Fang v. Mohamud Dofar, Werner Enters., Inc.
| Decision Date | 24 August 2018 |
| Docket Number | 5:15-cv-1251 (MAD/DEP) |
| Parties | JIN J. FANG, Individually and as Parent and Natural Guardian of AY, Plaintiffs, v. MOHAMUD DOFAR, WERNER ENTERPRISES, INC., Defendants. |
| Court | U.S. District Court — Northern District of New York |
MALONEY & LAIRD, P.C.
JOHN C. CHERUNDOLO, ESQ.
WILLIAM J. DECAIRE, ESQ.
MEMORANDUM-DECISION AND ORDER
On October 20, 2015, Jin J. Fang commenced this action individually and on behalf of her minor child, A.Y., pursuant to New York Insurance Law § 5104 for injuries arising out of an motor vehicle accident. See Dkt. No. 1. On January 31, 2018, Defendants Werner Enterprises, Inc. and Mohamud Dofar filed a motion to preclude Plaintiffs' expert reports and testimony and for summary judgment. See Dkt. No. 33. For the following reasons, the motion to preclude is denied, and the motion for summary judgment is granted in part and denied in part.
On August 15, 2013, Plaintiffs and Defendants were involved in a traffic accident on the southbound side of I-81 near Cortlandville, New York. See Dkt. No. 33-29 at ¶ 4. Plaintiff Jin Fang was driving behind Defendants' tractor-trailer for approximately ten minutes prior to the collision. See id. at ¶ 6. Plaintiff moved into the left-hand lane to pass Defendants' vehicle. See id. at ¶ 7. Brenden Thomas, a non-party witness, was traveling behind Defendants' vehicle and witnessed the accident. See id. at ¶ 8. Mr. Thomas testified that he observed Plaintiffs' vehicle move into the right lane, strike Defendants' vehicle, bounce between the tractor-trailer and the guardrail, and then move in front of the tractor-trailer before striking the right-hand guardrail. See id. at ¶ 10. Mr. Thomas further testified that the accident occurred in the right-hand lane and that the tractor-trailer remained in the right-hand lane throughout the accident. See id. at ¶ 11-12.
At a July 8, 2013 appointment, Dr. Tat H. Wong confirmed that Plaintiff's human chorionic gonadotropin ("hCG") level was approximately 430.1 See id. at ¶ 14. At a July 13, 2013 appointment, Dr. Wong noted that Plaintiff Jin Fang's last menstrual period was on June 7, 2013, which results in a calculated gestational age of five weeks and one day. See id. Following the accident, an ultrasound at Cortland Regional Medical Center confirmed that Plaintiff Jin Fang's fetus did not have a heartbeat and was approximately eight-weeks-and-one-day old. See id. at ¶ 16-17. Bloodwork conducted following the accident measured Plaintiff's hCG levels at7,828. See id. MRI scans at St. Michael's Hospital in Toronto, Ontario, of Plaintiff Jin Fang's brain, cervical spine, and lumbosacral spine were "unremarkable." See id. at ¶ 19.
Defendants' expert, Dr. Sangani, diagnosed Plaintiff Jin Fang with post-traumatic stress disorder ("PTSD"), conversion disorder, and major depressive disorder. See Dkt. No. 35-18 at 5. Dr. Sangani diagnosed A.Y. with PTSD "in the form of anger outbursts, withdrawal, flashbacks and nightmares . . . ." See Dkt. No. 35-19 at 3. A.Y. responded well to treatment with a social worker and the only remaining effects are the nightmares she experiences. See id.
On October 20, 2015, Plaintiffs commenced this action pursuant to New York Insurance Law § 5104 for injuries arising out of the motor vehicle accident. On May 1, 2017, Magistrate Judge Peebles issued a scheduling order requiring Plaintiffs' expert disclosures by August 31, 2017, Defendants' expert disclosures by October 15, 2017, and rebuttal disclosures by October 31, 2017. See Dkt. No. 29. Plaintiffs disclosed their expert witnesses on August 31, 2017. See Dkt. No. 35-12. Plaintiffs were made available for deposition on July 26, 2017. Non-party witness, Kyle Wettekin, was made available for deposition on November 6, 2017. Defendant Werner Enterpsies, Inc.'s corporate designee was made available for deposition on November 26, 2017. Non-party witness, Brenden Thomas, was made available for deposition on November 29, 2017.
Plaintiffs disclosed that they would call Mr. Harrington to testify as an expert in accident reconstruction. See id. at 1-3. Mr. Harrington would demonstrate that Defendant Dofar caused the accident by shifting into the left lane. See id. Plaintiffs included a summary of Mr. Harrington's report in their initial disclosure, and on February 16, 2018, provided Mr. Harrington's written report with Plaintiffs' opposition to Defendants' motion for summary judgment. See Dkt. No. 35-16. Mr. Harrington's report provides an account of the "most likelysequence of events" leading up to and during the accident that places Defendant Dofar at fault. See id.
On November 15, 2017, Plaintiffs provided Dr. Blumetti's written report. See Dkt. No. 35-14. Dr. Blumetti is a psychologists licensed by the State of New York with a limited practice confined to consultation and evaluation in clinical neuropsychology. See Dkt. No. 35-15 at ¶ 1. Dr. Blumetti's report states that Plaintiff Jin Fang's "symptoms manifest would be viewed as substantial and significant and causally related to the 8/15/13 motor vehicle accident and the examinee's subsequent miscarriage, which has played a significant role in her symptom development." See id. at 11.
On January 31, 2018, Defendants moved to preclude the reports and testimony of Mr. Harrington and Dr. Blumetti for failure to comply with Rule 26 of the Federal Rules of Civil Procedure. See Dkt. No. 33. Defendants contend that Dr. Blumetti's written report is not properly classified as rebuttal evidence and should have been attached to Plaintiffs' initial disclosure on August 31, 2017. See id. at 6. Defendants also moved for summary judgment asserting that neither Plaintiff Jin Fang nor A.Y. suffered the type of "serious injury" required by New York Insurance Law. See id. at 14, 20. Defendants also argue that summary judgment is appropriate because witness testimony demonstrates that Plaintiff Jin Fang caused the accident. See id. at 9.
Defendants move pursuant to Rule 37 of the Federal Rules of Civil Procedure to preclude the expert reports provided by Dr. Blumetti and Mr. Harrington because Plaintiffs failed to timely disclose the reports. See Dkt. No. 33-28 at 4-5. For the following reasons, the Court denies the motion to preclude both expert reports.
Rule 26(a)(2) of the Federal Rules of Civil Procedure requires a party to "disclose to other parties the identity of any witness it may use at trial to present evidence under Federal Rule of Evidence 702, 703, or 705." Fed. R. Civ. P. 26(a)(2)(A). Such disclosure "must be accompanied by a written report--prepared and signed by the witness--" which must contain, among other things, "a complete statement of all opinions the witness will express and the basis and reasons for them." Fed. R. Civ. P. 26(a)(2)(B). Furthermore, parties "must make these disclosures at the times and in the sequence that the court orders." Fed. R. Civ. P. 26(a)(2)(D). Pursuant to Rule 37(c), if a party fails to disclose such information, "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." Fed. R. Civ. P. 37(c)(1). "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." Vioni v. Providence Inv. Mgmt., LLC, No. 08-CV-2950, 2017 WL 881841, *3 (S.D.N.Y. Mar. 6, 2017).
Courts have acknowledged that precluding expert testimony is a drastic remedy that "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) (citation omitted). When determining whether to preclude an expert's trial testimony based on a party's failure to make timely expert disclosures, courts consider "(1) the reason for the failure to timely disclose, (2) the importance of the testimony, (3) potential prejudice in allowing the testimony, and (4) the availability of a continuance to cure such prejudice." Arnold v. Krause, Inc., 232 F.R.D. 58, 68 (W.D.N.Y. 2004), aff'd and adopted, 233 F.R.D. 126 (W.D.N.Y. 2005).
Dr. Blumetti's report opines on the cause and extent of Plaintiff Jin Fang's alleged injuries, and Mr. Harrington's on the cause of the accident. They are therefore of the utmost importance to Plaintiffs. The Court notes that irrespective of the timeliness of the reports, there is ample time to cure any prejudice against Defendants since no trial date has been set. Further, the actions of Plaintiffs do not suggest such flagrant bad faith as would warrant preclusion. The motion to preclude the expert report of Dr. Blumetti is accordingly denied.
The Court does note that Plaintiff's expert disclosures were deficient and untimely. Parties should not understand the Court's willingness to allow the late reports for purposes of fairness to constitute leniency towards late submissions. When parties anticipate that submissions will be delayed due to discovery constraints or otherwise, leave of this Court should be sought as appropriate.
A court may grant a motion for summary judgment only if it determines that there is no genuine issue of material fact to be tried and that the facts as to which there is no such issue warrant judgment for the movant as a matter of law. See Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 36 (2d Cir. 1994) (...
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