Reply Affirmation, with Exhibits 4
Having previously determined liability, this Court has scheduled the trial on
the damages portion of this claim to commence on March 12, 2001.
After I rendered my decision on liability, and in an attempt to settle this
claim, at the request of the parties, my esteemed colleague, Hon. Diane L.
Fitzpatrick, graciously consented to conduct a settlement conference. At this
conference, it was determined that disclosure of information from the economists
and life care planners for each party was required before any meaningful
settlement negotiations could occur. I therefore issued a scheduling order
directing that claimants provide expert witness disclosure by October 15, 2000,
and defendant to provide its expert witness disclosure by November 15, 2000.
While in the process of preparing and providing defendant with claimants'
disclosure of their life care planner and economist, claimants' counsel advised
defendant's counsel, by correspondence dated September 25, 2000, that he was
also considering calling a non-treating physician to testify at trial, but that
he would be unable to supply expert witness disclosure regarding this
non-treating physician by October 15, 2000, the date set in my order for
claimants' expert witness disclosure.
Pursuant to my scheduling order, claimants timely provided expert witness
disclosure of Kenneth W. Reagles, Ph.D. (life care planner) and of Ronald R.
Reiber, Ph.D. (economist). Defendant also timely provided expert witness
disclosure of Mona G. Yudkoff, R.N. (life care planner), and of Saad G. Sobhy,
M.D., a non-treating physician.
Defendant, however, rejected as untimely the disclosure made by claimants of
their non-treating physician, Rina C. Davis, M.D., and of a non-treating nurse,
Maureen P. Schmitt, R.N. The disclosure for both of these experts was made by
claimants subsequent to the October 15, 2000 date set forth in my scheduling
Claimants' disclosure of their non-treating nurse, Maureen P. Schmitt, R.N.,
was made on November 30, 2000. Disclosure of their non-treating physician, Rina
C. Davis, M.D., was originally made on December 22, 2000, and a revised
disclosure was made on January 2, 2001.
Although disclosure of their non-treating expert physician and retained nursing
expert were admittedly both made subsequent to the date provided for in my
scheduling order, claimants' counsel did advise defendant's counsel, prior to
said date, that he would be unable to comply with the time frame set forth in my
scheduling order for these witnesses. Defendant was therefore aware that
additional disclosure was forthcoming. The actual disclosure of these two
potential witnesses was made approximately three months prior to the scheduled
commencement of the damages trial, and therefore defendant cannot claim any
prejudice or surprise as a result of claimants' failure to disclose by the
October 15, 2000 deadline. Furthermore, it is clear to the Court that
disclosure of these two experts was not essential for a meaningful settlement
discussion before Judge Fitzpatrick.
Accordingly, it is
ORDERED, that defendant is directed to accept the expert witness disclosure
made by claimants of their non-treating expert physician, Rina C. Davis, M.D.,
and of their retained nursing expert, Maureen P. Schmitt, R.N.