Muflahi v. Erie Insurance Company
Filing
46
DECISION AND ORDER GRANTING in part, DENYING in part and DEFERRING in part Defendant's 39 Motion in Limine; DIRECTING Plaintiff to make required disclosures within seven days of the entry date of this Decision and Order. Signed by William M. Skretny, United States District Judge on 4/29/2016. (MEAL)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
ANWAR MUFLAHI,
Plaintiff,
v.
DECISION AND ORDER
14-CV-128S
ERIE INSURANCE COMPANY,
Defendants.
I. INTRODUCTION
The facts of this case may be briefly summarized as follows. On September 29,
2011, Plaintiff suffered a fire at 1288 Jefferson Avenue, Buffalo, New York, the premises
on which Plaintiff operated a retail clothing business known as Urban Republic Apparel.
At the time of the fire, the premises were covered by a commercial insurance policy
issued by Defendant. Plaintiff made a claim to Defendant for benefits pursuant to the
insurance contract, which Defendant denied.
On September 25, 2013, Plaintiff
commenced a breach-of-contract lawsuit in New York State Supreme Court, Erie
County. On February 24, 2014, Defendant removed the action to this Court on the
basis of diversity jurisdiction.
Trial in this action will begin on June 21, 2016. Presently before this Court is
Defendant’s motion in limine seeking various forms of relief. (Docket No. 39.) For the
reasons that follow, Defendant’s motion is granted in part, denied in part, and deferred
in part.
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II. DEFENDANT’S MOTION IN LIMINE
A.
Preclude Expert Witness Testimony
Defendant seeks to preclude Plaintiff from offering the expert testimony of a
number of witnesses, including William J. Troy, Dana Aliberti, Donald Simmons, Jr.,
Jennifer Schenk, and Joseph F. Ventura, who are associated with National Fire
Adjustment Co., Inc. (“NFA”) (collectively the “NFA witnesses”), as well as Nagi Awass,
Michael Likoudis, Esq., and Rich Riegelman. Defendant contends that these individuals
should not be allowed to testify at trial because Plaintiff failed to properly disclose them
as experts.
Rule 26(a)(1) requires a party to disclose the name and contact information “of
each individual likely to have discoverable information—along with the subjects of that
information—that the disclosing party may use to support its claims or defenses, unless
the use would be solely for impeachment.”
Fed. R. Civ. P. 26(a)(1)(A)(i).
This
requirement is designed to alert an opposing party of the need to take discovery of the
named individuals. See Pal v. New York Univ., No. 06 Civ. 5892(PAC)(FM), 2008 WL
2627614, at *4 (S.D.N.Y. June 30, 2008) (citing Alfano v. Nat’l Geographic Channel, No.
06 Civ. 3511(NG)(JO), 2007 WL 2982757, at *1 (E.D.N.Y. Oct. 5, 2007)).
The identity of any expert witness must be disclosed under Rule 26(a)(2)(A) and
further, “if the witness is one retained or specially employed to provide expert testimony
in the case,” then the “disclosure must be accompanied by a written report—prepared
and signed by the witness,” Fed. R. Civ. P. 26(a)(2)(B). These disclosures must occur
“at the time . . . the court orders,” Fed. R. Civ. P. 26(a)(2)(D), which, for Plaintiff’s
experts, was May 1, 2015. “A party who has made a disclosure under Rule 26(a)—or
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who has responded to an interrogatory, request for production, or request for
admission—must supplement or correct its disclosure or response:
(A) in a timely
manner if the party learns that in some material respect the disclosure or response is
incomplete or incorrect, and if the additional or corrective information has not otherwise
been made known to the other parties during the discovery process or in writing.” Fed.
R. Civ. P. 26(e)(1).
Finally, Rule 37(c)(1) provides that if a party “fails to provide information or
identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that
information or witness to supply evidence on a motion, at a hearing, or at a trial, unless
the failure was substantially justified or is harmless.” This is a discretionary remedy.
See Design Strategy, Inc. v. Davis, 469 F.3d 284, 297 (2d Cir. 2006) (holding that
preclusion is discretionary even if “the trial court finds that there is no substantial
justification and the failure to disclose is not harmless”). Factors to be considered in
determining whether to impose sanctions under Rule 37 include “(1) the party’s
explanation for the failure to comply with the [disclosure requirement]; (2) the
importance of the testimony of the precluded witness[es]; (3) the prejudice suffered by
the opposing party as a result of having to prepare to meet the new testimony; and (4)
the possibility of a continuance.” Pal, 2008 WL 2627614, at *3 (citing Patterson v.
Balsamico, 440 F.3d 104, 117 (2d Cir. 2006))(alterations in original).
Defendant argues that it will be prejudiced by Plaintiff’s failure to disclose
because it did not have the ability to take expert depositions in order to prepare for
cross-examination or hire rebuttal experts. Plaintiff contends that there is no surprise to
Defendant:
all the witnesses whom Defendant seeks to preclude, except Rich
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Riegelman, were listed in Plaintiff’s Rule 26 disclosure (though it was not specified that
they would be expert as opposed to fact witnesses), and the NFA “claim booklets,”
which set forth Plaintiff’s claimed damages and how those damages were calculated,
were submitted to Defendant during discovery.
Upon consideration of the parties’ arguments and the factors set forth above, this
Court finds that Plaintiff has not complied with the disclosure requirements of Rule
26(a)(2). The rules obligate Plaintiff to disclose his witnesses to Defendant as experts,
and to provide expert reports conforming to Rule 26. 1 The fact that Defendant knew the
identities of Plaintiff’s witnesses through Plaintiff’s initial disclosures does not relieve
Plaintiff of the specific disclosure obligations for expert witnesses.
The failure to
disclose these witnesses as experts and the failure to disclose any expert report is not
harmless, as it deprives Defendant of the benefit of written explanations and
justifications of potentially key pieces of expert opinion testimony.
Based on the
submissions, it appears these witnesses have not yet been deposed, but even if they
have, “deposition testimony does not cure deficiencies in the Rule 26(a)(2)(B) notice.”
See LaMarca v. United States, 31 F. Supp. 2d 110, 123 (E.D.N.Y. 1998) (quoting Kolt v.
United States, No. 94-CV-0293E(H), 1998 WL 214826, at *3 (W.D.N.Y. Apr. 24, 1998)).
Nor has Plaintiff provided any justification for the failure to properly disclose his experts.
See, e.g., Arnold v. Krause, Inc., 232 F.R.D. 58, 68-69 (W.D.N.Y. 2004) (precluding
expert testimony based on unexcused delay in submitting expert report).
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Under Fed. R. Civ. P. 26(a)(2)(B), an expert report must contain: “(i) a complete statement of all
opinions the witness will express and the basis and reasons for them; (ii) the data or other information
considered by the witness in forming them; (iii) any exhibits that will be used to summarize or support
them; (iv) the witness's qualifications, including a list of all publications authored in the previous ten years;
(v) a list of all other cases in which, during the previous four years, the witness testified as an expert at
trial or deposition; and (vi) a statement of the compensation to be paid for the study and testimony in the
case.”
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Accordingly, these witnesses will not be permitted to offer expert testimony or
opinions. However, Defendant has offered no reason why the NFA Witnesses and Rich
Riegelman should not be permitted to testify as to any observations they may have
made, and as to any opinions rationally based on their perceptions and not based on
scientific, technical, or specialized knowledge. See Castaldi v. Land Rover N. Am., Inc.,
No. 06-CV-1008JGKAM, 2007 WL 4165283, at *5-6 (E.D.N.Y. Nov. 21, 2007) (citing
Fed. R. Evid. 701 (permitting a non-expert witness to testify to opinions which are “(a)
rationally based on the perception of the witness, (b) helpful to a clear understanding of
the witness’ testimony or the determination of a fact in issue, and (c) not based on
scientific, technical, or other specialized knowledge within the scope of Rule 702
[regarding expert witnesses]”) (alteration in original)). Defendant does however argue
that, if Nagi Awass and Michael Likoudis, Esq. are excluded as experts, they should not
be allowed to testify as fact witnesses because their testimony would be cumulative.
Mr. Awass and Mr. Likoudis will therefore be allowed to testify only to the extent that
such testimony is not cumulative, a determination that this Court will make at trial.
Finally, Defendant’s request to preclude the “claim booklets” as expert reports is
granted. However, Defendant has not offered any argument sufficient to exclude these
documents entirely, and Plaintiff may be able to establish other paths to admissibility.
B.
Preclude Evidence of Replacement Costs
Defendant moves to preclude Plaintiff from presenting any proof of damages
valued at replacement cost, or requesting that the jury award him damages valued at
replacement cost, relative to the building and business personal property damages.
Citing to both the language of the insurance contract and New York law, Defendant
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argues that Plaintiff does not possess a bona-fide replacement cost claim because he
has not repaired the damaged building or replaced any property. See Harrington v.
Amica Mut. Ins. Co., 223 A.D.2d 222, 228, 645 N.Y.S.2d 221 (4th Dep’t 1996)
(“Replacement cost coverage inherently requires a replacement (a substitute structure
for the insured) and costs (expenses incurred by the insured in obtaining the
replacement); without them, the replacement cost provision becomes a mere wager.”).
Plaintiff offers no argument in opposition to this portion of the motion.
Defendant’s motion to preclude evidence of replacement costs is therefore granted.
C.
Preclude Vendor Invoices Not Disclosed During Discovery
Defendant moves to preclude twelve documents on Plaintiff’s exhibit list under
the heading “Vendor and Supplier receipts and invoices” on the grounds that these
documents were not previously produced during discovery. Plaintiff contends that these
documents were produced prior to the commencement of the lawsuit as part of
Plaintiff’s insurance claim; Defendant contends that they were not. Whether produced
previously or not, sufficient time remains before trial for Defendant to assess these
documents and prepare for their possible introduction into evidence.
Plaintiff must
provide copies of the specified documents to Defendant within seven days, or risk the
preclusion of such evidence at trial.
Defendant’s request for preclusion of these
documents is denied at this time.
D.
Preclude Evidence of Policy Limits
Defendant moves to preclude Plaintiff from introducing evidence of insurance
policy limits, arguing that such evidence is irrelevant. This Court is not currently in a
position to determine relevancy, and therefore denies this request without prejudice and
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defers determination until trial. The Court will reconsider this request only if Defendant
renews the argument at trial.
III. CONCLUSION
For the reasons stated above, Defendant’s motion in limine is granted in part,
denied in part, and deferred in part.
IV. ORDERS
IT HEREBY IS ORDERED, that Defendant’s Motion in Limine (Docket No. 39) is
GRANTED in part, DENIED in part, and DEFERRED in part.
FURTHER, that Plaintiff shall make the disclosures required herein within seven
days of the entry date of this Decision and Order.
SO ORDERED.
Dated:
April 29, 2016
Buffalo, New York
/s/William M. Skretny
WILLIAM M. SKRETNY
United States District Judge
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