Colon v. City Of New York
- Vernon Broderick
- 1:16-cv-04540
- U.S. District Court · Southern District of New York
- 8
In Colon v. City Of New York, Judge Broderick denied Colon’s request to use a late-disclosed economist at trial.
Sibyl Colon cannot use Gary Crakes’s expert report or testimony at trial. The defendants—New York City Housing Authority, Brian Clarke, and Michael Kelly—do not have to respond to that late expert disclosure on the existing trial schedule.
What happened
In Colon v. City Of New York, Sibyl Colon asked the court to allow her to disclose economist Gary Crakes, Ph.D., after the expert-discovery deadline and to permit him to testify at trial. The trial was scheduled to begin on March 4, 2024.
Colon acknowledged that the disclosure violated the court’s deadline and the federal discovery rules. She argued that Crakes’s testimony was important and that the defendants could prepare by taking his deposition, hiring their own economist, and receiving payment for the related costs. The defendants argued that the disclosure, made shortly before trial and nearly five years after expert discovery closed, would prejudice their trial preparation.
The court denied Colon’s motion and barred her from offering Crakes’s report or testimony at trial. Judge Vernon S. Broderick concluded that Colon’s explanation for the delay was not persuasive and that allowing the expert would substantially prejudice the defendants.
The detailed version
- Colon v. City Of New York · No. 1:16-cv-04540
- Vernon Broderick
- Feb. 16, 2024
Background
Trial was scheduled to begin on March 4, 2024. Sibyl Colon moved for permission to serve a late expert disclosure and to have economist Gary Crakes, Ph.D., testify at trial. Expert discovery had closed on May 1, 2019, and neither side had disclosed an intention to use an expert. Colon’s new counsel appeared on November 1, 2023, and sent Crakes’s report to the defendants on January 9, 2024—55 days before trial.
Legal standard
Federal Rule of Civil Procedure 26 generally requires expert disclosures at least 90 days before trial, unless the parties stipulate otherwise or the court orders a different deadline. Under Rule 37, a party that fails to make a required disclosure generally may not use the information or witness unless the failure was substantially justified or harmless. The court considered four factors used for late expert disclosures: the explanation for the delay, the importance of the testimony, the prejudice to the opposing party, and the possibility of a continuance.
Court’s analysis
Colon conceded that her disclosure was untimely and violated Rule 26. Her counsel explained that he disagreed with prior counsel’s decision not to retain an expert. The court found that disagreement insufficient, particularly because new counsel had opportunities to seek permission for a late disclosure but instead represented that Colon was ready for trial.
The court assumed that Crakes’s testimony might be important but found that the remaining factors favored excluding it. If the testimony were allowed, the defendants would need time for expert discovery, including deposing Crakes, retaining a rebuttal expert, and potentially challenging his testimony. The court concluded that the late disclosure, made nearly five years after expert discovery closed and shortly before trial, would substantially interfere with the defendants’ trial preparation. The court also stated that bad faith was not required to exclude the testimony.
Disposition
Judge Vernon S. Broderick denied Colon’s motion. The court precluded Colon from offering Crakes’s expert report or testimony at trial and directed the clerk to terminate the motion at Document 329.
Read the full 8-page opinion on CourtListener, the free public archive maintained by the Free Law Project.