, 511 F. App’x 43, 45 (2d Cir.
2013) (affirming exclusion of a late-filed supplemental expert
report that was disclosed “after the close of expert discovery and
without any request for an extension of the deadline[]”); Derisme
v. Hunt Leibert Jacobson, P.C., No. 3:10CV244(VLB), 2011 WL
5403056, at *2 (D. Conn. Nov. 8, 2011) (granting motion to
preclude party from identifying an expert after the expert
discovery deadline).
The Court hereby precludes Dr. Grauer from offering any
expert testimony (as defined in Federal Rules of Evidence) at
trial. Dr. Grauer may testify as a fact witness only if, and to
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the extent, such testimony is admissible under the Federal Rules
of Evidence.
SO ORDERED at New Haven, Connecticut this 30th day of March,
2016.
/s/
______________
HON. SARAH A. L. MERRIAM
UNITED STATES MAGISTRATE JUDGE
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