Opinion
94 Civ. 3976 (RMB) (HBP)
April 13, 2001
Philip J. Dinhoffer, LLC, 450 7th Avenue, Suite 2806, New York, New York 10123.
Kenneth J. Burford, Esq., Bartlett, McDonough, Bastone, Monaghan, LLP, 81 Main Street, White Plains, New York 10601.
MEMORANDUM OPINION AND ORDER
I. Introduction
Plaintiff and defendants move to preclude each other's expert witnesses for failure to make the disclosures required by Fed.R.Civ.p. 26(a)(2). Plaintiff also moves to compel production of documents and to compel defendants to pay their share of an expert fee. For the reasons set forth below, plaintiff's motion to preclude is denied; defendants' motion to preclude is granted. The additional relief sought by plaintiff is granted in part and denied in part.
II. Facts
This is a medical malpractice action in which plaintiff alleges that defendants committed certain acts of malpractice during a December 1991 operation on plaintiff's left arm. The action was referred to me in July 2000 for general pretrial supervision. For reasons that are unrelated to the disputes in issue here, the action was stayed from 1997 until 2000.
Pursuant to the order of reference, I held a conference on October 19, 2000 to set a schedule for the conclusion of discovery and the filing of pretrial submissions. At that conference, I asked plaintiff's counsel what remained to be done to prepare the case for trial, and plaintiff's counsel responded, "[f]rom plaintiff's point of view, what remains to be done is the conclusion of the expert witness discovery" (Transcript of Proceedings, October 19, 2000 ("Oct. 19, 2000 Tr."), at 3-4). Plaintiff's counsel also sought to defer disclosure with respect to his "stand-by" expert, Dr. Fulton, until the deposition of his principal expert was completed (Oct. 19, 2000 Tr. at 46) Counsel claimed that such a schedule was appropriate because Dr. Fulton's testimony was dependent on information held by Dr. Rousso. I rejected this argument and set a single schedule for disclosure of all of plaintiff's Rule 26(a)(2) material, noting that any information Dr. Fulton needed from Dr. Rousso could be obtained by Dr. Fulton's communicating with Dr. Rousso directly (Oct. 19 Tr. at 47-48).
After hearing from plaintiff's counsel on the foregoing matters and from defendants' counsel concerning some additional discovery issues, I orally set a schedule for the completion of expert discovery (Oct. 19 Tr. at 49-51). This oral order was memorialized the following day by a written Order which contained the following provisions:
3. No later than sixty (60) days from the date of this Order, plaintiff shall supplement his Fed.R.Civ.p. 26(a)(2) disclosures to the extent plaintiff deems necessary.
4. Plaintiff shall make his expert witnesses available for a deposition on mutually convenient dates no later than January 31, 2001.
5. Defendants shall complete their Fed.R.Civ.p. 26(a)(2) disclosures no later than February 28, 2001.
6. Defendants shall make their experts available for a deposition by plaintiff's counsel on a mutually convenient date no later than March 30, 2001.
(Order dated October 20, 2000 at 2). No objections to this Order were filed by anyone.
Out of an abundance of caution and in an effort to avoid preclusion issues, I expressly advised counsel at the October 19 conference of the relationship between Rules 26(a)(2) and 37(c)(1) and that the Advisory Committee Notes accompanying the 1993 Amendments to the Federal Rules of Civil Procedure contemplate "automatic" preclusion of evidence as a sanction for Rule 26(a) violations (Oct. 19, 2000 Tr. at 42). See also Advisory Committee Notes to the 1993 Amendments to the Federal Rules of Civil Procedure, reprinted at 146 F.R.D. 401, 691 (1993).
The Advisory Committee Notes provide, in pertinent part:
The revision [to Rule 37] provides a self-executing sanction for failure to make a disclosure required by Rule 26(a), without need for a motion under subdivision (a)(2)(A).
Paragraph [37(c)](1) prevents a party from using as evidence any witness or information that, without substantial justification, has not been disclosed as required by Rules 26(a) and 26(e)(1). This automatic sanction provides a strong inducement for disclosure of material that the disclosing party would expect to use as evidence, whether at a trial, at a hearing, or on a motion, such as one under Rule 56. . . .
Limiting the automatic sanction to violations "without substantial justification," coupled with exception for violations that are "harmless," is needed to avoid unduly harsh penalties in a variety of situations: e.g., the inadvertent omission from a Rule 26(a)(1)(A) disclosure of the name of a potential witness known to all parties; the failure to list as a trial witness a person so listed by another party; or the lack of knowledge of a pro se litigant of the requirement to make disclosures. In the latter situation, however, exclusion would be proper if the requirement for disclosure had been called to the litigant's attention by either the court or another party.146 F.R.D. at 691 (emphasis added).
Although Dr. Rousso's deposition was continued in early January 2001, Dr. Rousso offered opinions at that time that were never set forth in his prior reports. Although plaintiff's counsel had requested that defendants reserve an entire week for the completion of Dr. Rousso's deposition, plaintiff's counsel terminated the deposition after only three days. In addition, plaintiff made no effort prior to the deposition to identify the prior actions in which Dr. Rousso had testified until February 28, 2001; the disclosure plaintiff made at that time was limited to the identification of actions in which Dr. Rousso testified after January 1, 1999.
As to plaintiff's "stand-by" expert, Dr. Fulton, the only disclosure made to date of the substance of his testimony is the following letter from Dr. Fulton to plaintiff's counsel, dated April 8, 1997:
I have reviewed the records which you sent to me on your client, Roni Giladi, including the pre-operative evaluation and in particular, the operative hospitalization at Montefiore Medical Center in New York, and the surgery proposed and performed under the direction of Dr. Strauch.
I also reviewed the post operative follow up records, after surgery, and ultimately, the evaluation and subsequent surgery performed in Israel by Dr. Maurice Rousso.
Based on the medical evidence submitted, there was a traumatic neuroma, due to surgical misadventure in the ulnar nerve proximal to the superficial fascia. In addition, the superficial fascia had not been incised in the original surgery at Montefiore.
Based on the facts outlined in the information, particularly submitted by Dr. Rousso, it is my opinion that there was a breach in the standard of care with regard to the damage caused to the ulnar nerve at the original surgery as well as failure to perform the decompression as outlined by opening the superficial fascia.
The current condition of the claimant is a direct and causal endpoint of that breach in the standard of care.
(Affidavit of Betty Atlas, Esq., sworn to March 14, 2001 ("Atlas Aff."), Ex. F). Plaintiff has never identified the prior actions in which Dr. Fulton has testified.
Despite the fact that defendants conducted their own physical examination of plaintiff and had, as of February 28, 2001, a substantial amount of the information necessary to comply with Rule 26(a)(2), defendants also failed to make disclosure in accordance with the October 20 Scheduling Order. It appears that by mid-March, 2001, defendants had produced only their experts' resumes and a list of the prior cases in which the experts testified.
Both sides now move to preclude each other's experts. Plaintiff also moves to compel the production of certain documentary evidence and for payment to Dr. Rousso for the time he spent attending the continuation of his deposition in January 2001.
III. Analysis
A. Defendants' Motion to Preclude
I address defendants' motion first because the acts giving rise to defendants' motion occurred first in time.
Defendants claim that plaintiff's Rule 26(a)(2) disclosure concerning Dr. Rousso is deficient on the grounds that the prior cases in which he testified were not identified until February 28, 2001, that Dr. Rousso identified cases only from January 1, 1999 to date and that Dr. Rousso expressed opinions at the continuation of his deposition in January 2001 that were not disclosed in his reports.
Specifically, defendants claim that
Dr. Rousso testified that it was a departure to sever the nerve fascicles and to fail to repair the severed portion of the nerve (Atlas Aff., Exhibit "T"). Dr. Rousso also offered extensive testimony with respect to a rare anatomical abnormality called a "ligament Testutt" which he had to remove when he operated on the plaintiff and its role in both the original surgery and the surgery which he performed. He testified that in order for Dr. Strauch to have performed the anterior transposition in 1991, that the ligament would have had to have been cut, although he found it to be intact (Atlas Aff., Exhibit "T"). These opinions do not appear in any of Dr. Rousso's reports served pursuant to Rule 26 (Atlas Aff., Exhibit "B")
(Defendants' Memorandum of Law, dated March 14, 2001, at 14)
The "automatic sanction" for a violation of Rule 26(a) is preclusion.LaMarca v. United States, 31 F. Supp.2d 110, 122-23 (E.D.N.Y. 1998); Fund Comm'n Serv., II, Inc. v. Westpac Banking Co., 93 Civ. 8298 (KTD) (RLE), 1996 WL 469660 at *3 (S.D.N.Y. Aug. 16., 1996); 8 Charles A. Wright, Arthur R. Miller Richard L. Marcus, Federal Practice Procedure, § 2031.1 at 441 (2d ed. 1994). Thus, preclusion is appropriate unless there is "substantial justification" for the failure or the failure to make disclosure is harmless.
Plaintiff has not established that either exception is applicable with respect to Dr. Rousso. Despite the fact that during the course of the October 19, 2000 conference and in the resulting Order I referred to Rule 26(a)(2) discovery, plaintiff's counsel claims that he did not understand that disclosure to include designation of the witnesses' prior testimony. This argument is unconvincing for several reasons. First, Rule 26(a)(2) expressly requires disclosure of "a listing of any other cases in which the witness has testified as an expert at trial or by deposition within the preceding four years." Since both at the conference and in the resulting Order I referred to "26(a)(2) discovery" (Oct. 19, 2000 Tr. at 50) and "26(a)(2) disclosure" (Order dated October 20, 2000 at 2), there is no reason to believe I intended to exclude any element of Rule 26(a)(2)'s requirements.
Second, prior to the October 19, 2000 conference, plaintiff had never made any disclosure of the prior cases in which Dr. Rousso had testified. Thus, plaintiff's counsel's subjective belief that disclosure of prior testimony was not required by my October Orders is tantamount to a belief that I was relieving plaintiff entirely of the obligation to disclose Dr. Rousso's prior testimony. There is nothing in the transcript of the October 19 conference that could reasonably support such an inference.
As a fall back position, plaintiff argues, without citation of authorities, that disclosure was not required because the cases in which Dr. Rousso testified took place in Israel and were in the nature of administrative proceedings. This argument is also unavailing. Although the case law on the subject is not well developed, the case law that exists concludes that Rule 26(a)(2)'s requirement that prior testimony be disclosed applies to testimony in both judicial and administrative forums:
Case law establishes that the list of cases in which the witness has testified should at a minimum include the name of the court or administrative agency where the testimony occurred, the names of the parties, the case number, and whether the testimony was given at a deposition or trial. Hilt v. SFC Inc. 5 170 F.R.D. 182, 185 (D. Kan. 1997); Majewski v. Southland Corp., 170 F.R.D. 25, 27 (D. Kan. 1996); Nguyen v. IBP, Inc., 162 F.R.D. 675, 682 (D. Kan. 1995)Coleman v. Dydula, 190 F.R.D. 316, 318 (W.D.N.Y. 1999) (emphasis added). Neither the parties' research nor my own has disclosed any authority excluding prior testimony at administrative proceedings from Rule 26(a)(2)'s disclosure requirement.
Finally, plaintiff claims if there was a Rule 26(a)(2) violation it was harmless because access to Dr. Rousso's testimony in these other proceedings is subject to Israeli law, and under Israeli law, the testimony cannot be accessed without a court order. Assuming without deciding that counsel's statement of Israeli law is accurate, this argument is unpersuasive. By not disclosing the testimony in a timely manner, defendants' counsel was deprived of the opportunity of obtaining the testimony from the Israeli forums. In the absence of evidence that the testimony from the other proceedings was entirely consistent with Dr. Rousso's testimony, there is no basis for concluding that the lost opportunity was harmless.
To the extent Dr. Rousso gave testimony at his deposition that went beyond the opinions expressed in his report, Rule 26(a)(2) was also violated on the ground that the reports produced did not constitute a full statement of Dr. Rousso's opinions and the reasons therefore. 251 CPW Housing Ltd. v. Paragon Cable Manhattan, 93 Civ. 0944 (JSM), 1995 WL 70675 at *4 (S.D.N.Y. Feb. 21, 1995), aff'd without opinion, 71 F.3d 405 (2d Cir. 1995)
Plaintiff's violations with respect to Dr. Fulton are even more severe. Again, there has been no disclosure of the prior cases in which he has testified, and the only opinions set forth in his reports are the following four (4) sentences:
Based on the medical evidence submitted, there was a traumatic neuroma, due to surgical misadventure in the ulnar nerve proximal to the superficial fascia. In addition, the superficial fascia had not been incised in the original surgery at Montefiore.
Based on the facts outlined in the information, particularly submitted by Dr. Rousso, it is my opinion that there was a breach in the standard of care with regard to the damage caused to the ulnar nerve at the original surgery as well as failure to perform the decompression as outlined by opening the superficial fascia.
The current condition of the claimant is a direct and causal endpoint of that breach in the standard of care.
(Atlas Aff., Ex. F)
Dr. Fulton's bare bones report does not meet the requirements of Rule 26(a)(2). As explained in St. Paul Fire Marine Ins. Co. v. Heath Fielding Ins. Broking Ltd., 91 Civ. 0748 (MJL), 1996 WL 19028 at *11-*12 (S.D.N.Y. Jan. 17, 1996):
Rule 26(a)(2)(B), as amended in 1993, provides that a party shall provide the other parties to the case with "a written report prepared by and signed by" each of its expert witnesses. Rule 26(a)(2)(B). The report must include "a complete statement of all opinions to be expressed and the basis and reasons therefor; [and] the data or other information considered by the witness in forming the opinions. . . ." Id. According to the Advisory Committee notes on the 1993 amendment to Rule 26(a), paragraph (2)(B) "requires that persons retained or specially employed to provide expert testimony . . . must prepare a detailed and complete written report, stating the testimony the witness is expected to present during direct examination together with the reasons therefor." Rule 26(a)(2)(B) advisory committee's note on 1993 amend. (emphasis added). . . .
* * *
[A report is deficient if it] fails to include any of the underlying conclusions on which the expert's ultimate opinions are based. Bald conclusions on the ultimate issues do not alone amount to a "detailed and complete written report" of the expert's expected testimony. Rule 26(a)(2)(B) advisory committee's note on 1993 amend.
[A report is also deficient if it] fail[s] to set forth "a complete statement" of the "basis and reasons" for [the] expert['s] opinions. Rule 26(a)(2)(B).See also Sierra Club v. Cedar Point Oil Co., 73 F.3d 546, 571 (5th Cir. 1996) (The Advisory Committee Notes to Rule 26(a)(2)(B) "explain that the purpose of the reports is to avoid the disclosure of `sketchy and vague' expert information, as was the practice under the former rule."); Ferriso v. Conway Org., 93 Civ. 7962 (KMW), 1995 WL 580197 at *2 (S.D.N.Y. Oct. 3, 1995) ("Amended Rule 26 requires, not just that expert testimony be on notice, but that notice be given in the form of a written report which `shall contain a complete statement of all opinions to be expressed and the basis and reasons therefor.'" (emphasis added by the Court)). At best, the report proffered by Dr. Fulton contains a brief statement of his ultimate conclusions with no explanation of the bases and reasons therefore, no statement of how the medical records support the conclusion and no explanation of the methodology he utilized to draw his conclusions from the data available to him.
Plaintiff attempts to justify its failure to complete Rue 26(a)(2) disclosure with respect to Dr. Fulton by claiming that Dr. Fulton needed Dr. Rousso's deposition transcript before Dr. Fulton could issue a report. This argument is, at best, ludicrous. If Dr. Fulton needed information from Dr. Rousso, he could have simply spoken to Dr. Rousso by telephone or corresponded with him. Moreover, this argument was made by plaintiff's counsel and rejected by me at the October 19, 2000 conference (Oct. 19, 2000 Tr. at 47-48). Indeed, during the October 19 conference, I expressly told plaintiff's counsel that if Dr. Fulton needed any information from Dr. Rousso, he should simply call Dr. Rousso (Id.). Given the discussion at the October 19 conference and counsel's re-assertion here of an argument that was expressly rejected six months ago, the conclusion is inescapable that counsel deliberately chose not to provide Dr. Fulton's report in a timely manner.
Even where there has been an unjustified, prejudicial violation of Rule 26(a)(2), our Court of Appeals has cautioned against an automatic sanction of preclusion. Rather, four factors must be considered before preclusion is ordered:
(1) the party's explanation for the failure to comply with the discovery order; (2) the importance of the testimony of the precluded witness; (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."Softel, Inc. v. Dragon Med. Scientific Communications, Inc., 118 F.3d 955, 961 (2d Cir. 1997), citing Outley v. City of New York, 837 F.2d 587, 590-91 (2d Cir. 1988).
As explained above, plaintiff has failed to offer any valid explanation for his failure to comply with Rule 26(a)(2). Counsel's obligations under the Rule were called to counsel's attention both orally and in writing in October. Nevertheless, plaintiff's counsel failed to comply with those obligations.
Second, preclusion will not result in a fatal blow to plaintiff's case. Although expert testimony is an essential element of plaintiff's medical malpractice claim, precluding Drs. Rousso and Fulton from testifying as Rule 26(a)(2) experts would not preclude Dr. Rousso from testifying as a Fed.R.Evid. 702 expert with respect to opinions he formed while treating plaintiff. As I explained in Palmieri v. Celebrity Cruise Lines, Inc., 98 Civ. 2037 (LAP) (HBP), 2000 WL 310341 at *5 (S.D.N Y Mar. 27, 2000):
There can be no serious dispute that, as a treating physician, Dr. Giovinazzo was free to testify to opinions he formed in the course of treating [plaintiff], without regard to the disclosure requirements of Rule 26(a)(2), Fed.R.Civ.p. Brundidge v. City of Buffalo, 79 F. Supp.2d 219, 224 (W.D.N Y 1999); Thompkins v. Santos, 98 Civ. 4634 (MBM) (HBP), 1999 WL 1043966 at *8 n. 5 (S.D.N.Y. Nov. 16, 1999); Mangla v. Rochester, 168 F.R.D. 137, 139 (W.D.N Y 1996) ("Treating physicians . . . testifying to their personal consultation with a patient are not considered expert witnesses"); Salas v. United States, 165 F.R.D. 31, 32 (W.D.N Y 1995) (doctors' "opinions with respect to the injuries or illnesses sustained as they causally relate to [the] incident and his/her opinion as to permanency" were not subject to expert witness disclosure); Baker v. Taco Bell, 163 F.R.D. 348, 349 (D.Colo. 1995) (treating physicians may have "opinion[s] as to the cause of injury . . . or degree of injury in the future," but "[s]uch opinions do not make the treating physicians experts."). Accord Shapardon v. West Beach Estates, 172 F.R.D. 415, 416-17 (D. Haw. 1997). However, with respect to opinions unrelated to his treatment, Dr. Giovinazzo was subject to Rule 26(a)(2). Patel v. Gayes, 984 F.2d 214, 218 (7th Cir. 1993); Shapardon v. West Beach Estates, supra, 172 F.R.D. at 417; Brown v. Best Foods, 169 F.R.D. 385, 389 (N.D. Ala. 1996); Salas v. United States, supra, 165 F.R.D. at 33; Widhelm v. Wal-Mart Stores, Inc., 162 F.R.D. 591, 594 (D. Neb. 1995)See also Advisory Committee Notes to the 1993 Amendments to the Federal Rules of Civil Procedure, supra, 146 F.R.D. at 635. Thus, to the extent Dr. Rousso formed opinions during his treatment of plaintiff, he would still be able to testify to those opinions.
The Advisory Committee Notes accompanying the 1993 amendments provide, in pertinent part:
For convenience, [Rule 26(a)(2)] continue[s] to use the term "expert" to refer to those persons who will testify under Rule 702 of the Federal Rules of Evidence with respect to scientific, technical, and other specialized matters. The requirement of a written report in paragraph (2)(B), however, applies only to those experts who are retained or specially employed to provide such testimony. . . . A treating physician. for example. can be deposed or called to testify at trial without any requirement for [sic] a written report.
(Emphasis added).
Third, defendants have been prejudiced. The trial date is approximately six (6) weeks away. Defendants still do not have a complete list of the cases in which plaintiff's experts have testified in the last four (4) years and have no specifics concerning Dr. Fulton's opinions or the bases therefore. To permit plaintiff to complete his Rule 26(a)(2) discovery at this late date would require defendants to complete depositions of both of plaintiff's experts, formulate rebuttal reports, provide defendants' own experts for deposition, and prepare for the trial of this matter. There is no reason why defendants should be compelled to complete the foregoing tasks on an expedited basis because plaintiff has chosen to ignore his discovery obligations.
Finally, I do not believe a continuance is appropriate in this case. This case is seven (7) years old and asserts malpractice with respect to conduct occurring ten (10) years ago. Although I appreciate that "`a court must not let its zeal for a tidy calendar overcome its duty to do justice,'" Winston v. Prudential Lines, Inc., 415 F.2d 619, 621 (2d Cir. 1969), quoting Davis v. United Fruit Co., 402 F.2d 328, 331 (2d Cir. 1968), the Rule 26 violations here were not due to circumstances beyond plaintiff's control, nor were they due to the fortuitous discovery of new evidence that could not have been produced in accordance with the schedule ordered by the Court. See generally Outley v. City of New York,supra, 837 F.2d 587. To the contrary, the violation of Rule 26(a)(2) with respect to Dr. Fulton appears to be deliberate and may constitute an attempt to delay Dr. Fulton's 26(a)(2) disclosure until after defendants' Rule 26(a)(2) disclosure. A continuance here could ameliorate the consequences of the violation, but given the age of the case and the absence of any circumstances to mitigate the violations, I conclude that a continuance is not warranted here.
Accordingly, I conclude that Drs. Rousso and Fulton are precluded from testifying as experts in this matter. Dr. Rousso may, however, testify to facts and opinions that he formed while treating plaintiff.
B. Plaintiff's Motion to Preclude
Plaintiff also moves to preclude defendants' experts from testifying on the ground that defendant has also failed to provide expert disclosure in accordance with the schedule set in my October 20 Order.
Although the issue is a close one, I conclude that defendants were substantially justified in not producing their Rule 26(a)(2) disclosures as a result of plaintiff's default. As of February 28, defendants had not been provided with the totality of the expert opinions they would be required to rebut, and, as a practical matter, could not prepare reports in conformity with Rule 26(a)(2) that disclosed all of their opinions. There can be little doubt that, as of February 28, defendants had some of the elements required by Rule 26(a)(2). For example, as of the date, defendants must have had their experts' list of qualifications, publications and the other information that is not related to the specific facts of the case. However, the terms of Rule 26(a)(2)(B) do not contemplate piecemeal disclosure, but rather contemplate the production of a single document comprising all the required elements:
The report [of the witness who is retained or specially employed to provide expert testimony] shall contain a complete statement of all opinions to be expressed and the basis and reasons therefor; the data or other information considered by the witness in forming the opinions; any exhibits to be used as a summary of or support for the opinions; the qualifications of the witness, including a list of all publications authored by the witness within the preceding ten years; the compensation to be paid for the study and testimony; and a listing of any other cases in which the witness has testified as an expert at trial or by deposition within the preceding four years.
Thus, defendants' reluctance to make Rule 26(a)(2) disclosure on a piecemeal basis is consistent with the terms of Rule 26(a)(2)(B).
Although one party's failure to make a required disclosure does not ordinarily suspend the adversary's disclosure or discovery obligations, expert discovery stands on a somewhat different footing. In this case, defendants' expert testimony is offered to rebut plaintiff's, and until plaintiff's experts opinions are fully disclosed, defendants cannot know what they are rebutting. Here, defendants had not completed their deposition of Dr. Rousso and had almost no information concerning Dr. Fulton's opinions. Thus, as a practical matter, defendants did not have all the information concerning the opinions to be rebutted.
Finally, both Rule 26(a)(2)(C) and my October 20 Order required the completion of plaintiff's Rule 26(a)(2) disclosure before defendants' were to make their Rule 26(a)(2) disclosure. Since both the Rule and my Order established this priority, defendants were substantially justified in assuming that their obligations to make disclosure were suspended until the plaintiff's 26(a)(2) disclosure was completed.
Plaintiff argues persuasively that permitting defendants' 26(a)(2) disclosure to proceed now will divert plaintiff from trial preparation and force plaintiff to conduct expert discovery on an expedited basis. Assuming that these claims are accurate, however, they do not constitute a basis for an Order of preclusion against defendants because plaintiff himself is the ultimate cause of the delay. A reasonable schedule for the completion of discovery was set in October, 2000. No objections to that Order were ever filed, and plaintiff, without justification, failed to comply with the Order. To the extent the sequelae of plaintiff's violation increase plaintiff's burden, plaintiff has only himself to blame.
C. Plaintiff's Motion for Additional Document Discovery
Plaintiff's motion for additional document discovery is untimely. As noted above, at the outset of the October 19, 2000 conference, I asked plaintiff what discovery remained to be done. Plaintiff's counsel referred only to expert discovery, and, accordingly, the only discovery schedule I set related to expert discovery. Having failed to raise any issue concerning document discovery in October, it is too late for plaintiff to do so now. This aspect of my Order is without prejudice to any right plaintiff may have to subpoena the documents in issue for trial.
I note in this regard that defendants attempted to raise document discovery issues during a conference held on March 1, 2001. At that time I instructed defendants that unless they had raised the issue during the October 19, 2000 conference, it was too late to do so now. Apparently acknowledging that they raised no document issues in October, defendants have raised no document issues in the current motion. Permitting plaintiff to be heard on his document discovery issues at this stage would also require permitting defendants to raise whatever document discovery issues they may have.
D. Expert Fees
Finally, plaintiff seeks to compel defendants to compensate Dr. Rousso for the time consumed by defendants' questioning of Dr. Rousso on January 8, 9 and 10, 2000. Plaintiff seeks compensation for this time at the rate of $2,500 per day. Defendants claim that Dr. Rousso should be limited to the rate he receives for his testimony in Israel, namely $1,000 per day.
As a threshold matter, I note that the rate of $2,500 per day is well within the range of reasonableness for a physician's testimony in the New York metropolitan area. In other personal injury actions recently conducted before me, physicians have paid far more than $2500 per day, some receiving almost twice that fee. Thus, there is no basis for concluding. that the fee sought by Dr. Rousso is unreasonable in light of the fees normally charged in this district.
Defendants cite no authority in support of their contention that Dr. Rousso should be limited to the fee he receives for testifying in Israel. I conclude that adopting defendants' proposal would result in an undue burden on the Court and the jury. The fee that an expert witness receives in a given locality may be the product of many factors such as the general cost of living in the locality, local regulations, and the esteem in which the expert's profession is held within the locality. Assessing the reasonableness of an expert's fee on the basis of what he or she would receive in his or her residence would require inquiry into all these factors. Moreover, since an expert's fee is routinely disclosed to the jury and a lower fee may suggest a "bargain basement" or inferior expert, setting an expert's fee on the basis of their residence would necessitate the jury's considering the cost of living, etc., at the expert's residence.
Accordingly, this aspect of plaintiff's motion is granted, and defendants are ordered to compensate Dr. Rousso in the amount of $7,031.25.
Dr. Rousso is entitled to reasonable compensation for his time notwithstanding my conclusion that he is not entitled to testify beyond the observations made and the opinions formed in the course of treating plaintiff. Coleman v. Dydula, supra, 190 F.R.D. at 321-22 (W.D.N Y 1999).
IV. Conclusion
Accordingly, for all the foregoing reasons, defendants' motion to preclude Drs. Rousso and Fulton from testifying as expert witnesses within the meaning of Rule 26(a)(2) is granted, subject to the limitation that Dr. Rousso may testify as a treating physician. Plaintiff's motion to preclude defendants' experts from testifying is denied. Plaintiff's motion to compel production of additional documents is denied. Finally, plaintiff's motion to compel payment of Dr. Rousso's fee is granted; within ten (10) days of the date of this Order, defendants' counsel is ordered to remit $7,031.25 to plaintiff's counsel as reimbursement for the portion of Dr. Rousso's fee for which defendants' are responsible.
Defendants are directed to complete their Rule 26(a)(2) discovery no later than April 30, 2001. Defendants are to make their experts available no later than May 14, 2001.
SO ORDERED