315 F.R.D. 13
W.D.N.Y.2016Background
- Plaintiff Ewald Paulus was injured skiing on January 23, 2009; location of a caution sign on the trail is a central disputed fact.
- Court issued an Amended Case Management Order with discovery closed August 15, 2013; plaintiff timely disclosed expert Stanley Gale before that deadline.
- Defendant moved for summary judgment in 2013; the motion was denied in April 2015, leaving factual disputes including whether the terrain condition was inherent to the sport and whether a caution sign put Paulus on notice.
- Trial was scheduled March 21, 2016; eight months later (Jan. 19, 2016) Plaintiffs sought to amend the scheduling order to disclose a newly retained expert, Christopher Puckett, who would opine on the sign’s 2009 location based on photographs.
- Plaintiffs retained Puckett Dec. 28, 2015 and produced his report Jan. 6, 2016; Defendant objected as untimely and the Court held oral argument Feb. 17, 2016.
- The Court denied the motion to amend and precluded Puckett under Rules 16, 26 and 37, finding no good cause and that the belated disclosure was neither substantially justified nor harmless.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the CMO should be modified under Fed. R. Civ. P. 16(b)(4) to allow late disclosure of expert Puckett | New expert needed after Plaintiffs learned (from defendant’s May 2015 photographs and counsel’s seminar) that Puckett could determine sign location from photos | Disclosure is untimely, lacks good cause, and would prejudice Defendant on the eve of trial | Denied — Plaintiffs failed to show good cause; delay resulted from lack of diligence |
| Whether Puckett may be admitted despite Rule 26 noncompliance (Fed. R. Civ. P. 37(c)(1)) | Admission is permissible; opinion relevant to a key fact (sign location) and could rebut defense theories | Late disclosure was not substantially justified or harmless; Defendant would be prejudiced and lack time to prepare | Precluded — admission would be prejudicial and no lesser sanction appropriate |
| Whether Puckett’s testimony is sufficiently critical to outweigh prejudice and justify continuation of trial | Puckett’s photographic methodology is more persuasive than previously disclosed expert (Gale) and is important to Plaintiffs’ case | Plaintiffs already have an expert (Gale); trial continuance is impractical and prejudicial to Defendant | Puckett not critical enough to overcome prejudice or justify continuance; preclusion affirmed |
| Whether Puckett could be offered as a rebuttal expert without prior timely disclosure | Plaintiffs contend rebuttal designation could excuse timing | Rule 26 requires timely disclosure of rebuttal experts within prescribed windows; no basis for surprise rebuttal here | Not allowed — rebuttal designation does not excuse failure to timely disclose under Rule 26 |
Key Cases Cited
- Parker v. Columbia Pictures Indus., 204 F.3d 326 (2d Cir. 2000) (good-cause/diligence standard under Rule 16)
- Softel, Inc. v. Dragon Med. & Sci. Commn’s, Inc., 118 F.3d 955 (2d Cir. 1997) (factors for excluding untimely expert testimony)
- Ritchie Risk-Linked Strategies Trading (Ireland), Ltd. v. Coventry First LLC, 282 F.R.D. 76 (S.D.N.Y. 2012) (tardy expert disclosure requires movant diligence)
- Perfect Pearl Co., Inc. v. Majestic Pearl & Stone, Inc., 889 F. Supp. 2d 453 (S.D.N.Y. 2012) (failure to show good cause when movant knew facts before deadline)
- Coene v. 3M Co., 303 F.R.D. 32 (W.D.N.Y. 2014) (preclusion appropriate to avoid sandbagging; consideration of lesser sanctions)