Summary
noting that the preclusion of testimony is "a drastic remedy and should only be applied in . . . rare cases"
Summary of this case from Tse v. UBS Fin. Servs., Inc.Opinion
96-CV-0394E(Sc)
November 6, 2002
MEMORANDUM and ORDER
This decision may be cited in whole or in any part.
Before this Court are the parties' respective motions in limine. Having reviewed the motions and the oppositions thereto, having heard and considered the oral arguments by counsel and, for the reasons hereinafter set forth, defendant's motion will be granted in part and denied in part and plaintiff's cross-motion will be denied. Familiarity with the factual background of this case, described in the undersigned's September 13, 2000 Memorandum and Order, is presumed. Additional relevant facts will be discussed as they pertain to each of the parties' respective motions.
Defendant filed a motion in limine October 25, 2002 seeking to exclude, or limit, three types of evidence that the plaintiff may try to introduce at trial. Defendant first seeks to exclude the testimony and a report of Michael J. Wolkoff. Plaintiff intends to call Wolkoff, an economist, as an expert witness to testify regarding plaintiff's damages. Defendant argues that such testimony should be excluded because plaintiff failed to give defendant proper notice in accordance with Federal Rules of Civil Procedure ("FRCvP") 26(a)(2)(C). Plaintiff disclosed his intention to use Wolkoff on September 11, 2002. The trial in this case is set to start on November 12, 2002. Defendant argues that such testimony should be excluded according to FRCvP 37(c)(1). Defendant asserts that, had he been given timely notice of plaintiff's expert, he would have taken the expert's deposition, as allowed by FRCvP 26(b)(4), and would have had an opportunity to retain his own expert to rebut the plaintiff's witness. See Def.'s Mem. in Supp. of Mot. for Relief In Limine, p. 4. Plaintiff counters that the defendant has had almost two months' notice of plaintiff's intent to use Wolkoff and that such notice was sufficient to allow defendant to depose Wolkoff. See Aff. of Edward P. Hourihan, Jr., Esq., at ¶ 6.
FRCvP 26(a)(2)(C) provides, in pertinent part: "In the absence of other directions from the court or stipulation by the parties, the [expert] disclosures shall be made at least 90 days before the trial date, or the date the case is to be ready for trial ***."
Defendant originally argued that plaintiff had disclosed his intention to call Wolkoff as an expert on October 24, 2002. However, during oral argument defendant conceded that he in fact had received a September 11, 2002 letter from plaintiff which contained the disclosure. Nonetheless, defendant argues that plaintiff disclosed his intent to call Wolkoff as an expert witness less than 90 days before the start of trial.
FRCvP 37(c)(1) provides, in pertinent part: "A party that without substantial justification fails to disclose information required by Rule 26(a) *** is not, unless such failure is harmless, permitted to use as evidence at a trial, at a hearing, or on a motion any witness or information not so disclosed."
Defendant also contends that Wolkoff's report does not meet the requirements of FRCvP 26(a)(2)(B). See Decl. of Peter B. Sullivan, Esq. in Supp. of Def.'s Mot. for Relief In Limine, ¶ 6. However, Wolkoff's report substantially complies with FRCvP 26 — see Aff. of Edward P. Hourihan, Esq., Ex. A, B — and plaintiff has agreed to provide defendant with further information regarding Wolkoff's credentials. Id., at ¶¶ 10-11.
Precluding the testimony of an expert under FRCvP is "a drastic remedy and should only be applied in those rare cases where the party's conduct represents flagrant bad faith and callous disregard of the Federal Rules of Civil Procedure." Hinton v. Patnaude, 162 F.R.D. 435, 439 (N.D.N.Y. 1995); see also Johnson Elec. N. Am., Inc. v. Mabuchi Motor, 77 F. Supp.2d 446, 458 (S.D.N.Y. 1999); McNerney v. Archer Daniels Midland Co., 164 F.R.D. 584, 587 (W.D.N.Y. 1995); Sterling v. Interlake Ind., Inc., 154 F.R.D. 579, 587 (E.D.N.Y. 1994). Plaintiff has not exhibited such requisite bad faith that would justify preclusion of Wolkoff's testimony. Plaintiff's counsel is new to this case and had some difficulty obtaining plaintiff's file from his former attorney. In addition, the final date for trial in this case was not set by the parties until August 12, 2002 and plaintiff's counsel disclosed his intention to use Wolkoff as an expert only one month after that meeting. Such facts support justification for plaintiff's inability to adhere to FRCvP 26(a)(2)(C). This Court also notes that, although defendant's counsel received notification of plaintiff's intent to use Wolkoff on September 11, 2002, defendant waited until October 24, 2002 to file his instant motion in limine. Defendant was given adequate notice — more than two months before the start of trial — of plaintiff's expert witness. Moreover, defendant has had and has time to depose Wolkoff and to retain his own expert because trial in this case is not set to begin until November 12, 2002. Thus, although plaintiff failed to abide by FRCvP 26(a)(2)(C) by providing less than 90 days notice of his intent to use an expert witness, such failure was harmless and will not prejudice the defendant.
See Softel, Inc. v. Dragon Med. Scientific Comm., Inc., 118 F.3d 955, 961 (2d Cir. 1997) (reviewing a district court's preclusion order and holding the following factors to be relevant: "(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").
Defendant also asks this Court to "require that the plaintiff establish a foundation showing that the defendant was aware of any documents or their contents before such documents can be received in evidence." Sullivan Decl., at ¶ 11. Inasmuch as defendant's motion is merely a request that plaintiff follow the Federal Rules of Evidence ("FRE") during trial, such objections should be made at that time. Lastly, defendant requests that the undersigned and plaintiff's attorney refrain from referring to defendant's attorney as an Assistant Attorney General or as someone who is in any way connected with the State of New York. Defendant argues that such reference might confuse the jury by giving them the impression that any judgment rendered in this case would be against the State of New York and that FRE 411 prohibits evidence of collateral source of payment. Id. at ¶¶ 13-14. Inasmuch as such reference may confuse the jury — and inasmuch as such likelihood of jury confusion outweighs the probative value of referring to defendant's attorney as an Assistant Attorney General — the undersigned will not refer to defendant's counsel as an Assistant Attorney General. In addition, plaintiff and his counsel are directed to refrain from any similar references.
Defendant's reliance on FRE 411 is misplaced. FRE 411 prohibits a party from introducing evidence of a party's liability insurance that is offered to show that a person acted negligently or wrongfully. See FRE 411.
Lastly, plaintiff has filed a cross-motion in limine to preclude defendant from offering any evidence relating to a claim for qualified immunity. Plaintiff asserts that defendant will argue that he is entitled to qualified immunity based upon the balancing test enumerated in Pickering v. Board of Education, 391 U.S. 563 (1968). Plaintiff's motion will be denied inasmuch as it is premature. If and when defendant offers such evidence at trial, plaintiff may object to its admissibility at the appropriate time.
Accordingly, it is hereby ORDERED that defendant's motion in limine is granted in part and denied in part, and that plaintiff's cross-motion in limine is denied.