Hewitt v. Metro-North Commuter Railroad
MEMORANDUM AND ORDER: denying 77 Motion to Preclude. For the aforementioned reasons, the Court denies Hewitt's motion to set aside Magistrate Judge Ellis's March 22, 2016 order and to preclude two supplemental expert reports. This resolves Docket Number 77. SO ORDERED. (Signed by Judge Alison J. Nathan on 3/24/2017) (ama)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
DOC #: _ _---rii'R"'::-:d~r
DATE FILED: 'MAR 2 4 2011
Donovan G. Hewitt,
Metro-North Commuter Railroad,
ALISON J. NATHAN, District Judge:
Before the Court is Plaintiff Donovan Hewitt's motion to set aside Magistrate Judge
Ellis's March 22, 2016 order and to preclude certain supplemental expert reports. For the
following reasons, the Court denies the motion.
This is a case brought under the Federal Employers' Liability Act ("FELA") by Plaintiff
Hewitt against his former employer, Metro-North Commuter Railroad ("Metro-North"). Amend.
Compl. i!il 1-2 (Dkt No. 56). As detailed in more depth in the concurrently filed Memorandum
& Order denying Metro-North's motion for partial summary judgment, Plaintiff Hewitt alleges
that Metro-North failed to take reasonable steps to mitigate his exposure to ergonomic risk
factors. 1 Amend. Compl.
i!il 13-1 7. According to Hewitt, Metro-North's negligence in this
"Ergonomics is the science of fitting workplace conditions and job demands to the capabilities of the working
population." Ahmedv. Keystone Shipping Co., No. 10-14642, 2012 WL 5300094, at *5 (E.D. Mich. Oct. 25, 2012).
"Ergonomic risk factors" are "work-related factors that may pose a risk of musculoskeletal disorders" and include,
inter alia, "repetitive, forceful, or prolonged exertions of the hands; frequent or heavy lifting, pushing, pulling, or
carrying of heavy objects; and prolonged awkward posture." Id.
regard caused him to suffer several shoulder and elbow injuries. Amend. Compl.
2 (Dkt No. 91).
To support his claims, Hewitt hired experts. Hewitt retained the services of Dr. Robert
Andres, a bioengineer and ergonomist. Plaintiffs Rule 56.1
118-19, 129; Opp. at 2
(Dkt No. 83). Dr. Andres opined that Hewitt's work at Metro-North exposed Hewitt to various
ergonomic risk factors associated with certain injuries and that Metro-North failed to take certain
steps to mitigate Hewitt's exposure. Plaintiffs Rule 56.1
164, 182, 186, 189;
Summary Judgment Def. Ex.Bat 40-41 (Dkt No. 70-3). Hewitt also asked his orthopedic
surgeon, Dr. Victor Sasson, to provide an expert report. Def. Ex. A (Dkt No. 84-1 ); Opp. at 2.
Dr. Sasson opined that Hewitt's job at Metro-North "was a significant contributing cause (not the
sole cause) of the injuries/conditions and symptoms" alleged in this lawsuit. Def. Ex. A at 14. 2
To combat Hewitt's claims, Metro-North also hired its own experts. Specifically, the company
hired an ergonomics expert (Dennis Mitchell) to review Dr. Andres' opinions, and it hired an
orthopedic surgeon (Dr. Ramesh Gidumal) to review Dr. Sasson's opinions. Opp. at 2; Maurer
4 (Dkt No. 78); Def. Ex. B (Dkt No. 84-2); Def. Ex. D (Dkt No. 84-4).
The motion currently pending before the Court involves the timeliness of Metro-North's
expert disclosures. According to the Court's January 15, 2016 scheduling order, all discovery in
this case was to be completed by February 29, 2016. Dkt No. 45. Some of Metro-North's expert
disclosures complied with this order; Metro-North disclosed Mitchell's initial report on February
8, 2016, Dr. Gidumal's initial report on February 16, 2016, and a supplemental report from
Mitchell on February 28, 2016. Opp. at 2; Def. Ex. B; Def. Ex. D; Def. Ex. E (Dkt No. 84-5).
As explained in the concurrently filed Memorandum & Order in this case, the Court denies Metro-N01th's motion
to exclude these two experts pursuant to Daubert v. Merrell Dow Phann., Inc., 509 U.S. 579 (1993).
Metro-North, however, made two supplemental disclosures that violated this scheduling
order. On March 3, 2016, Metro-North disclosed a supplemental report from Dr. Gidumal. Def.
Ex. H (Dkt No. 84-8); Dkt Nos. 63, 64. That report stated, in its entirety, that Dr. Gidumal had
"reviewed a disc titled 12/15/15 Site Inspection Video as well as two pages of Mr. Hewitt's job
description. After reviewing both items [his] opinions as expressed during [his] deposition and
[his] report have not changed." Def. Ex. H. On March 7, 2016, Metro-North disclosed a second
supplemental report from Mitchell. Def. Ex. I (Dkt No. 84-9); Dkt Nos. 63, 64. This report
stated that Mitchell had reviewed four additional documents and had concluded that those
"documents do not have any relevance to [his] opinions as expressed in [his] previous reports."
Def. Ex. I.
In 2015, this case was referred to the Magistrate Judge for general pretrial and for a
particular discovery dispute. Dkt No. 15. Accordingly, the Magistrate Judge was responsible for
resolving all "scheduling, discovery, non-dispositive pretrial motions, and settlement" issues. Id.
Judge Ellis was designated as the Magistrate Judge for this matter.
On March 9, 2016, Magistrate Judge Ellis held a conference call with the parties. See
Dkt Nos. 64-65. During that conference, both parties agreed that discovery was complete. Dkt
No. 65; Mot. at 5 (Dkt No. 79); Opp. at 3-4. Hewitt did not raise the issue of the untimeliness of
Metro-North's supplemental expert reports during this phone call. Id.
On March 15, 2016, Hewitt filed an objection to the two supplemental expert reports.
Dkt No. 63. The sole basis of the objection was that the reports were untimely. Id. On March
21, 2016, Metro-North filed a letter response to this objection. Dkt No. 64. Metro-North argued
both that the objection was "baseless" and that it "should have been raised by plaintiff with the
Court on March 9, 2016." Id. at 1-2.
On March 22, 2016, Judge Ellis held a telephone conference to address Hewitt's
objections. See Dkt No. 65. After the conference, Judge Ellis issued a written decision denying
Hewitt's objections. Id. Judge Ellis concluded that Hewitt's objections to the untimeliness of
Metro-North's supplemental expert reports were "a discovery matter." Id. Judge Ellis further
concluded that "[b ]ecause Hewitt failed to raise the objections following the close of discovery,
or at the March 9 conference, his objections are untimely." Id. And because Hewitt had not
shown good cause for the failure to raise the issue earlier, Judge Ellis ruled that "[t]he objections
to Defendants' supplemental expert disclosures are therefore overruled." Id.
On April 1, 2016, Hewitt filed a motion challenging this decision. Dkt No. 77. MetroNorth opposed. Dkt No. 83. The Court now resolves that motion.
Hewitt's motion asks the Court to set aside Magistrate Judge Ellis's March 22, 2016
decision and instead enter an order precluding Metro-North's two supplemental expert
disclosures as untimely. Mot. at 8. The Court denies Hewitt's motion because Judge Ellis's
conclusion that Hewitt waived the right to object to these reports by failing to raise the issue
during the March 9 conference call was not "clearly erroneous" or "contrary to law."
A district judge may authorize a magistrate judge to decide any non-dispositive pretrial
matter. See 28 U.S.C. § 636(b)(l); Fed. R. Civ. P. 72(a). After a magistrate judge decides a
nondispositive matter, a party has fourteen days to object. Fed. R. Civ. P. 72(a). A district court
must review objected-to decisions, but may only "modify or set aside" the magistrate judge's
order if it is "clearly erroneous or is contrary to law." Fed. R. Civ. P. 72(a); see also 28 U.S.C. §
636(b)(l). Here, Hewitt has objected to Magistrate Judge Ellis's decision finding that Hewitt
waived the right to object to Metro-North's untimely supplemental expert disclosures by failing
to raise the issue during the March 9 conference call. Mot. at 8.
The Court cannot conclude that Judge Ellis's decision was clearly erroneous or contrary
to law. Hewitt argues that Judge Ellis erred because this Court's scheduling order gave him until
March 29, 2016 to file an objection with the undersigned to the untimely expert disclosures. See
Mot. at 6 ("Plaintiffs plan to file by 3/29/16, the date set by the Court, a pre-trial motion seeking
an Order to partially exclude expert testimony from the two defense experts, was an appropriate
procedural approach."). But the Court cannot square this argument with the orders filed in this
case. For example, it was Judge Ellis, not the undersigned, who was tasked with resolving
discovery disputes. Dkt Nos. 15, 67. Accordingly, Hewitt should have raised any discovery
issues with Judge Ellis, presumably at the March 9 conference call scheduled in order to discuss
the end of discovery. Furthermore, the Court's January 15, 2016 scheduling order does not
support Hewitt's view. That scheduling order does set a March 29, 2016 deadline, but only for
the filing of "Daubert motions and summary judgment motions," i.e., dispositive motions. Dkt
No. 45. It does not permit the filing of discovery-related motions by that deadline. To the
contrary, the Court's scheduling order sets an earlier February 2 9, 2016 date as the relevant
deadline for discovery. While the Court recognizes that Metro-North's violative disclosures
were made after the close of discovery, the earlier discovery deadline in the scheduling order
suppmis Judge Ellis's view that Hewitt's objections should have been raised earlier and
specifically at the March 9 conference call during which the parties represented that discovery
was complete. For these reasons, the Court cannot conclude that Judge Ellis's March 22, 2016
decision was clearly erroneous or contrary to law. 3
Even if Magistrate Judge Ellis had e1Ted in determining that Hewitt waived his opportunity to challenge the late
disclosure of the supplemental reports, the Court would nonetheless deny Hewitt's motion for preclusion because
For the aforementioned reasons, the Court denies Hewitt's motion to set aside Magistrate
Judge Ellis's March 22, 2016 order and to preclude two supplemental expert reports.
This resolves Docket Number 77.
J-~ , 2017
New York, New York
United States District Judge
Metro-North's discovery violation was harmless. See Fed. R. Civ. P. 37(c)(l) (noting that Rule 26 violations require
preclusion of evidence "unless the failure was substantially justified or is harmless"). Metro-North timely disclosed
the identities of Mitchell and Dr. Gidumal, and it also timely disclosed their initial reports. See Dkt No. 45; Maurer
Affidavit~ 4; Def. Ex. B; Def. Ex. D; Opp. at 2. The supplemental reports challenged here state only that each
expert reviewed a few additional pieces of information and that this additional material did not alter their ultimate
conclusions. See Def. Ex. H; Def. Ex. I. Because Hewitt "was well aware of the identity of the undisclosed witness
and the scope of knowledge well before the trial," Metro-North's "failure to disclose ... is 'harmless."' Evans v.
United States, 978 F. Supp. 2d 148, 154 (E.D.N.Y. 2013) (citations omitted); see Fleet Capital Corp. v. Yamaha
Motor Corp., No. 01 CIV. 1047(AJP), 2002 WL 31108380, at *2 (S.D.N.Y. Sept. 23, 2002) (same); see also Maurer
Reply Affidavit~ 13 (Dkt No. 92) (concession by plaintiff that "ifthe Court grants plaintiffs motion for partial
preclusion ... the opinions of the two experts will remain the same and the bases for their opinion will remain the
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