Opinion
01 Civ. 4067 (SAS)
July 2, 2002
OPINION AND ORDER
By letter endorsements dated May 24 and May 31, 2002, I precluded the expert report and testimony of Dr. Jose L. Fernandez, the proposed expert for defendants St. Joseph's Hospital, Dr. Rattray, St. John's Queens Hospital, and Dr. Pascual, and denied defendants' request to reconsider that decision. I will now set forth more fully the reasons for these rulings.
I. BACKGROUND
Pursuant to the original scheduling order dated July, 17, 2001, the deadline for plaintiff's expert reports was January 14, 2002, and the deadline for defendants' expert reports was February 2, 2002. On January 8, 2002, I extended these deadlines to March 1st and March 15th respectively. In doing so; I specifically stated that "112k further extensions" would be granted and that "[t]his schedule must be met." 1/7/02 endorsement on Proposed Revised Scheduling Order, attached to 1/8/02 Letter from Lori B. Lasson to the Court, at 2 (emphasis in original). At a conference held on March 8, 2002, the deadline for defendants' expert report was nonetheless extended to March 29, 2002, in order to provide the defendants with additional time to locate an expert.
Plaintiff designated her expert and served her expert report by February 28, 2002. See 5/29/02 Letter from Lori B. Lasson, attorney f@r plaintiff, to the Court ("Pl. 5/29/02 Ltr.") at 2. She distributed her portion of the Pretrial Order on May 15, 2002. See id. Defendants failed to designate an expert by their March 29th deadline. See 5/23/02 Letter from Lori B. Lasson to the Court ("Pl. 5/23/02 Ltr. #1") at 1. In April, 2002, the parties were informed that the trial of this matter would begin on July 8, 2002.
On May 23, 2002, defendants requested an extension of time to submit an expert report and to produce an expert for deposition based on the fact that they had "lost" their original expert witness and had "only recently" secured a substitute. 5/23/02 Letter from Judd Cohen, attorney for defendants, to the Court ("Def. 5/23/02 Ltr. #1") at 1. The parties submitted additional letters to the Court and, on May 24, 2002, I issued an order denying defendants' request. See 5/24/02 Memo Endorsement on Def. 5/23/02 Ltr. #1.
On May 29, 2002, defendants requested a pre-motion conference with regard to a motion for "reconsideration or reargument of [their] prior request for an extension of time to submit an expert report and to produce [their] expert for deposition testimony." 5/29/02 Letter from Judd Cohen to the Court ("Def. 5/29/02 Ltr.") at 1. On May 29, 2002, the parties filed the Joint Pretrial Order which included, over plaintiff's objection, defendatits' request to supply an expert at that late date. See Pl. 5/29/02 Ltr. at 3. O:n May 31, 2002, I denied defendants' request stating:
Defendants' named their expert well after this Court's deadline and well after the time required by this Court's individual [r]ules and by the Federal Rules of Civil Procedure. Under the circumstances, plaintiff would be prejudiced by permitting defendants to now name an expert. Preclusion is the appropriate remedy pursuant to Fed.R.Civ.P. 37.
5/31/02 Memo Endorsement on Def. 5/29/02 Ltr.
II. DISCUSSION
Pursuant to Rule 26(a) of the Federal Rules of Civil Procedure, parties are required to disclose the identity of any person who "may be used at trial" to present expert testimony "at the times and in the sequence directed by the court." Fed.R.Civ.P. 26(a)(2)(a), (c). Rule 37(b)(2) provides that "[i]f a party . . . fails to obey an order to provide or permit discovery . . . the court in which the action is pending may make such orders in regard to the failure as are just. . . ." Id. at 37(b)(2). Among others things, the court may issue "[a]n order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting that party from introducing designated matters in evidence." Id. at 37(b)(2)(B). "Thus, when a court issues a clearly articulated order requiring specified discovery and a party fails to comply with that order, the court has the authority to impose Rule 37(b) sanctions." Rodriguez v. Ortiz, No. 92 Civ. 1385, 1995 WL 728438, at *1 (S.D.N.Y. Dec. 8, 1995) (citing Daval Steel Prods. v. M/V Fakredine, 951 F.2d 1357, 1363 (2d Cir. 1991)
The Second Circuit has identified several factors courts should consider when determining whether to preclude an expert report submitted after the court's deadline, including: (1) prejudice or surprise; (2) ability to cure; (3) disruption of trial efficiency; (4) the party's explanation for the failure to comply with a scheduling order; (5) the importance of the testimony to be precluded; and (6) bad faith or willfulness. See Wolak v. Squcci, 217 F.3d 157, 161 (2d Cir. 2000) (citing Dunlap-McCuller v. Riese Organization, 980 F.2d 153, 158 (2d Cir. 1992) Softel, Inc. v. Dragon Med; And Scientific Communications, Inc., 118 F.3d 955, 961 (2d Cir. 1997)). Here, these factors weigh heavily in favor of preclusion.
Defendants failed to comply with an Order of this Court requiring them to produce their expert report by March 29, 2002. This deadline had already been extended twice, at defendants' request, and in so doing I had warned the parties that no further extensions would be granted. The only reason defendants give for noncompliance with my order is that they "lost" their original expert witness and only recently secured another expert witness. This simply means that defendants failed to secure a favorable expert opinion in a timely manner. Such an explanation is no explanation at all.
With respect to prejudice, the scales tip decidedly in favor of preclusion. Rule 26 reports are required to flesh out the parties' precise theory of the case. Plaintiff produced her expert report in advance of the deadline, and the parties prepared their cases in accordance with the evidence laid out in the only expert report that was timely served. Allowing defendants to name an expert on May 23rd, two months after the court-ordered deadline, six weeks before trial, and more than a week after plaintiff had submitted her portion of the Joint Pretrial Order, would have caused severe prejudice to plaintiff.
Defendants argue that they will be "severely prejudice" by preclusion because "the importance of the testimony of [their expert] witness is paramount." Def. 5/29/02 Ltr. at 2. They explain that plaintiff's expert report indicates that defendants "failed to appropriately perform a physical examination on the plaintiff, failed to remove the entire casting and padding, and failed to make a diagnosis of compartment syndrome" during her presentations at the emergency room, and that Dr. Fernandez will contradict and rebut" plaintiff's expert report by offering the exact opposite" opinion on these issues. Id. at 2-3. Because plaintiff knew the main issues in this case, defendants argue, she "certainly could have surmised what the report and deposition testimony would be of defendants' expert and as a result, no surprise should be claimed." Id. at 3.
While proof of the appropriateness of treatment and the adequacy of diagnosis is "a basic element" of this case, it does not follow that plaintiff should have prepared her case based on assumptions about a non-existent expert report. Wolak, 217 F.3d at 161 (holding that district court did not abuse discretion by precluding plaintiff's psychiatric expert from testifying regarding damages in hostile work environment suit where plaintiff failed to designate expert until three weeks before trial, almost a year after she should have done so). The absence of expert testimony may weaken defendants' case but, after the deadline for disclosure had passed, plaintiff "had a right to assume [that defendants] would adduce evidence of damages primarily through testimony other than that of an expert." Id.
Moreover, this Court's Individual Rules and Procedures specifically reminds litigants that Rule 26 disclosure requirements "are in effect in this District and will be strictly enforced by this Court." Individual Rules and Procedures, Judge Shira A. Scheindlin, at 7 (emphasis in original). They further state in capital letters that "A FAILURE TO COMPLY WITH THESE RULES WILL RESULT IN PRECLUSION." Id. at 8 (citing Fed.R.Civ.P. 37(c)(1)). Thus, it can hardly be said that defendants lacked notice of the sancUon that would result from a failure to produce a timely report.
Finally, defendants' argument that plaintiff's counsel "does not have clean hands when it comes to the Court's Scheduling Order" is misleading and unavailing. Def. 5/29/02 Ltr. at 2. While defendants were not able to depose plaintiff's expert until May 24, 2002, see Def. 5/29/02 Ltr. at 2-3, the fact is that the deposition of plaintiff's expert was rescheduled several times at defendants' request, see Pl. 5/29/02 ltr. at 2-3. Thus, defendants cannot now use this delay as an argument against preclusion.
For the reasons previously stated, and for the reasons stated in this opinion, defendants' expert report and any testimony based on that report is precluded.