Scharrer v. United States of America
Filing
57
DECISION AND ORDER granting 40 Motion to Strike ; granting 43 Motion to Strike ; denying 48 Motion for Extension of Time to Amend. Signed by Hon. Leslie G. Foschio on 6/30/2016. (SDW)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
________________________________________
MARTIN J. SCHARRER,
DECISION
and
ORDER
Plaintiff,
v.
13-CV-1156S(F)
UNITED STATES OF AMERICA,
Defendant,
Third-Party Plaintiff,
v.
FINGER LAKES ROOFING CO., INC.,
Third-Party Defendant.
________________________________________
APPEARANCES:
COLLINS & COLLINS P.C.
Attorneys for Plaintiff
MICHAEL C. LANCER, of Counsel
267 North Street
Buffalo, New York 14201
WILLIAM J. HOCHUL, JR.
UNITED STATES ATTORNEY
Attorney for Defendant and Third-Party Plaintiff
MARY PAT FLEMING, of Counsel
Federal Centre
138 Delaware Avenue
Buffalo, New York 14202
GOLDBERG SEGALLA LLP
Attorneys for Third-Party Defendant
MEGHAN M. BROWN, of Counsel
665 Main Street, Suite 400
Buffalo, New York 14203
In this FTCA case based on Plaintiff’s slip and fall on the steps of a local post
office, by papers filed May 4, 2016, Defendant moves to strike the expert report of
1
Plaintiff’s economist loss as untimely served. Dkt. 40 (“Defendant’s motion”). On May
6, 2016, Third-Party Defendant also moved to strike the report and preclude the
testimony of Plaintiff’s economist. Dkt. 43 (“Third-Party Defendant’s motion”).1
By papers filed May 27, 2016, Plaintiff cross-moved to modify and extend the
Third Amended Scheduling Order, Dkt. 29, to enlarge the period within which to serve
Plaintiff’s expert disclosures and to complete fact and expert discovery. Dkt. 48
(“Plaintiff’s cross-motion”).
Under the Third Amended Scheduling Order, Plaintiff was required to serve
Plaintiff’s testifying expert disclosures pursuant to Fed.R.Civ.P. 26(a)(2)(A) (“Rule
26(a)(2)(A)”) and Fed.R.Civ.P. 26(a)(2)(D) (“Rule 26(a)(2)(D)”) together with reports
required by Fed.R.Civ.P. 26(a)(2)(B) not later than October 15, 2015 , Dkt. 29 ¶ 3.
Failure to timely serve such reports requires the reports be stricken and the related
expert’s trial testimony precluded unless the failure was substantially justified or is
harmless. See Fed.R.Civ.P. 37(c)(1). Plaintiff’s expert disclosure of Plaintiff’s
economist was filed May 2, 2016. In accordance with the Fourth Amended Scheduling
Order, Dkt. 32, Defendant’s served, on December 1, 2015, its expert disclosure in
accordance with the Fourth Amended Scheduling Order and as required by Rules
26(a)(2)(A) and 26(a)(2)(D). The Fourth Amended Scheduling Order also required that
all discovery conclude by March 4, 2016. Dkt. 32 ¶ 2.
In support of Plaintiff’s cross-motion, Plaintiff argues Defendants’ motions should
be denied because prior to filing Defendants’ motions, Defendants failed to comply with
Fed.R.Civ.P. 37(a)(1) which requires a party document a good-faith effort to resolve a
1
Although denominated as a motion to strike, the remedy for untimely expert disclosure is preclusion as
requested by Third-Party Defendant pursuant to Fed.R.Civ.P. 37(c)(1). Accordingly, the court treats
Defendant’s motion as also eeking preclusion.
2
discovery dispute prior to filing a motion to compel disclosure or discovery (“Rule
37(a)(1)”). However, Rule 37(a)(1) by its terms applies to a disputed demand for a
required disclosure or discovery whereas here the dispute is whether Plaintiff’s
economic loss expert disclosure at issue served pursuant to Rules 26(a)(2)(B) and
(a)(2)(D) was untimely and the relevant expert’s testimony should therefore be
precluded pursuant to Fed.R.Civ.P. 37(c)(1) (failure to provide information or identify a
witness “as required by Rule 26(a) or (e)” requires that party “is not allowed to use that
information or witness to supply evidence . . . at trial”). Thus, Rule 37(a)(1) does not
apply to Defendant’s and Third-Party Defendant’s motion. Second, Plaintiff asserts that
Plaintiff’s cross-motion to extend this period for discovery to include Plaintiff’s late – six
months ̶ service of Plaintiff’s expert disclosure is justified by the fact that the parties
planned an inspection of the site of Plaintiff’s fall after the period for discovery expired
thereby demonstrating the need for additional discovery for the case and Defendant’s
and Third-Party Defendant’s disregard for the Scheduling Order. Dkt. 48-1 at 3.
However, though discussed, such inspection never occurred. Dkt. 54 at 3. Moreover,
no further merit-based discovery for the case is contemplated by Third-Party Defendant.
Dkt. 54 ¶ 12; Defendant does not indicate any intention to do so. Rather, Defendant
has set Defendant’s litigation strategy based on the absence of Plaintiff’s use of an
economic expert. Dkt. 52 at 4. Likewise, Third-Party Defendant has recently filed a
summary judgment motion, Dkt. 54 ¶ 19, and Defendant has indicated its intention to do
so. Dkt. 55. Thus, Plaintiff’s contention regarding a supposed need for additional
discovery by Defendant and Third-Party Defendant, Dkt. 48-1 at 4, is without merit.
3
Where a party has failed to comply with a court-imposed deadline for expert
disclosures and then seeks to avoid preclusion, courts consider (1) the reason for the
non-compliance, (2) the importance of the witness to be precluded, (3) prejudice to the
opposing party, and (4) any potential for continuance. Softel, Inc. v. Dragon Med. &
Scientific Communications, Inc., 118 F.3d 955, 961 (2d Cir. 1997). Here, surprisingly,
Plaintiff fails to provide any rationale for Plaintiff’s six-month delay in compliance. As to
the need for an economic expert, in this case the primary issue is that of liability of
Defendant and Third-Party Defendant in failing to properly maintain the step from which
Plaintiff fell. Exactly why Plaintiff’s proposed economic expert is required to testify to
Plaintiff’s wages or other economic losses is unexplained by Plaintiff. While Plaintiff
asserts neither Defendant nor Third-Party Defendant will be significantly prejudiced if
Plaintiff’s cross-motion is denied, Dkt. 48-1 at 4, Defendant and Third-Party Defendant
dispute this assertion arguing that Third-Party Defendant, in reliance on Plaintiff’s
failure, has filed a summary judgment motion, Dkt. 54 ¶ 19, neither has retained a
potential economic loss rebuttal expert, and the Fourth Amended Scheduling Order
deadline for discovery has expired. Dkt. 52 at 4; Dkt. 54 at 8. Finally, while no trial date
has been set, the potential availability of an extension of time in this case collides with
the Plaintiff’s utter failure to explain the reason for Plaintiff’s six-month delay in making
timely expert disclosure, effectively asking the court to ignore an apparent egregious
disregard of the Third Amended Scheduling Order. By the same token, Plaintiff is
unable to establish good cause for Plaintiff’s request to extend discovery as required by
Fed.R.Civ.P. 16(b), or any excusable neglect in failing to seek such relief after the
disclosure deadline pursuant to Fed.R.Civ.P. 6(b)(1). Such obvious and unmitigated
4
failures support denial of Plaintiff’s cross-motion. See United States v. One 2000
Mercedes Benz Bearing VIN WDBLJ70G0YF127256, 2010 WL 4452096, at *3
(W.D.N.Y. Sept. 28, 2010) (defendant’s motion to amend scheduling order to extend
defendant’s time to file answer denied where defendant failed to provide any reason for
failing to file answer timely). Granting Plaintiff’s cross-motion will therefore unduly
prolong pre-trial preparation and final disposition of the case. Thus, upon this record,
the court is unable to find any ground upon which preclusion can be avoided. Plaintiff’s
reliance, Dkt. 48-1 at 2, upon Lory v. General Electric Company, 179 F.R.D. 86
(N.D.N.Y. 1998) is not persuasive as in that case the court found plaintiff’s economic
expert was essential to plaintiff’s ability to prove plaintiff’s Title VII case, a factor not
present in the instant case where Plaintiff failed to offer anything to support a different
conclusion, and defendant could point to no prejudice if plaintiff’s economic loss expert
were allowed despite plaintiff’s three-month delay in disclosure in violation of the court’s
scheduling order. Plaintiff’s further reliance, Dkt. 48-1 at 3, on Judge Scott’s refusal to
grant preclusion in Kolerski v. United States, 2007 WL 2325856, at *5 (W.D.N.Y. Aug.
13, 2007) is also unavailing. In Kolerski, the court avoided preclusion of plaintiff’s late
expert disclosure that was only two-weeks overdue because plaintiff’s counsel did not
receive a copy of the court’s scheduling order which included the disclosure deadline
because of alleged technical problems in plaintiff’s counsel’s e-mail system, preclusion
of plaintiff’s proposed liability experts would have severely limited plaintiff’s ability to
prove plaintiff’s malpractice case, and no defendant objected to entry of a further
amended scheduling order allowing for plaintiff’s delayed expert disclosure and other
proceedings. Kolerski, 2007 WL 2325856, at *5. None of these considerations pertain
5
to the instant case. Plaintiff therefore fails to show Plaintiff’s disclosure default was
substantially justified or harmless. In sum, Plaintiff’s request is devoid of any
information to explain Plaintiff’s six-month delay in timely providing required expert
disclosure or showing of significant prejudice if preclusion is ordered and the court
therefore finds itself constrained to grant Defendant’s and Third-Party Defendant’s
preclusion motions and deny Plaintiff’s cross-motion. Accordingly, Defendant’s and
Third-Party Defendant’s motions to preclude Plaintiff’s economic loss expert should be
GRANTED, and Plaintiff’s cross-motion should be DENIED.
CONCLUSION
Based on the foregoing, Defendant’s and Third-Party Defendant’s motions (Dkts.
40 and 43) are GRANTED; Plaintiff’s cross-motion (Dkt. 48) is DENIED.
SO ORDERED.
/s/ Leslie G. Foschio
________________________________
LESLIE G. FOSCHIO
UNITED STATES MAGISTRATE JUDGE
Dated: June 30, 2016
Buffalo, New York
6
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?