DiFrancesco et al v. Win-Sum Ski Corp et al

Filing 94

ORDER OF MAGISTRATE JUDGE HUGH B. SCOTTORDER re 71 Text Order, Set Deadlines/Hearings, Terminate Hearings, 86 MOTION for Extension of Time to Complete Discovery filed by Bryan DiFrancesco, 84 MOTION to Compel Notice of Motion filed by Holiday Valley, Inc., Win-Sum Ski Corp, 88 MOTION for Protective Order filed by Bryan DiFrancescoAMENDED PRETRIAL ORDERThe substantive portion of defendants� 39; Motion to Compel (Docket No. 84) is denied as moot; plaintiffs' Motion for Protective Order (Docket No. 88) is also denied as moot. Defendants' Motion (Docket No. 84) for discovery sanctions is held in abeyance pending resolution of tr ial. Plaintiffs' Motion (Docket No. 86) to extend discovery is granted. As a result, Discovery now completed by 8/15/2017, Pretrial Order and trial submissions and motions in limine (as discussed in this Order) due by 9/15/2017. Final Pre trial Conference set for Wed., 9/20/2017, 10:45 AM, before Hon. Hugh B. Scott. Jury Selection set for Tues., 10/10/2017, 10:00 AM, before Hon. Hugh B. Scott, with Jury Trial set to commence for 10/10/2017, 10:00 AM, following complet ion of jury selection before Hon. Hugh B. Scott.Motions terminated: 88 MOTION for Protective Order filed by Bryan DiFrancesco, 86 MOTION for Extension of Time to Complete Discovery filed by Bryan DiFrancesco, 84 MOTION to Compel Notice of Motion filed by Holiday Valley, Inc., Win-Sum Ski Corp.So Ordered. Signed by Hon. Hugh B. Scott on 5/16/2017. (DRH)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

BRYAN DIFRANCESCO, as father and
natural guardian of the infant minor, LD,
Plaintiffs,

Hon. Hugh B. Scott
13CV148

v.

CONSENT
Order

WIN-SUM SKI CORP. and
HOLIDAY VALLEY, INC.,
Defendants.

Before the Court are the following motions for this case presently scheduled for a jury
trial on July 17, 2017. First is defendants’ motion to compel plaintiffs to produce photographs of
plaintiff LD from the cell phone of Natasha DiFrancesco (Docket No. 84), LD’s mother and wife
of plaintiff Bryan DiFrancesco. Plaintiffs moved to extend their discovery deadline of May 2,
2017 (Docket No. 86, motion of May 3, 2017). Finally, plaintiffs moved for a protective Order
in response to defense motion to compel (Docket No. 88).
Responses to defendants’ motion to compel were due by May 5, 2017, with replies due
May 9, 2017, and argument scheduled for May 10, 2017 (Docket No. 85). Plaintiffs responded
with their crossing motion for a protective Order (Docket No. 88). Responses from defendants
to that motion were due by May 9, 2017, with argument again on May 10, 2017 (Docket No. 89).
Defendants then responded (Docket No. 91). Conceding that plaintiffs submitted the
photographs sought, defendants abandoned the substantive relief sought in their motion to

compel but still claim recovery of their motion costs. They contend that plaintiffs failed to
produce photographs when initially sought in 2013 and only produced them at the eve of the
scheduled trial and leading to the issue whether Mrs. DiFrancesco had photographs that were not
yet produced. (See generally Docket No. 21, Defs. Memo.)
Meanwhile, responses to plaintiffs’ motion for extension of time also were due on May 9,
2017, with argument on the next day (Docket No. 87) with the other motions. Defendants duly
responded (Docket No. 90) and plaintiffs replied (Docket No. 92).
Familiarity with prior proceedings in this action is presumed.
BACKGROUND
This is a personal injury action under this Court’s diversity jurisdiction arising from fiveyear-old plaintiff LD’s fall from a chairlift in 2010. The parties consented to proceed to trial
before the undersigned (Docket No. 37) and trial was scheduled to commence on July 17, 2017
(Docket Nos. 69, 70, 71).
Under the Scheduling Order (as amended) discovery concluded back on April 30, 2015
(Docket No. 27), with no motions to compel filed until just prior to trial. It is notable that there
was little pretrial intervention of this Court until the Final Pretrial Conference (Docket Nos. 38,
39) where the parties reported their readiness for trial.
During what is now the first round of motions in limine (Docket Nos. 43, 45, 53, 56, 58)
and pretrial submissions (see Docket Nos. 48-52, 54-55), defendants sought to preclude evidence
of non-disclosed expert testimony (see Docket No. 58), noting that plaintiffs had not established
that LD had a need for future medical care. This Court held that this motion was moot because
of the parties’ agreement to supplement discovery and disclosure (Docket No. 73, Order of
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Mar. 20, 2017, at 40-41; see Docket No. 69). Under plaintiffs’ motion (Docket No. 43) to quash
certain subpoenas, this Court set a supplemental discovery cutoff date of April 5, 2017 (Docket
No. 70, Order of Feb. 22, 2017, at 21, 22).
Plaintiffs next moved to extend time to complete their supplemental production (Docket
No. 77), which was reluctantly granted (Docket No. 83) to May 2, 2017. At oral argument, they
announced that they also would produce an economic expert with this supplementation (see
Docket No. 82). Plaintiffs in their motion claimed that LD’s physical condition in the “future is
bleak since the nature of her injuries are progressive and potentially devastating to her future
quality of life” (Docket No. 77, Pls. Atty. Affirm. ¶ 5). Defendants noted (Docket No. 81, Defs.
Memo. at 1st-2d unnumbered pages) that plaintiffs’ counsel made this statement without doctors
or other factual substantiation. During oral argument, plaintiffs contended that LD’s legs were
different lengths. Plaintiffs’ counsel argued that they needed time to gather materials from LD’s
medical providers and other experts, offering to complete this task by April 30, 2017 (see Docket
No. 82).
Defendants argued that an extension of time was not warranted here (Docket No. 81,
Defs. Memo.), later repeating these arguments against plaintiffs’ present motion (Docket No. 90,
Defs. Memo. at 4th to 9th unnumbered pages). First, LD’s doctors advised that she could
continue her athletic activities without restriction, while a subsequent treating physician treated
LD’s complaint of pain in her hip with prescribed exercise (with LD not having further
appointments or more extensive treatment) (Docket No. 81, Defs. Memo. at 2d through 3d
unnumbered pages). Defendants provided in camera LD’s supplemented medical record (id.,
Exs. A-E) and filed photographs taken of LD in various physical activities after the 2010
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accident (id., Exs. F-S). The photographs depict LD running in a cross country race, playing
soccer and volleyball, riding horses, skiing, and climbing rock walls (Docket No. 81, Defs.
Exs. F-S).
Applying Judge Elizabeth Wolford’s four-factor standard for determining whether a
belated production of an expert should be allowed, see Mikulec v. Town of Cheektowaga,
302 F.R.D. 25, 29-30 (W.D.N.Y. 2014), defendants argued that plaintiffs were not justified in
being given leave to use these experts. First, they noted that no excuse was given for the belated
disclosure and identification of the expert at the eleventh hour. Next, defendants believed that
plaintiffs failed to establish proof of future medical treatment for LD as even necessary. Third,
defendants contended that they would be prejudiced by this belated disclosure, at almost the eve
of trial of a 2013 action. Finally, they concluded that the age of the case (a seven-year-old claim
filed in 2013 and scheduled for trial this July) weighs against granting the continuance sought
(id. at 4th-7th unnumbered pages).
Plaintiffs’ Second Motion for Extension of Time to Complete Discovery
As the May 2 deadline approached, plaintiffs claimed to have had difficulties obtaining
medical and financial expert opinions for a timely submission, hence the present motion for a
further extension of time (see Docket No. 86). They later reported receiving the medical report
that they intended to forward to their economic expert (Docket No. 92, Pls. Atty. Reply Decl.
¶¶ 4-6, 7, Ex. A). Plaintiffs, however, do not state how long they need to complete their
discovery; instead they only ask for additional time for the economic expert to render his opinion
as to those future costs (id. ¶ 7).

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During oral argument, this Court raised the concern that the July 17, 2017, jury trial date
is in jeopardy (see Docket No. 93). Plaintiffs stated that their medical expert, Dr. Peterson,
submitted his report and that information is going to plaintiffs’ economist to project LD’s future
medical needs and costs (Docket No. 92, Pls. Atty. Reply Decl. ¶ 4, Ex. A). Defendants then
replied that, in light of these revelations, they needed to conduct an examination of LD, retain
their own medical and economic experts, and depose plaintiffs’ experts, resulting in a delay of a
July 2017 trial. They reiterate the prejudices to them due to continued delay (Docket No. 90,
Defs. Memo.).
Defense Motion to Compel
Defendants, meanwhile, move to compel Mrs. DiFrancesco to produce photographs of
LD engaged in physical activity that apparently were not produced to date (Docket No. 84).
Plaintiffs respond (in their motion for a protective Order) that Mrs. DiFrancesco’s photographs
were uploaded to the family’s computer and those images were part of the supplemental
production made to defendants thus rendering defendants’ current request cumulative or
duplicative (Docket No. 88, Pls. Motion for Protective Order; id., Pls. Atty. Affirm., Ex. A).
Upon Mrs. DiFrancesco’s affidavit (Docket No. 88, Pls. Atty. Affirm., Ex. A), defendants agreed
to withdraw their motion to compel if plaintiffs consent to withdraw their motion for a Protective
Order (Docket No. 91, Defs. Memo. at 3rd unnumbered page, id., Defs. Atty. Affirm. Ex. A).
Alternatively, defendants contend that plaintiffs’ motion for the Protective Order is moot (id.,
Defs. Memo. at 4th unnumbered page). They nevertheless insist upon imposing their motion
costs upon plaintiffs because their counsel failed to make a reasonable inquiry for the
photographs before signing the response to the First Request for Documents (id.) years ago.
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DISCUSSION
This Court will first address the motions surrounding discovery of plaintiffs’ photographs
(including discussing defense motion for discovery sanctions) and then plaintiffs’ motion for
extension of time to complete supplementation of their disclosure. As a result, this Order will set
new deadlines for the Final Pretrial Order.
I.

Discovery of Plaintiffs’ Photographs
Substantively, the issues surrounding Mrs. DiFrancesco’s production of photographs

from her cell phone are mooted by their production with the photographs contained on the family
computer. Defendants, however, still insist upon recovering their costs for this motion due to
plaintiffs’ counsel failing to use reasonable means to produce those photographs long before this
date. The substantive relief sought in defendants’ motion to compel (Docket No. 84) and
plaintiffs’ motion for a protective Order (Docket No. 88) are deemed moot as to actual
production from Mrs. DiFrancesco.
Consideration of defense motion for discovery motion costs (Docket No. 84) is deferred.
The focus has been on the production and not the delay and the basis for defense recovery of
motion costs. Rather than delay trial preparation with ancillary fee litigation (especially since
this motion to compel is deemed moot), this Court will defer costs consideration until the
conclusion of the trial, the timing of which is discussed below.
Issues remain before these discovery sanctions costs can be assessed. First, should this
discovery sanction be imposed at all? Second, if so, against whom should this sanction be
imposed? Third, if sanctions are imposed on counsel, should it be imposed on individual
attorneys including lead counsel past and present as well as the firm?
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Reasonable discovery costs under Rule 37 are recoverable if the motion to compel is
granted or disclosure is made after filing that motion, Fed. R. Civ. P. 37(a)(5)(A), and defendants
as movants here attempted in good faith to obtain discovery; nondisclosure was not substantially
justified; and other circumstances would not make an award of expenses unjust, id.,
R. 37(a)(5)(A)(i), (ii), (iii). If a motion to compel is partially granted, and after giving the parties
an opportunity to be heard, this Court may apportion reasonable motion expenses, id.,
R. 37(a)(5)(C).
In this case, there was no motion to compel until near the eve of trial (Docket Nos. 75,
84; see also Docket No. 43). Defendants now seek sanctions for photographs plaintiffs initially
had not acknowledged to have existed or were later produced only after the trial date was set.
But plaintiffs in fact produced prior to this motion, thus the defense motion (and plaintiff’s
crossing motion for a protective Order) was deemed moot. In such instances, sanctions usually
are not awarded.
Defendants contend that plaintiffs’ attorneys should have been more diligent in seeking
the photographs sought in earlier stages of the case. If costs are warranted, the next question
would be which party (plaintiffs or their attorneys or both) would be responsible, see id., R.37
(a)(5)(A) (require party or attorney or both to pay reasonable motion expenses). The purpose of
this is to impose the sanction upon the party most responsible for causing movants to seek relief.
If it is determined that plaintiffs’ counsel is responsible, the last question is who should
bear this liability, plaintiffs’ firm alone, present counsel of record, and/or prior counsel of
record? Craig Watson was initial counsel of record with plaintiffs’ firm and for most of the
history of this case. He was counsel when defendants served their discovery demands and
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responded that there were no photographs when later such photographs were produced. After
Watson left the firm, current lead counsel Phillipp Rimmler produced the photographs.
Since discovery costs are not dependent upon the trial (or vice versa) and to not delay
further commencement of the trial, briefing of defendants’ motion to recover their reasonable
motion to compel costs (with discussion of the above issues) is deferred until the conclusion of
the trial (when this Court will scheduled briefing).
II.

Extension of Plaintiffs’ Discovery Deadline (Docket No. 86)
As previously noted (Docket No. 83, Order of April 20, 2017, at 5), Judge Wolford

recently found two issues in seeking leave to modify a Scheduling or Case Management Order
for good cause, and whether there should be preclusion from offering the newly retained expert
under Rules 16 and 37, respectively. She noted that analysis under those rules overlap and focus
on the movant’s reasons for the late disclosure and whether there is prejudice to a party, Paulus
v. Holimont, Inc., 315 F.R.D. 13, 15 (W.D.N.Y. 2016) (Docket No. 81, Defs. Memo. at 4th
unnumbered page; Docket No. 90, Defs. Memo. at 4th-5th unnumbered pages). In Mikulec, after
being advised repeatedly to supplement plaintiff’s disclosure with a computation of lost wages
and plaintiff having failed to do so, Judge Wolford granted defendants’ motion to preclude
evidence of lost wages, 302 F.R.D. at 27-28. There, she noted the Court’s “wide discretion” in
imposing sanctions, including preclusion, for failure to meet discovery obligations, id. at 29,
while noting that preclusion is a drastic remedy that is rarely imposed, id., quoting Babcock v.
Rezak, No. 96CV394, 2002 U.S. Dist. LEXIS 22652, at *4 (W.D.N.Y. Nov. 6, 2002) (Elfvin, J.).
In Paulus, Judge Wolford applied the four-factor test, 315 F.R.D. at 29-30, and found that the

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plaintiff there had not met his burden by not explaining the omission or that this failure was
substantially justified, id. at 30.
Considering again the factors listed in Mikulec and applied in Paulus in this case, the
further extension of time sought by plaintiffs here is not warranted. Plaintiffs attempt to excuse
their belated disclosure of experts regarding future medical expenses or LD’s economic losses
due to delayed responses from their medical expert. Plaintiffs established that their tardiness was
due to the delayed action of their medical expert due to the press of his practice. This is despite
the fact that LD’s future medical care and the costs arising therefrom existed as issues of proof.
This is a seven-year-old case of an injured five-year-old girl; during this period, her need for
medical care to date was apparent and could have been projected into the future as to her
potential needs. Although this case had little judicial intervention and moved quickly to stated
trial readiness, plaintiffs now seeking supplemental disclosures of LD’s future medical needs
could have been done months ago. If plaintiffs were claiming future medical needs for LD and
(now apparently) future economic losses as a result of those needs, plaintiffs could have
identified experts and offered their opinions well before this.
Defendants are prejudiced by this late supplementation on this claim. Plaintiffs’
subsequent report from their medical expert leads to more defense questions and further delaying
final determination of the case. Finally, this is a four-year-old case arising from an accident
seven years ago, where these discovery issues only arose at the near eve of trial (see Docket
No. 90, Defs. Memo. at 8th unnumbered page) and potentially from the change in plaintiffs’
counsel.

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Nevertheless, plaintiffs should receive one final extension to complete supplementation
already under way, despite plaintiffs not stating how long their economic expert would need to
digest the medical opinion rendered by their medical expert. The delay in plaintiffs’ present
production between May 2 and the present was due to plaintiffs’ expert. This Court previously
noted (Docket No. 83, Order at 5) that any further extension would jeopardize the start of the
trial as scheduled. Plaintiffs’ motion for extension of time (Docket No. 86) is granted. The new
schedule of pretrial activities is discussed next.
III.

Pretrial Schedule and Second Supplemental Pretrial Order
A grant of a further extension definitely eliminates a July 2017 trial. Plaintiffs made no

assurance that this discovery activity could be completed (with subsequent pretrial actions and
motions in limine) in time for the trial to commence on July 17, 2017. But even if a further
extension was denied, a July 2017 jury trial now would be impossible. The former May 2, 2017,
deadline for plaintiffs concluding their expert disclosure presumed that defendants then would
have ample time to conduct discovery regarding plaintiffs’ expert disclosure as well as the
parties submitting supplemental pretrial submissions prior to a July 17 trial. Plaintiffs presented
enough on LD’s future care that defendants would insist upon further discovery as to the
supplemental information provided. As seen with the first round of pretrial submissions (Docket
Nos. 48-52, 54-55) and motions in limine (Docket Nos. 43, 45, 53, 56, 58), subsequent pretrial
submissions and briefing (for example, plaintiffs at oral argument raised the possibility of future
motions in limine regarding the admissibility of the photographs the defense sought, see Docket
No. 93) after this discovery finally closes may not be resolved in sufficient time for a July trial.
Instead of creating a complete record, the parties seem to be expanding the issues in an otherwise
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straight forward personal injury action. As a result and as noted above, plaintiffs’ motion to
extend their time (Docket No. 86) is reluctantly granted but as a result, the July 17, 2017, trial
date is adjourned.
In light of this extension, the Pretrial Order (Docket No. 40) is further amended as
follows. This Court recognizes with the supplementation being exchanged by both sides, further
motion practice and supplementation to already-filed pretrial submissions will be in order (as
seen in the present motions). All discovery, including contesting experts’ opinions and
supplementation, shall conclude on August 15, 2017, with no further extension. A new round
of motions in limine (if any) and supplemental pretrial submissions (such as amended or
supplemented jury instructions, revised witness and exhibit lists, amended voir dire questions)
are now due by September 15, 2017. As previously ordered (Docket No. 83, Order at 6), in
supplementing existing submissions, the new submissions should clearly be identified as being
supplemental (such as continuing in existing numbering or indication in redline or strikeout the
amending text). Jury selection and trial now shall be commenced on Tuesday, October 10,
2017. Parties are cautioned, this Court intends to proceed with trial on October 10, 2017, and
may proceed with motions in limine to be resolved during the course of trial.
The Final Pretrial Conference shall be held on Wednesday, September 20, 2017, at
10:45 am, before the undersigned, to discuss the issues listed in the initial Final Pretrial Order
(Docket No. 40, Order at 1) and readiness for trial. Parties are to note whether deposition
testimony or video testimony (see id. at 4) will be used at trial.
It is acknowledged that both sides (in setting the earlier trial dates) argued that this new
trial date is inconvenient either to LD as a student, to defendants as operators of a ski facility, or
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to their witnesses (including medical and other professionals). From the pretrial range of
available trial dates presented by the parties (as well as this Court’s calendar) to find the next
optimal new date when all parties, witnesses, and this Court are available would have the trial in
the summer of 2018 for a 2010 incident.
CONCLUSION
For the reasons stated above, the substantive portion of defendants’ motion to compel
(Docket No. 84) and plaintiffs’ motion for a protective Order (Docket No. 88) are denied as
moot. The rest of defendants’ motion (Docket No. 84) for discovery sanctions is held in
abeyance pending resolution of the trial.
Plaintiffs’ second motion to extend their discovery period (Docket No. 86) is granted.
The parties are to complete all remaining discovery (such as completing expert disclosure,
contesting that disclosure, and supplementation of fact discovery) by August 15, 2017. As a
result, the jury selection and trial will be adjourned from July 17, 2017. A second round of
motions in limine (if any) and supplemental pretrial submissions are due by September 15,
2017; and a Final Pretrial Conference shall be held on Wednesday, September 20, 2017, at
10:45 am, before the undersigned. Jury selection and Trial is reset for Tuesday, October 10,
2017.
So Ordered.

/s/ Hugh B. Scott
Hon. Hugh B. Scott
United States Magistrate Judge

Dated: Buffalo, New York
May 16, 2017

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