Powers v. Memorial Sloan Kettering Cancer Center et al.

Filing 182

ORDER denying without prejudice to renewal by formal motion 175 Letter Motion for Local Rule 37.2 Conference; denying 176 Letter Motion to Continue; terminating 178 Letter Motion for Extension of Time; terminating 179 Letter Motion for Ex tension of Time. It is hereby ORDERED that, Defendants February 5, 2021, pre-motion letter is construed as a motion to preclude the expert testimony of Dr. Davidson and, in the alternative, a request for an extension of the deadline to complete all expert discovery and a motion for costs. It is further ORDERED that, Defendants' motion to preclude is DENIED without prejudice to renewal prior to trial. It is further ORDERED that, Defendants motion for costs is DENIED without prejudice to r enewal after trial. It is further ORDERED that, the parties shall complete all expert discovery by April 11, 2021. Pursuant to the Courts Orders at Docket Nos. 160 and 167, the parties shall schedule the depositions of Defendants' experts for dates after the deposition of Dr. Davidson. A revised Civil Case Management Plan and Schedule Order will issue separately. The Clerk of Court is respectfully directed to close the motions at Docket Nos. 175, 176, 178 and 179. (As further set forth in this Order.). (Signed by Judge Lorna G. Schofield on 2/12/2021) (cf)

Case 1:20-cv-02625-LGS Document 182 Filed 02/16/21 Page 1 of 3

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-------------------------------------------------------------X
:
SCOTT POWERS,
:
Plaintiff,
:
:
-against:
:
MEMORIAL SLOAN KETTERING CANCER :
CENTER, et al.,
:
Defendants.
:
------------------------------------------------------------- X
LORNA G. SCHOFIELD, District Judge:

20 Civ. 2625 (LGS)
ORDER

WHEREAS, on December 22, 2021, the Court issued an Order directing the parties to
schedule the depositions of Defendants’ expert witnesses on dates after the deposition of
Plaintiff’s expert witness Dr. Davidson, because Plaintiff bears the burden of proof and
Defendants’ experts may rebut testimony Plaintiff’s experts provide during depositions. Dkt. No.
160; see also Dkt. No. 167.
WHEREAS, pursuant to the Second Amended Civil Case Management Plan and
Scheduling Order the deadline for the completion of al expert discovery is February 28, 2021.
Dkt. No. 156.
WHEREAS, the depositions of two of Plaintiff’s experts -- Dr. Navuluri and Dr.
DeMatteo -- have occurred. Dkt. Nos. 175 and 176.
WHEREAS, the parties scheduled Dr. Davidson’s deposition for February 10, 2021, but
due to a personal emergency, he was unavailable on that date and does not know when he will be
available again. Dkt. Nos. 175 and 176
WHEREAS, on February 5, 2021, Defendants filed a pre-motion letter in anticipation of a
motion to preclude the testimony of Dr. Davidson. In the alternative, Defendants request (1) a
six-week extension of the deadline for the completion of expert discovery and (2) that Plaintiff be
required to pay costs to any of Defendants’ expert physicians whose depositions are rescheduled,

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based on their cancellation of patients on the days for which their depositions were originally
scheduled. Dkt. No. 175.
WHEREAS, on February 5, 2021, Plaintiff filed a responsive letter to Defendants’
February 5, 2021, pre-motion letter at Docket No. 175, requesting an eight-week extension of the
deadline to complete all expert discovery. Dkt. No. 176.
WHEREAS, on February 9, 2021, and February 10, 2021, the parties filed supplemental
letters addressing this dispute. Dkt. Nos. 178 and 179.
WHEREAS, pursuant to the Court’s February 9, 2021, Order (Dkt. No. 177), on February
11, 2021, the parties filed a joint letter (i) providing a list of the topics on which Dr. Davidson has
been retained to testify and (ii) outlining the parties’ respective positions on which of those
topics, if any, overlap with the testimony of Dr. Navuluri and Dr. DeMatteo. Dkt. No. 181. It is
hereby
ORDERED that, Defendant’s February 5, 2021, pre-motion letter is construed as a
motion to preclude the expert testimony of Dr. Davidson and, in the alternative, a request for an
extension of the deadline to complete all expert discovery and a motion for costs. It is further
ORDERED that, Defendants’ motion to preclude is DENIED without prejudice to
renewal prior to trial. At this stage of the proceedings it is not apparent that Dr. Davidson’s
expert testimony is unreasonably cumulative or duplicative; although both Dr. Navuluri and Dr.
Davidson are interventional radiologists, based on the parties’ pre-motion letters, Dr. Davidson
seems to offer distinct insight into the degree to which alternatives to ablation may have been
appropriate. United States v. Fell, 531 F.3d 197, 227 (2d Cir. 2008) (finding that district court’s
denial of a motion to exclude expert testimony as premature where the “nature and scope” of the
testimony was unclear, was “a sensible [decision] that [the Circuit court was] not inclined to
second guess”). It is further

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ORDERED that, Defendants’ motion for costs is DENIED without prejudice to renewal
after trial. It is further
ORDERED that, the parties shall complete all expert discovery by April 11, 2021.
Pursuant to the Court’s Orders at Docket Nos. 160 and 167, the parties shall schedule the
depositions of Defendants’ experts for dates after the deposition of Dr. Davidson. A revised Civil
Case Management Plan and Schedule Order will issue separately.
The Clerk of Court is respectfully directed to close the motions at Docket Nos. 175, 176,
178 and 179.

Dated: February 12, 2021
New York, New York