Forte v. McNellis

Background

Daniel Forte brought claims under 42 U.S.C. § 1983 against the City of New York, Detective Brian McNellis, Detective Edward Garrity, White Plains Police Officers Kenneth Tallevi and Cunningham, and others. The claims included unlawful search and seizure, false arrest, false imprisonment, conspiracy, fabrication of evidence, denial of a fair trial, and municipal liability.

The dispute addressed in this order involved Kenneth Tallevi and Jahmar Cunningham, referred to as the White Plains defendants. The parties’ stipulated discovery deadline was January 15, 2021. In September 2019, they had agreed that they would not use expert testimony. On January 19, 2021—six days after discovery closed—the White Plains defendants first informed the parties that they intended to use Dr. Elizabeth Spratt as an expert witness and asked the court to modify the case-management schedule to permit expert discovery.

The proposed report concerned the difference between the weight of the controlled substance recorded when Forte was arrested and the weight recorded after laboratory processing. The White Plains defendants said the report would explain how different police and laboratory procedures could account for the difference. They argued that the testimony was needed to prevent the factfinder from inferring that the arresting officers had acted improperly.

Parties’ Positions

The White Plains defendants argued that they did not realize the measurement discrepancy would be an issue until Forte questioned them about it during depositions in October 2020. They said that, after learning of its importance, they identified Dr. Spratt, gave her the relevant records, obtained her report on January 11, 2021, and produced it to Forte’s counsel eight days later.

Forte argued that the defendants had known about the discrepancy much earlier. He pointed to allegations and briefing in the case, the court’s September 28, 2018 opinion, and document requests and responses showing the difference in the reported weights. He opposed reopening discovery and asked the court to set a schedule for summary-judgment briefing.

Legal Standard

Federal Rule of Civil Procedure 16(b)(4) allows a court-ordered discovery schedule to be modified for good cause and with the judge’s consent. The court explained that the main consideration is whether the party seeking the change acted diligently—whether, despite reasonable diligence, the deadline could not have been met. Courts may also consider the explanation for the delay, the importance and relevance of the proposed testimony, the opportunity for discovery already provided, prejudice to the opposing party, and the timing of trial.

Court’s Analysis

The court found that the proposed expert testimony was potentially relevant to Forte’s claim that the White Plains defendants improperly prosecuted him on a higher-level controlled-substance charge. However, the court concluded that the defendants had not shown the diligence required for good cause.

The court found that the defendants knew, or should have known, well before discovery closed that Forte might rely on the alleged weight inaccuracies. The record contained multiple references to the issue, and the defendants themselves possessed evidence showing the discrepancy. The court therefore concluded that they had ample time during the extended discovery period to seek permission to use an expert.

The court also found that, even accepting the defendants’ claim that they recognized the issue only in late October 2020, they waited about three months before telling Forte or the court that they wanted expert discovery. The court described that decision as gamesmanship and found that the delay weighed against changing the schedule.

Finally, the court found that reopening discovery would prejudice Forte by creating additional costs and delaying the case. The court noted that Forte was an indigent party proceeding without a lawyer, except that counsel represented him for the limited purposes of document discovery and depositions. The court stated that he would likely have substantial difficulty obtaining and paying for an expert to respond to Dr. Spratt’s report.

Disposition

Judge Vernon S. Broderick denied the White Plains defendants’ motion to reopen discovery. The court did not decide the underlying § 1983 claims or determine whether Dr. Spratt’s report would ultimately be admissible. It directed the parties to proceed with summary-judgment briefing: motions were due by April 27, 2021; opposition papers by June 11, 2021; and reply papers by July 12, 2021.