Opinion
01 Civ. 4209 (RWS)
September 29, 2003
KEVIN L. MOSLEY, ESQ., SHAFRAN MOSLEY, New York, NY, for Plaintiffs
STEPHEN D. STRAUS, ESQ., TRAUB EGLIN LIEBERMAN STRAUS, NY, for Defendants
GERARD BENVENUTO, ESQ., TRAUB EGLIN LIEBERMAN STRAUS, NY, for Defendants
OPINION
Plaintiffs Jory Lesser, David Lesser and Diane Lesser have moved in limine, pursuant to Federal Rules of Civil Procedure 26 and 37, to preclude the defendants from offering the trial testimony of two non-party witnesses, Donald Whitney and Bridgton Police Officer Madura, on the grounds that (1) such witnesses were not disclosed in accordance with Rule 26; (2) that they are undisclosed experts; and (3) the proffered testimony of such witnesses would be irrelevant and prejudicial.
For the reasons set forth below, the motion to preclude the testimony of Whitney and Madura is denied. However, defendants are directed to provide appropriate information about the two witnesses and to permit the plaintiffs to depose them.
Prior Proceedings
Plaintiffs commenced this action on April 10, 2001 in New York State court. On May 16, 2001, the action was removed to the United States District Court, Southern District of New York on the basis of diversity jurisdiction. Discovery was concluded on May 14, 2003.
Plaintiffs filed the instant motion on May 30, 2003. After submission of briefs, the motion was deemed fully submitted on June 25, 2003.
On September 16, 2003, a motion by the defendants for partial summary judgment was denied, and a motion to preclude plaintiffs' expert witnesses was granted in part and denied in part. See Lesser v. Camp Wildwood, 01 Civ. 4209, 2003 WL 22137042 (S.D.N.Y. 2003).
Facts
In the summer of 2000, plaintiff Jory Lesser, then 12 years old, was a camper at Camp Wildwood, owned and managed by the defendants. On July 4, 2000, Jory Lesser was injured at the camp when a pine tree fell on him during a thunderstorm. The Lessers claim that Jory Lesser has suffered "serious, severe, permanent and profound personal injuries," including multiple fractures, muscular and tendon damage necessitating multiple surgeries, protracted hospitalization, severe and permanent limitation of motion, pain and suffering, emotional distress and psychological injury.
In July 2001, after commencing litigation, plaintiffs served interrogatories on the defendants requesting the "names of all witnesses with knowledge or information relevant to the subject matter of this action or to any defenses." Mosley Declaration Exhibit A. The defendants responded with a list of non-party witnesses, but included neither Whitney nor Officer Madura. See Mosley Decl. Exh. B. Plaintiffs also served interrogatories requesting the names of persons holding themselves out as experts in fields relevant to the litigation that defendants may call as witnesses. See Mosley Decl. Exh. M. Again, defendants did not provide the names of either Whitney and Madura in response.
In November 2001, in response to the plaintiffs' demand for documents, defendants produced a sheet of paper, apparently blank except for the signature of Donald Whitney at the bottom. See Mosley Decl. Exh. D. In the months following the receipt of the Whitney document, plaintiffs asked both defendants and non-party witnesses to identify Whitney.
In March 2002, plaintiffs served their Expert Witness Interrogatories on defendants. Defendants never specifically responded to the interrogatories and never provided the names of Whitney and Madura.
On March 5, 2003, plaintiffs' counsel requested any information from the defendants regarding Whitney, speculating that the sheet of paper with Whitney's signature "is a letter or report from Mr. Whitney, the text of which has been redacted." Straus Decl. Exh. D (letter from Mosley to Straus). Defendants responded on March 24, 2003 by producing a legible copy of the Whitney Report, and stating that "the page was not redacted but, due to the lightness of its text, was rendered unreadable as a result of photocopying." Straus Decl. Exh. E (letter from Straus to Mosley).
Defendants first identified Whitney and Madura as potential witnesses in their brief in support of their motion for bifurcation of the trial which was filed on May 14, 2003, the final day of discovery. The brief lists twelve "expert and fact witness[es]" that defendants stated that they expect to call at trial. Mosley Decl. Exh. L, at 4 (Def. Bifurcation Memo). Of the twelve, ten are specifically identified as either fact or expert witnesses. Only Whitney and Madura are not so identified.
Discussion
Fed.R.Civ.P. 37(c)(1) provides that:
[a] party that without substantial justification fails to disclose information required by Rule 26(a) or 26(e)(1), or to amend a response to discovery as required by Rule 26(e)(2), is not, unless such failure is harmless, permitted to use as evidence at trial, at a hearing, or on a motion any witness or information not so disclosed.
The rules are designed "to avoid `surprise' or `trial by ambush.'"American Stock Exchange, LLC v. Mopex, Inc., 215 F.R.D. 87, 93 (S.D.N.Y. 2002) (quoting Transclean Corp. v. Bridgewood Servs., Inc., 77 F. Supp.2d 1045, 1061 (D. Minn. 1999), aff'd in relevant part, 290 F.3d 1364 (Fed. Cir. 2002); Loral Fairchild Corp. v. Victor Co. of Japan, Ltd., 911 F. Supp. 76, 79-80 (E.D.N.Y. 1996)).
The sanction of preclusion under Rule 37(c)(1) is "automatic absent a determination of either substantial justification or harmlessness." Id. (citations omitted). Substantial justification means "justification to a degree that could satisfy a reasonable person that parties could differ as to whether the party was required to comply with the disclosure request." Id. (quoting Henrietta D. v. Giuliani, No. 95 Civ. 0641, 2001 WL 1602114, at *5 (E.D.N.Y. Dec. 11, 2001)). A violation of the Rule is harmless "when there is no prejudice to the party entitled to the disclosure." Id. (quoting Nguyen v. IBP, Inc., 162 F.R.D. 675, 680 (D.Kan. 1995)). The burden of proving either substantial justification or harmlessness rests with the party which has failed to disclose information. Id. (citing Wright v. Aargo Sec. Servs., Inc., No. 99 Civ. 9115, 2001 WL 1035139, at *2 (S.D.N.Y. Sept. 7, 2001)).
However, despite the "automatic" nature of Rule 37(c)(1), "the imposition of sanctions under the rule is a matter within the trial court's discretion." Id. (quoting Jockey Int'l, Inc. v. M/V "Leverkusen Express", 217 F. Supp.2d 447, 452 (S.D.N.Y. 2002)). Further, "[p]reclusion of evidence is generally a disfavored action." Id. The preclusion of evidence not disclosed in discovery is "a drastic remedy and will apply only in situations where the failure to disclose represents . . . flagrant bad faith and callous disregard of the rules." Johnson Elec. North America, Inc. v. Mabuchi North America Corp., 77 F. Supp.2d 446, 458 (S.D.N.Y. 1999).
The Testimony of Whitney and Madura Will Not Be Precluded
The defendants have failed to fulfill their discovery obligations on several occasions.
Regarding the disclosure of Donald Whitney, the defendants failed to include Whitney among the witnesses with knowledge relevant to the subject matter of the action in response to plaintiffs' July 2001 interrogatories, despite the fact that Whitney's report on the tree dates from August 2000. Such conduct violates Rule 33(b), which provides that interrogatories must be answered fully within 30 days of service. Further, if the defendants intend to call Whitney as an expert witness, they have also failed to fulfill their obligations under Rule 26(a)(2).
The defendants' provision of an entirely unreadable expert report from Whitney in November 2001 constitutes a failure to provide requested documents. Plaintiffs are correct that the document appears to have been redacted, although plaintiffs have not shown proof that the defendants acted willfully to conceal information. Defendants' conduct was at the least negligent in not checking that the report was legible. Further, the repeated refusals to respond to plaintiffs' requests as to the identity of Whitney (if only to point out that plaintiffs already possessed his report) further compounds the violation.
Defendants have also failed to fulfill their discovery obligations with respect to Officer Madura, who defendants have indicated is expected to testify at trial. Defendants have failed to provide Officer Madura's full name, address and telephone number in violation of Rule 26(a)(3)(A). In addition, if defendants intend to call Officer Madura as an expert witness, they have failed to fulfill their obligations under Rule 26(a) (2).
Defendants' conduct does not rise to the level of "flagrant bad faith and callous disregard of the rules," Johnson Elec., 77 F. Supp.2d at 458, although defendants have shown bad faith with respect to plaintiffs. The drastic remedy of preclusion will therefore not be imposed as a remedy for the defendants' discovery abuse.
Defendants are, however, under an obligation to cure any prejudice suffered by the plaintiffs as a result of defendants' violation of their discovery obligations. Defendants are directed to provide plaintiffs with all appropriate information with respect to Whitney and Madura, including whether either will be called as expert witnesses. Discovery will be reopened in order to provide plaintiffs an opportunity to depose Whitney and Madura. Finally, if the depositions of the two witnesses yields information that plaintiffs believe calls for other witnesses to be deposed again, plaintiffs may submit a request to that effect to the Court at that time.
Plaintiffs also argue that the testimony of Whitney and Madura should be precluded because both are undisclosed expert witnesses and, in the case of Madura, the testimony would be irrelevant and prejudicial. Plaintiffs argue that by seeking to admit the testimony of Madura, the defendants must be raising a previously undisclosed defense, namely that the relationship between the Bridgton Police Department and Camp Wildwood was such that the police had a duty to warn the Camp of potentially dangerous weather conditions.
A ruling on these issues is premature at this time. The defendants have not yet indicated whether or not they seek to admit Whitney and Madura as expert witnesses. If they do, plaintiffs may move to preclude them at that time. Similarly, any challenge relating to the relevance of Officer Madura's testimony to a defense raised by the defendants is appropriately made only after the defendants have indicated that they intend to raise that defense.
Conclusion
For the reasons set forth above, the motion to preclude the testimony of Whitney and Madura is denied. The defendants are directed to provide appropriate disclosures about Whitney and Madura, including whether they intend to call either as expert witnesses. The plaintiffs will also be permitted to depose both Whitney and Madura.
It is so ordered.