Abraham v. Leigh et al

Filing 722

ORDER denying 716 Motion to Disqualify. Finally, Ms. Abraham has moved for leave to offer her own expert witness at trial. (Dkt. #716, 721). This application is denied. Expert discovery on Defendant's counterclaim closed more than two years ago, on October 16, 2019, and the Court previously denied Ms. Abraham's request to extend this deadline. (Dkt. #333). Moreover, while Ms. Abraham is currently proceeding pro se, she was represented by counsel from May 2021 until April 2022. At no time during this representation did Ms. Abraham renew her request to retain an expert witness for trial. Under these circumstances, the Court will not permit Ms. Abraham to introduce an expert on the eve of trial, which would be highly prejudicial to Defendant. The Clerk of Court is directed to terminate the pending motion at docket entry 716. SO ORDERED.. (Signed by Judge Katherine Polk Failla on 6/8/2022) (rro)

Case 1:17-cv-05429-KPF Document 722 Filed 06/08/22 Page 1 of 5

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
ROBYN ABRAHAM,
Plaintiff,
-v.-

17 Civ. 5429 (KPF)

ABBY LEIGH, in her Individual Capacity,
as Executrix of the Estate of Mitch Leigh,
and as Trustee for The Viola Fund and
Abby Leigh Ltd.,

ORDER

Defendant.
KATHERINE POLK FAILLA, District Judge:
On June 1, 2022, the Court granted Ms. Abraham’s motion to disqualify
Nicole Hyland as Defendant’s substitute expert witness, without prejudice to a
renewed opposition from Defendant. (Dkt. #705). Since then, Defendant has
renewed her opposition to Ms. Abraham’s disqualification motion (Dkt. #707711) and filed a supplemental declaration (Dkt. #714). On June 5, 2022, Ms.
Abraham filed a supplemental submission in further support of her motion to
disqualify Ms. Hyland. (Dkt. #716). Two days later, Ms. Abraham filed an
additional request to present her own expert witness at the upcoming trial.
(Dkt. #718). For the reasons discussed below, the Court will permit Ms.
Hyland to testify as Defendant’s substitute witness at trial and denies Ms.
Abraham’s request to offer her own expert witness.
In two previous Orders, the Court acknowledged that Ronald Minkoff, a
partner at Frankfurt Kurnit Klein & Selz and colleague of Ms. Hyland’s, may
have gleaned Ms. Abraham’s confidential information when Ms. Abraham

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reached out to Mr. Minkoff for a legal consultation concerning this matter in
October 2020. (Dkt. #705, 715). Because the Frankfurt firm did not
implement any measures to screen Mr. Minkoff from other attorneys at the firm
until after Ms. Abraham filed her disqualification motion on May 29, 2022, the
Court initially harbored concerns that Mr. Minkoff may have divulged
confidential information to Ms. Hyland during their conversations about this
case. (Dkt. #715). In the Court’s view, Mr. Minkoff’s supplemental declaration
of June 3, 2022, eliminates this concern. (Dkt. #714 (“Minkoff Suppl. Decl.”)).
Mr. Minkoff represents that, prior to the implementation of an ethical
screen, he had one substantive exchange with Ms. Hyland concerning this
case. The Court is convinced that this exchange did not implicate any of Ms.
Abraham’s confidential information. By way of relevant background, on
May 18, 2022, defense counsel contacted Mr. Minkoff about serving as a
substitute expert witness in this case, due to Defendant’s previously designated
expert, Lawrence Fox, being medically unable to testify. (Minkoff Suppl. Decl.
¶ 3). Due to a scheduling conflict that prevented Mr. Minkoff from testifying on
the scheduled date of trial, Mr. Minkoff sent an email to the firm’s professional
responsibility group to see who would be available in his stead. (Id. at ¶ 4).
That same day, Ms. Hyland responded to indicate her availability, after which
Mr. Minkoff and Ms. Hyland had a telephone conversation concerning the
logistics of the firm’s involvement in this case. (Id.). Mr. Minkoff underscores
that that they did not discuss the merits of the case at this time. (Id.). Later
that day, Mr. Minkoff received Mr. Fox’s expert report from defense counsel,
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which report he transmitted to Ms. Hyland via email. (Id. at ¶ 5). In this
correspondence, Mr. Minkoff communicated to Ms. Hyland that based on his
initial read of the report, Mr. Fox’s opinion seemed correct. (Id.). Ms. Hyland
followed up to say that she was withholding judgment until she could review
the underlying documents and asked if Mr. Minkoff could determine (i) whether
the trial was scheduled to proceed in person; (ii) if Ms. Abraham had been
deposed; and (iii) if there was an opposing expert. (Id.).
Mr. Minkoff represents that this May 18, 2022 email exchange was the
only time that he and Ms. Hyland even remotely discussed the substance of
this case. (Minkoff Suppl. Decl. ¶ 6). Further, any substance that was
discussed was restricted to the contents of Mr. Fox’s report, which itself does
not contain any confidential information. (Id.). Given the nature of this
exchange, the Court is persuaded that Ms. Hyland has not come into
possession of any of Ms. Abraham’s confidential information. Accordingly, the
Court sees no basis to disqualify Ms. Hyland from serving as Defendant’s
substitute expert in this case.
The Court pauses here to address Mrs. Abraham’s additional argument
that Ms. Hyland should be precluded from testifying because she was not
timely noticed and has not submitted her own expert report and disclosures.
(Dkt. #716 at ¶¶ 20-23). This argument is without merit. Ms. Hyland has been
offered as a substitute expert for Mr. Fox, who was timely disclosed and whose

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expert report was timely served. 1 Ms. Hyland’s involvement in the case has
been occasioned by the sudden and unexpected unavailability of Mr. Fox,
whose opinions and report she will be adopting. Courts within this Circuit
have permitted the substitution of an expert in similar circumstances. See,
e.g., Pacific Controls Inc. v. Cummins Inc., No. 19 Civ. 3428 (MKV) (BCM), 2021
WL 5417122 (S.D.N.Y. Nov. 19, 2021) (finding good cause to substitute expert
where original expert was medically unavailable to testify and the substitute
expert’s testimony was confined to original expert’s opinions); see also Nature’s
Plus A/S v. Nat. Organics, Inc., No. 09 Civ. 4256 (ADS) (AKT), 2014 WL
12964552, at *3 (E.D.N.Y. Oct. 29, 2014) (“Courts have consistently permitted
the substitution of expert witnesses when unforeseen events render the original
expert witness unavailable to testify at trial.”). Here, Ms. Hyland is merely
stepping into the shoes of Defendant’s timely-disclosed expert and her
testimony will be restricted to the contents of the expert report that was
produced years earlier. In these circumstances, it is entirely appropriate for
Ms. Hyland to substitute in as Defendant’s expert witness.
Finally, Ms. Abraham has moved for leave to offer her own expert witness
at trial. (Dkt. #716, 721). This application is denied. Expert discovery on
Defendant’s counterclaim closed more than two years ago, on October 16,
2019, and the Court previously denied Ms. Abraham’s request to extend this
deadline. (Dkt. #333). Moreover, while Ms. Abraham is currently proceeding

1

Mr. Fox was first disclosed as Defendant’s expert on February 19, 2019, and his expert
report was served on July 22, 2019. (Dkt. #333).

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pro se, she was represented by counsel from May 2021 until April 2022. At no
time during this representation did Ms. Abraham renew her request to retain
an expert witness for trial. Under these circumstances, the Court will not
permit Ms. Abraham to introduce an expert on the eve of trial, which would be
highly prejudicial to Defendant.
The Clerk of Court is directed to terminate the pending motion at docket
entry 716.
SO ORDERED.
Dated: June 8, 2022
New York, New York
KATHERINE POLK FAILLA
United States District Judge

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