Colon et al v. Linchip Logistics LLC et al

Filing 33

MEMORANDUM & ORDER, For the reasons set forth above, Defendants' 24 motion for summary judgment is DENIED. Plaintiff's 29 motion for sanctions is GRANTED, and Defendants are precluded from calling Scott as a witness. The parties are directed to contact Magistrate Judge Robert M. Levy's chambers to schedule a conference regarding next steps in this case. So Ordered by Judge Nicholas G. Garaufis on 2/25/2019. (Lee, Tiffeny)

S)(F
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-X

MIKE COLON,

Plaintiff,
MEMORANDUM & ORDER

-against16-CV-3875(NGG)
(RML)
LINCHIP LOGISTICS LLC,PANTHER II
TRANSPORTATION,INC,and CHARLES
RICHARD LAWRENCE,
Defendants.
X

NICHOLAS G. GARAUFIS,United States District Judge.

In this diversity action. Plaintiff Mike Colon brings claims against Linchip Logistics
LLC,Panther 11 Transportation, Inc, and Charles Richard Lawrence, asserting damages arising
from a car accident. Defendants have moved for summary judgment(Mot. for Summ.J.

("Mot.")(Dkt. 24)), and Plaintiff has moved for sanctions, objecting to Defendants' introduction
of a previously undisclosed expert's affidavit. (Mot.for Sanctions(Dkt. 29).) For the following
reasons. Defendants' motion for summary judgment is DENIED and Plaintiff's motion for
sanctions is GRANTED.

I.

BACKGROUND
A.

Facts

The court constructs the following statement offacts from the admissible evidence the

parties have submitted.^ Except as otherwise noted,the following facts are undisputed. All
evidence is construed in the light most favorable to the non-moving party with all "reasonable
inferences" drawn in its favor. IMG Bank N.V. v. M/V Temara.IMG No. 9333929. 892 F.3d

511, 518(2d Cir. 2018).

'
Neither party submitted a statement offacts pursuant to Local Rule 56.1.
1

Plaintiffis a citizen ofthe State ofNew York. (Not. of Removal(Dkt. 1).) Defendant

Linchip Logistics LLC is a Texas corporation with its principal place of business in Corsicana,
Texas. (Id.") Defendant Panther 11 Transportation, Inc. is an Ohio corporation with its principal

place of business in Medina, Ohio. (Id.) Defendant Charles Richard Lawrence, Jr. is a citizen of
the state of Texas, and resides in Greenville, Texas. (Id.)

This action arises out of a motor vehicle accident that occurred on September 19,2015.

(Aff. of Richard B. Polner in Supp. ofDefs. Mot.for Summ.J.("Polner Aff.")(Dkt. 24-1) 3;
PI. Mem.in Opp'n to Defs. Mot. for Summ. J.("PI. Mem")(Dkt. 27)at 2.) Both Plaintiff and
Defendant Charles Richard Lawrence were driving north on Guy R. Brewer Boulevard

immediately before the accident. (PI. Mem. at 2, 4; Police Accident Report(Dkt. 24-9).) The
parties dispute whether, at the time ofthe accident, Guy R. Brewer Boulevard had one or two
lanes oftraffic in each direction: Plaintiffstates that"Guy R. Brewer Boulevard is a two way

north/south street with two lanes on each side"(PI. Mem. at 2), while Defendants insist that "the

northbound along Guy R. Brewer Boulevard consist[s] of one traffic lane"(Polner Aff. H 7; see

also id.

6,8-9). All parties agree that there was enough space for two vehicles to drive side-

by-side in the northboimd direction. (See id.

6-7; PI. Mem.at 2.) Defendants maintain that

the additional space on the right-hand side ofthe road is for parking only, and that driving is not
permitted in that area. (Mem.in Support of Summ. J.("Mem.")(Dkt. 24-2) at 3.)
At the time ofthe accident, Lawrence was driving a loaded truck owned by Defendant

Linchip Logistics, LLC("Linchip")(see PI. Mem. at 3; Compl.(Dkt. 1-1)^ 12; Answer(Dkt. 8)

^ 2),^ and driving as an independent contractor with Defendant Panther II Transportation, Inc.

^ In his deposition, Lawrence stated that he owned the cab portion ofthe truck at the time ofthe accident. (See Tr.
ofApr. 13,2017 Dep. ofRichard Lawrence, Jr.("Lawrence Dep.")(Dkt.24-11) at 51:7-52:20.) However, all other
filings appear to agree that Linchip owned the truck, and Linchip is listed as the owner on the police report(Police
Accident Report.) Regardless, ownership ofthe truck is not relevant to resolution ofthe present motions.

("Panther")(see Lawrence Dep. at 49:7-49:14). Linda Amone,also an independent contractor
with Panther, was riding in the front passenger seat ofthe cab.(Tr. of Apr. 13,2017, Dep. of
Linda Amone("Amone Dep.")at 10:22-11:20; 42:2-6.) Approximately a block before the
comer where the accident occurred, Lawrence tumed left on Guy R. Brewer Boulevard.

(Lawrence Dep. at 129:2-130:6.) He proceeded north on Guy R. Brewer Boulevard in the lane
closest to the double yellow line separating the two directions oftraffic flow. (Id. at 155:2-

158:3.) Plaintiff describes this lane as the left oftwo lanes (PI. Mem. at 2,4); Defendants aver
that it was the only lane(Polner Aff. UK 6-8). Plaintiff was to the right ofthis lane, and drove

alongside Lawrence for approximately one block. (PI. Mem. at 4.) Plaintiff maintains that his
headlights were on. (PL Mem. at 12(citing Tr. of March 1, 2017 Dep. of Mike Colon ("PI.

Dep.")(Dkt. 24-10) at 47:7-9). Lawrence did not see any vehicle to his right side, even though
he claims to have looked in his rearview mirrors. (PI. Mem. at 3.)

Plaintiff states that he was driving about 20 miles per hour, and that the tractor-trailer was
travelling between 15 and 25 miles per hour. (PI. Mem. at 4.) Lawrence and Amone,on the
other hand, both claim that the tractor-trailer was moving at approximately 5 to 8 miles per hour.

(Lawrence Dep. at 204:20-205:10; Amone Dep. at 53:19-22.) Lawrence asserts that he activated
his tum signal as he approached the intersection of 149th Road and Guy R.Brewer Boulevard
(Lawrence Dep. at 171:16-173:18), but Plaintiff did not see a tum signal or any other indication
that the tractor-trailer was about to make a tum (PI. Mem. at 4). Plaintiff claims that he was

plaiining on turning right onto 149th Road,and had begun to slow down in anticipation ofthat
tum. (Id) Shortly after he began his tum,however, his car collided with the tractor-trailer,

which was also attempting to tum right onto 149th Road. (Id.) The rear passenger-side tires of
the trailer came into contact with the driver's side ofPlaintiffs car. (Police Accident Report; PI.

Mem. at 4.) The impact caused Plaintiffs car to collide with a lamppost on the street comer.

(Police Accident Report; PI. Mem. at 4.) Plaintiff claims to have suffered serious injuries as a
result ofthe accident, and to have accraed medical bills and missed work as a result. (PI. Dep.
21:19-21; Compl.155.)
B.

Procedural History

Plaintifffiled his complaint against Defendants in the Supreme Court ofthe State ofNew

York, County of Queens on June 17,2016, seeking damages arising from the accident. (Compl.)
Plaintiff asserted that Defendants caused the accident through carelessness, recklessness, and

negligence, and that he suffered serious injuries as a result. (Id

54-55.) Defendants removed

the case to this court on July 13,2016(Not. ofRemoval), and answered the complaint on July

19, 2016(Answer). This court has subject matter jurisdiction over this action under 28 U.S.C. §

1332(a)(1) because this action, now as when it began, is between citizens of different states and
the matter in controviersy exceeds the sum of$75,000, exclusive of interest and costs(Not. of
Removal).

Discovery proceeded before Magistrate Judge Robert M.Levy. Magistrate Judge Levy
set the original fact discovery deadline as January 20,2017, and the original expert discovery

deadline as April 14,2017. (Sept. 19,2016 Minute Entry.) Defendants sought and received
discovery deadline extensions for both fact and expert disclosures on several occasions. (See
Jan. 19,2017 Order Granting Motion for Extension ofTime to Complete Discovery; Mar. 30,

2017 Order Granting Motion for Extension ofTime to Complete Discovery; May 1, 2017 Order
Granting Motion for Extension ofTime to Complete Fact Discovery.) Magistrate Judge Levy

denied Defendants' fmal request to extend the expert discovery deadline because Defendants did
not show good cause for their failure to depose Plaintiffs medical expert. (See June 29,2017

Order Granting Extension ofFact Discovery Deadline and Denying Extension ofExpert
Discovery Deadline.) Discovery was certified as complete on August 2,2017. (Aug.2,2017
Order Certifying Disc, is Complete.)

Upon the close of discovery. Defendants filed their motion for summary judgment on
November 2,2017. (See Mot.) Plaintiffs filed their opposition on December 8,2017(PI.

Mem.),and Defendants replied on January 5,2018(Reply(Dkt. 28)). Defendants argue that
Plaintiff was negligent as a matter oflaw because he violated the New York State Vehicle and
Traffic Law,and that his claim cannot succeed because his negligence was the sole proximate
cause ofthe accident. (See Mem.)

Plaintiff moved for sanctions on January 5,2018, objecting to Defendants' inclusion of

an expert affidavit attached as an exhibit to their Reply. (Mot. for Sanctions.) Plaintiff asserts
that Defendants had not previously disclosed this expert, John Scott, and that the deadline for

expert disclosure in this action expired on June 16,2017. (Id. at 1.) Plaintifftherefore requests

that the court preclude the expert testimony pursuant to Federal Rule of Civil Procedure 37(c)(1).
(Id. at 2.) Defendants responded on January 8,2018,arguing that Scott's expert testimony
should be allowed in because Plaintiff raised a new theory ofliability against Defendants in

opposition to the motion for summaryjudgment. (Response in Opp'n to Mot.for Sanctions
("Sanctions Opp'n")(Dkt. 30).) On January 9,2018,Plaintiff replied, asserting that preclusion
is appropriate because Defendants' failure to disclose their expert within the deadline was
prejudicial. (Reply in Support of Mot.for Sanctions ("Sanctions Reply")(Dkt. 31).)

n.

MOTION FOR SUMMARY JUDGMENT

A.

Legal Standard

A court will grant summary judgment when "the movant shows that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter oflaw." Fed.
R. Civ. P. 56(a). "A 'material' fact is one capable ofinfluencmg the case's outcome under

governing substantive law, and a 'genuine' dispute is one as to which the evidence would permit
a reasonable juror to find for the party opposing the motion." Figueroa v. Mazza,825 F.3d 89,
98(2d Cir. 2016)(citing Anderson v. Liberty Lobbv. Inc.. 477 U.S. 242,248(1986)). "The

movant may discharge this burden by showing that the nonmoving party has 'fail[ed] to make a
showing sufficient to establish the existence ofan element essential to that party's case, and on

which that party will bear the burden ofproof at trial.'" Lantheus Med.Imaging. Inc. v. Zurich
Am. Tns. Co.. 255 F. Supp. 3d 443,451 (S.D.N.Y. 2015)(alteration in original)(quoting Celotex

Corp. V. Catrett. 477 U.S. 317, 322(1986)). "'The mere existence ofa scintilla ofevidence' in

support ofthe non-movant will be insufficient to defeat a summary judgment motion." Transflo
Terminal Servs.. Inc. v. Brooklvn Res. Recoverv, Inc.. 248 F. Supp. 3d 397, 399(E.D.N.Y.
2017)(quoting Anderson.477 U.S. at 252).

"In deterinining whether an issue is genuine,'
[t]he inferences to be drawn from the

underlying affidavits, exhibits, interrogatory answers, and depositions must be viewed in the
light most favorable to the party opposing the motion.'" SCW W.LLC v. Westnort Ins. Corp..

856 F. Supp. 2d 514,521 (E.D.N.Y. 2012)(quoting Cronin v. Aetna Life Ins. Co.,46
F.3d 196,202(2d Cir. 1995)). "[T]he judge's function is not...to weigh the evidence and
determine the truth ofthe matter but to determine whether there is a genuine issue for trial."

Redd V. N.Y. Div. ofParole. 678 F.3d 166,173-74(2d Cir. 2012)(quoting Anderson.477 U.S.

at 249). However,"[a] party may not rely on mere speculation or conjecture as to the true nature
ofthe facts to overcome a motion for summary judgment," and "[m]ere conclusory allegations or

denials ... cannot by themselves create a genuine issue of material fact where none would
otherwise exist." Hicks v. Baines. 593 F.3d 159, 166(2d Cir. 2010)(internal quotation marks
and citation omitted).
B.

Discussion

Plaintiff has provided sufficient evidence for a reasonable juror to determine that
Lawrence behaved negligently, and that this negligence contributed to the accident. Summary
judgment is therefore inappropriate.
1.

Choice of Law

New York law applies to this action.

Krock v. Linsav. 97 F.3d 640,645(2d Cir.

1996)("[I]n diversity cases,federal courts must look to the laws ofthe forum state to resolve
issues regarding conflicts oflaw."); Edwards v. Erie Coach Lines Co.. 952 N.E.2d 1033,1044
(N.Y. 2011)(holding that under New York law,"the place ofthe tort—^here, New York—[i]s the

'normally applicable' choice" in tort cases arise out of automobile accidents(quoting Neumeier
V. Kuehner. 286 N.E.2d 454,458(N.Y. 1972)).
2.

Negligence

To establish negligence xinder New York law,a plaintiff"must show:(1)that[a
defendant] owed Piim] a duty, or obligation, recognized by law,(2)a breach ofthe duty,(3)a
reasonably close caiisal connection between [a defendant's] conduct and the resulting injury and
(4)loss or damage resulting from the breach." McCarthv v. Olin Corp.. 119 F.3d 148,156(2d

Cir. 1997)(citation and quotation marks omitted). Alternatively, a plaintiff may establish
negligence as a matter oflaw by showing that a defendant violated the New York Vehicle and

Traffic Law.^Vainer v. DiSalvo. 914 914 N.Y.S.2d 236,237(N.Y. App. Div. 2010)(citing
Botero v. Erraez. 734 N.Y.S.2d 565,565(N.Y. App. Div. 2001); Ferrarav. Castro. 724 N.Y.S.2d

81, 81 (N.Y. App. Div. 2001); Packer v. Mirasola,681 N.Y.S.2d 559,559(N.Y. App. Div.
1998)).
a.

Duty

The parties agree that, under New York law, Lawrence had a duty to properly use his
senses to see what could be seen. (Mem. at 4; PI. Mem. at 12.) See Mark v. New York Citv
Transit Auth.. 55 N.Y.S.3d 128,128(N.Y. App. Div. 2017)(citing Blair v. Coleman.44
N.Y.S.3d 538,538(N.Y. App. Div. 2017); Twizerv. Lavi. 33 N.Y.S.3d 351, 351 (N.Y. App.
Div. 2016); Mu-Jin Chen v. Gardenia, 31 N.Y.S.3d 134, 135(N.Y. App. Div. 2016)).
b.

Breach

Plaintiff argues that Lawrence breached this duty by failing to see his car, which had its
headlights on and was travelling beside the tractor-trailer for approximately a block before the
accident occurred. (PI. Mem. at 12(citing PI. Dep. at 56:15-25,47:7-9).) Although Lawrence
claims to have checked his rearview mirrors before initiating the right hand tum at issue(Mem.

at 5), Plaintiffs apparently disputes this fact(PI. Mem. at 12("[W]hen defendant Lawrence

looked through the passenger side mirror of his vehicle—^IF he looked through that mirror—^he
should have seen plaintiff's vehicle.").) If ajuror believed that Plaintiffs lights were on and that
he was travelling beside Lawrence's vehicle for at least a block, she could reasonably conclude
that Lawrence failed to look in his mirror or failed to otherwise reasonably "see what c[ould] be
seen,"

Mark. 55 N.Y.S.3d at 130(citing Blair. 44 N.Y.S.3d at 538; Twizer. 33 N.Y.S.3d at

351; Mu-Jin Chen. 31 N.Y.S.3d at 135). Plaintiff has therefore provided sufficient evidence for
a reasonable juror to find that Lawrence breached his duty.

8

c.

Causation

Plaintiff has similarly provided sufficient evidence for ajury to find that Lawrence's

alleged negligence contributed to the car accident. Had Lawrence seen Plaintiff's car, he would
not have turned in front of him, and the accident would not have occurred—^whether Plaintiff

was negligent or not. A jury could therefore reasonably find that Lawrence's alleged negligence
in failing to see Plaintiffs car was a direct and proximate cause ofthe accident.
d.

Damages

Defendants do not appear to dispute that Plaintiff suffered serious injuries as a result of
this accident.

e.

Negligence as a matter oflaw

Plaintiff has also provided sufficient evidence for a reasonable juror to conclude that
Lawrence was negligent as a matter oflaw. Under New York law,a "violation ofthe Vehicle
and Traffic law constitutes negligence as a matter oflaw." Vainer.914 N.Y.S.2d at 237(citing
Botero. 734 N.Y.S.2d at 565; Ferrara, 724 N.Y.S.2d at 81: Packer. 681 N.Y.S.2d at 559); see

also Basso v. Miller. 352 N.E.2d 868. 873(N.Y. 1976). And New York Vehicle and Traffic law
provides that "[bjoth the approach for a right tum and a right tum shall be made as close as

practicable to the right hand curb or edge ofthe roadway or, where travel on the shoulder or
slope has been authorized, firom the shoulder or slope." N.Y. Vehicle and Traffic Law § 1160.
A car turning right from the left oftwo driving lanes violates this law. See Vainer. 914 N.Y.S.2d

at 237(finding that the driver of a vehicle that "made a sudden right tum from the left lane" in
violation of, inter alia. New York Vehicle and Traffic Law § 1160(a) was negligent as a matter
oflaw).

As noted above,the parties dispute whether Lawrence was driving in the left hand oftwo
driving lanes or in the only permissible driving lane. (See PI. Mem. at 2; Polner Afif.

6-9). If

ajuror believed that there were two lanes, she could reasonably find that Lawrence violated New
York Vehicle and Traffic Law § 1160 by turning right from the left-hand lane. Alternatively,

even if she beheved that there was only one lane, thatjuror could find that Lawrence violated

that law by failing to make the turn as close to the right curb as practicable. Either finding would
be sufficient to establish negligence as a matter oflaw.
3.

Plaintiffs Alleged Negligence

New York law adopts a theory of pure comparative fault, so contributory negligence of a

plaintiff does not bar recovery.^N.Y. C.P.L.R. §1411. Rather,the amount of damages

recoverable by the plaintiff is decreased by the proportion of his contributory negligence to the
action, to id This means that, in theory,"a plaintiff who is 99% responsible for his own

injuries may still recover 1% of his damages." Alexander, Practice Commentary, McKinney's
Cons. Laws ofN.Y., Book 7B,N.Y. C.P.L.R. § 1411. There can be more than one proximate
cause of a car accident.

Turturro v. Citv ofNew York.68 N.E.Sd 693,704(N.Y. 2016).

If ajury did find that Lawrence was negligent. Plaintiff could recover—even if he was

also negligent—so long as Lawrence's negligence contributed to the accident. As discussed
above, a reasonable juror could conclude that Lawrence's alleged negligence at least contributed
to the accident. This claim thus survives summary judgment regardless of whether Plaintiff was
negligent.
m.

MOTION FOR SANCTIONS

Plaintiff objects to Defendants' inclusion ofthe affidavit of John C. Scott, a purported

expert in accident reconstruction, as an exhibit to their Reply in the otherwise fully briefed

10

motion for summary judgment. (Mot.for Sanctions.) Plaintiff asserts that Defendants had not

previously disclosed this expert, John Scott, and that the deadline for expert disclosure in this
action expired on June 16,2017. (Id. at 1.) Plaintiff therefore requests that the court preclude
the expert testimony pursuant to Federal Rule of Civil Procedure 37(c)(1). (Id. at 2.) Federal
Rule of Civil Procedure 37(c)(1) provides:

If a party fails to provide information or identify a witness as
required by Rule 26(a) or (e), 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.

Under Rule 26(a)(2), parties must disclose the identity of any expert witness pursuant to court
scheduling orders.

Defendants' failure to disclose was neither substantially justified nor harmless.

Substantial justification exists where parties could reasonably differ as to whether disclosure was

required or ifthere exists a genuine dispute concerning compliance. Luian v. Cabana Manage
Mpmt.. Inc.. 284 F.R.D. 50,68(E.D.N.Y. 2012); Ritchie Risk-Limited Strategies Trading
(Ireland). Ltd. v. Coventry First LLC.280 F.R.D. 147,159(S.D.N.Y. 2012). Defendants do not

dispute that Scott falls under the requirements of Rules 26 and 37, or that they failed to disclose
Scott's expert testimony by the expert disclosure date set by Magistrate Judge Levy. Rather,
they argue that this failure to disclose was warranted because Plaintiffintroduced a new theory
ofliability in his opposition to their motion for summary judgment. (Sanctions Opp'n at 1.)
This supposed new theory is that Lawrence violated a specific section ofNew York State
Vehicle and Trafidc Law,§ 1160, by failing to remain as close to the right ofthe road as possible
while turning right. (Id.: Opp'n at 13-14.)
It is true that Plaintiff raises this theory of negligence for the first time in opposition to

Defendants' summaryjudgment motion; however,the theory is merely an alternate route to
11

prove an existing claim, not a wholly new claim. Plaintiff remains free to attempt to prove

negligence in any way he chooses. Further, only a small part of Scott's testimony relates to this
theory ofliability. (See Aff. of John C. Scott in Support of Mot. for Sum. J.("Scott Aff.")(Dkt.
28-2)^ 7.) The one paragraph ofthe testimony that does address the new theory ofliability
touches on issues introduced—at the latest—at Lawrence's deposition, which occurred three
months before the expert disclosure deadline. (Lawrence Dep. at 161:6-21,168:13-169:23

(discussing the turning radius ofthe truck and that he moved the truck left before initiating the
right turn at issue).) Defendants have not offered any explanation for why they did not seek
expert testimony in the months between that deposition and the expert disclosure deadline.
Moreover,the bulk of Scott's affidavit discusses issues relating to PlaintifFs original theory of

negligence. These include the number of driving lanes on Guy R. Brewer Boulevard (id

14),the travel speeds and positions ofthe two involved vehicles(id

6,

9-13), and Plaintiff's

alleged violation ofNew York Vehicle and Traffic Law(id % 14). Defendants' proffered

explanation, therefore, does not even attempt to justify the majority of Scott's testimony.
Additionally, Defendants' failure to disclose was not harmless. As a result ofthat failure.

Plaintiff was imable to depose Scott or to hire an expert of his own to address the same facts.
Plaintiff was also imable to address any issues raised by Scott's affidavit in their opposition to
Defendants' motion for summary judgment.

Having foimd that Defendants' failure to disclose was neither substantially justified nor
harmless, the court turns to whether preclusion is the appropriate remedy. "[PJrecluding
evidence is a 'drastic' remedy that 'should be exercised with caution.'" New World Solutions.
Inc. V. NameMedia.Inc.. 150 F. Supp. 3d 287, 306(S.D.N.Y. 2015)(quoting DVL.Inc. v. Gen.
Elec. Co.. 811 F. Supp. 2d 479,589(N.D.N.Y. 2010), affd sub nom. DVL.Inc. v. Niagara

12

Mohawk Power Corp..490 Fed. Appx. 378(2d Cir. 2012)). To determine whether preclusion is
appropriate under Rule 37,this court will consider:
(1) the party's explanation for the failure to comply with the
disclosure requirement;(2) the importance of the testimony of the
precluded witnesses; (3) the prejudice suffered by the opposing
party as a result ofhaving to prepare to meet the new testimony; and
(4)the possibility ofa continuance.
Design Strategy. Inc. v. Davis.469 F.3d 284,296(2d Cir. 2006)(quoting Patterson v.

Ralsamico. 440 F.3d 104,117(2d Cir. 2006)(alterations adopted)). The court will address each
ofthese factors in turn.

1.

Defendants' Explanation

This factor weighs in favor of preclusion. As previously noted. Defendants' explanation
for their failure to disclose does not attempt to justify the majority of Scott's testimony. The

testimony that the explanation does address, moreover, relates to facts Lawrence discussed in his
deposition three months prior to the expert disclosure deadline (and eight months before
Defendants submitted Scott's affidavit)(Lawrence Dep. at 161:6-21, 168:13-169:23).

Defendants have not explained why,if expert testimony was needed to address that question,
they could not have sought expert testimony at that time.
2.

The Importance of Scott's Expert Testimony

Defendants do not address the importance of Scott's expert testimony. However,it

appears that they have other potential evidence to prove all ofthe facts discussed in that
testimony. Both Lawrence and Amone have driven the involved truck on multiple occasions and

can testify from personal experience about the clearance necessary to complete a successful right
turn in it. Both were also present for the accident and can testify about the specific right turn

involved. In fact, as previously noted, Lawrence discussed the space needed to turn right in this
particular truck during his deposition. (Lawrence Dep. at 161:6-21,168:13-169:23.) Ofcourse,
13

neither may testify as an expert, and Scott might have proved more credible to ajury than either
Lawrence or Amone, who have some degree ofpersonal involvement in the matter.

Nonetheless, Defendants will still be able to provide evidence that Lawrence did not break a
New York State Vehicle and Traffic Law even without Scott's testimony. Courts in this circuit

have previously found that the ability to introduce other evidence as to the relevant issues

diminishes the importance ofthe disputed evidence. See, e.g., Downev v. Adlookx Inc., 16-CV1689(IMF),2018 WL 794592, at *2(S.D.N.Y. Feb. 8,2018);In re General Motors LLC
Ignition Switch Litigation, 14-MD-2543(IMF),2017 WL 2880882, at *3(S.D.N.Y. July 5,
2017). The same logic applies here.

Scott's testimony regarding other facts is even less important. Some ofit may not be
admissible at trial, as it contains legal conclusions. fSee, e.g., Scott Aff. K 5("Mr. Colon was

operating his vehicle in an unreasonable and unsafe manner and violating New York Motor
Vehicle Traffic Laws....").) Additionally, Defendants will be able to introduce other evidence
about the width of Guy R. Brewer Boulevard and the position and speed ofthe vehicles,

including from the testimony ofLawrence, Amone,and Scott Galligan,the New York City
Police Officer who responded to the scene (see Tr. of May 20,2017 Dep. of Scott Galligan).
This factor does not,therefore, weigh in Defendants' favor.
3.

Prejudice Suffered bv Plaintiff

Plaintiff states:

[Pjlaintiff has been prejudiced by the defendants' failure to disclose
their expert within the disclosure deadline because [he] was denied
the opportunity (1)to depose the defendants' witness,(2)to retain
his own expert in response to the defendants' expert, and (3) to
address the issues raised by the expert in his opposition to the
defendants' motion for summaryjudgment.

14

(Sanctions Reply at 1.) These are all valid concerns. In particular, being denied the opportunity

to depose an expert witness would leave Plaintiff in an unfairly weakened position for trial. See,
e.g.. Williams v. Bethel Sprinevale Nurson Home.Inc.. I4-CV-9383(NSR),2018 WL 1662644,

at *5(S.D.N.Y. Apr. 5,2018)("Where, as here, an individual is not identified as a potential
witness... until after the close of discovery,the offending party subverts the purpose of

mandatory disclosures and undoubtedly prejudices their opponent." (emphasis in original));
Rivera v. United Parcel Serv.. 325 F.R.D. 542,548(S.D.N.Y. 2018)(finding that the defendants

had suffered prejudice from the plaintiffs failure to timely disclose because "[if][the untimely
disclosed witnesses] possess relevant information. Defendants are entitled to obtain their

testimony under oath and, possibly, use their deposition testimony in a later motion or trial").
And as discussed in greater detail below, reopening discovery now "would result in further
substantial delays to the resolution to this case and impose additional costs on [Plaintiff]."

Kodak (jrapbir: r.nmmc^ns Can. Co. v. E.I. Du Pont de Nemours and Co.. No.08-CV-6553,
2013 WL 5739041, at *6(W.D.N.Y. Oct. 22,2013).
This factor therefore cuts strongly in favor of preclusion.
4.

The Possibility of a Continuance

Defendants first introduced this testimony in their reply brieffor an otherwise fully

briefed motion for summary judgment. At that time, discovery had been completed for

approximately five months, and the case had been pending for about a year and a half. During
discovery. Defendants sought and received deadline extensions for both factual and expert
disclosures on several occasions. (See Jan. 19,2017 Order Granting Motion for Extension of

Time to Complete Discovery; Mar. 30, 2017 Order Granting Motion for Extension ofTime to

Complete Discovery; May 1,2017 Order Granting Motion for Extension ofTime to Complete

15

Fact Discovery.) Magistrate Judge Levy denied Defendants' final request to extend the expert
discovery deadline because Defendants did not show good cause for the failure to depose
Plaintiff's medical expert. (See June 29,2017 Order Granting Extension ofFact Discovery

Deadline and Denying Extension ofExpert Discovery Deadline.) At no time—^in any ofthese

requests—did Defendants suggest the need for an accident reconstruction expert like Scott.
The closure of discovery weighs strongly against any possibility of a continuance. See,
e.g., ReinTi & Sons,Inc. v. N.Puglisi & F. Industria Paste Alientari SPA,No.08-CV-2540

(DLI),2011 WL 1239867, at *4(E.D.N.Y. Mar. 30, 2011); Snotnana, Inc. v. Am. Talent
Agencv,Inc., No. 09-CV-3698(LAP),2010 WL 3341837, at *2(S.D.N.Y. Aug. 7, 2010).

Courts in similar situations have found that the impracticability of a continuance weighed in

favor ofpreclusion. See, e.g., Downev,2018 WL 794592, at *2(precluding additional witness
testimony where "the case ha[d] been pending for over twenty-three months,the parties were
granted three extensions ofthe discovery deadline and had ample time to do whatever they
needed to do, and fact discovery ha[d] been closed for almost three months"); New World

Solutions, 150 F. Supp. 3d at 308-09(finding that a continuance was not appropriate where the
parties were in the middle of a summaryjudgment briefing schedule and where, at the time the
disputed testimony was submitted,"discovery had been closed for nearly a year"); Snotnana,
2010 WL 3341837, at *2(noting that "the closure of discovery four months ago weighs strongly
against the possibility of a continuance"). While the court could theoretically reopen discovery

at this time, doing so would unduly delay proceedings and drain the court's and the parties'
resources. Thus,this factor also weighs in favor of preclusion.

16

After consideration of all four Patterson factors, the court concludes that Defendants

should not be permitted to call Scott as an expert witness in this case.^ Although preclusion is a
harsh sanction,s^ New World Solutions. 150 F. Supp. 3d at 304, it is warranted here.
IV.

CONCLUSION

For the reasons set forth above. Defendants' motion for summaryjudgment is DENIED.
Plaintiff's motion for sanctions is GRANTED,and Defendants are precluded from calling Scott

as a witness. The parties are directed to contact Magistrate Judge Robert M. Levy's chambers to
schedule a conference regarding next steps in this case.
SO ORDERED.

s/Nicholas G. Garaufis

Dated: Brooklyn, New York

/NICHOLAS G. GARAUFIS

February ^,2019

United States District Judge

^ Additionally, the court did not consider Scott's affidavit in deciding Defendants' motion for summaryjudgment.
17