Livingston et al v. Luberoff et al

Filing 82

ORDER denying 56 MOTION to Strike, denying 76 MOTION to Strike and denying 78 MOTION for Hearing. Signed by Magistrate Judge Shiva V. Hodges on 6/19/2019. (lbak)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION
Michael Livingston and Heather
Livingston,
Plaintiffs,
vs.
Susan Luberoff, M.D.; South
Carolina Department of Social
Services; Angela Scott; Richland
County Sheriff’s Department;
Richland County Deputy Sheriff
Misty Puckett; Richland County
Lieutenant Don Robinson; and
Kevin Preston,
Defendants.

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C/A No.: 3:17-1985-JMC-SVH

ORDER

Michael and Heather Livingston (collectively “Plaintiffs” or “the
Livingstons”) brought this case alleging violations of their civil rights
pursuant to 42 U.S.C. § 1983, related to the investigation and prosecution of
Michael1 for alleged abuse of their children. Plaintiffs sue Dr. Susan
Luberoff, a physician who opined their children had been abused; the South
Carolina Department of Social Services and its caseworker Angela Scott
(collectively “DSS Defendants”); Richland County Sheriff’s Department
(“RCSD”) and RCSD officers Misty Puckett, Don Robinson, and Kevin

Because Plaintiffs share the same last name, the court refers to them by
their first names for ease of reference.
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Preston (collectively

“RCSD Defendants”)

(all defendants collectively

“Defendants”).
This matter comes before the court on the following motions: (1)
Plaintiffs’

motion

to

strike

the

affidavit

of

Kathryn

Cavanaugh

(“Cavanaugh”) [ECF No. 56] and (2) Defendants’ motion to strike the changes
made to Michael’s deposition errata sheet [ECF No. 76]; and (3) Plaintiffs’
motion for a hearing on outstanding motions [ECF No. 78]. The motions
having been fully briefed [ECF Nos. 73, 77, 79–81], they are ripe for
disposition.
All pretrial proceedings in this case were referred to the undersigned
pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Civ. Rule
73.02(B)(2)(f) (D.S.C.). For the reasons that follow, the undersigned denies
the motions.
I.

Plaintiffs’ Motion to Strike Kathryn Cavanaugh affidavit
As an initial matter, the undersigned notes that neither of the motions

to strike provide authority for “striking” the contents. Rather, the parties
wish to exclude the material from consideration for purposes of summary
judgment.
Attached to their motion for summary judgment, RCSD Defendants
submitted the affidavit of Assistant Solicitor Cavanaugh. Plaintiffs seek to
exclude Cavanaugh’s affidavit because RCSD Defendants did not disclose her

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as a witness in discovery or as an expert witness.2 Although Cavanaugh was
not identified as a witness in this case, Michael was aware that Cavanaugh
was a prosecutor during his criminal proceedings and has knowledge related
to the facts of his prosecution.
Rule 37(c)(1) governs exclusion of Cavanaugh’s affidavit, providing two
exceptions to the general rule excluding evidence that a party seeks to offer
but has failed to properly disclose: (1) when the failure to disclose is
“substantial[ly] justifi[ed],” and (2) when the nondisclosure is “harmless.”
Fed. R. Civ. P. Rule 37(c)(1); see also S. States Rack & Fixture, Inc. v.

Sherwin-Williams Co., 318 F.3d 592, 596 (4th Cir. 2003). Here, for purposes
of summary judgment, the undersigned has relied on the affidavit only for a
citation from the record that the criminal charges against Michael were nolle

prossed. The undersigned has not considered Cavanaugh as an expert in this
matter and gives no weight to any “expert” opinion expressed in her affidavit.
Therefore, the undersigned’s consideration of Cavanaugh’s affidavit was for a
limited purpose and the undersigned finds the non-disclosure harmless.
Plaintiffs’ motion to strike her affidavit is denied, but such ruling is without
prejudice to Plaintiffs’ right to file motions in limine prior to trial, if any, for
the district judge’s consideration.
Plaintiffs assume Cavanaugh is offered as an expert witness because the
last paragraph of the affidavit states that in her “professional and
prosecutorial opinion,” probable cause existed to arrest Michael. [ECF No. 56
at n. 2].
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II.

Motion to Strike Michael’s Errata Sheet to his Deposition
Upon review of his deposition, Michael submitted an errata sheet that

attempts to substantially change his deposition testimony. For instance, in
response to a question in which he responded only “Yes” during his
deposition, his errata sheet reflects a new response that states “Yes, RCSD
concocted this story when they refused to accept the truth from me, the truth
that neither Heather nor I hurt our children. They coerced me into signing by
threatening my family and ignoring my request for an attorney.” [ECF No.
76-2 at 3]. In another example, when asked at his deposition: “Is it fair to say
though that DSS dropped its case?”, Michael initially stated “Yes, that’s fair.”
Michael Dep. at 68:6–10. In his errata sheet, Michael attempts to change his
answer to “Yes, it is fair to say that DSS did not ‘drop’ the case. They closed
the case after 3.5 years of doing nothing but ignoring evidence proving they
were wrong.” [ECF No. 76-2 at 3].
The undersigned denies the motion to exclude the existence of the
errata sheet and instructs the court reporter or officer to attach the errata
sheet to the end of Michael’s deposition pursuant to Fed. R. Civ. P. 30(e)(2).
However, Plaintiff’s original deposition remains a part of the record and may
be used at trial subject to the Federal Rules of Evidence and the district
judge’s discretion. See Podell v. Citicorp Diners Club, Inc., 112 F.3d 383, 388–
89 (2d. Cir. 1997 (finding that the changes made do not replace the

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deponent’s original answers; the original information remains part of the
record and may be introduced at trial.”).
III.

Plaintiffs’ Motion for a Hearing
Plaintiffs’ motion for a hearing states that the motion is “based on the

grounds that the case is currently at a standstill and cannot even be
mediated” until the court rules on the motion. [ECF No. 78]. Plaintiffs’
motion is denied, and counsel is advised that any attempts to rush the court
into making a judgment is improper. To the extent the parties and their
counsel wish to resolve their disputes on their preferred timeline, they are
free to do so. In cases in which they are unable to do so and file an action in
this court, they must abide by the court’s schedule. Furthermore, the court
notes counsel requested and was granted multiple generous extensions of the
deadlines in the court’s scheduling order, culminating in a Fourth and Final
Amended Scheduling Order. Plaintiffs will not be heard to complain of the
delays in the progress of this action. Independently, the undersigned finds
oral argument would not aid in the decisional process.
IT IS SO ORDERED.

June 19, 2019
Columbia, South Carolina

Shiva V. Hodges
United States Magistrate Judge.

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