Powers v. Memorial Sloan Kettering Cancer Center
- Lorna Schofield
- 1:20-cv-02625
- U.S. District Court · Southern District of New York
- 3
In Powers v. Memorial Sloan Kettering Cancer Center, Judge Schofield denied without prejudice a request to exclude a late-disclosed witness or reopen discovery.
The ruling affected the plaintiff, the defendants, and the proposed witness Richard W. Schefelker. It left the plaintiff’s request to exclude Schefelker or reopen discovery available for possible renewal as a motion in limine if the defendants identify him as a trial witness.
What happened
In Powers v. Memorial Sloan Kettering Cancer Center, the plaintiff challenged the defendants’ disclosure of Richard W. Schefelker, an engineer and former director of NeuWave Engineering, after fact discovery had closed. The plaintiff said Schefelker had information about an ablation machine central to the case.
The plaintiff asked the court to prevent Schefelker from testifying or, alternatively, to reopen fact discovery so the plaintiff could depose him and have the defendants pay related costs. The defendants argued that an earlier extension of discovery for third-party discovery from Ethicon also extended discovery about the ablation machine.
Judge Lorna G. Schofield denied the application without prejudice to renewing it as a motion before trial if the defendants identify Schefelker as a trial witness. The court reminded the parties that fact discovery closed on November 25, 2020, subject to four stated exceptions.
The detailed version
- Powers v. Memorial Sloan Kettering Cancer Center · No. 1:20-cv-02625
- Lorna Schofield
- Dec. 18, 2020
Background
The plaintiff filed a pre-motion conference letter concerning the defendants’ December 15, 2020 amended disclosure. The amendment added Richard W. Schefelker, an engineer and former director of NeuWave Engineering, as a person who might testify about the ablation machine used in the procedure at issue.
The plaintiff argued that information about the machine’s data, software, use, preservation, and possible destruction was central to the case and had been sought repeatedly through discovery. The plaintiff said the defendants had objected to requests for admissions, interrogatories, production of metadata and audit trails, inspection of the machine, and a witness concerning the machine. The plaintiff also argued that the disclosure came after fact discovery closed and prevented a deposition of Schefelker.
Requested Relief
The plaintiff requested that Schefelker be barred from testifying under Federal Rule of Civil Procedure 37(c)(1), which generally prevents a party from using information required to be disclosed but not timely disclosed unless the failure was substantially justified or harmless. Alternatively, the plaintiff asked the court to reopen fact discovery so Schefelker could be deposed and to charge the defendants with the costs of the motion and deposition.
The defendants argued that the court’s prior order extending fact discovery for third-party discovery from Ethicon effectively extended all fact discovery concerning the ablation machine. The plaintiff disputed that interpretation and said the prior order extended only the deadline for completing third-party discovery from Ethicon.
Court’s Ruling
The court denied the application without prejudice to renewal as a motion in limine if the defendants identify Schefelker as a trial witness. A motion in limine is a request made before trial to decide whether proposed evidence may be presented at trial. The court did not rule in this order on whether Schefelker should ultimately be excluded or whether discovery should be reopened.
The court reminded the parties that fact discovery closed on November 25, 2020, with four limited exceptions: completing the deposition of Dr. Ronald DeMatteo; conducting the depositions of Dr. Nancy Kemeny and Dr. Constantinos Sofocleous; and completing the plaintiff’s third-party discovery from Ethicon.
Read the full 3-page opinion on CourtListener, the free public archive maintained by the Free Law Project.