Evans v. United States

• Citation: 978 F.Supp.2d 148
• Decision Date: 31 July 2013
• Docket Number: No. 11–CV–1661 (ADS)(GRB).,11–CV–1661 (ADS)(GRB).
• Parties: Charles EVANS, Plaintiff, v. UNITED STATES of America, Defendant.
• Court: United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)

978 F.Supp.2d 148

Charles EVANS, Plaintiff,

v.UNITED STATES of America, Defendant.

No. 11–CV–1661 (ADS)(GRB).

United States District Court,

E.D. New York.

July 31, 2013.

Falk & Klebanoff, P.C., by: Jeffery P. Falk, Esq., West Hempstead, NY, for the Plaintiff.

Loretta E. Lynch, United States Attorney, United States Attorney's Office, by: Robert W. Schumacher, Assistant United States Attorney, Central Islip, NY, for the Defendant.

MEMORANDUM OF DECISION AND ORDER

SPATT, District Judge.

On March 30, 2011, the Plaintiff Charles Evans (the “Plaintiff”) commenced this action against the Defendant United States of America (the “Defendant”). The Plaintiff asserts negligence claims pursuant to the Federal Tort Claims Act, 28 U.S.C. § 2671 (“the FTCA”), and § 5102 of New York State's No–Fault Insurance Law (“N.Y. Ins. Law” or the “No–Fault Law”). In this regard, the Plaintiff alleges that he suffered a “serious injury,” as defined by N.Y. Ins. Law § 5102(d), as the result of a motor vehicle accident with Jacob L. Tennis (“Tennis”), an employee of the Defendant.

Presently before the Court is the Defendant's motion for summary judgment pursuant to Federal Rule of Civil Procedure (“Fed. R. Civ.P.”) 56. Also before the Court is the Defendant's unopposed motion to strike from the summary judgment record the affidavit of the Plaintiff's chiropractor, Dr. Marie G. Gerard (“Dr. Gerard”). For the reasons set forth below, the Court denies the motion to strike, but grants the motion for summary judgment.

I. THE DEFENDANT'S MOTION TO STRIKE DR. GERARD'S AFFIDAVIT

Before discussing the background facts of this case or addressing the Defendant's motion for summary judgment, the Court must first resolve the Defendant's motion to strike the affidavit of Dr. Marie G. Gerard. Century Pacific, Inc. v. Hilton Hotels Corp., 528 F.Supp.2d 206, 213 (S.D.N.Y.2007) ( “Because ‘a decision on the motion to strike may affect [the movant's] ability to prevail on summary judgment,’ it is appropriate to consider the Motion to Strike prior to the Motion for Summary Judgment.”) (quoting Century Pac., Inc. v. Hilton Hotels Corp., 528 F.Supp.2d 206, 213 (S.D.N.Y.2007)aff'd,354 Fed.Appx. 496 (2d Cir.2009)). In this regard, on June 4, 2012, discovery in this case closed. Pursuant to this Court's Individual Rules, on June 22, 2012 and July 19, 2012, the Plaintiff and the Defendant exchanged their Fed.R.Civ.P. 56.1 Statements of Facts. Thereafter, on October 22, 2012, the Defendant moved for summary judgment.

On November 6, 2012, responding to the Defendant's motion for summary judgment, the Plaintiff requested the right to supplement the summary judgment record with Dr. Gerard's affidavit. The Defendant opposed the Plaintiff's request to so supplement the summary judgment record. On November 7, 2012, the Court directed the Defendant to address any issue pertaining to discovery and the summaryjudgment record to the United States Magistrate Judge assigned to this case, the Honorable Gary R. Brown.

Subsequently, on November 19, 2012, Judge Brown found the issue of whether the Plaintiff could supplement the summary judgment record with Dr. Gerard's affidavit to be premature. However, Judge Brown stated that “[s]hould, after examination, plaintiff seek to supplement the record with additional medical findings or information, it may seek relief from the undersigned at that time, at which point the Court may consider that application, along with the Government's objections, upon a full record.” (Docket Entry No. 28.)

On December 7, 2012, the Plaintiff filed his response to the Defendant's motion for summary judgment and attached Dr. Gerard's affidavit. However, the Plaintiff failed to renew his application to supplement the summary judgment record pursuant to Judge Brown's November 19, 2012 Order. On December 11, 2012, the Defendant filed a letter addressed to Judge Brown moving to strike Dr. Gerard's affidavit from the summary judgment record. The Defendant's letter motion to strike is unopposed by the Plaintiff.

According to the Defendant, Dr. Gerard's affidavit should be stricken because the Plaintiff neither made the application to the Court as required by Judge Brown's November 19, 2012 Order nor provided the required expert or treating physician disclosures pursuant to Fed.R.Civ.P. 26. The Court disagrees.

As an initial matter, the Court first finds that, under the provisions of Fed.R.Civ.P. 26(a)(2), the Plaintiff was not required to disclose Dr. Gerard's affidavit. Fed.R.Civ.P. 26(a)(2) states that a party presenting an expert witness must provide a written report that discloses the expert witness to the opposing party. Under the provisions of Fed.R.Civ.P. 37(c)(1), “if a party fails to provide information or identify a witness as required by [Fed.R.Civ.P.] 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless.” Courts have found that failure to disclose an expert witness may prejudicially ambush the opposing party. Palma v. Pharmedica Communications, Inc., 00CV1128 (AHN), 2002 WL 32093275, at *2 (D.Conn. Mar. 27, 2002).

However, “treating physicians have consistently been held not to be experts within the meaning of Fed.R.Civ.P. 26(a)(2).” Thompkins v. Santos, No. 98Civ.4634 (MBM)(HBP), 1999 WL 1043966, at *7 n. 5 (S.D.N.Y. Nov. 16, 1999); see also Zanowic v. Ashcroft, No. 97CIV.5292JGKHBP, 2002 WL 373229, at *2 (S.D.N.Y. Mar. 8, 2002) (“It is well settled that a treating physician is not subject to the disclosure obligations set forth in Fed.R.Civ.P. 26(a)(2)(B).”). With respect to determining whether a physician is a treating physician or an expert, while “[t]he law is not well developed as to what makes a physician a ‘treating physician[,]’ [t]he critical factor ... appears to be why the physician was retained.” Zanowic, 2002 WL 373229, at *2.

In this regard, “whether a physician is a treating or consulting physician appears to turn on why the patient saw the physician—for treatment or for testimony.” Id. Thus, if the physician examines the patient so that she may provide testimony at trial, then that physician is considered an expert witness, but if the physician examines the patient for the primary purpose of treating the patient, she is considered a treating physician. See, e.g., Mangla v. Univ. of Rochester, 168 F.R.D. 137, 139 (W.D.N.Y.1996) ( “Experts are retained for purposes of trial and their opinions are based on knowledge acquired or developed in anticipation of litigation or for trial. A treating physician's testimony, however, is based on the physician's personal knowledge of the examination, diagnosis and treatment of a patient and not from information acquired from outside sources.”).

Here, Dr. Gerard is clearly the Plaintiff's treating physician. Indeed, Dr. Gerard and the Plaintiff have had an ongoing relationship and Dr. Gerard acquired her opinion as to the cause of the Plaintiff's injuries directly through treatment of the Plaintiff. Mangla, 168 F.R.D. at 139;cf. Ebewo v. Martinez, 309 F.Supp.2d 600, 606 (S.D.N.Y.2004) (finding that a physician was not a treating physician where his “affidavit makes clear that he did not have an ongoing relationship” with the patient). Furthermore, Dr. Gerard was retained by the patient for treatment and was not specially employed for her testimony, as the Plaintiff had visited Dr. Gerard multiple times before this litigation began and was given treatment related to his injuries. See Zanowic, 2002 WL 373229, at *2. Therefore, the Plaintiff was not required to disclose Dr. Gerard as an expert pursuant to Fed.R.Civ.P. 26(a)(2).

Nevertheless, even if the Court was to consider Dr. Gerard as an expert, “[p]recluding testimony from the expert under [Fed.R.Civ.P. 37(c)(1) ] is a drastic remedy and should only be applied in cases where the party's conduct represents flagrant bad faith and callous disregard of the federal rules.” McNerney v. Archer Daniels Midland Co., 164 F.R.D. 584, 587 (W.D.N.Y.1995) (citing Hinton v. Patnaude, 162 F.R.D. 435, 439 (N.D.N.Y.1995)). Here, the Court finds neither “flagrant bad faith” nor “callous disregard of the federal rules” on the part of the Plaintiff, because, as discussed in more detail below, the Defendant was made aware of the identity and relevance of Dr. Gerard during the discovery process.

The decision as to whether a court may consider documents in these circumstances “rests within the sound discretion of the district court.” Lore v. City of Syracuse, 2005 WL 3095506, at *3 (N.D.N.Y. Nov. 17, 2005). In this case, while Dr. Gerard's affidavit was not disclosed until after the close of discovery, the Court finds that the Plaintiff's failure in this respect is harmless. In this regard, courts have held that a “failure to disclose witness information is ‘harmless' if the other party was well aware of the identity of the undisclosed witness and the scope of knowledge well before the trial.” Morgenstern v. County of Nassau, No. 04–CV–0058 (JS)(ARL), 2008 WL 4449335, at *3 (E.D.N.Y. Sept. 29, 2008) (quoting Fleet Capital Corp. v. Yamaha Motor Corp., No. 01–CV–1047 (AJP), 2002 WL 31174470, at *6 (S.D.N.Y. Sept. 19, 2002)).

For example, in Morgenstern, the court denied a plaintiff's motion to strike two affidavits offered by the defendants in support of their motion for summary judgment. Although the defendants had failed to disclose the two affiants, the Morgenstern court reasoned that this failure was harmless because the plaintiff was aware of the affiants' identities from previous document requests concerning them and was thus on notice that they were potential witnesses. 2008 WL 4449335, at *2–3;see also Lore, 2005 WL 3095506, at *2 (“While it may be true that plaintiff failed to adhere to the letter of the discovery rules, the court is convinced that defendants were sufficiently aware of the existence...