Campbell v. Family Dollar Stores of New York, Inc.

Filing 32

MEMO ENDORSEMENT denying 26 Motion in Limine. ENDORSEMENT For substantially the reasons stated in this response, Plaintiff's motion in limine to preclude the testimony of Dr. Pierce Ferriter and waive the physical examination scheduled with Dr. Rene Elkin is DENIED. So Ordered. The Clerk of Court is respectfully directed to close the motion at Dkt. 26. (Signed by Judge Lorna G. Schofield on 6/5/2024) (jca)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
DON CAMPBELL,
Plaintiff, Docket No.: 23-Civ-4347 (LGS)
-againstFAMILY DOLLAR STORES OF NEW YORK, INC.,
Defendant.

RESPONSE TO PLAINTIFF’S MOTION IN LIMINE

For substantially the reasons stated in this response, Plaintiff's motion in limine to preclude the
testimony of Dr. Pierce Ferriter and waive the physical examination scheduled with Dr. Rene Elkin is
DENIED. So Ordered.
The Clerk of Court is respectfully directed to close the motion at Dkt. 26.
Dated: June 5, 2024
New York, New York

By:
Judith ElSherbini, Esq.

FACTS AND PROCEDURAL HISTORY
This matter involves plaintiff’s claims for personal injuries alleged sustained on February
25, 2021 as a result of an alleged trip and fall incident in a Family Dollar Tree located at 1315
Boston Post Road, Bronx, New York.
Plaintiff has a long and complex medical history including being diagnosed with multiple
sclerosis in 2014 for which he receives social security disability; a prior accident in 2017 where
he fell down a flight of stairs; and surviving a stabbing to the left side of his body.
Defendant respectfully submits this response to plaintiff’s motion in limine to preclude
testimony of defendant’s expert orthopedist Dr. Pierce Ferriter from testifying and deeming waived
the physical examination scheduled with defense expert neurologist Dr. Rene Elkin. Defendant
respectfully submits that there is no prejudice to plaintiff in allowing the testimony of Dr. Ferriter
and Dr. Elkin.
Admittedly, the discovery exchange of Dr. Ferriter is late and defendant apologizes this
oversight and delay in filing the discovery exchange. The undersigned, the lead attorney on this
matter, was engaged in a three week trial in Supreme Court of the State of New York, Ricgmond
County; and the filing deadline was unfortunately not met. However, there is no reasonable way
that the late exchange created any prejudice to the plaintiff, as the plaintiff had the exchange well
in advance of the July trial and was aware of defendant’s witness in March when the defense exam
was scheduled. Further, it would be prejudicial to the defendant to preclude Dr. Ferriter’s
deposition testimony at trial.
Plaintiff’s complex medical history brings forth the need for both an orthopedic and
neurological examination to put forth a meaningful defense of this claim and plaintiff’s appearance

for the June 11, 2024 examination with neurologist Dr. Rene Elkin would not create any prejudice
to the plaintiff.
Plaintiff was advised of the scheduling of an examination with Dr. Rene Elkin well in
advance of the examination date, almost eight (8) weeks ago, on March 28, 2024. Exhibit “A”.
Plaintiff did not object to the scheduling of the exam. Further, this examination can be held and
the report can be exchanged before the July trial date.
Therefore, Plaintiff has failed to show that he is or would be unfairly prejudiced by
allowing Dr. Ferriter’s and Dr. Elkin’s testimony at trial. There was no substantial delay in
providing Dr. Ferriter’s discovery exchange and plaintiff cannot show that he was “prejudicially
surprised” by allowing Dr. Ferriter or Dr. Elkin’s testimony. There is no instance of “perceived
harm” of “surprise or trial by ambush” as it is a common and agreed upon idea that defense counsel
is entitled to conduct independent medical examinations of the defendant and that those
independent doctors would be utilized to support defendant’s defense of plaintiff’s claims at trial
and plaintiff did not object to the scheduling of the independent medical examinations at the time
they were scheduled. Moreover, there is ample time for plaintiff’s expert to review defendant’s
expert witness disclosures to be fully prepared for trial.
Defendant respectfully requests an extension of time to allow defendant to conclude the
June 11, 2024 examination of plaintiff with Dr. Rene Elkin and for the court to consider
defendant’s expert exchange of Dr. Pierce Ferriter deemed timely made. The foregoing will not
result in any prejudice to the plaintiff because the plaintiff was already aware of the identities of
the defendant’s two experts, was provided with the expert report of Dr. Ferriter and will be
provided with the expert report of Dr. Elkin prior to trial.

Finally, plaintiff’s own discovery exchange is incomplete and incorrectly filed. Plaintiff’s
discovery exchange advised that “[a] list of publications” authored by plaintiff’s expert would be
“provided in plaintiff’s further response.” Plaintiff also advised that “[a] list of all other cases” in
which plaintiff’s expert “testified as an expert at trial or by deposition since 2008, including cases
in which he testified during the previous 4 years” would be provided in a further response. Plaintiff
has not provided any further responses, nor has plaintiff provided the foregoing information. As
such, plaintiff is late in his own submissions.
LEGAL STANDARD
In Serin v. Northern Leasing Systems, Inc., No. 7:06-CV-1625, the court denied plaintiff’s
motion to preclude.
Fed.R.Civ.P.6(b)(1)(B), permits the court, for good cause, to extend a party’s time to act
after the relevant deadline has passed. See, LoSacco v. City of Middletown, 71 F.3d 88,93 (2d Cir.
1995). District courts may grant extensions of time in purely procedural matters like an untimely
discovery exchange. The court is to look to factors such as the danger of prejudice, the length of
the delay and its potential impact on judicial proceedings, the reason for the delay, and the good
faith of the movant. See, Pioneer Inv. Servs. Co., 507 U.S.at 388.
Courts have found that a late exchange is excusable when the delay was “caused by
inadvertence, mistake … [or] when the delay was not long, there is no bad faith, there is no
prejudice to the opposing party, and movant’s excuse has some merit.” See, LoSacco.
Plaintiff’s reliance on Hanaburgh is misplaced when considering the circumstances of this
matter. In this case, defendant is acting in good faith in its discovery exchanges. The plaintiff had
ample notice of the defense witnesses the defendant intended to produce at trial as the plaintiff was

notified of each independent medical examination in March, 2024 and plaintiff has been provided
with Dr. Ferriter’s expert witness exchange. Further, the expert witness testimony of both Drs.
Ferriter and Elkin are of great importance to the defense of this claim based on the plaintiff’s
complicated medical history.
Finally, there would be no actual prejudice suffered by plaintiff as a result of having to
prepare to meet the deposition testimony of Drs. Ferriter and Elkin as the report of Dr. Ferriter has
already been exchanged and the report of Dr. Elkin can be exchanged well in advance of the July
trial, which would obviate any possibility of a continuance of this claim. See, Harris v. Jamaica
Auto Repair Inc. 2007 WL 4380280; In re Complaint of Kreta Shipping, 181 F.R.D. 273
(S.D.N.Y.1998); and Choudhry v. Hosmer, 02 Civ. 2540 DC, in which the courts consider the
issue of bad faith and prejudice when considering late expert exchanges.
CONCLUSION
In this case, defendant is acting in good faith, plaintiff had adequate knowledge of
defendants’ expert witnesses, and plaintiff will not be prejudiced in allowing defendants’ expert
witnesses to appear and testify at trial. Accordingly, the defendant respectfully requests that the
court deny plaintiff’s motion in its entirety.
Dated New York, New York
May 20, 2024
Yours, etc.
Bradley J. Levien, Esq.
Judith ElSherbini, Esq.
MURPHY SANCHEZ, PLLC
Attorney for Defendant
100 Duffy Avenue, Suite 510
Hicksville, New York 11801
File #3532.1065

TO: All Counsel appearing, via ECF