Perpall et al v. Wheeler et al

Filing 84

ORDER granting in part and denying in part 82 Motion for Discovery. Plaintiff must be produced for a further deposition, on a mutually convenient date no later than May 26, 2017, to be examined about the facts surrounding the two falls and the co nsequences thereof. Defendants may, by June 19, 2017, serve a supplemental report from their expert opining on the significance of these falls vis-a-vis plaintiff's injuries. However, as defendants have not provided any evidentiary submission regarding the expert's need for a further independent medical examination, that aspect of defendants' motion is denied without prejudice. See attached for further discussion. Ordered by Chief Mag. Judge Roanne L. Mann on 5/11/2017. (Proujansky, Josh)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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BARBARA ANN PERPALL
and PAUL U. PERPALL,
Plaintiffs,

MEMORANDUM
AND ORDER

-against-

12-CV-336 (PKC)(RLM)

RICHARD A. WHEELER, et al.,
Defendants.
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ROANNE L. MANN, UNITED STATES MAGISTRATE JUDGE:
Defendants’ request to reopen discovery regarding the two falls that plaintiff Barbara
Ann Perpall apparently sustained in 2016 is granted in part, over plaintiff’s objection. See
Motion for Discovery (May 9, 2017) (“Def. Motion”), Electronic Court Filing Docket Entry
(“DE”) #82; Response in Opposition (May 10, 2017) (“Pl. Opp.”), DE #83. Although
plaintiff counters that her expert opines that the two falls were “secondary to the weakness”
attributable to her 2010 injuries, see Pl. Opp. at 2, she does not dispute that these falls were
first disclosed to defendants last month, long after the close of discovery. See id. at 1. The
opinion cited by plaintiff is not, however, dispositive, and defendants are entitled to examine
plaintiff to ascertain the facts surrounding and subsequent to these falls and to proffer their
expert’s opinion regarding the impact of those falls on plaintiff’s injuries.
Accordingly, plaintiff must be produced for a further deposition, on a mutually
convenient date no later than May 26, 2017, to be examined about the facts surrounding those

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two falls and the consequences thereof. Defendants may, by June 19, 2017, serve a
supplemental report from their expert opining on the significance of these falls vis-à-vis
plaintiff’s injuries. However, as defendants have not provided any evidentiary submission
regarding the expert’s need for a further independent medical examination, that aspect of
defendants’ motion is denied without prejudice. See Furlong v. Circle Line Statue of Liberty
Ferry, Inc., 902 F.Supp. 65, 70 (S.D.N.Y. 1995) (“a higher showing of cause is required to
justify” multiple examinations).
SO ORDERED.
Dated: Brooklyn, New York
May 11, 2017
/s/

Roanne L. Mann

ROANNE L. MANN
CHIEF UNITED STATES MAGISTRATE JUDGE

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