United States District Court, W.D. Pennsylvania
MEMORANDUM ORDER DENYING THE MEDICAL DEFENDANTS' MOTION FOR RECONSIDERATION (ECF NO. 252) OF THE MAY 30, 2014 ORDER (ECF NO. 186)
CYNTHIA REED EDDY, Magistrate Judge.
Before the Court is the Medical Defendants' Motion for Reconsideration (ECF No. 252) of the Court's Order from May 30, 2014 ("the Order"), (ECF No. 186), which ordered that the Medical Defendants are precluded from referencing or relying on Dr. Mendel's expert report for any purpose, including trial. The Medical Defendants argue that the Court should vacate said Order because it is "grossly disproportionate" to the underlying conduct and is unwarranted under Third Circuit precedent. (Medical Def.s' Br. in Supp. at 4-5, ECF No. 253). Because the Medical Defendants' motion is without merit, it will be denied.
At the outset, the Court notes that this motion appears to be directed to a District Judge. Under the blank signature line on the attached proposed order, it says "United States District Judge." (ECF No. 252-1). Additionally, in the brief in support, the Medical Defendants state that "the court should reconsider the May 30, 2014 Memorandum Order issued by Judge Eddy" and also refer to Judge Eddy by name in footnote 3. (ECF No. 253 at 1, 3). Although the undersigned did not have full consent of the parties at the time that the Order was entered, as Judge Cercone was the District Judge assigned to the case, the undersigned has had full consent in this case since August 21, 2014. (ECF Nos. 21, 22, 228). Accordingly, pursuant to 28 U.S.C. § 636(c), the undersigned has full "authority over dispositive motions" and the authority to enter "final judgment, all without district court review." Roell v. Withrow , 538 U.S. 580, 585 (2003); In re Search of Scranton Hous. Auth. , 487 F.Supp.2d 530, 535 (M.D. Pa. 2007). Therefore, to the extent that the Medical Defendants are attempting to appeal this Order to a District Judge, that attempt is invalid. There is no longer a District Judge on this case and the matter has been scheduled for trial with the undersigned since December 3, 2014.
Had the Medical Defendants followed the appropriate procedure at the time that the Order was entered, they could have filed objections to be reviewed by Judge Cercone. Under 28 U.S.C. § 636(b)(1)(A), Federal Rule of Civil Procedure 72(a), and Local Rule 72.C., a party may challenge a Magistrate Judge's nondispositive order, such as the one entered on May 5, 2014, by filing objections to a District Judge within fourteen days of the date of entry. The District Judge then reviews the nondispositive order to determine whether it is clearly erroneous or contrary to law. 28 U.S.C. § 636(b)(1)(A); Fed.R.Civ.P. 72(a). However, "[a] party may not assign as error a defect in the order not timely objected to." Fed.R.Civ.P. 72(a). Despite the fourteen day time period to object to nondispositive orders, the Medical Defendants have once again disregarded the applicable rules of procedure, and waited almost eleven months before complaining about the Order. Consequently, their motion is untimely and they may not now assign as error a defect in the Order to which they did not timely object. See United Steelworkers of America, AFL-CIO v. New Jersey Zinc. Co., Inc. , 828 F.2d 1001, 1007-1008 (3d Cir. 1987) (holding "that parties who wish to preserve their objections to a magistrate's order entered pursuant to 28 U.S.C. § 636(b)(1)(A) must file their objections in the district court within [fourteen] days as set forth in Fed.R.Civ.P. 72(a)"); Kalick v. United States , ___ Fed.App'x. ___, 2015 WL 1036818, *4 (3d Cir. March 11, 2015) ("When [a party] did not properly seek review of the Magistrate Judge's order under the procedures specified by the local rules, he deprived the District Court of the opportunity to correct any errors; such an action is wasteful of scarce judicial resources... Accordingly, his contention concerning the [Magistrate Judge's nondispositive] order is forfeited and we will not review it.") For this reason alone, the motion is appropriately denied.
Nonetheless, the Court will further explain why the Medical Defendants' motion lacks merit. "The purpose of a motion for reconsideration is to correct manifest errors of law or fact or to present newly discovered evidence." Harsco Corp. v. Zlotnicki , 779 F.2d 906, 909 (3d Cir. 1985); Max's Seafood Cafe v. Quinteros , 176 F.3d 669, 677 (3d Cir. 1999). Such a motion should be granted if the movant establishes at least one of the following factors: (1) an intervening change in the controlling law; (2) the availability of new evidence that was not available at the time of the Order; or (3) the need to correct a clear error of law or to prevent manifest injustice. Quinteros , 176 F.3d at 677 (citing North River Ins. Co. v. CIGNA Reinsurance Co. , 52 F.3d 1194, 1218 (3d Cir. 1995)). The Medical Defendants argue that this Court should vacate the Order pursuant to the third factor - to correct a clear error of law or to prevent a manifest injustice. Motions for reconsideration should only be granted "sparingly." Velazquez v. UPMC Bedford Memorial Hosp ., 338 F.Supp.2d 609, 611 (W.D. Pa. 2004).
As noted supra , the Medical Defendants seek to disturb the Order which was entered almost eleven months ago. Because the Medical Defendants disregarded the Court's scheduling Order from February 11, 2014 pertaining to the expert deadline, the Court ordered that the Medical Defendants are prohibited from using an expert for any purpose, including trial. (The Order, ECF No. 186). A trial court may exclude expert testimony "because of the failure of counsel to adhere to a pretrial order.'" Konstantopoulos v. Westvaco Corp. , 112 F.3d 710, 719 (3d Cir. 1997) (quoting Semper v. Santos , 845 F.2d 1233, 1238 (3d Cir. 1988). The Third Circuit has set forth the following factors to be considered:
(1) the prejudice or surprise in fact of the party against whom the excluded witnesses would have testified, (2) the ability of that party to cure the prejudice, (3) the extent to which waiver of the rule against calling unlisted witnesses would disrupt the orderly and efficient trial of the case or other cases in the court, and (4) bad faith or wilfulness in failing to comply with the district court's order.
Id. (quotations omitted). Additionally, because the exclusion of critical evidence is an extreme sanction, a trial court should not impose such a sanction absent a showing of willful deception or "flagrant disregard" of a court order by the proponent of the evidence. Id.
Although the Order does not explicitly state that the Medical Defendants' conduct was in "bad faith" or constituted a flagrant or "willful disregard, " as the Medical Defendants note, the Court did observe that they " woefully violated" the scheduling order. (The Order at 3, ECF No. 186). Specifically, the Court noted that the scheduling order had been in place for two and a half months, that the Medical Defendants had frequent communication with the Court between when the scheduling order was entered and the expert deadline, and that the Medical Defendants never took any steps to notify the Court of any problems in meeting this deadline. (Id. ). Moreover, given the history of this case, and the Medical Defendants' systemic disregard of this Court's Orders, it was unnecessary in this specific Order to state the words "bad faith" or "willful disregard."
Indeed, a cursory review of the docket displays that the Medical Defendants, through their counsel, Stanley Winikoff, have failed to follow the Court's Orders throughout the duration of this litigation:
Order to Show Cause from 12/02/2013 (ECF No. 73) and Show Cause Hearing on 12/13/2013;
Hearing Memo regarding Motions for Sanctions dated 02/03/2014 (ECF No. 108);
Order granting Motion for Sanctions on 02/11/2013, effective 02/03/2013 (ECF No. 113);
Memorandum Order dated 02/12/2014 (ECF No. 116) (In footnote 1, the Court found Mr. Winikoff's "tactics to be unprofessional." Mr. Winikoff was reprimanded by the Court for attempting to have the Court enforce a facially invalid subpoena which did not provide appropriate notice or provide a witness fee. The Court also noted that the Medical Defendants' motion for fees and expenses was ...