Holland v. Goord et al

Filing 89

DECISION AND ORDER granting 77 Motion to Strike. Signed by Hon. Michael A. Telesca on 12/20/12. (JMC)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

DARRYL HOLLAND,
DECISION AND ORDER
Plaintiff,
No. 05-CV-6295(MAT)
-vsGLENN GOORD, in his individual capacity,
BRIAN FISCHER, in his official capacity
as Commissioner Department of
Correctional Services, ANTHONY F. ZON, in
both his individual and official capacity
as former Superintendent, Wende
Correctional Facility, THOMAS
SCHOELLKOPF, in both his individual and
official capacity as Hearing Officer,
Wende Correctional Facility, JOHN
BARBERA, in both his individual and
official capacity as Correctional
Officer, Wende Correctional Facility, JAY
WYNKOOP, in both his individual and
official capacity as Watch Commander
and/or Keeplock Review Officer, Wende
Correctional Facility, and MARTIN
KEARNEY, in both his individual and
official capacity as Captain, Wende
Correctional Facility,
Defendants.

I.

Introduction
Darryl Holland (“Holland” or “Plaintiff”), acting pro se,

instituted

this

action

pursuant

to

42

U.S.C.

§

1983

against

Defendants alleging violations of his rights under the First
Amendment of the U.S. Constitution and the Religious Land Use and
Institutionalized Persons Act (“RLUIPA”).

The Court (Siragusa, D.J.) appointed counsel to represent
Plaintiff.
On June 16, 2010, Defendants submitted the declarations of two
employees of the New York State Department of Corrections and
Community Supervision (“DOCCS”), Dr. Lester Wright and Captain
Stephen Casaceli, in support of Defendants’ motion for summary
judgment dismissing the complaint. Plaintiff, on July 23, 2010,
filed a motion

(Dkt #77) to have the Declaration of Dr. Lester

Wright (“the Wright Declaration”) and the Declaration of Captain
Stephen Casaceli (“the Casaceli Declaration”) stricken because
Defendants never identified Dr. Wright or Captain Casaceli in their
disclosures pursuant to Rule 26 of the Federal Rules of Civil
Procedure

(“F.R.C.P.”)

and

never

supplemented

their

Rule

26

disclosures to add Dr. Wright or Captain Casaceli as potential
witnesses.
Plaintiff

additionally

notes

that

in

his

first

set

of

interrogatories served on October 10, 2008, he asked Defendants to
identify “all persons with knowledge concerning the allegations
and/or defenses raised in the Second Amended Complaint and/or the
Defendants’ Answer to the Second Amended Complaint[.]” Exhibit
(“Ex.”) 2 to Dkt. #77-2. In their February 2009 response to the
October 2008 interrogatories, Defendants referred Plaintiff to
their earlier Rule 26 disclosure, which did not name Dr. Wright or
Captain Casaceli.

-2-

Also in the first set of interrogatories, Plaintiff asked
Defendants

to

reveal

the

names

of

their

expert

witness(es).

Defendants responded that “at this time, no expert is anticipated.”
Ex. 3 to Dkt #77-2.
Defendants have opposed Plaintiff’s motion to strike in a
Declaration submitted by their attorney, Gary Levine, Esq. (Dkt
#84), who filed a Notice of Appearance in this action on February
2, 2010. Attorney Levine argues that because the Wright Declaration
and the Casaceli Declaration do not assert facts about Plaintiff or
the

incident

at

issue,

and

are

used

solely

to

support

the

constitutionality of the challenged prison directive, Dr. Wright or
Captain Casaceli are neither fact nor expert witnesses within the
meaning of

Federal

Rule

of

Evidence

(“F.R.E.”)

701

and 702,

respectively.
Plaintiff has submitted a Reply (Dkt #86), characterizing
Defendant’s response as “curious” and arguing that it “ignores both
the fact that F.R.C.P. 26 requires disclosures of all witnesses who
may have discoverable information that the disclosing party may
rely upon to support its defenses, and the fact that Plaintiff
expressly asked for the identity of individuals with discoverable
information.” Dkt #86 at 2 (emphasis supplied). Plaintiff notes
that if Dr. Wright and Captain Casaceli do not have discoverable
information, then striking their declarations will not prejudice
Defendants. Id. n.1.

-3-

This matter was transferred to the undersigned on October 19,
2012.
II.

Discussion
F.R.E. 701 was amended in 2001 “to provide that testimony

cannot be received as lay opinion if it is based on scientific,
technical,

or

other

specialized

knowledge.”

United

States

v.

Garcia, 413 F.3d 201, 215 (2d Cir. 2005) (citing FED. R. EVID.
701(c)). F.R.E. 701(c)’s purpose is to “prevent a party from
conflating expert and lay opinion testimony” and thereby “confer[]
an

aura

of

expertise

on

a

witness

without

satisfying

the

reliability standard for expert testimony set forth in [F.R.E.] 702
and the pre-trial disclosure requirements set forth” in F.R.C.P.
26. Garcia, 413 F.3d at 215.
Under F.R.C.P. 26, “a party must ‘disclose to the other
parties the identity of any witness it may use at trial to present
evidence under Federal Rule of Evidence 702, 703, or 705,’ and must
make such disclosures ‘at the times and in the sequence that the
court orders.’” DVL, Inc. v. Niagara Mohawk Power Corp., No.
11–26–cv, 2012 WL 3125570, at *2 (2d Cir. Aug. 2, 2012) (quoting
FED. R. CIV. P. 26(a)(2)(A) & (D)). F.R.C.P. 37(c) states that “[i]f
a party fails to . . . identify a witness as required by [F.R.C.P.]
26(a) or (e), the party is not allowed to use that . . . witness to
supply evidence on a motion, at a hearing, or at a trial, unless

-4-

the failure was substantially justified or is harmless.” FED. R.
CIV. P. 37(c).
Pursuant to the Amended Scheduling Order issued by the Court
(Siragusa, D.J.) dated September 18, 2008, Defendants were to
identify any expert witnesses by December 8, 2008. See Dkt #50.
Expert discovery was to be completed by February 11, 2009. See id.
At no time prior to December 8, 2008, did Defendants identify
Dr. Wright or Captain Casaceli as expert witnesses. Furthermore,
Defendants have not sought an extension of time to identify an
expert witness in this matter.
Pursuant to a further Amended Scheduling Order dated March 15,
2010, all discovery in this matter was to completed on or before
April 30, 2010. See Dkt #65. The names of Dr. Wright and Captain
Casaceli

were

not

mentioned

until

Defendants

submitted

these

individuals’ Declarations in support of the June 2010 summary
judgment

motion,

nearly

two

months

after

the

completion

of

discovery and nearly two years after the deadline for disclosing
the names of any expert witnesses. A scheduling order may be
modified based upon a showing of good cause, F.R.C.P. 16(b)(4), but
Defendants have not requested such relief, and, indeed, “good
cause” is patently missing from the record.
Defendants suggest, without any legal support, that Dr. Wright
and

Captain

Casaceli

are

neither

fact

witnesses

nor

expert

witnesses, but instead are a third species of witness who are

-5-

exempt from the strictures of the Federal Rules of Civil Procedure
and the deadlines imposed by the Court’s scheduling orders. This
argument is unfounded in law or in fact.
First, with regard to Dr. Wright, it is apparent that he is
being offered as an expert witness. However, he has not provided
the required expert report or the basis for his opinion that human
beings regularly and consistently produce urine while fasting.
Plaintiff has submitted a scholarly article

suggesting an opinion

contrary to that offered by Dr. Wright from The British Journal of
Nutrition, titled “Effects of Fasting During Ramadan on Urinary
Excretion in Malaysian Muslims.” Ex. 4 to Dkt #77-2. In the
article, the authors conclude, inter alia, that the “urine output
during the afternoon was depressed significantly throughout the
fasting period[.]” Id. The Court agrees with Plaintiff that,
contrary to Defendants’ assertion, the topics discussed in the
Wright Declaration and Dr. Wright’s opinion are not matters of
“common knowledge”.
The Court turns next to Captain Casaceli, who is employed at
Wende Correctional Facility and asserts that he is familiar with
DOCCS’ policy regarding and use of urine testing to screen for
illegal drugs.1 He states, inter alia, that “[u]pon information and

1

DOCCS’ Directive 4937(IV)(D)(4) describes the procedure when
an inmate is unable to immediately provide a urine specimen. The
directive states the inmate “shall be detained until (s)he is able
to provide a urine specimen. Drinking water should be available in
-6-

belief, the human body continuously produces urine and therefore
inmates, even those fasting, should be able to provide a urine
sample within three (3) hours”. Dkt #73 at 2. He also asserts that
an exception to the three-hour time limit to accommodate inmates
fasting during Ramadan is unnecessary because there is “no known
problem for inmates observing the Ramadan fast being unable to
comply with providing a urine sample” and providing for such an
exception would be “administratively difficult and costly” and
“also might effect [sic] the test results.” Id. at 3. According to
Captain

Casaceli,

the

full

exception to the directive

financial

impact

of

creating

an

would be at least $71,000. Captain

Casaceli asserts that it would create administrative problems
because when a urine test is ordered, the corrections officers do
not know which inmates are fasting Muslims and which of the
fasting, Muslim inmates will be unable to provide a urine sample.
Captain Casaceli asserts that a proposed exception would have to be
extended to all fasting inmates, not just Muslim inmates, thereby
increasing

the

administrative

difficulties.

Captain

Casaceli

predicts that if an exception was implemented, “more inmates would
attempt to take advantage of the exception to the rule”. Captain
Casaceli asserts that “[u]pon information and belief, the longer

an amount not to exceed eight (8) ounces per hour. An inmate who is
unable to provide a urine specimen within three (3) hours of being
ordered to do so shall be considered to be refusing to submit the
specimen.” Dkt #72, ¶ 5.
-7-

the delay in obtaining the urine sample, the less likely it becomes
that the urine test will detect the presence of drugs.”2 Id.
“[T]estimony cannot be characterized as lay [testimony] if it
is based on experience, training or specialized knowledge rather
than on the particularized, personal knowledge of the witness.”
Giles v. Rhones, No. 94 Civ. 6385 (CSH), 2000 WL 1425046, at *7
(S.D.N.Y. Sept. 27, 2000) (citing Advisory Committee Notes to
amendment to F.R.E. 701). If the witness’s testimony “result[ed]
from a process of reasoning familiar in everyday life,” it is
permissible lay opinion testimony under F.R.E. 701. United States
v. Rigas, 490 F.3d 208, 224 (2d Cir. 2007) (quoting FED. R. EVID.
701, advisory committee’s note to 2000 amend. (quoting State v.
Brown,

836

S.W.2d

530,

549

(Tenn.

1992);

footnote

in

Rigas

omitted)). “A witness’s specialized knowledge, or the fact that he
was chosen to carry out an investigation because of this knowledge,
does not render his testimony ‘expert’ as long as it was based on
his ‘investigation and reflected his investigatory findings and
conclusions, and was not rooted exclusively in his expertise. . .
.’” Id. (quoting Bank of China, New York Branch v. NBM LLC, 359

2

The multitude of studies on this topic have reached differing
results. In general, the studies find that metabolites of marijuana
are detectable in urine tests for several days to many weeks after
the last use, depending upon the individual and how heavy his or
her usage is.See http://www.ndci.org/sites/default/files/ndci/
THC_Detection_Window_0.pdf. None of the studies cited in this
article indicated that marijuana metabolites are undetectable after
the passage of a few hours.
-8-

F.3d 171, 181 (2d Cir. 2004)). If, however, the witness’s testimony
is “not a product of his investigation, but rather reflect[s] [his]
specialized knowledge,” then it is impermissible expert testimony.
Bank of China, 359 F.3d at 182; see also id. at 181 (“The admission
of this testimony pursuant to [F.R.E.] 701 was error because it was
not based entirely on [the witness]’s perceptions; the District
Court abused its discretion to the extent it admitted the testimony
based on [the witness]’s experience and specialized knowledge in
international banking.”).
Applying

this

distinction,

the

Court

finds

that

Captain

Casaceli’s testimony is that of an expert. Like Dr. Wright, Captain
Casaceli knows nothing about the facts of this case and was not
involved in the incident at issue. His declaration, which is based
on his experience as a corrections officer and “familiar[ity] with
DOCS

policy

and

use

of

urine

testing,”

Dkt

#84

at

1,

is

“paradigmatic expert testimony,” Giles, 2000 WL 1425046, at *7
(“Connolly regards himself as an expert on the matter of DOCS and
Sing Sing security procedures. Defendants suggest that Connolly
will testify about policies and procedures on the use of force in
the New York State DOCS, knowledge which he has acquired in his
over 20

years

testimony.”).

with
In

that

addition

agency.
to

That

DOCCS’

is

paradigmatic

policies

and

expert

procedures

regarding urine testing, Captain Casaceli has offered opinions
regarding prison staffing requirements, corrections officer’ wages

-9-

and overtime, and has made conclusions regarding the system-wide
administrative impact of Plaintiff’s request for an exception to
three-hour time-limit for conducting urine tests. Moreover, Captain
Casaceli
Dr.

has

Wright,

offered
so

he

opinions

also

overlapping

purports

to

those

present

offered

expert

by

medical

knowledge. This is highly improper.
Because both Dr. Wright’s and Captain Casaceli’s declarations
are properly characterized as “expert”, the strictures of F.R.C.P.
26(a) apply. It is not disputed that Defendants have failed to
comply with their disclosure obligations. They have not provided
reports by either Dr. Wright or Captain Casaceli, and they did not
disclose these individuals’ identities until they filed their
summary judgment

motion

nearly

two

years

after

the

date for

disclosing experts expired.
Pursuant to F.R.C.P. 37(c), “[i]f a party fails to provide
information or identify a witness as required by [F.R.C.P.] 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.” FED. R.
CIV. P. 37(c)(1) (emphasis supplied). Defendant’s counsel asserts
that he did not act in bad faith, but he has not attempted to make
a showing as to why the failure to comply with F.R.C.P. 26 was
“substantially justified” or harmless.

-10-

Even

if

Captain

Casaceli

is

considered

a

fact

witness,

Defendants still are in violation of the Court’s most recent
scheduling order, which provided that all fact discovery must be
completed by April 30, 2010. F.R.C.P. 16(f) provides that on motion
or sua sponte, the district court “may issue any just orders,
including those authorized by [F.R.C.P.] 37(b)(2)(A)(ii)-(vii), if
a party or its attorney . . . fails to obey a scheduling or other
pretrial order.” FED. R. CIV. P. 16(f)(1)(C).
Where, as here, a party fails to disclose information in
response to discovery demands, fails to explain such failure, and
never

asks

to

reopen

discovery,

a

court

does

not

abuse

its

discretion in precluding the evidence. Haas v. Delaware and Hudson
Ry. Co., No. 07-1198-cv, 282 Fed. Appx. 84, 86–87, 2008 WL 2566699
at *2–3 (2d Cir. June 24, 2008) (“Although the late discovery of
Sheehan’s information was apparently due to plaintiff’s counsel’s
neglect and not ‘bad faith,’ bad faith is not required [for
preclusion] and counsel has offered no adequate explanation for
this untimely disclosure.”).
As

Plaintiff

points

out,

Defendants’

proposed

remedy

of

providing additional time to depose Dr. Wright and Captain Casaceli
ignores the time and expense involved in conducting not only these
belated depositions but also the costs associated in securing
expert witnesses to respond to Defendants’ witnesses’ testimony.
It is Defendants’ burden to show substantial justification for

-11-

their failure to comply with their discovery obligations or that
their

nondisclosure

was

harmless.

This

they

have

not

done.

Therefore, the declarations of Dr. Wright and Captain Casaceli are
stricken.
III. Conclusion
For the foregoing reasons, the Court grants Plaintiff’s motion
(Dkt #77) to strike the declarations of Dr. Wright and Captain
Casaceli. Accordingly, the declaration of Dr. Wright (Dkt #72) and
the declaration of Captain Casaceli (Dkt #73) are hereby stricken
and shall not be considered in connection with Defendants’ motion
for summary judgment or in any other pending motion or at trial.
IT IS SO ORDERED.
S/Michael A. Telesca
___________________________________
HONORABLE MICHAEL A. TELESCA
United States District Judge
DATED:

Rochester, New York
December 20, 2012

-12-