Powers v. Memorial Sloan Kettering Cancer Center

Background

Scott Powers brought this action individually and as representative of the Estate of Erika Zak against Memorial Sloan Kettering Cancer Center and other defendants. The parties received five extensions of the discovery deadlines. Their amended scheduling order required all discovery to close on April 25, 2021.

The Court later held a conference about the defendants’ anticipated motion for summary judgment. On June 21, 2021—almost two months after discovery closed—Powers served an expert disclosure for Dr. Carlos Torres. The defendants sought to strike or exclude Dr. Torres’s opinion and testimony as untimely. On July 15, 2021, the Court granted that motion.

Motion for Reconsideration

Powers then sought reconsideration of the order excluding Dr. Torres’s testimony. Reconsideration is an extraordinary request generally requiring an intervening change in controlling law, newly available evidence, or a need to correct clear error or prevent manifest injustice. The Court also explained that reconsideration is not a way to relitigate issues already considered or present the case under a new theory.

Powers attributed the delay to the defendants’ production of two sets of liver slides: slides from Erika Zak’s explanted liver from Cleveland Clinic and pathology slides from Memorial Sloan Kettering. The Court found that both sets had been available before discovery closed. The Cleveland Clinic slides, which Dr. Torres ultimately used for his report, were produced on March 25, 2021. The defendants offered on April 6, 2021, to let Powers inspect the Memorial Sloan Kettering slides, but Powers declined.

The Court also found that Powers did not seek an extension to disclose a rebuttal expert or complete expert discovery, did not ask the Court to compel production of the slides, and did not raise the need for an additional expert at the May 13, 2021, pre-motion conference. The Court noted that Powers knew about the potential testimony of the defendants’ expert, Dr. Neil Theise, by November 30, 2020, giving him time to respond before the discovery deadline.

Ruling

The Court found that Powers showed a complete lack of diligence and offered no persuasive explanation for failing to comply with the expert-disclosure and discovery deadlines. The Court therefore denied the motion for reconsideration. The Clerk of Court was directed to close the motion. The opinion’s text refers to Docket Nos. 223 and 224 in a way that is not entirely consistent about which docket number identifies the reconsideration motion.