Alford et al v. Administration for Children's Services et al
ORDER granting 202 Motion to Strike. Ordered by Magistrate Judge Steven M. Gold on 10/27/2017. (Metzger, Daniel)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
PATRICK ALFORD, SR. and J.A., a minor, by
J.A. and her guardian ad litem, SYDELL MACK,
CITY OF NEW YORK; ST. VINCENT’S
SERVICES, INC.; ROBERT SALEMI,
individually and in his capacity as a Supervisor of
Child Protective Specialists for the Administration
of Children’s Services; CARLINE ANDERSON,
individually and in her capacity as a caseworker for
St. Vincent’s Services, Inc.; and ZOILA VILLALTA,
individually and in her capacity as a supervisor of
caseworkers for St. Vincent’s Services, Inc.; and
NATALIA ROSADO, individually and in her
capacity as Child Protective Specialist for the
Administration of Children’s Services,
GOLD, STEVEN M., U.S.M.J.:
By letter dated October 13, 2017, plaintiff J.A. moves to strike an expert report served by
defendants St. Vincent’s Services, Inc., Carline Anderson, and Zoila Villalta (the “SVS
defendants”) on September 29, 2017. Docket Entry 202. The report, which purports to assess
the efforts of these defendants “to provide for the care and safety of JA while she was in foster
care placement,” addresses matters relevant to liability and does not concern damages. Report at
1, Docket Entry 202-2.
Plaintiff J.A. moves to strike the report on the ground that it was served long after the
close of liability discovery on July 28, 2016. The SVS defendants contend, in essence, that
plaintiff’s assertion that liability discovery was closed on that date is incorrect.
I held a conference with the parties in this action and a related case, Rodriguez v.
Administration for Children’s Services, et al., 10-cv-4661, on July 28, 2016. During that
conference, counsel for plaintiff Alford, who was then also representing J.A., and counsel for the
SVS defendants agreed that all discovery was complete with the exception of discovery with
respect to J.A.’s damages. Tr. of July 27, 2016 at 7-8, Docket Entry 207. Accordingly, the
minute entry for the conference provided that “[d]iscovery is closed with the exception of
discovery with respect to the damages claimed by JA.” Docket Entry 153.
New counsel appeared on behalf of J.A. at a case management conference held on
October 25, 2016. During that conference, counsel for the SVS defendants reiterated that
liability discovery was complete, and that only damages discovery remained. Tr. of Oct. 25,
2016 at 5-6, Docket Entry 167. As the minute entry for the conference indicates, I afforded
J.A.’s new counsel an opportunity to review the case file and to propose a schedule for
conducting further discovery and motion practice. Docket Entry 162. Both the transcript and
minute entry for that conference indicate that the Court ruled that J.A. might move to reopen
liability discovery, but did not afford that opportunity to any other party. Tr. of Oct. 25, 2016 at
10; Docket Entry 162.
A further case management conference was held on February 24, 2017. As reflected in
the transcript of that conference, a letter dated January 30, 2017 submitted by new counsel for
J.A. was discussed at that time. Tr. of Feb. 24, 2017 at 7, Docket Entry 208. In that letter, new
counsel for J.A. sought leave to retain liability experts and proposed to submit reports of any
retained liability experts by April 17, 2017, and for defendants to submit rebuttal liability expert
reports by May 19, 2017. J.A. Letter dated Jan. 30, 2017, Docket Entry 171. During the
February 24 conference, counsel for SVS agreed to the schedule proposed in J.A.’s letter. Tr. of
Feb. 24 at 7. The only additional request made by SVS at that time was to take discovery with
respect to J.A.’s damages. Tr. of Feb. 24 at 8 et seq. Accordingly, the Court entered a minute
entry after the conference that set a schedule for completing briefing with respect to defendants’
pending motion for summary judgment on liability and a date for submission of a letter
proposing a schedule for conducting damages discovery. Docket Entry 174.
As permitted by the Court, new counsel for J.A. submitted a letter dated March 3, 2017.
Docket Entry 176. The opening paragraph of the letter indicates that it is being submitted after
all counsel conferred, and explicitly states that it is being submitted to “propose the following
schedule for damages discovery as to J.A.” Letter dated Mar. 3, 2017, at 1 (emphasis added).
The schedule proposed in the letter, which calls upon defendants to serve expert reports only
after their medical or psychological experts have examined J.A., corroborates that the parties
intended to conduct discovery only with respect to damages. Not surprisingly, the Court’s Order
approving the schedule proposed by the parties reads, “[t]he schedule for damages discovery
proposed by the parties is approved.” Order dated March 9, 2017 (emphasis added).
The SVS defendants seem to argue that the request made by J.A. in her January 30, 2017
letter, seeking leave to serve expert reports by April 17, 2017, somehow opened the door to any
party exchanging a liability expert report at any time. Plainly, though, it did not. Liability
discovery had closed on July 28, 2016. J.A. was permitted leave to serve a liability expert report
by April 17, 2017 only because new counsel had entered on her behalf, and because new counsel
entered as a result of the Court’s concerns about plaintiff Alford serving as J.A.’s guardian.
Defendants were permitted to serve an expert liability report only in rebuttal to any report J.A.
served on them. J.A., however, never served a liability expert report. Moreover, had she done
so, any rebuttal expert report on behalf of the SVS defendants would have been due to be served
by May 19, 2017. The SVS defendants did not serve their liability expert report, though, until
September 29, 2017.
Accordingly, for the reasons stated above, plaintiff J.A.’s motion to strike the liability
expert report served by the SVS defendants on September 29, 2017 is GRANTED.
Steven M. Gold
United States Magistrate Judge
Brooklyn, New York
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