Powers v. Memorial Sloan Kettering Cancer Center

Background

The court had previously directed the parties to schedule depositions of defendants’ expert witnesses after the deposition of plaintiff’s expert, Dr. Davidson. The court explained that Powers bears the burden of proof and that defendants’ experts might need to respond to testimony given by Powers’s experts during their depositions.

The case management and scheduling order set February 28, 2021, as the deadline for completing all expert discovery. Depositions of two of Powers’s experts, Dr. Navuluri and Dr. DeMatteo, had occurred. The parties scheduled Dr. Davidson’s deposition for February 10, 2021, but he was unavailable because of a personal emergency and did not know when he would again be available.

Motions and Positions

Defendants filed a pre-motion letter seeking to exclude Dr. Davidson’s expert testimony. Alternatively, they requested a six-week extension of the expert-discovery deadline and asked that Powers pay costs for defendants’ expert physicians if their depositions had to be rescheduled because they had canceled patient appointments for the originally scheduled dates. Powers requested an eight-week extension. The parties later submitted supplemental letters and a joint letter identifying the topics on which Dr. Davidson had been retained and discussing any overlap with Dr. Navuluri’s and Dr. DeMatteo’s testimony.

Court’s Analysis

The court treated defendants’ pre-motion letter as a motion to exclude Dr. Davidson’s testimony, an alternative request to extend the expert-discovery deadline, and a motion for costs.

The court denied the motion to exclude without prejudice to renewal before trial. At that stage, the court did not find it apparent that Dr. Davidson’s testimony was unreasonably cumulative or duplicative. Although Dr. Navuluri and Dr. Davidson are both interventional radiologists, the court stated that Dr. Davidson appeared to offer distinct insight into whether alternatives to ablation may have been appropriate. The court cited an appellate decision approving denial of an expert-exclusion motion as premature when the nature and scope of the testimony were unclear.

The court also denied defendants’ motion for costs without prejudice to renewal after trial.

Disposition

The parties were ordered to complete all expert discovery by April 11, 2021. Consistent with the court’s earlier orders, defendants’ experts were to be deposed after Dr. Davidson. The court stated that a revised case management and scheduling order would issue separately and directed the clerk to close the listed motions.