Theriault v. USA et al

Filing 44

ORDER granting 40 Motion to Preclude. Pursuant to the attached Order, Defendant's 40 Motion to Preclude is GRANTED as to all experts disclosed by Plaintiff on April 17, 2020, with the exception of Dr. Kaplan. Signed by Judge Kari A. Dooley on 7/22/2020. (D'Amato, Joseph)

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UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
CATHERINE THERIAULT
Plaintiff,
v.
UNITED STATES OF AMERICA, et al,
Defendants.

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3:18-CV-00081 (KAD)

July 22, 2020

ORDER RE: DEFENDANT’S MOTION TO PRECLUDE EXPERT TESTIMONY (ECF
NO. 40)
Kari A. Dooley, United States District Judge
Before the Court is Defendant United States of America’s Motion to Preclude Plaintiff
Catherine Theriault’s late-disclosed experts from offering expert testimony at trial. Absent
objection by the Plaintiff and for the following reasons, the motion is GRANTED.
Procedural History
On October 9, 2018, the parties submitted their Rule 26(f) Report. (ECF No. 13). On
October 10, 2018, upon reviewing the Rule 26(f) Report, the Court adopted the report as the
Scheduling Order. (See ECF No. 14). Plaintiff was required to designate all trial experts by April
1, 2019. (ECF No. 13 at 5). On June 10, 2019, the Court extended the deadline for designating
Plaintiff’s experts to July 1, 2019. (See ECF No. 17 at 2; ECF No. 18). On April 13, 2020, the
parties filed a joint motion for extension of time, which included a request to allow Plaintiff until
May 8, 2020 to designate all trial experts. (ECF No. 31 at 2). Before the Court ruled on the motion,
on April 17, 2020, Plaintiff disclosed seven of her treating physicians as expert witnesses. (See
ECF No. 40-2 at 1–2). However, after conducting a telephonic conference on April 21, 2020, the
Court granted the April 13, 2020 motion to reopen discovery in part, reopening discovery for the
sole purpose of taking the depositions of Dr. Patrick Duffy, who performed an independent

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medical examination of Plaintiff, and Dr. Michael Kaplan, the Plaintiff’s treating orthopedic
surgeon. (ECF No. 39). On April 30, 2020, Defendant filed the instant Motion to Preclude
Plaintiff’s late disclosed experts from offering expert testimony at trial.1 The Plaintiff did not
oppose the motion.
Discussion
Rule 26(a)(2)(D) provides that a “party must make [expert witness] disclosures at the times
and in the sequence that the court orders.” FED. R. CIV. P. 26(a)(2)(D). “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 on a motion, at a hearing, or at a trial, unless the failure
was substantially justified or is harmless.” FED. R. CIV. P. 37(c)(1). Additionally, the Court may,
“on motion and after giving an opportunity to be heard[,] impose other appropriate sanctions . . .
.” FED. R. CIV. P. 37(c)(1)(C); see also Design Strategy, Inc. v. Davis, 469 F.3d 284, 298 (2d Cir.
2006) (“[T]he plain text of the rule provides that if an appropriate motion is made and a hearing
has been held, the court does have discretion to impose other, less drastic, sanctions.”).
On the question of precluding expert testimony, courts should consider several factors, to
include: “(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, Inc. v. Dragon Med. & Sci. Commc'ns, Inc., 118 F.3d 955, 961 (2d Cir. 1997).
The Court cannot assess the first and second of these factors because the Plaintiff did not respond
to the motion to preclude. Further, the Court finds that the government would be prejudiced or, to

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Previously, on May 1, 2020, this Court granted the instant motion in part to allow Plaintiff to designate Dr. Kaplan
and Defendant to designate Dr. Duffy on or before May 21, 2020. (See ECF No. 43). This Order does not alter or
amend the Court’s May 1, 2020 Order.

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avoid such prejudice, the case would be substantially delayed, if the Court were to permit the
expert testimony at issue. Finally, it is well-established that “[t]his Court has the authority to
manage its docket by, among other things, setting and enforcing deadlines.” Caporaso v. Donnelly,
No. 3:16-CV-00521(SALM), 2019 WL 3886726, at *4 (D. Conn. Aug. 19, 2019) (granting motion
to preclude expert testimony where plaintiff provided notice of proposed expert witnesses more
than two years after the deadline without explanation, defendants did not have an opportunity to
depose the experts, and the case was set for trial in six weeks).
Conclusion
For the foregoing reasons, Defendant’s Motion to Preclude is GRANTED as to all experts
disclosed by Plaintiff on April 17, 2020, with the exception of Dr. Kaplan.
SO ORDERED at Bridgeport, Connecticut, this 22nd day of July 2020.
/s/ Kari A. Dooley
KARI A. DOOLEY
UNITED STATES DISTRICT JUDGE

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