Laskowski et al v. Liberty Mutual Fire Insurance Company

Filing 90

SUMMARY ORDER - That Liberty Mutual's motions to preclude (Dkt. Nos. 77, 78) are DENIED. That Liberty Mutual's letter motion seeking permission to file a reply (Dkt. No. 88) is GRANTED and the proposed reply declaration and exhibits thereto are deemed FILED. That Liberty Mutual's motion for modification of the pretrial scheduling order and leave to amend the answer (Dkt. No. 85) is DENIED. Signed by Chief Judge Gary L. Sharpe on 9/12/2013. (jel, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________
MARK R. LASKOWSKI et al.,
Plaintiffs,

5:11-cv-340
(GLS/ATB)

v.
LIBERTY MUTUAL FIRE
INSURANCE COMPANY,
Defendant.
________________________________
APPEARANCES:
OF COUNSEL:
FOR THE PLAINTIFFS:
Kuehner Law Firm, PLLC
217 Montgomery Street, Suite 200
Syracuse, NY 13202
FOR THE DEFENDANT:
Smith, Rolfes Law Firm
1605 Main Street, Suite 1106
Sarasota, FL 34236
Hiscock, Barclay Law Firm
80 State Street
Albany, NY 12207

KEVIN P. KUEHNER, ESQ.

BRIAN P. HENRY, ESQ.

JASON D. HUGHES, ESQ.
THOMAS J. O’CONNOR, ESQ.

Gary L. Sharpe
Chief Judge
SUMMARY ORDER
Pending are three motions filed by defendant Liberty Mutual Fire
Insurance Company. (See Dkt. Nos. 77, 78, 85.) In two of its motions,

Liberty Mutual seeks to preclude Dennis Ware and William Patrick, experts
retained by plaintiffs Mark R. Laskowski and Richard Hall, from testifying at
trial pursuant to Federal Rule of Evidence 702. (See Dkt. Nos. 77, 78.)
The other motion seeks a modification of the pretrial scheduling order and
leave to amend the answer to assert two new affirmative defenses. (See
Dkt. No. 85). For the reasons that follow, all three motions are denied.
Plaintiffs commenced this action to recover for fire damage to their
home and its contents under an insurance policy issued by Liberty Mutual.1
(See generally Compl., Dkt. No. 1.) One of the central issues during trial
will revolve around the cause of the fire that precipitated plaintiffs’ loss.
(See, e.g., id. ¶ 11; Dkt. No. 36 ¶¶ 64-66.) On that very issue, plaintiffs
retained two experts—William Patrick, a forensic electrical consultant, and
Dennis Ware, a cause and origin investigator—to render opinions
regarding the fire. (See Dkt. No. 77, Attach. 3; Dkt. No. 78, Attach. 3; Dkt.
No. 81, Attach. 1.) After an investigation, Patrick opined “that it is probable
this fire was caused by an electrical fault causing ignition of combustibles
in a concealed area of the second floor south bathroom.” (Dkt. No. 78,

1

The facts are set forth more fully in two prior decisions of the court.
(See Dkt. No. 34 at 2-3; Dkt. No. 59 at 2-5.)
2

Attach. 3 at 11.) Ware reported that “the fire originated in the second floor
bathroom located in the southwest corner of the two story, stone structure,”
and
“the most probable cause for this fire was an electrical
failure/fault, however, due to the extensive alteration
of the fire scene by those individuals who had access
to the fire scene prior to [his] examination of the loss
site . . . , coupled with the fact that key electrical
evidence is missing or has been destroyed and never
examined, the fire scene could not be reconstructed.”
(Dkt. No. 77, Attach. 3 at 3, 24-25.) Further, Ware found “no evidence that
indicate[d] or suggest[ed] that this fire was of an [i]ncendiary origin and
cause,” and, in his opinion, “the cause for this fire is [a]ccidental.” (Id. at
25.)
As was explained in the court’s prior Memorandum-Decision and
Order, Hall testified during a deposition that he probably transferred his
interest in the contents of the home to Laskowski in 2009, before he filed
for bankruptcy, “knowing that his failure to include the property [in the
bankruptcy petition] would protect it from his creditors.” (Dkt. No. 59 at 11.)
Consistent with that transfer, Hall and Laskowski together seek recovery
as to the damaged residence, but Laskowski solely seeks recovery for the
contents of the home that were destroyed in the fire. (See id.) These facts
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underpin Liberty Mutual’s motion seeking to modify the pretrial scheduling
order and leave to amend its answer. (See Dkt. No. 85, Attach. 10 at 5-6.)
Taking up the preclusion motions first, Federal Rule of Evidence 702
governs expert testimony at trial. It provides that:
[a] witness who is qualified as an expert by
knowledge, skill, experience, training, or education
may testify in the form of an opinion or otherwise if:
(a) the expert’s scientific, technical, or other
specialized knowledge will help the trier of fact
to understand the evidence or to determine a
fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and
methods; and
(d) the expert has reliably applied the principles and
methods to the facts of the case.
Fed. R. Evid. 702. Further elucidating the reliability of an expert’s opinion
is the court’s consideration of the case-specific Daubert factors:
“(1) whether a theory or technique can be (and has
been) tested, (2) whether the theory or technique has
been subjected to peer review and publication, (3) a
technique’s known or potential rate of error, and the
existence and maintenance of standards controlling
the technique’s operation, and (4) whether a
particular technique or theory has gained general
acceptance in the relevant scientific community.”
Lynch v. Trek Bicycle Corp., 374 F. App’x 204, 206 (2d Cir. 2010) (quoting
Amorgianos v. Nat’l R.R. Passenger Corp., 303 F.3d 256, 266 (2d Cir.
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2002)).
Liberty Mutual seeks to preclude Ware because, it alleges, he is
unqualified as an origin and cause expert, his opinions are not sufficiently
reliable, and his testimony would be unhelpful to the jury rendering it
irrelevant. (See Dkt. No. 77, Attach. 2.) Patrick’s preclusion is sought by
Liberty Mutual on unreliability and irrelevance grounds. (See Dkt. No. 78,
Attach. 2.) After thorough consideration, the court is unpersuaded by any
of Liberty Mutual’s arguments at this juncture.2 The bulk of Liberty
Mutual’s contentions regarding reliability are fodder for cross-examination
and go to the weight a jury might assign to a particular opinion at trial. In
any event, Liberty Mutual’s concerns may be raised at trial.
Turning to Liberty Mutual’s motion for modification of the pretrial
scheduling order and leave to amend its answer, the court, finding no good

2

Similarly unpersuasive are Liberty Mutual’s contentions that
attorney Kevin Kuehner may need to be disqualified “as he has made
himself a material witness to this dispute” by submitting an affidavit in
response to the motions that contains factual assertions, and that portions
of the affidavits of Ware and Patrick submitted in opposition to their
preclusion should be stricken. (Dkt. No. 82 at 2, 12-14; Dkt. No. 83 at 2,
12-14.) Moreover, the court trusts that, despite the condescending nature
of some statements contained in the parties’ papers, (see, e.g., Dkt. No.
81 ¶ 6; Dkt. No. 82 at 1-2), counsel will conduct themselves with the
utmost professionalism in the forthcoming trial of this matter.
5

cause to modify the pretrial scheduling order, (see Dkt. No. 24), denies the
motion.3 Rule 16 of the Federal Rules of Civil Procedure provides that
scheduling orders “may be modified only for good cause and with the
judge’s consent.” Fed. R. Civ. P. 16(b)(4). “To satisfy the good cause
standard ‘the party must show that, despite its having exercised diligence,
the applicable deadline could not have been reasonably met.’” Enzymotec
Ltd. v. NBTY, Inc., 754 F. Supp. 2d 527, 536 (E.D.N.Y. 2010) (quoting
Sokol Holdings, Inc. v. BMD Munai, Inc., No. 05 Civ. 3749, 2009 WL
2524611, at *7 (S.D.N.Y. Aug. 14, 2009)).4
3

Notably, “[w]here a scheduling order has been entered, the lenient
standard under Rule 15(a), which provides leave to amend shall be freely
given, must be balanced against the requirement under Rule 16(b) that
the Court’s scheduling order shall not be modified except upon a showing
of good cause.” Grochowski v. Phoenix Constr., 318 F.3d 80, 86 (2d Cir.
2003) (internal quotation marks and citations omitted). Accordingly, the
court need not reach Liberty Mutual’s argument that an amendment is
appropriate under Rule 15. (See Dkt. No. 85, Attach. 10 at 8-14.) In
addition, Liberty Mutual’s letter motion seeking permission to file an
otherwise unpermitted reply, (see Dkt. No. 88), is granted. The proposed
reply declaration and exhibits thereto are deemed filed and have been
considered.
4

Liberty Mutual’s reliance on Toborg v. United States, No. 1:11-cv150, 2012 WL 3643841 (N.D.N.Y. Aug. 23, 2012), is misplaced. In that
case, this court specifically found that modification of the scheduling order
was not warranted under the good cause standard of Rule 16. See id. at *
2. For other reasons, not present here, modification of the scheduling
order was nonetheless warranted. For example, the attorney’s failure in
6

Here, Liberty Mutual did not seek permission to move for modification
of the pretrial scheduling order or leave to amend its answer until February
27, 2013, (see Dkt. No. 74)—approximately twenty months after the June
30, 2011 deadline by which pleadings were to be amended pursuant to the
court’s pretrial scheduling order, (see Dkt. No. 24 at 2). And counsel
readily admits that Liberty Mutual’s “failure and delay in this regard was
inadvertent and attributable to [his] oversight[,] was not caused by Liberty
[Mutual,] and was in no way motivated by bad faith or disregard for [the
pretrial scheduling o]rder.” (Dkt. No. 85, Attach. 1 ¶ 10.) These facts show
a total absence of diligence; thus, good cause is lacking, and the motion is
denied.
ACCORDINGLY, it is hereby
ORDERED that Liberty Mutual’s motions to preclude (Dkt. Nos. 77,
78) are DENIED; and it is further

Toborg was far more egregious, and it would have likely required
dismissal of the plaintiff’s complaint. See id. at 1-2. It is also noted that,
while other factors may be relevant to the “good cause” inquiry under Rule
16(b), such as prejudice to the nonmoving party, see Kassner v. 2nd. Ave.
Delicatessen Inc., 496 F.3d 229, 244 (2d Cir. 2007), the court is not
persuaded that consideration of any other factors warrant modification of
the pretrial scheduling order in this case.
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ORDERED that Liberty Mutual’s letter motion seeking permission to
file a reply (Dkt. No. 88) is GRANTED and the proposed reply declaration
and exhibits thereto are deemed FILED; and it is further
ORDERED that Liberty Mutual’s motion for modification of the pretrial
scheduling order and leave to amend the answer (Dkt. No. 85) is DENIED;
and it is further
ORDERED that the Clerk provide a copy of this Summary Order to
the parties.
IT IS SO ORDERED.
September 12, 2013
Albany, New York

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