Peterson v. Pan Am Railways et al
Filing
80
MEMORANDUM-DECISION and ORDERED, that Plaintiffs Motion (Dkt. No. 58) for summary judgment is DENIED; and it is further ORDERED, that Plaintiffs Motion (Dkt. No. 58) to preclude Defendants witnesses is DENIED; and it is furtherORDERED, that Defendant s Motion (Dkt. No. 69) to continue discovery is GRANTED in part for the limited purpose of Plaintiff deposing Defendants expert Dr. Brian M. Gordon and DENIED in part; and it is furtherORDERED, that Plaintiff shall have thirty (30) days from the dat e of this Memorandum-Decision and Order to depose Dr. Gordon; and it is further ORDERED, that Defendants Motion (Dkt. No. 76) for sanctions is DENIED; and it is further ORDERED, that Plaintiffs Motion (Dkt. No. 77) to strike Defendants sur-reply is DENIED. Signed by Senior Judge Lawrence E. Kahn on May 21, 2015. (sas)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
KURT E. PETERSON,
Plaintiff,
-against-
1:12-cv-1857 (LEK/CFH)
PAN AM RAILWAYS, INC., et al.,
Defendants.
MEMORANDUM-DECISION and ORDER
I.
INTRODUCTION
Plaintiff Kurt E. Peterson (“Plaintiff”) commenced this action under the Federal Employers
Liability Act (“FELA”), 45 U.S.C. § 51 et seq., to recover damages for personal injuries sustained
while employed by Defendants Pan Am Railways, Inc. (“Pan Am”) and Springfield Terminal
Railway Company (“Springfield”) (collectively, “Defendants”). Dkt. Nos. 1; 52 (“Second Amended
Complaint”). Presently before the Court is Plaintiff’s Motion for summary judgment and preclusion
of Defendants’ expert witness and fact witnesses pursuant to Federal Rules of Civil Procedure 16
and 37. Dkt. Nos. 58 (“Motion for Summary Judgment”); 58-7 (“Plaintiff’s Summary Judgment
Memorandum”). Defendants have filed a Response in opposition. Dkt. Nos. 71 (“Response”); 7113 (“Defendants’ Response Memorandum”). Defendants have also filed a Motion to continue
discovery to conduct expert depositions and a Motion for sanctions. Dkt. Nos. 69 (“Motion to
Continue”); 69-7 (“Motion to Continue Memorandum”); 76 (“Motion for Sanctions”). Plaintiff has
moved to strike Defendants’ Motion for sanctions as an unauthorized sur-reply. Dkt. No. 77
(“Motion to Strike”).
II.
BACKGROUND1
On or about December 18, 2009, Plaintiff was employed by Defendants as Superintendent of
the Mechanical Division West. Dkt. Nos. 58-1 (“Plaintiff’s Statement of Material Facts”) ¶ 3; 7114 (“Defendants’ Response Statement of Material Facts”) ¶ 3. Plaintiff’s responsibilities included
the repair and maintenance of railroad equipment, and supervision of employee compliance with
safety rules. Pl.’s SMF ¶ 4.
On December 17, 2009, Plaintiff was directed to complete an inventory of freight cars in
various locations. Id. ¶ 7. On December 18, 2009, while taking inventory at Defendants’ freight
yard at Eagle Bridge, New York, Plaintiff slipped and fell on ice, injuring his lower back and hip.
Id. ¶¶ 8-9. There were no witnesses to the accident. Defs.’ Resp. SMF ¶ 8. At the time of the
accident, Plaintiff was not wearing “ice creepers,” which are worn by employees over their boots in
order to provide traction in snowy or icy conditions. Pl.’s SMF ¶¶ 16, 19; Defs.’ Resp. SMF ¶¶ 16,
19. Ice creepers are issued to new employees at their orientations and replaced by Defendants as
needed. Pl.’s SMF ¶ 20; Defs.’ Resp. SMF ¶ 20.
1
Plaintiff objects to Defendants’ Counterstatement of Material Facts on the grounds that it is
not limited to identifying material facts that are in dispute, as allowed by the Local Rules. Dkt. No.
73-1 (“Plaintiff’s Reply Statement of Material Facts”) at 1. The Local Rules authorize a nonmovant to “set forth any additional material facts that the non-movant contends are in dispute in
separately numbered paragraphs,” L.R. 7.1(a)(3); however, Defendants’ Counterstatement sets forth
numerous facts supported by citations to Plaintiff’s deposition testimony. Because these facts
cannot be said to be in dispute, the Court will not consider those parts of Defendants’
Counterstatement that are supported only by citations to Plaintiff’s testimony. Plaintiff also moves
to strike Defendants’ Response to Plaintiff’s Statement of Material Facts insofar as it relies on
Plaintiff’s credibility to create disputed issues. Pl.’s Reply SMF at 2. However, while “[b]road,
conclusory attacks on the credibility of a witness will not, by themselves, present questions of
material fact,” Island Software & Computer Serv., Inc. v. Microsoft Corp., 413 F.3d 257, 262 (2d
Cir. 2005), Defendants have also produced affirmative evidence purporting to show disputed issues
of fact. Therefore, the Court will consider those portions of Defendants’ Response Statement of
Material Facts.
2
Plaintiff alleges that he was not wearing ice creepers at the time of the accident because
Defendants had not provided a sufficient number for his department, and he had given his last two
pairs to new employees. Pl.’s SMF ¶¶ 17-18. Plaintiff claims that he had submitted a request to
Defendants on October 28, 2009, for thirty-five pairs of ice creepers and asked that the request be
filled “ASAP.” Id. ¶¶ 21, 22. Plaintiff also states that he notified his supervisor, Mike Walsh
(“Walsh”), that he had given away his last two pairs of ice creepers. Id. ¶ 23. Defendants dispute
that Plaintiff properly submitted a request for ice creepers on October 28, 2009. Defs.’ Resp. SMF
¶ 18. On December 23, 2009, Plaintiff sent an email regarding the request for ice creepers, and the
request was filled the same day. Id.
The day after the accident, on December 19, 2009, Plaintiff submitted an accident report by
fax. Pl.’s SMF ¶ 11; Defs.’ Resp. SMF ¶ 11. Plaintiff also states that he told Walsh about the
accident and injury. Pl.’s SMF ¶ 13; Defs.’ Resp. SMF ¶ 13. Defendants dispute that the fax was
received and state that Defendants only received the report when Plaintiff mailed a copy on or about
March 12, 2010. Defs.’ Resp. SMF ¶ 91.
III.
DISCOVERY MOTIONS
The Court first addresses the pending Motions on discovery matters, because they are
relevant to the evidence the Court may consider on Plaintiff’s Motion for summary judgment.
Plaintiff moves to preclude Defendants’ fact witnesses on the grounds that they were not disclosed
in Defendants’ initial disclosures and Defendants’ expert witness because Defendants’ expert report
was untimely served. Pl.’s SJ Mem. at 10-15. Defendants oppose Plaintiff’s Motion to preclude
Defendants’ expert witness, and alternatively, request a continuance of discovery to allow the
parties to depose each other’s experts. Defs.’ Resp. Mem. at 11-13; Mot. Cont. Mem.
3
A. Legal Standard
Federal Rule of Civil Procedure 26(a)(1) requires that a party provide, in an initial
disclosure, the name “of each individual . . . that the disclosing party may use to support its claims
or defenses.” FED. R. CIV. P. 26(a)(1)(i). A party must also supplement its disclosures “in a timely
manner . . . if the additional or corrective information has not otherwise been made known to the
other parties during the discovery process or in writing.” FED. R. CIV. P. 26(e)(1)(A).
“[I]f a party fails to . . . identify a witness as required by Rule 26(a) or (e), the party is not
allowed to use that . . . witness to supply evidence on a motion, at a hearing, or at a trial, unless the
failure was substantially justified or is harmless.” 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’ . . . ‘there exists a genuine dispute
regarding compliance.’” Ritchie Risk-Linked Strategies Trading (Ir.), Ltd. v. Coventry First LLC,
280 F.R.D. 147, 159 (S.D.N.Y. 2012) (quoting AIG Global Asset Mgmt. Holdings Corp. v. Branch,
No. 04 Civ. 8803, 2005 WL 425494, at *1 (S.D.N.Y. Feb. 18, 2005)). Failure to disclose is
“harmless” where there is “an absence of prejudice.” Id. The burden to prove either substantial
justification or harmlessness is on the party facing sanctions. Am. Stock Exch., LLC v. Mopex,
Inc., 215 F.R.D. 87, 93 (S.D.N.Y. 2002).
“‘[T]he imposition of sanctions under Rule 37(c)(1) is a matter within the trial court’s
discretion.’” Jockey Int’l, Inc. v. M/V “LEVERKUSEN EXPRESS”, 217 F. Supp. 2d 447, 452
(S.D.N.Y. 2002) (quoting Ward v. Nat’l Geographic Soc’y, No. 99 Civ. 12385, 2002 WL 27777, at
*2 (S.D.N.Y. Jan. 11, 2002)). “Preclusion of evidence is generally a disfavored action.” Am. Stock
Exch., 215 F.R.D. at 93; see also Lujan v. Cabana Mgmt., Inc., 284 F.R.D. 50, 68 (E.D.N.Y. 2012).
4
In determining whether to preclude a witness, a court must consider “(1) the party’s explanation for
the failure to comply with the [disclosure requirement]; (2) the importance of the testimony of the
precluded witness[es]; (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.” Patterson v.
Balsamico, 440 F.3d 104, 117 (2d Cir. 2006) (quoting Softel, Inc. v. Dragon Med. & Scientific
Commc’ns, Inc., 118 F.3d 955, 961 (2d Cir. 1997)).
B. Defendants’ Fact Witnesses
Plaintiff argues that none of Defendants’ fact witnesses were properly disclosed under Rule
26, and that, accordingly, these witnesses should be precluded under Rule 37. Pl.’s SJ Mem. at 1013; Dkt. No. 73 (“Plaintiff’s Reply”) at 2-3. In their initial pre-trial disclosure, served on February
21, 2014, Defendants identified James F. Olson (“Olson”), VP Mechanical for Springfield Terminal
Railway Company, and James C. Rae (“Rae”), Superintendent Mechanical for Springfield Terminal
Railway Company, as potential witnesses Defendants may call to testify at trial. Dkt. No. 58-3 ¶ 13.
The disclosure did not identify the subject matter of the witnesses’ testimony. Id. On July 17, 2014,
after the close of discovery, Defendants supplemented their disclosure, identifying as potential trial
witnesses, “[a]ny witness deposed in this matter” and “[a]ny individual whose name appears on any
documents marked as deposition exhibits or otherwise disclosed by either party during the course of
litigation.” Dkt. No. 58-5 at Ex. T.
1. Initial Disclosure
Plaintiff argues that Olson and Rae should be precluded as witnesses because Defendants did
not identify the subject matter on which they are expected to testify. Pl.’s SJ Mem. at 11; Pl.’s
Reply at 2-3. Rule 26(a)(1)(A) requires a party to provide, in addition to the name and address of
5
each disclosed individual, the subjects of information that the individual possesses. FED. R. CIV. P.
26(a)(1)(A). Plaintiff, however, does not cite case-law holding that a witness may be excluded for
failure to disclose the subject matter of the witness’s testimony; Plaintiff’s citations only involve the
failure to disclose a witness altogether. See Pl.’s SJ Mem. at 12 (citing, inter alia, Kullman v. New
York, No. 07-cv-0716, 2009 WL 1562840, at *5-9 (N.D.N.Y. May 20, 2009) (precluding witness
whom plaintiff did not identify in pretrial disclosure); Mehus v. Emporia State Univ., 326 F. Supp.
2d 1213, 1219 (D. Kan. 2004) (same)).
The Court finds that Defendants’ failure to disclose the subject matter of Olson and Rae’s
testimony was harmless. Krawec v. Kiewit Constructors, Inc., No. 11 Civ. 0123, 2013 WL
1104414, at *7-8 (S.D.N.Y. Mar. 1, 2013), is on point. In that case, the plaintiff failed to provide
contact information and the subject matter of a disclosed witness’s testimony. Id. at *7. While
noting the plaintiff’s non-compliance with the discovery rules, the court found that failure to
provide contact information and the subject matter of the anticipated testimony was not “tantamount
to providing no disclosure” at all. Id. The court noted the defendant had nearly a year to depose the
witness, but had not requested any information related to the witness and had not asked the court to
intervene. Id. Nor was there any indication of bad faith on the part of the plaintiff. Id.
Here, Defendants have not generally responded to Plaintiff’s Motion to preclude their fact
witnesses, and thus have not offered an explanation for their failure to designate the subject matter
of Olson and Rae’s testimony, nor have they attempted to justify the importance of these witnesses’
testimony. However, as in Krawec, the Court finds there is no prejudice to Plaintiff; Defendants
timely disclosed the names of these potential witnesses. Plaintiff therefore had the opportunity to
depose these potential witnesses and prepare his defense in response to their testimony.
6
2. Supplemental Disclosure
Plaintiff further argues that Defendants’ supplemental disclosure was untimely and does not
provide adequate notice of which witnesses Defendants intend to call. Pl.’s SJ Mem. at 11-12; Pl.’s
Reply at 3. As explained supra, Defendants’ supplemental disclosure indicated two groups of
possible witnesses: (1) “[a]ny witness deposed in this matter” and (2) “[a]ny individual whose name
appears on any documents marked as deposition exhibits or otherwise disclosed by either party
during the course of litigation.” Dkt. No. 58-5 at Ex. T. Defendants subsequently disclosed, in an
e-mail dated July 25, 2014, a list of potential trial witnesses.2 Dkt. No. 58-5 at Ex. U.
With respect to Defendants’ notice of “[a]ny witness deposed in the matter,” the Court finds
that any failure to comply with the disclosure requirements was harmless. There is no prejudice to
Plaintiff insofar as Defendants have only identified individuals that have been deposed as potential
witnesses. Although the notice of a deposition of a witness under Rule 30(b)(1) is not equivalent to
the disclosure of a trial witness, Kullman, 2009 WL 1562840, at *6, Defendants do not merely rely
on the fact that these witnesses were deposed to meet the disclosure requirement. Defendants first
notified Plaintiff in their supplemental disclosure that they intended to call certain deposed
individuals as witnesses. Dkt. No. 58-5 at Ex. T. When Plaintiff’s counsel objected to that
disclosure, Defendants’ counsel then provided, in an e-mail, a list of their potential trial witnesses.
Dkt. No. 58-5 at Ex. U. This is sufficient to make Plaintiff aware of which deposed individuals
Defendants may call as trial witnesses, and thus will not cause the “sandbagging” the disclosure
2
The listed witnesses are: (1) Plaintiff; (2) James Olson; (3) James Rae; (4) Patrick
Chiapputi; (5) Deborah Bourassa; (6) Ron Cooper; (7) David Ropple; and (8) David Nagy. Dkt. No.
58-5 at Ex. U. The parties have not identified for the Court which of these witnesses were deposed,
although Plaintiff has filed as exhibits depositions for Ronald Cooper, Deborah Bourassa, David
Ropple, and David Nagy. Dkt. No. 58-3 (“De Oliveira Affidavit”) ¶¶ 23-26.
7
rules are intended to prevent. Fleming v. Verizon, N.Y., Inc., No. 03 Civ. 5639, 2006 WL 2709766,
at *7 (S.D.N.Y. Sept. 22, 2006); see also Kullman, 2009 WL 1562840, at *6 (“[The disclosure]
requirement could have been met here by, for example, a simple declaration by plaintiffs that they
might call [the deposed witness] as a witness at trial either in a letter, electronic mail . . . or the
like.”). With regard to the timeliness of Defendants’ supplementation, the Court finds that the fact
that the supplementation occurred after the close of discovery is harmless. Defendants served their
supplemental disclosure only ten days after the discovery deadline had expired, De Oliveira Aff. ¶
29; this is not a case “where the disclosing party waited until the eve of trial to disclose its
witnesses,” LaVigna v. State Farm Mut. Auto. Ins. Co., 736 F. Supp. 2d 504, 511 (N.D.N.Y. 2010).
The Court does find, however, that Plaintiff is prejudiced by Defendants’ supplemental
disclosure of “[a]ny individual whose name appears on any documents marked as deposition
exhibits or otherwise disclosed by either party during the course of litigation.” That is, Plaintiff is
prejudiced by Defendants calling as a trial witness any individual who was mentioned in the course
of discovery, but was not deposed. Numerous courts in the Second Circuit “have held that mere
mention of a name in a deposition or interrogatory response is insufficient to satisfy Rule
26(a)(1)(A)(i).” Lujan, 284 F.R.D. at 72 (listing cases). Plaintiff would not have been on notice to
depose individuals who were merely mentioned in the course of discovery. See Alfano v. Nat’l
Geographical Channel, No. CV 06-3511, 2007 WL 2982757, at *1 (E.D.N.Y. Oct. 5, 2007). The
prejudice to Plaintiff is not remedied by Defendants’ e-mail disclosure of a list of the names of their
potential trial witnesses. Because that disclosure was made after the close of discovery, Plaintiff did
not have the opportunity to depose any individuals who had not been deposed previously.
In summary, the Court finds that there is no prejudice to Plaintiff from Defendants’
8
supplemental disclosure of deposed witness. Plaintiff is prejudiced, however, by Defendants’
disclosure of individuals mentioned in the course of discovery, but not deposed. Defendants are
therefore precluded from calling any witness who was mentioned in the course of discovery, but not
deposed.3
C. Expert Witnesses
Plaintiff also seeks to preclude the testimony of Defendants’ expert Dr. Brian M. Gordon
(“Dr. Gordon”) because Defendants failed to provide Dr. Gordon’s expert report by the discovery
deadline set by the Court. Pl.’s SJ Mem. at 14-15; Pl.’s Reply at 7-10. Defendants’ expert
disclosure deadline was May 23, 2014. De Oliveira Aff. ¶ 15. On May 23, 2014, Defendants served
Plaintiff with their expert disclosure, identifying Dr. Gordon and his anticipated trial testimony, and
providing his CV. De Oliveira Aff. ¶ 20; Dkt. No. 71 (“Hansen Affidavit”) ¶ 15; see also Dkt. No.
58-4 at Ex. L. However, Defendants only served Dr. Gordon’s expert report on July 25, 2014, as a
supplemental expert report. De Oliveira Aff. ¶ 31; Hansen Aff. ¶ 20.
Plaintiff argues that preclusion of Dr. Gordon is appropriate because Defendants failed to
timely serve Dr. Gordon’s expert report and have not demonstrated good cause for their failure to do
so. Pl.’s SJ Mem. at 14-15 (citing Duval v. U.S. Xpress Enters., Inc., No. 03-cv-0812, 2005 WL
6021864, at *2-4 (N.D.N.Y. Oct. 13, 2005)). Specifically, Plaintiff argues that Defendants were
obligated to serve Dr. Gordon’s expert report when their expert disclosure was due, pursuant to
3
As mentioned supra in footnote three, the parties have not identified which of the eight
potential trial witnesses listed by Defendants were deposed and which were not. See Dkt. No. 58-5
at Ex. U.
9
Federal Rule of Civil Procedure 26(a)(2)(B).4 Pl.’s Reply at 7 (citing FED. R. CIV. P. 26(a)(2)(B)).
Plaintiff further argues that Defendants’ Motion to extend the deadline for expert discovery should
be denied pursuant to the “good cause” standard in Federal Rule of Civil Procedure 16,5 Pl.’s SJ
Mem. at 14, because Defendants have not established that they were diligent in attempting to meet
their discovery deadline, Dkt. No. 74 at 2-3.
Considering the Patterson factors, the Court finds that preclusion of Dr. Gordon would not
be an appropriate sanction for Defendants’ failure to timely serve Dr. Gordon’s expert report.
Patterson, 440 F.3d at 117. Defendants explain that their expert report was untimely due to delay in
receiving Plaintiff’s medical records from the Railroad Retirement Board. Hansen Aff. ¶ 11.
Defendants assert that they provided the Retirement Board with a release authorization in November
2013, but were only informed in April 2014 that the Board would not release the records. Id.
Defendants’ counsel notified Plaintiff’s counsel on April 29, 2014, and on May 5, 2014, Plaintiff’s
counsel provided Defendants with the records. Id. ¶¶ 11-12. Defendants claim that the receipt of
these records was essential to preparing their defense regarding damages. Id. ¶ 13. Defendants
assert that their expert report was further delayed by difficulty in finding a time to schedule a
physical examination of Plaintiff by Dr. Gordon. Id. ¶ 17. Defendants contacted Plaintiff’s counsel
about the examination on May 21, 2014, but it was rescheduled several times at the request of both
sides and did not take place until July 2, 2014. De Oliveira Aff. ¶ 15; Hansen Aff. ¶ 17. Defendants
4
Federal Rule of Civil Procedure 26(a)(2)(B) provides that “[u]nless otherwise stipulated or
ordered by the court, [expert disclosure] must be accompanied by a written report.” FED. R. CIV. P.
26(a)(2)(B).
5
Federal Rule of Civil Procedure 16(b)(4) provides that a scheduling order “may be
modified only for good cause.” FED. R. CIV. P. 16(b)(4).
10
received Dr. Gordon’s report on July 24, 2014, and served it on Plaintiff on July 25, 2014. Hansen
Aff. ¶ 20. Defendants therefore have demonstrated that they diligently attempted to meet their
deadlines.
On the second Patterson factor, the Court finds that Dr. Gordon’s testimony is central to
Defendants’ case. See Krawec, 2013 WL 1104414, at *7. Defendants have stated that Dr. Gordon’s
testimony is central to their “entire defense on causation and damages.” Defs.’ Resp. Mem. at 12.
The Court considers the third and fourth Patterson factors together. Defendants’ untimely
disclosure of Dr. Gordon’s expert report prejudices Plaintiff because Plaintiff was unable to depose
Dr. Gordon. See Lopez v. Louro, No. 01 Civ. 2490, 2002 WL 31682398, at *3 (S.D.N.Y. Nov. 27,
2002). Defendants argue that Plaintiff chose not to depose Dr. Gordon. Defs.’ Resp. Mem. at 1213. However, Plaintiff was unable to depose Dr. Gordon until Plaintiff had received Dr. Gordon’s
expert report. Pl.’s Reply at 10. Despite finding prejudice to Plaintiff, the Court nonetheless finds
that a continuance to allow Plaintiff to depose Dr. Gordon is possible and appropriate. Granting the
continuance remedies the prejudice to Plaintiff and, as the Court has found supra, the other
Patterson factors weigh against precluding Dr. Gordon’s testimony; the testimony is critically
important to Defendants’ case and Defendants have shown several reasons for the delay in meeting
their deadline. Defendants have shown that they diligently tried to meet their discovery deadline
and therefore have established good cause to extend the discovery deadline.
However, to the extent that Defendants also seek a continuance to conduct depositions of
Plaintiff’s experts, the Court finds that Defendants have not demonstrated good cause. Plaintiff
timely served Defendants with Plaintiff’s expert disclosures and expert report on April 8, 2014. De
Oliveira Aff. ¶ 19. Defendants, however, did not seek to depose Plaintiff’s disclosed expert
11
witnesses during discovery. Id. ¶ 21. Defendants only served notice to depose Plaintiff’s treating
physicians on July, 29, 2014, three weeks after the close of discovery. Id. ¶ 32. Defendants have
not offered any explanation for this delay in seeking to depose Plaintiff’s experts.
Accordingly, Defendants’ Motion to continue discovery is granted for the limited purpose of
allowing Plaintiff to depose Dr. Gordon. Plaintiff shall have thirty days from the date of this
Memorandum-Decision and Order to depose Dr. Gordon.6
IV.
SUMMARY JUDGMENT MOTION
Having granted Defendants’ Motion to conduct further discovery, the Court must first
determine whether it is appropriate to consider Plaintiff’s Motion for summary judgment, since
summary judgment should only be entered “after an adequate time for discovery.” Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986). Because discovery has been continued for the limited purpose of
allowing Plaintiff to depose Defendants’ expert and Plaintiff is the party moving for summary
judgment, the Court will consider Plaintiff’s Motion.
A. Legal Standard
Federal Rule of Civil Procedure 56(a) instructs a court to grant summary judgment if “there
is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of
law.” FED. R. CIV. P. 56(a). Although “[f]actual disputes that are irrelevant or unnecessary” will
not preclude summary judgment, “summary judgment will not lie if . . . the evidence is such that a
6
Defendants have requested that the Court impose monetary sanctions on Plaintiff pursuant
to Federal Rule of Civil Procedure 37(a)(4)(b) on the ground that Plaintiff’s Motions to preclude
were not “substantially justified.” Defs.’ Resp. Mem. at 13-14; Dkt. No. 76. In light of the
discussion supra, the Court finds that Plaintiff was substantially justified in moving to preclude
Defendants’ trial witnesses. Accordingly, Defendants’ request for sanctions is denied. Plaintiff’s
request to strike Defendants’ sur-reply is also denied. Dkt. No. 77.
12
reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986); see also Taggart v. Time, Inc., 924 F.2d 43, 46 (2d Cir. 1991).
The party seeking summary judgment bears the burden of informing the court of the basis
for the motion and of identifying those portions of the record that the moving party claims will
demonstrate the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. If the nonmoving party will bear the burden of proof on a specific issue at trial, the moving party may satisfy
its own initial burden by demonstrating the absence of evidence in support of an essential element of
the non-moving party’s claim. Id. If the moving party carries its initial burden, then the nonmoving party bears the burden of demonstrating a genuine issue of material fact. Id. This requires
the non-moving party to do “more than simply show that there is some metaphysical doubt as to the
material facts.” Matsushita Elec. Indus. Co. v. Zenith Corp., 475 U.S. 574, 586 (1986).
If the moving party will bear the burden of proof at trial, that party must support its motion
with credible evidence that would entitle it to a directed verdict if not controverted at trial. Celotex,
477 U.S. at 331 (Brennan, J., concurring). Such an affirmative showing shifts the burden of
production to the party opposing the motion, and requires that party either to produce evidentiary
materials that demonstrate the existence of a genuine issue for trial or to submit an affidavit
requesting additional time for discovery. Id.
A court must resolve all ambiguities and draw all reasonable inferences in favor of the nonmoving party. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000); Nora
Beverages, Inc. v. Perrier Grp. of Am., Inc., 164 F.3d 736, 742 (2d Cir. 1998). A court’s duty in
reviewing a motion for summary judgment is “carefully limited” to finding genuine disputes of fact,
“not to deciding them.” Gallo v. Prudential Residential Servs., 22 F.3d 1219, 1224 (2d Cir. 1994).
13
B. Analysis
Under FELA, “[e]very common carrier by railroad . . . shall be liable in damages to any
person suffering injury while he is employed by such carrier . . . for such injury or death resulting in
whole or in part from the negligence of any of the officers, agents, or employees of such carrier.” 45
U.S.C. § 51. FELA is a broad remedial statute, which courts have “liberally construed” in order to
further its purposes. Krause v. CSX Transp., 984 F. Supp. 2d 62, 77 (N.D.N.Y. 2013). Thus, the
Second Circuit construes FELA “as creating a relaxed standard for negligence as well as causation.”
Higgins v. Consol. Rail Corp., No. 06-CV-0689, 2008 WL 5054224, at *1 (N.D.N.Y. Nov. 21,
2008) (quoting Williams v. Long Island R.R. Co., 196 F.3d 402, 406 (2d Cir. 1999)). An employer
may be liable under FELA where its “negligence played any part, even the slightest, in producing
the injury or death for which damages are sought.” Krause, 984 F. Supp. 2d at 77 (quoting Rogers
v. Mo. Pac. R.R. Co., 362 U.S. 500, 506 (1957)). Nonetheless, a FELA plaintiff “must prove the
traditional common law elements of negligence: duty, breach, foreseeability, and causation.”
Tufariello v. Long Island R.R. Co., 458 F.3d 80, 87 (2d Cir. 2006). A railroad may be liable under
FELA “when it knows or should know of a potential hazard in the workplace, yet fails to exercise
reasonable care to inform or protect its employees.” Syverson v. Consol. R.R. Corp., 19 F.3d 824,
826 (2d Cir. 1994) (quoting Gallose v. Long Island R.R., 878 F.2d 80, 84-85 (2d Cir. 1989)).
Plaintiff argues that undisputed facts demonstrate all the elements of a FELA claim. Pl.’s SJ
Mem. at 6-9. Plaintiff states that Defendants are common carriers engaged in railroad operations
and Plaintiff was employed by Defendants at the time of the accident. Pl.’s SMF ¶¶ 1-3, 5. Plaintiff
asserts that Defendants had a duty to provide safety equipment, including ice creepers, to their
employees. Id. ¶¶ 6, 19. Plaintiff claims the record further shows that Defendants were on notice
14
that Plaintiff’s department was short of ice creepers, yet had not provided them by the time of
Plaintiff’s accident. Id. ¶¶ 16-18, 21-23, 25. At the time of his accident, Plaintiff was not wearing
ice creepers. Id. ¶ 16. Based on these facts, Plaintiff claims that no reasonable fact finder could find
that Defendants’ negligence did not play a part in causing Plaintiff’s injuries. Pl.’s SJ Mem. at 8.
At this time, the Court need not address all of the elements of Plaintiff’s FELA claim
because there are disputed issues of material fact with regard to foreseeability that preclude entry of
summary judgment in favor of Plaintiff. Plaintiff alleges that Defendants were on notice of his
department’s shortage of ice creepers because of a request he made on October 28, 2009, a month
and a half before the accident. Pl.’s SMF ¶ 21. However, Defendants dispute that the request was
ever received and allege that the purchasing department does not have a record of Plaintiff’s request.
Defs.’ Resp. SMF ¶ 21; Dkt. No. 71-8 at ¶ 9. While Plaintiff has produced the alleged request as an
exhibit, Dkt. No. 58-6 at Ex. BB, the request does not contain the written approval of Plaintiff’s
supervisor, Walsh, which Defendants claim was necessary for the request to be processed.7 Defs.’
Resp. SMF ¶ 21. Defendants assert that when Plaintiff had submitted other requests in the past
without the proper approval, the Store Department would contact Plaintiff to remind him that the
request could not be processed. Id. Moreover, Defendants claim that ice creepers were in stock
during November and December 2009, and that several properly submitted requests were processed
during that period. Dkt. No. 71-8 at ¶ 12.
Thus, Defendants have raised an issue of material fact as to whether they had actual or
7
Plaintiff requests that the Court strike the affidavit of Defendants’ affiant Ron Cooper
insofar as it contradicts his previous testimony. Pl.’s Reply at 2; Pl.’s Reply SMF ¶¶ 47-49.
However, the previous testimony does not unambiguously contradict the affidavit, as Plaintiff
claims. Therefore, the Court will not strike the affidavit.
15
constructive knowledge of the shortage of ice creepers in Plaintiff’s department. See Haas v. Del. &
Hudson Ry. Co., 282 F. App’x 84, 88 (2d Cir. 2008). Defendants’ knowledge—and, thus, whether
Plaintiff’s injury was foreseeable—is an essential element of Plaintiff’s claim; his failure to
undisputably establish that element is fatal to Plaintiff’s Motion for summary judgment. See Albee
Tomato, Inc. v. A.B. Shalom Produce Crop., 155 F.3d 612, 618 (2d Cir. 1998) (“Where the movant
has the burden, its own submissions in support of its motion must entitle it to judgment as a matter
of law.”). Accordingly, Plaintiff’s Motion for summary judgment is denied.
V.
CONCLUSION
Accordingly, it is hereby:
ORDERED, that Plaintiff’s Motion (Dkt. No. 58) for summary judgment is DENIED; and
it is further
ORDERED, that Plaintiff’s Motion (Dkt. No. 58) to preclude Defendants’ witnesses is
DENIED; and it is further
ORDERED, that Defendants’ Motion (Dkt. No. 69) to continue discovery is GRANTED in
part for the limited purpose of Plaintiff deposing Defendants’ expert Dr. Brian M. Gordon and
DENIED in part; and it is further
ORDERED, that Plaintiff shall have thirty (30) days from the date of this MemorandumDecision and Order to depose Dr. Gordon; and it is further
ORDERED, that Defendants’ Motion (Dkt. No. 76) for sanctions is DENIED; and it is
further
ORDERED, that Plaintiff’s Motion (Dkt. No. 77) to strike Defendants’ sur-reply is
DENIED; and it is further
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ORDERED, that the Clerk of the Court serve a copy of this Memorandum-Decision and
Order on all parties in accordance with the Local Rules.
IT IS SO ORDERED.
DATED:
May 21, 2015
Albany, NY
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