Badoloto v. Long Island Rail Road

Filing 40

ORDER granting 30 Motion in Limine. SEE ATTACHED ORDER. This is the written decision amplifying the oral ruling previously issued by the Court. Ordered by Magistrate Judge A. Kathleen Tomlinson on 10/24/2016. (Tomlinson, A.)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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NICHOLAS BADOLATO,
Plaintiff,

ORDER ON
MOTION IN LIMINE

- against CV 14-1528 (AKT)
LONG ISLAND RAIL ROAD COMPANY,
Defendant.
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A. KATHLEEN TOMLINSON, Magistrate Judge:
I.

PRELIMINARY STATEMENT
Plaintiff Nicholas Badoloto (“Plaintiff”) brings this action under the Federal Employers

Liability Act (“FELA”), 45 U.S.C. § 51 et seq., to recover damages for personal injuries he
sustained while employed by the Defendant Long Island Railroad Company (“LIRR”). The
LIRR has conceded liability and a jury trial on the issue of damages is scheduled to commence
on November 9, 2016. Presently before the Court is Plaintiff’s motion in limine seeking an
Order precluding the LIRR from (1) offering expert testimony by Dr. Gregg M. Szerlip, D.O.;
(2) introducing Dr. Szerlip’s medical report and records into evidence; and (3) offering expert
testimony by LIRR employee Christopher M. Yodice. See generally Attorney Affirmation of
Michael D. Flynn in Support of Motion to Preclude (“Flynn Affirm.”) [DE 21-2]; Memorandum
of Law in Support of Plaintiff’s Motion In Limine (“Pl.’s Mem.”) [DE 21-8]. The LIRR opposes
the motion. See generally Affirmation of William J. Blumenschein In Opposition
(“Blumenschein Affirm.”) [DE 22]; Def.’s Memorandum of Law (“Def.’s Opp’n”) [DE 22-7].
For the reasons discussed below, Plaintiff’s motion is GRANTED.

II.

BACKGROUND
The following factual background is derived from the pleadings and the parties’

submissions on this motion. The Court summarizes only those facts relevant to its determination
of the motion in limine.
Plaintiff brought this suit against the LIRR to recover for injuries he sustained on May 5,
2013 while performing track work. See Compl. ¶¶ 7, 9. Plaintiff alleges that an entire length of
rail fell on his left foot, crushing his foot into the ballast. See Flynn Affirm. ¶ 5; see also
Compl. ¶ 9.
Between May 5, 2013 and June 11, 2013, Plaintiff was classified by the LIRR as “D/A
(disability accident)” status. See Blumenshein Affirm. ¶ 4 (a)-(b). Under this classification,
Plaintiff was paid his full wages while out of work due to his on-the-job injury. See id. On
June 12, 2013, the LIRR changed Plaintiff’s status to “D/S (disability sick).” Id. ¶ 4(c).
According to the LIRR, Plaintiff’s status was changed to D/S because a physician in the LIRR’s
Medical Department “determined [that Plaintiff’s] injury was a contusion and had essentially
resolved.” Id. Under D/S status, Plaintiff was no longer paid for his time off work and was
required to use sick leave. See id.
The terms and conditions of Plaintiff’s employment were governed by the Collective
Bargaining Agreement (“CBA”) between the Sheet Metal, Air, Rail and Transportation Union
(“the Union”) and the LIRR. Under the CBA, a “panel” or “neutral” doctor may be selected by
the parties to resolve a dispute between the LIRR and the employee’s treating physician
regarding the employee’s ability to return to work. See Excerpts of CBA, annexed to Flynn
Affirm. at Ex. 5, p. 25. In addition, the CBA requires that the following question be put to the
panel doctor: “‘In your professional medical opinion is the employee’s disability a result of the
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on-the-job injury?’” Id. The CBA states that the panel doctor’s decision is deemed
“controlling.” Id.
On July 3, 2013, Anthony Simon, the General Chairman of the Union, wrote a letter to
the Assistant Director of the LIRR’s Medical Facility regarding the change in Plaintiff’s
disability status and to request that Plaintiff be evaluated by a panel doctor. See Letter by
Anthony Simon (“Simon Ltr.”), annexed as Ex. D to Blumenschein Affirm. Simon’s letter
states:
The above -referenced employee suffered an on-the-job injury and
reported to the Carrier’s Medical Department. At the time he was
classified D/A, but his status was changed to D/S indicating he
“has had sufficient time for his claimed injury to have resolved and
he is being treated for conditions unrelated to the LIRR incident.”
The employee’s treating physicians dispute the Carrier’s medical
determination (see notes attached). Therefore, this Organization is
requesting that a Panel of Doctors be established to determine if
his continuing disability is a result of the on-the-job injury.
Please contact the County Medical Society from the employee’s
county of residence to select a panel doctor to answer the
following question:
“In your professional medical opinion is the employee’s
disability a result of the on-the-job injury?”
Please advise this Organization of the name of the panel doctor
selected, ensure that Mr. Badolato’s status remains D/A pending
the panel decision and that his pay is not interrupted.
Id. (emphasis in original).
On September 5, 2013, Plaintiff was examined by the selected panel doctor, Dr. Gregg
Szerlip, a licensed anesthesiologist and pain management physician. See Medical Report of
Dr. Gregg M. Szerlip, dated Sept. 5, 2013 (“Szerlip Report”), annexed as Ex. E to Blumenschein
Affirm. Dr. Szerlip issued a report in which he assessed Plaintiff as having a “Resolved Left
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foot contusion.” Id. at 3. Specifically, the report states that “it has been determined that
causality for a left foot contusion has been established regarding the injury of May 5, 2013.” Id.
The report further states that Dr. Szerlip “do[es] not see evidence of complex regional pain
syndrome . . . based on objective physical findings, diagnostic testing, and the fact that a triple
phase bone scan has not been performed.” Id. Dr. Szerlip’s report is affirmed under the penalty
of perjury and is addressed to a company called Juris Solutions, Inc. in Syosset. Id. at 1, 3.
Christopher Yodice is an Assistant Director of Employee Services at the LIRR’s Medical
Department. See Blumenschein Affirm. ¶ 4(g). On September 18, 2013, Yodice promulgated a
“Change of Status Notice” which stated that Plaintiff’s D/A status had ended and that his status
has been changed from D/A to D/S. See Change of Status Notice, annexed as Ex. F to id.
Yodice explains the reasons for this change as follows:
A Panel Examination (Causality) was conducted on September 5,
2013. The Panel physician determined that the employee’s initial
injury, which was causally related to the [May 5, 2013] incident, is
resolved and that there is no evidence of complex regional pain
syndrome. Therefore. all time paid in connection to this incident
from June 12, 2013 (the initial status change) forward will be
marked as/changed to D/S.
Id. Plaintiff returned to work on January 6, 2014. Blumenschein Affirm. ¶ 4(h).
On March 7, 2014, Plaintiff commenced the instant FELA action against the LIRR. See
Compl. The LIRR filed an Answer on March 28, 2014 asserting several affirmative defenses,
including failure to mitigate damages. See Answer ¶ 8.
As noted, the LIRR has conceded liability for Plaintiff’s injuries. However, the parties
dispute the extent of Plaintiff’s injuries and the resulting amount of damages. Plaintiff alleges
that he suffered the following injuries as a result of the accident: (1) “Trauma left foot with
crush injury, left foot”; and (2) “Resulting Complex Regional Pain Syndrome (CRPS), left foot
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and Sympathetic CRPS, left wrist, requiring invasive Stellate Ganglion nerve blocks.” Flynn
Affirm. ¶ 6. Plaintiff seeks to recover $64,000 in lost wages for the 35-week period from May 5,
2013 to January 6, 2014 when he was out on disability. See id. The LIRR disputes this figure
and asserts that Plaintiff’s wage loss is $8,091.85, with a lien of $5,983.10 for the amount of
disability pay Plaintiff received between May 5, 2013 and June 12, 2013. See Blumenshein
Affirm. ¶ 5.
III.

THE PENDING MOTION
A.

Violation of Rule 26(a)(1)(A)

Plaintiff argues that, because the LIRR failed to comply with its disclosure obligations
under Fed. R. Civ. P. 26, it should be precluded from offering at trial expert testimony by
Dr. Szerlip as well as the testimony of LIRR representative Christopher Yodice. Plaintiff asserts
that the LIRR: (1) did not disclose Dr. Szerlip or Mr. Yodice as witnesses in its Fed. R. Civ. P.
26(a)(1)(A) Initial Disclosures; (2) did not supplement its disclosures to include Dr. Szerlip and
Mr. Yodice while discovery was ongoing as required under Rule 26(e); (3) did not provide
Plaintiff with an expert report or otherwise comply with the expert disclosure requirements under
Rule 26(a)(2)(B); and (4) first disclosed Dr. Szerlip and Mr. Yodice in the proposed JPTO filed
on May 5, 2015. See Pl.’s Mem. at 2-3; Flynn Affirm. ¶¶ 12-12.6. Although the LIRR contends
that it produced Dr. Szerlip’s September 5, 2013 medical report during discovery, Plaintiff
disputes this assertion. See Flynn Affirm. ¶ 18-19.
Plaintiff argues that the appropriate sanction for the LIRR’s conduct is preclusion of
Dr. Szerlip’s testimony under Rule 37(c). See Pl.’s Mem. at 3-5. According to Plaintiff, the
LIRR “has failed to provide any reasonable explanation as to why the delayed disclosure is
substantially justified or harmless.” Id. at 4. Plaintiff further asserts that preclusion is warranted
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under the four-factor test set forth in Patterson v. Balsamico, 440 F.3d 104, 117 (2d Cir. 2006),
particularly in light of the prejudice Plaintiff would suffer if the LIRR were permitted to disclose
Dr. Szerlip on the eve of trial when Plaintiff has not had the opportunity to depose Dr. Szerlip or
evaluate his credentials. Flynn Affirm. ¶ 13; Pl.’s Mem. at 4. Finally, Plaintiff asserts that the
LIRR has acted in bad faith by failing to disclose Dr. Szerlip in an “attempt[] to put the plaintiff
at a disadvantage” during trial. Pl.’s Mem. at 6.
The LIRR does not dispute that it did not disclose Dr. Szerlip or Mr. Yodice in its Rule
26(a)(1)(A) Initial Disclosures and that it never supplemented those disclosures to include Dr.
Szerlip or Mr. Yodice. However, the LIRR maintains that, contrary to Plaintiff’s contentions, it
produced to Plaintiff a copy of Dr. Szerlip’s September 5, 2013 medical report, along with
Plaintiff’s complete medical file, on September 19, 2014. See Blumenschein Affirm. ¶¶ 4(l),
6-7. Because Plaintiff was in possession of Dr. Szerlip’s report eight months prior to the filing
of the JPTO, the LIRR asserts that Plaintiff cannot now claim that he is “surprised” by the
inclusion of Dr. Szerlip on the LIRR’s witness list. Id. ¶ 6.
The LIRR further argues that compliance with Rule 26(a)(2)(B) was not required here
because Dr. Szerlip is not an expert witness. See Blumenschein Affirm. ¶ 7; Def.’s Opp’n at 4-6.
The LIRR notes that Dr. Szerlip is neither an employee of the LIRR, nor was he retained or
specially employed by the LIRR to provide expert testimony in this case. See id.; see also Fed.
R. Civ. P. 26(a)(2)(B). Rather, “Dr. Szerlip was the designated Panel Doctor accepted by both
the union and the LIRR in response to a request by Mr. Simon, the General Chairman of the
union, for a Panel Doctor.” Blumenschein Affirm. ¶ 7. The LIRR also points out that Dr.
Szerlip’s medical opinions and medical report, dated September 5, 2013, could not have been

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prepared in anticipation of litigation because Plaintiff had not commenced this lawsuit at that
time. See Def.’s Opp’n at 4.
Ultimately, the LIRR contends that “Dr. Szerlip was not an ‘expert,’ but rather a ‘viewer’
or an ‘actor’ with respect to the facts obtained and opinions formed based on his examination of
the plaintiff.” Id. (citing Quarantillo v. Consol. Rail Corp., 106 F.R.D. 435 (W.D.N.Y. 1985)).
Id. The LIRR explains: “where a witness will testify as to information acquired, not in
preparation for trial, but rather because he was an actor or viewer with regard to occurrences that
are part of the subject matter of the lawsuit, that witness need not be disclosed as an expert.” Id.
at 5 (citing Zarecki v. Nat’l R.R. Passenger Corp., 914 F. Supp. 1566 (N.D. Ill. 1996)). Thus, the
LIRR urges that, based on the circumstances presented here, Dr. Szerlip “should be treated as an
ordinary witness” rather than an expert subject to Rule 26(a)(2)(B). Id. (citing Harasimowicz v .
McAllister, 78 F.R.D. 319 (E.D. Pa. 1978)).
The question whether Dr. Szerlip is an expert is really a secondary issue here. Pursuant
to Rule 26(a)(1)(A), a party, without awaiting a discovery request, must provide “the name and,
if known, the address and telephone number of each individual likely to have discoverable
information . . . that the disclosing party may use to support its claims and defenses.” Fed. R.
Civ. P. 26(a)(1)(A). The Court must determine whether the LIRR violated Rule 26(a)(1)(A) by
failing to include Dr. Szerlip and Christopher Yodice in its Initial Disclosures. Subsequent to
receiving the motion in limine, the Court directed counsel for both sides to submit copies of their
Initial Disclosures as well as any supplements to those disclosures. See September 12, 2016
Electronic Order. Neither Dr. Szerlip nor Christopher Yodice’s name appears in the Initial
Disclosures of either side. See DE 33, 34, 35. Plaintiff served supplemental disclosures, but
these did not name Szerlip or Yodice while discovery was under way. Defendant LIRR did not
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supplement its Initial Disclosures at any time during the discovery period. Nevertheless,
Defendant asserts that it has satisfied its disclosure obligations because it produced a copy of Dr.
Szerlip’s September 5, 2013 medical report as part of Plaintiff’s complete medical file during
discovery.
“Many courts in this Circuit . . . have held that the mere mention of a name in a
deposition or interrogatory response is insufficient to satisfy Rule 26(a)(1)(A)[.]” Lujan v.
Cabana Mgmt., Inc., 284 F.R.D. 50, 72 (E.D.N.Y. 2012) (collecting cases). “Rather, to satisfy
Rule 26, parties must make an unequivocal statement that they may rely upon an individual on a
motion or at trial.” Id. at 73. “The purpose of this disclosure is to alert an opposing party of the
need to take discovery of the named witness.” Pal v. New York Univesity, No. 06 Civ. 5892,
2008 WL 2627614, at *4 (S.D.N.Y. June 30, 2008) (citing Alfano v. Nat'l Geographic Channel,
No. 06-CV-3511, 2007 WL 2982757, at *1 (E.D.N.Y. Oct. 5, 2007) (Rule 26(a)(1) requires the
disclosure to be “not merely that a person is a potential source of information, but that the party
may call upon him to provide it.”).
Applying these standards, the Court concludes that Defendant violated Rule 26(a)(1)(A)
by failing to identify witnesses Szerlip and Yodice in its Initial Disclosures. The case law makes
clear that, even if Plaintiff was aware that these individuals existed, that awareness did not
absolve Defendant of its Rule 26(a)(1)(A) disclosure obligation, which “is fulfilled only if
[Defendant] informed [Plaintiff] that [it] might call the witness[es] in support of [its] claims or
defenses.” Pal, 2008 WL 2627614, at *4 (citing Alfano, 2007 WL 2982757, at *1). Defendant
did not inform Plaintiff of its intent to do so here. Instead, Defendant’s counsel asserts that he
provided Dr. Szerlip’s report and Plaintiff’s medical file as part of Defendant’s document
production during discovery. That “simply did not provide [Plaintiff] with fair warning of the
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need to take discovery from [them].” Id.; see also Thieriot v. Jaspan, Schlesinger, Hoffman,
LLP, No. CV 07-5315, 2010 WL 4038765, at *5 (E.D.N.Y. Sept. 30, 2010) (stating that the
attempt by counsel for the defendant “to diminish” his duty to supplement under Rule 26 “by
arguing that Plaintiffs have been aware of witness Forbes since the beginning of this lawsuit is
unavailing, at best”). Finally, Defendant’s bald assertion, without citation to supporting case
law, that Plaintiff should have anticipated that the LIRR would call Dr. Szerlip as a witness
because his report was turned over as part of Plaintiff’s medical file during discovery -- an
assertion that Plaintiff’s counsel disputes -- is unpersuasive and runs counter to the purposes of
Rule 26(a)(1)(A).
B.

Preclusion Sanction Under Rule 37(c)(1)

Plaintiff argues that the Defendant LIRR should be precluded from introducing Dr.
Szerlip and Christopher Yodice as witnesses at trial. Having found that Defendant failed to
comply with Rule 26(a)(1)(A), the Court must consider whether Defendant’s non-compliance
could be considered substantially justified or harmless under Rule 37(c). See Fed. R. Civ. P.
37(c)(1)). “Substantial justification may be demonstrated where there is justification to a degree
that could satisfy a reasonable person that parties could differ as to whether the party was
required to comply with the disclosure request or if there exists a genuine dispute concerning
compliance.” Lujan, 284 F.R.D. at 68 (quoting Ritchie Risk–Linked Strategies Trading (Ir.), Ltd.
v. Coventry First LLC, 280 F.R.D. 147, 159 (S.D.N.Y. 2012)) (internal quotation marks omitted).
“An omission or delay in disclosure is harmless where there is an absence of prejudice to the
offended party.” Id. (internal quotation marks and citation omitted).
Here, the Defendant has not demonstrated that its failure to disclose Szerlip and Yodice
was substantially justified or harmless. There is no question that Defendant was required to
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disclose these witnesses in its Initial Disclosures and Defendant’s counsel has not shown that he
“lacked the ability to make [his ] Rule 26(a)(1)(A) disclosures with respect to any of the newlyidentified witnesses before discovery closed.” Pal, 2008 WL 2627614, at *4. To the contrary, it
appears that the Defendant has known that it might call Dr. Szerlip as a witness as far back as
September 5, 2013 when its counsel purportedly produced Dr. Szerlip’s medical report during
discovery. Blumenschein Aff. ¶¶ 4 (1), 6-7. See Edwards v. City of New York, No. 08-CV-2199,
2009 WL 2167917, at *3 (E.D.N.Y. July 20, 2009) (noting that the plaintiff “has long known
both of the existence of the witnesses at issue and of his obligation to disclose their identities to
the defendants” and holding that the plaintiff “should not be permitted to sandbag the defendants
at trial with the testimony of such witnesses”). The Court also points out that Plaintiff’s counsel
maintains that plaintiff never received the Szerlip medical report.
Nor can Plaintiff’s conduct be considered harmless. See Fed. R. Civ. P. 37(c)(1)). If the
Court were to permit these untimely disclosures, it would have to re-open discovery, at the 11th
hour and on the very eve of trial, to afford Plaintiff an opportunity to depose the additional
witnesses. In light of the anticipated physician testimony already scheduled for this case, the
previously adjourned trial date, the re-scheduling of physicians to a different trial date would
complicate matters even further. For these reasons, the Court concludes that Defendant’s
conduct was neither substantially justified nor harmless.
The Court now turns to the factors identified by the Second Circuit in Patterson v.
Balsamico, 440 F.3d 104 (2d Cir. 2006) in considering whether the sanction of preclusion is
warranted under Rule 37(c). The first Patterson factor – a party’s explanation for its failure to
comply with discovery – weighs in favor of preclusion. Nowhere in Defendant’s Memorandum
of Law is the failure to include Dr. Szerlip and Christopher Yodice’s names in Defendant’s
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Initial Disclosures even addressed. Rather, counsel’s entire argument focuses on Defendant’s
contention that Dr. Szerlip is not testifying as an expert, and, thus no expert report is required
and the witness should be permitted to testify. See generally Def.’s Opp’n. This argument
misses the mark. In their Joint Proposed Discovery Plan [DE 6] submitted on April 29, 2014, the
parties represented that fact discovery would be completed by November 3, 2014. That
representation was also made to the Court at the Initial Conference held on May 5, 2014. See
DE 9. At the October 7, 2014 Discovery Status Conference, the parties reported that document
discovery had been completed and that depositions would be completed by December 2, 2014.
See DE 12. At that time, the parties asked for settlement conference which the Court set for
January 8, 2015. Id. The Court also directed that if the case did not settle, the proposed Joint
Pre-Trial Order had to be filed on ECF by February 12, 2015 and the Pre-Trial Conference
would be held on February 25, 2015. Id. Fact discovery essentially closed on December 2,
2014. In the nine months from the Initial Conference to the end of depositions, the LIRR never
supplemented its Initial Disclosures to include these two witnesses. Counsel submitted their
proposed Joint Pre-Trial Order on May 5, 2015, in which Defendant listed Dr. Szerlip and
Christopher Yodice as witnesses for the very first time. See DE 15. At the Pre-Trial Conference
on May 13, 2015, this Court addressed Plaintiff’s objection to the witnesses and noted Plaintiff’s
argument that the Defendant had failed to comply with Rule 26. Defendant responded that Dr.
Szerlip was not testifying as an expert and that the records of his examination of the Plaintiff
had been turned over during discovery. I directed counsel to take up the issue before Judge

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Seybert by means of a motion in limine prior to trial and I certified the case back over to Judge
Seybert as trial-ready. 1 See DE 16.
At the request of the parties, the trial was adjourned without date based on the Plaintiff’s
allegedly having suffered an aggravation of his injuries, having developed an infection and
having been hospitalized. See DE 25, 26. Additional discovery became necessary since Plaintiff
ascribed the subsequent injury and damages to the underlying injury. See DE 27. Plaintiff
thereafter renewed his motion in limine [DE 30].
“[A]ttorney neglect or oversight is not an acceptable explanation for failure to disclose.”
Gotlin v. Lederman, No. 04-CV-3736, 2009 WL 2843380, at *4 (E.D.N.Y. Sept. 1, 2009)
(finding that the “unsatisfactory explanation” the plaintiff’s counsel “for his failure to disclose
the [r]ecords weighs very heavily in favor of preclusion”) (citing Haas, 282 F. App’x at 86
(“Although the late discovery of [a potential witness] was apparently due to plaintiff's counsel's
neglect and not ‘bad faith,’ bad faith is not required and counsel has offered no adequate
explanation for this untimely disclosure.”)). Here, the Court finds that Defendant has not offered
a reasonable excuse for the failure to identify Dr. Szerlip and Christopher Yodice as witnesses at
any time prior to the filing of the Joint Pre-Trial Order. Finally, for the reasons already
explained, Defendant’s assertion that Plaintiff should nonetheless have been aware that Dr.
Szerlip could be called as a witness is unavailing, as Rule 26(a)(1)(A) specifies that a party must
disclose the names of any witness that the party may use to support its claims or defenses so as
not to sandbag his or her adversary before trial. See Lujan, 284 F.R.D. at 68 (citing Ebewo v.
Martinez, 309 F. Supp. 2d 600, 607 (S.D.N.Y. 2004)).

1

On June 11, 2015, the parties consented to the jurisdiction of a United States Magistrate
Judge for all purposes.
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The second Patterson factor – the importance of the testimony to Defendant – favors the
Defendant. Counsel for the LIRR contends that Plaintiff “is bound by the findings of Dr. Szerlip
because those findings came about [as] the result of his request for a panel – – or neutral – –
Doctor to resolve the differences between his claims and the findings made by the LIRR Medical
Department.” Def.’s Opp’n. at 3.
The third Patterson factor – the prejudice suffered by the Plaintiff – weighs in favor of
Plaintiff. As discussed, permitting the late disclosure of Szerlip and Yodice would require the
Court to re-open discovery on the eve of trial so that Plaintiff could depose those witnesses. This
trial was already adjourned once. Having to reschedule the physicians who have set aside the
time frame for their trial testimony with the trial just a few weeks away would cause an undue
hardship to the Plaintiff, both in terms of time and expense.
As to the fourth Patterson factor – the possibility of a continuance – the trial date has
been set for some time. Although “a continuance is always theoretically possible, the closure of
discovery weighs against a continuance.” Lujan, 284 F.R.D. at 76.; see Rienzi & Sons, Inc. v. N.
Puglisi & F. Industria Paste Alientari S.P.A., No. 08–CV–2540, 2011 WL 1239867, at *4
(E.D.N.Y. Mar. 30, 2011); Morritt v. Stryker Corp., No. 07-CV-2319, 2011 WL 3876960, at *7
(E.D.N.Y. Sept. 1, 2011). The Court therefore finds that this factor also weighs in favor of the
Plaintiff.
“The Court has the ultimate discretion on whether to preclude witnesses from testifying
at trial pursuant to Rule 37(c)(1).” Lopez v. City of New York, No. 11-CV-2607, 2012 WL
2250713, at *1 (E.D.N.Y. June 15, 2012); see also Design Strategy, 469 F.3d at 297–98 (stating
that a “district court has wide discretion to impose sanctions” under Rule 37). Having weighed
the relevant Patterson factors, the Court concludes that preclusion is warranted here with respect
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to the testimony of Dr. Szerlip and Christopher Yodice and will not permit Defendant to amend
its witness list to include them. See Pal, 2008 WL 2627614, at *6 (precluding the defendant
from offering testimony or sworn statements at trial from four witnesses who were first disclosed
on the final day of discovery) (citing, e.g., Ehrlich v. Inc. Vill. of Sea Cliff, No. 04-CV-4025,
2007 WL 1593223, at *3 (E.D.N.Y. June 1, 2007) (precluding witness testimony under Rule
37(c)(1) for failure to comply with Rule 26(a) (1)(A)); L-3 Commc’ns Corp. v. OSI Sys., Inc.,
No. 02-CV-9144, 2005 WL 712232, at *2 (S.D.N.Y. Mar. 28, 2005).
Even if the Court had decided to grapple with the notion of Dr. Szerlip’s status as an
expert, or rather a “viewer,” any change in the outcome here is doubtful. The Court finds the
Quarantillo case, relied upon by the Defendant, is readily distinguishable. Def.’s Opp’n. at 4-5.
First, Quarantillo is a 1985 decision dealing with expert records and testimony under then Rule
35(b), which is no longer in effect. Plaintiff in that case moved for a protective order to
preclude or limit the defendant from taking the deposition of a neurologist who had treated the
plaintiff for 14 years. Quarantillo, 106 F.R.D. at 437. Plaintiff argued that he was calling the
neurologist as his own witness and that the only thing the defendant was entitled to was an expert
report. Id. There was no issue as to the neurologist not having been disclosed, nor was the case
on the eve of trial, after discovery had closed, as is the situation here. In addition, Dr. Szerlip
was never plaintiff’s “treating physician.”
Nor does the 1996 decision in Zarecki v. Nat’l Railroad Passenger Corp., 914 F. Supp.
1566 (N.D. Ill. 1996 ) from the Northern District of Illinois address the real problem of the
failure to list two witnesses in a party’s Rule 26 Initial Disclosures. Instead, the plaintiff in
Zarecki , who was suffering from carpal tunnel syndrome, argued that she did not have to
disclose her treating physician as an expert because his testimony pertained to information
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obtained during the course of his treatment of her. Zarecki, 914 F. Supp. at 1573. The court
disagreed, finding that the physician was providing testimony in an expert capacity. As such, the
court struck his affidavit. Id.
III.

CONCLUSION
For all of the foregoing reasons, the Plaintiff’s Motion In Limine to preclude the LIRR

from offering the testimony of Dr. Gregg Szerlip and Christopher Yodice as well as the medical
reports/records of Dr. Szerlip is GRANTED.

SO ORDERED.
Dated: Central Islip, New York
October 24, 2016
/s/ A. Kathleen Tomlinson
A. KATHLEEN TOMLINSON
U.S. Magistrate Judge

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