S.W. et al v. City of New York et al

Filing 311

ORDER denying #296 Motion to Preclude. The City defendant's motion to preclude the three expert reports is denied. The schedule for limited discovery on welfare and additional expert reports is set as discussed at the hearing on this motion. Ordered by Magistrate Judge Marilyn D. Go on 7/25/2011. (Proujansky, Josh)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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S.W., et al.,
Plaintiffs,
- against -

ORDER
CV 2009-1777 (ENV)(MDG)

CITY OF NEW YORK, et al.,
Defendants.
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Defendant City of New York moves to preclude the rebuttal
report of plaintiffs’ expert Mark E. Safarik and the
rebuttal/supplemental reports of plaintiffs’ experts Henry Gunn
and Peg McCartt Hess.

See ct. doc. 296.

BACKGROUND
Plaintiffs, who were classified as special needs children,
bring this civil rights action against the City of New York (the
“City”), the New York City Administration for Children’s Services
(“ACS”) and several foster care agencies to recover damages for
the severe abuse they suffered at the hands of their foster care
and adoptive mother, Judith Leekin, with whom they were placed
between 1986 and 1994.

Ms. Leekin used different names and

identities to accomplish her fraudulent scheme and, after adopting
the plaintiffs, collected approximately $1.68 million in adoption
subsidies.
On or about December 3, 2010, plaintiffs served the reports

of two experts, Mr. Gunn and Dr. Hess.

Dr. Hess, a child welfare

consultant, concludes in her report that the failures in
management and case practice of ACS, formerly the Child Welfare
Administration, and the private foster care agencies enabled
Leekin to perpetrate her fraudulent scheme.

Mr. Gunn, also a

child welfare consultant, assesses the organizational structure
and management of ACS from 1984 to 1996 and opines that the
systemic problems resulted in the injuries to the plaintiffs.
On January 7, 2011, the City requested an extension of time
to serve its expert reports, in part, because fact discovery had
not been completed.

See ct. doc. 273.

Plaintiffs responded that

any extension of time should be conditioned on plaintiffs’ experts
having the opportunity to supplement their opinions based on
discovery that had not yet been produced.

See ct. doc. 275.

By

letter dated January 26, 2011, the City informed the Court that
the parties had agreed to extend the time to serve defendants’
expert reports but the letter does not mention whether any
agreement was reached regarding the supplementation of plaintiffs’
expert reports.

See ct. doc. 278.

Defendants later served expert reports on March 16, 2011,
including a report by Gregory D. Meacham and a report by Dr. Roger
Depue.

Mr. Meacham discusses the criminal aspects of Leekin’s

fraud and her abilities as a criminal fraudster.

Dr. Depue also

discusses Leekin’s criminal means and methods and, from a
behavioral sciences perspective, her capacity to have defrauded
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several organizations and individuals.
On March 28, 2011, plaintiffs filed a letter informing the
Court that the parties had agreed to amend the expert discovery
schedule extending defendants’ time to serve their remaining
expert reports and setting a date, June 16, 2011, for plaintiffs
to serve rebuttal expert reports regarding issues of criminology
and Leekin’s criminal activities.

Defendants reserved their right

to object that any rebuttal report would be improper.

See ct.

doc. 285.
On or about April 11, 2011 and April 13, 2011, respectively,
the foster care agencies and the City served the reports of Elaine
M. Walsh and Richard P. Barth.

Dr. Walsh finds that the agencies

followed prescribed procedures for certifying and monitoring
Leekin’s foster home.

Dr. Barth states that the fraudulent

activities of Leekin were so anomalous that a typical child
welfare agency would not have been expected to detect them.

Dr.

Barth also opines that the systemic problems identified by the
plaintiffs’ experts were similar to those occurring in other
similar jurisdictions.
On June 14, 2011, plaintiffs served a rebuttal expert report
of Mark E. Safarik, who had not previously been identified by
plaintiffs as an expert.

Plaintiffs also served

rebuttal/supplemental expert reports of Mr. Gunn and Dr. Hess,
which plaintiffs argue, respond to the reports of Dr. Barth and
Dr. Walsh.

Defendants have challenged the propriety of all three
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reports.
DISCUSSION
Rule 26(a)(2)(B)(I) of the Federal Rules of Civil Procedure
requires that an expert’s initial report contain “a complete
statement of all opinions the witness will express and the basis
and reasons for them,” while Rule 26(a)(2)(C)(ii) allows the
admission of rebuttal testimony that is “intended solely to
contradict or rebut evidence on the same subject matter identified
by another party . . . .”

Fed. R. Civ. P. 26(a)(2).

“Rebuttal

evidence is properly admissible when it will explain, repel,
counteract or disprove the evidence of the adverse party.”
Crowley v. Chait, 322 F. Supp. 2d 530, 551 (D.N.J. 2004).
Rule 26(e) requires that disclosures made pursuant to Rule
26(a), including expert disclosures, be supplemented when the
party who made the disclosure “learns that in some material
respect the disclosure . . . is incomplete or incorrect . . . .”
Fed. R. Civ. P. 26(e).

“It is only if the expert subsequently

learns of information that was previously unknown or unavailable,
that renders information previously provided in an initial report
inaccurate or misleading because it was incomplete, that the duty
to supplement arises.”

Sandata Techs., Inc. v. Infocrossing,

Inc., 2007 WL 4157163, at *3-*4 (S.D.N.Y. 2007).
Safarik Report
Mr. Safarik directly disputes the conclusions of Mr. Meacham
and Dr. Depue as to the degree of criminal sophistication
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demonstrated by Leekin.

Mr. Meacham states that Judith Leekin was

“a sophisticated con artist who is expert in the psychological
manipulation of her victims.”

Meacham Report at 4.

Similarly,

Dr. Depue offers the opinion that Leekin is a “sophisticated and
highly organized serial criminal,” Depue Report at 1, and “she
would have been very difficult to detect by anyone who had not
been trained in fraud investigation, the detection of deception
and the characteristics of a psychopathic manipulator,” id. at 11.
In response, Mr. Safarik states that “Leekin was not, as Meacham
and Roger Depue opine, a sophisticated criminal mastermind
impervious to detection.

A review of the record clearly reflects

that Judith Leekin was reckless, disorganized and lacked a high
level of sophistication.”

Safarik Report at 2.

Mr. Safarik’s report contains quintessential rebuttal
testimony to that of the defendants’ experts.

The City argues

that “[t]estimony from Mr. Safarik to the effect that Ms. Leekin’s
fraud was ‘easily’ or ‘readily’ detectable belongs in their case
in chief, and is not appropriately a rebuttal issue.”
doc. 296.

See ct.

However, Mr. Safarik’s report is not focused on “the

existence of an unconstitutional policy, practice or custom
concerning the vetting and supervision of foster parents” as the
City describes plaintiffs’ burden on their case-in-chief.

Rather,

Mr. Safarik directly contradicts the defendants’ experts’ opinions
that Leekin was a criminal mastermind who was so sophisticated in
her schemes that the City could not have been expected to protect
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the plaintiffs against them.

Mr. Safarik describes Leekin as

“sloppy” and lists several examples of instances where Leekin’s
lapses created opportunities for the City to have detected her
criminal conduct.

Contrary to the City’s claims, I do not find

that Mr. Safarik’s report is an effort by plaintiffs to “game” the
system.
The City further objects to Mr. Safarik’s reliance on a study
on welfare fraud as injecting a new issue.

Although the

procedures used by the City to combat welfare fraud were not
discussed in the reports of defendants’ experts, Mr. Meacham
recognizes in his report that “there is an issue of whether or not
it would have been feasible under then-existing disclosure and
privacy laws for ACS, the agencies, or New York State to somehow
verify names with SSNs during the relevant time period.”
Report at 74.

Meacham

Dr. Walsh states that “there was no way that the

agencies would have been able to learn about the various
identities [Leekin] used to foster and then adopt the plaintiffs.”
Walsh Report at 5.

Mr. Safarik’s reliance on a City report that

states that the City had the ability to conduct Social Security
Number verification checks in the welfare context is appropriate
rebuttal testimony.

Such testimony supports the opposite

conclusion than reached by defendants’ experts but concerns the
“same subject matter” as the testimony of defendants’ experts.
Cf. Park West Radiology v. CareCore Nat., LLC, 675 F. Supp. 2d
314, 325-26 (S.D.N.Y. 2009) (permitting rebuttal report that uses
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new methodologies); Scientific Components Corp. v. Sirenza
Microdevices, Inc., 2008 WL 4911440, at *2 (E.D.N.Y. Nov. 13,
2008) (“technical information . . . that was not previously the
subject of expert testimony in this litigation . . . is not out of
place in a rebuttal report”); TC Sys. Inc. v. Town of Colonie, 213
F. Supp. 2d 171, 180 (N.D.N.Y. 2002) (permitting rebuttal expert
to use different methodology).
Gunn and Hess Reports
The Gunn and Hess reports are also directly targeted at
rebutting the reports of defendants’ experts.
Supp. 2d at 551.

See Crowley, 322 F.

Defendants’ experts explain the City’s failure

to uncover Leekin’s fraud, in part, by claiming that foster care
workers are not trained in fraud detection and the City had no
reason to think that such training was necessary.

In their

rebuttal reports, Hess and Gunn argue that even if foster care
workers were not trained to detect fraud, the City was on notice
that foster parents sometimes harmed the children placed with them
and that the City had to screen foster parents carefully to
prevent that from happening.

Specifically, Mr. Gunn opines that

as part of their obligation to evaluate foster and adoptive parent
applicants and monitor foster care placements, the case workers
were required to verify information provided by applicants.

Mr.

Gunn points to a City report on welfare fraud as evidence that the
City was able to match information regarding recipients of welfare
benefits with Social Security and SSI files.
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Mr. Gunn also

references letters received by counsel for plaintiffs from the
Social Security Administration which he argues confirm his
recollection that during the relevant time period the City could
have verified Social Security numbers provided by foster and
adoptive parent applicants.
Similarly, Dr. Hess responds to the defendants’ expert
reports by elaborating that the rigorous screening and monitoring
necessary to protect the children should have included
verification of the names and Social Security numbers provided by
foster and adoptive parent applicants.

Dr. Hess also cites the

letters from the Social Security Administration and the study on
welfare fraud as evidence that ACS could have requested such
information from the local Social Security offices.

To the extent

that plaintiffs’ experts disclose new opinions that were not
included in their original reports, they are clearly responsive to
defendants’ experts’ reports and do not cause prejudice or
surprise to the City.

See Park West Radiology v. CareCore Nat.

LLC, 675 F. Supp. 2d 314, 326 (S.D.N.Y. 2009).
The City argues that these “rebuttal” opinions should have
been disclosed in plaintiffs’ experts’ initial reports.

However,

the rules do not require an expert to anticipate every argument
made by an opposing expert or risk preclusion.
Components, 2008 WL 4911440, at *3 n.2.

See Scientific

As to the supplementary

portion of their reports, both experts discuss letters from the
Social Security Administration and the study on welfare fraud that
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had not been produced at the time they served their initial
reports.

Since this constitutes information that was previously

unknown or unavailable to them, those portions of their reports
are proper supplementation.
In any event, as discussed in a previous ruling, “exclusion
of expert testimony is a drastic remedy.”

Lab Crafters, Inc. v.

Flow Safe, Inc., 2007 WL 7034303, at *2 (S.D.N.Y. 2007); RMED
Int’l, Inc. v. Sloan Supermarkets, Inc., 2002 WL 31780188, at *3
(S.D.N.Y. 2002).

Courts in the Second Circuit consider the

factors set forth in Softel, Inc. v. Dragon Med. & Scientific
Comm., Inc., 118 F.3d 955 (2d Cir. 1997), for determining whether
to preclude expert testimony.

These factors are: "(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, 118 F.3d at 961 (citing Outley v. City of

New York, 837 F.2d 587, 590-91 (2d Cir. 1988)); see also Patterson
v. Balsamico, 440 F.3d 104, 117 (2d Cir. 2004).

Even assuming

that portions of plaintiffs’ experts’ reports should have been
included in their initial reports, there is no prejudice to the
City by permitting plaintiffs’ experts to serve these reports
since expert depositions have not been taken and no trial date has
been set.

Further, defendants are granted leave to serve sur-

rebuttal reports by their experts if they deem it necessary.

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See

Park West, 675 F. Supp. 2d at 326 (denying motion to exclude
expert report where party seeking preclusion could redepose expert
and submit sur-rebuttal report).
CONCLUSION
For the foregoing reasons, the City defendant’s motion to
preclude the three expert reports is denied.

The schedule for

limited discovery on welfare and additional expert reports is set
as discussed at the hearing on this motion.
SO ORDERED.
Dated:

Brooklyn, New York
July 25, 2011
/s/
MARILYN D. GO
UNITED STATES MAGISTRATE JUDGE

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