Ayuso v. Butkiewieus et al

Filing 200

ORDER: As set forth in the attached document, the defendant's Motion in Limine to Preclude Testimony of Non-Disclosed Expert Witness (ECF No. 195 ) is hereby DENIED. It is so ordered. Signed by Judge Alvin W. Thompson on 12/1/2020. (Feng, M.)

Case 3:17-cv-00776-AWT Document 200 Filed 12/01/20 Page 1 of 3

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
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JOSE AYUSO,
:
:
Plaintiff,
:
:
v.
:
:
DAVID BUTKIEWICUS,
:
:
Defendant.
:
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Civil No. 3:17-cv-776(AWT)

ORDER RE DEFENDANT’S MOTION IN LIMINE
For the reasons set forth below, the “Motion in Limine to
Preclude Testimony of Non-Disclosed Expert Witness” (ECF No.
195) filed by defendant David Butkiewicus is hereby DENIED.
The defendant moves to preclude the expert testimony of
Todd A. Lefkowitz, MD, which was first disclosed in August 2020.
The joint trial memorandum was filed on September 1, 2020. The
discovery period had ended on December 7, 2018, and the
plaintiff’s motion to re-open discovery for limited purposes,
made on December 13, 2019, did not contemplate an expert
witness.
In Outley v. City of New York, the Second Circuit
identified four factors that courts should consider when
determining “a proper sanction for a violation of Rule
26(e). . . , including the explanation, if any, for the failure
to name the witness [or to otherwise supplement the answer], the

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importance of the testimony of the witness, the need for time to
prepare to meet the testimony, and the possibility of a
continuance.” 837 F.2d 587, 590 (2d Cir. 1988)(brackets in
original)(citations omitted). Here, consideration of the
relevant factors leads the court to conclude that a response
that is less drastic than preclusion is appropriate.
First, the plaintiff proceeded pro se for the majority of
the discovery period. After counsel was appointed for the
plaintiff, counsel promptly moved to reopen discovery for
limited purposes. It was appropriate that the motion be filed
promptly, but it was necessarily filed before the plaintiff’s
counsel had an opportunity to receive and review the medical
records from UConn Health Center. Once the plaintiff’s counsel
received those records, he proceeded diligently to review them
and look for an expert ophthalmologist. He then applied to the
court for reimbursement of expenses in connection with an expert
witness. After that was authorized, he then provided Dr.
Lefkowitz with the materials he required to prepare a report.
Dr. Lefkowitz’s expert report is dated August 26, 2020. So the
report was obtained from Dr. Lefkowitz within a reasonable
period of time.
Second, the court agrees with the plaintiff that the
importance of Dr. Lefkowitz’s testimony to the plaintiff’s case
weighs in favor of admission. The doctor’s testimony as to the

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physical impact of an individual who has the plaintiff’s
conditions being without his eyeglasses for an extended period
of time is necessary. Without such testimony, jurors would be
left to reach conclusions based on their own experiences. In
light of the importance of Dr. Lefkowitz’s testimony, precluding
it would be a particularly drastic remedy.
Third, the defendant is prejudiced, but that prejudice can
be cured to a significant degree. The court will allow the
defendant to depose Dr. Lefkowitz and the defendant will be
permitted to proffer a rebuttal witness if he wishes to do so.
Fourth, no trial date has been set at this time because of
the Covid-19 pandemic, and given the backlog of trials, granting
a continuance will not disrupt the court’s trial schedule.
It is so ordered.
Signed this 1st day of December 2020, at Hartford,
Connecticut.

_/s/ AWT______
Alvin W. Thompson
United States District Judge