James J. Polidoro v. The Law Firm of Jonathan D'Agostino, P.C
- Barbara Moses
- 1:19-cv-01290
- U.S. District Court · Southern District of New York
- 3
Polidora v. D'Agostino & Associates: Judge Moses set procedures for plaintiff to revise or defend his expert report, without deciding the exclusion motion.
Plaintiff James J. Polidora and defendant D'Agostino & Associates. The order gave plaintiff choices concerning his expert report and temporarily suspended related expert-report and deposition deadlines.
What happened
In James J. Polidora v. D'Agostino & Associates, the court reviewed the defendant’s request to exclude plaintiff’s expert report. The court said the report appeared vulnerable because it offered opinions about legal malpractice, fraud, the defendant’s intentions, and the law governing plaintiff’s claims.
The court gave plaintiff two choices: withdraw the report and serve an amended report, or keep the current report and allow the defendant to file its exclusion motion. Plaintiff had to notify the court of his choice by July 13, 2021. The court also suspended certain expert deadlines while the amended report or motion was pending.
Judge Moses did not grant or deny the exclusion motion in this order. Instead, she established deadlines and procedures for the parties to address the report.
The detailed version
- James J. Polidoro v. The Law Firm of Jonathan D'Agostino, P.C · No. 1:19-cv-01290
- Barbara Moses
- July 6, 2021
Background
Judge Nathan referred the defendant’s letter-motion to exclude, or strike, plaintiff’s expert report to Magistrate Judge Barbara Moses for a report and recommendation. Plaintiff did not file a response. The report was prepared by Jessica Di Bianca, Esq.
The order identified several apparent problems with the report. It stated that the expert offered opinions that the defendant committed legal malpractice, also called professional negligence, and fraud. The order explained that such opinions address ultimate legal questions. It also stated that the expert offered opinions about the defendant’s intentions and motivations, issues generally left to the jury rather than expert witnesses. Finally, the expert purported to explain the elements of plaintiff’s legal-malpractice and fraud claims to the jury, a task the order said belongs to the court.
Order
For efficiency, the court gave plaintiff two options. First, plaintiff could withdraw the report without penalty, notify the court in writing by July 13, 2021, and serve an amended report by July 27, 2021. The court warned that it was unlikely to allow another opportunity to amend the report.
Second, plaintiff could notify the court by July 13, 2021, that he wished to stand on the current report. If he chose that option, the defendant had to file its motion to exclude the report by July 27, 2021, with opposition and reply deadlines governed by the applicable local rule.
The court suspended the deadlines for the defendant’s rebuttal expert report and for completing the parties’ expert depositions while plaintiff’s amended report or the anticipated exclusion motion remained pending.
Disposition and Effect
This order did not state that the defendant’s motion to exclude was granted or denied. It set a process for plaintiff to revise the report or proceed with the existing report and suspended related expert deadlines. The order was entered by Judge Barbara Moses on July 6, 2021.
Read the full 3-page opinion on CourtListener, the free public archive maintained by the Free Law Project.