Free Response - District Court of Connecticut - Connecticut

Case 3:00-cv-01477-EBB

Document 128

Filed 06/07/2004

Page 1 of 5

UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT ------------------------------: MICHAEL GARGANO AND ANDREA : CIVIL ACTION NO. 3:00cv1477(EBB) GARGANO, : : PLAINTIFFS, : : V. : : METRO-NORTH COMMUTER : RAILROAD COMPANY, : : DEFENDANTS/ : THIRD-PARTY PLAINTIFFS, : : V. : : DUCCI ELECTRICAL CONTRACTORS, : INC., : : THIRD-PARTY DEFENDANT. : ------------------------------. JUNE 7, 2004 PLAINTIFFS REPLY TO DEFENDANT S OPPOSITION TO MOTION TO PRECLUDE

In accordance with Local Rule 7(d), the plaintiffs reply to Defendant Metro-North s Memorandum of Law dated May 27, 2004.

ORAL ARGUMENT IS REQUESTED

-1LYNCH, TRAUB, KEEFE AND ERRANTE, P. C. ATTORNEYS AT LAW
52 TRUMBULL STREET P.O. BOX 1612 NEW HAVEN, CONNECTICUT 06506-1612 TELEPHONE (203) 787-0275 FACSIMILE (203) 782-0278

C:\DOCUMENTS AND SETTINGS\IBEEBE\LOCAL SETTINGS\TEMPORARY INTERNET FILES\OLK19\REPLY - MOTION TO PRECLUDE 6-7-04.DOC

Case 3:00-cv-01477-EBB

Document 128

Filed 06/07/2004

Page 2 of 5

The defendant s failure to identify and disclose a critical document is highly prejudicial and requires preclusion. The defendant s Memorandum of Law is not persuasive. First, the defendant suggests that because it has already

provided over 500 pages of documents responsive to plaintiffs demands, its failure to identify and disclose what could be the

most critical document in the case should be overlooked. Clearly, the defendant s willingness to comply with the mandates of the Federal Rules of Civil Procedure on some occasions hardly justifies its failure to comply on others.1 Even so, the

defendant s failure - for more than a year and a half - to explain its non-compliance beyond a further search was being is plainly

conducted to include Metro-North s archives unacceptable.

Second, because multiple Metro-North Class A Linemen have testified concerning the existence of a document which, in their

It should be noted that the plaintiffs have never suggested, and are not suggesting now, that the defendant s attorneys are acting unprofessionally. (See Def. s Mem. of Law at 4 ( plaintiffs claim is also professionally insulting. ) Nor are the plaintiffs suggesting that the defendant has supplied this critical document to it counsel. If it did, the plaintiffs are confident that the defendant s counsel would have disclosed it.

1

-2LYNCH, TRAUB, KEEFE AND ERRANTE, P. C. ATTORNEYS AT LAW
52 TRUMBULL STREET P.O. BOX 1612 NEW HAVEN, CONNECTICUT 06506-1612 TELEPHONE (203) 787-0275 FACSIMILE (203) 782-0278

C:\DOCUMENTS AND SETTINGS\IBEEBE\LOCAL SETTINGS\TEMPORARY INTERNET FILES\OLK19\REPLY - MOTION TO PRECLUDE 6-7-04.DOC

Case 3:00-cv-01477-EBB

Document 128

Filed 06/07/2004

Page 3 of 5

view, altered their otherwise clearly mandated duties under MN290 as of July 22, 1999, and Metro-North has never identified or produced any such document notwithstanding specific requests by the plaintiffs, the plaintiffs have proceeded under the critical assumption that either no document altering the protection duties of Class A Linemen under MN-290 existed - at least prior to Michael Gargano s incident on July 22, 1999, or these Class A Linemen have grossly and erroneously misconstrued some Metro North document, which led to their failure to provide proper Class A protection to Michael Gargano on July 22, 1999. Obviously, if there is a document that purports to alter the protection duties of Class A Linemen with respect to Ducci employees as of July 22, 1999, it would be critical to the plaintiffs liability claims. If such a document appears at

this late juncture, the plaintiffs will be forced to (1) redepose multiple witnesses, (2) incur additional deposition expenses, (3) incur additional fees from their liability expert, and (4) revisit their trial strategy altogether. This would be

grossly unfair to the plaintiffs as they prepare to proceed to trial in a case that was filed in 2000.

-3LYNCH, TRAUB, KEEFE AND ERRANTE, P. C. ATTORNEYS AT LAW
52 TRUMBULL STREET P.O. BOX 1612 NEW HAVEN, CONNECTICUT 06506-1612 TELEPHONE (203) 787-0275 FACSIMILE (203) 782-0278

C:\DOCUMENTS AND SETTINGS\IBEEBE\LOCAL SETTINGS\TEMPORARY INTERNET FILES\OLK19\REPLY - MOTION TO PRECLUDE 6-7-04.DOC

Case 3:00-cv-01477-EBB

Document 128

Filed 06/07/2004

Page 4 of 5

The plaintiffs respectfully requests that their Motion to Preclude be granted, and that the court issue an order precluding the defendant from offering or making reference to any document purporting to alter, amend, modify, and/or supplement that portion of the defendant s MN-290 Electrical Operating Instructions with respect to employees of the Ducci Electrical Contractors, Inc., working on the New Haven Interlocking Reconstruction Project as of and including July 22, 1999. Respectfully submitted, THE PLAINTIFFS,

BY:_____________________________ STEVEN J. ERRANTE, ESQ. Fed. Bar. No. ct 04292 ERIC P. SMITH, ESQ. Fed. Bar No. ct16141 203-787-0275 203-782-0278 (facsimile)

-4LYNCH, TRAUB, KEEFE AND ERRANTE, P. C. ATTORNEYS AT LAW
52 TRUMBULL STREET P.O. BOX 1612 NEW HAVEN, CONNECTICUT 06506-1612 TELEPHONE (203) 787-0275 FACSIMILE (203) 782-0278

C:\DOCUMENTS AND SETTINGS\IBEEBE\LOCAL SETTINGS\TEMPORARY INTERNET FILES\OLK19\REPLY - MOTION TO PRECLUDE 6-7-04.DOC

Case 3:00-cv-01477-EBB

Document 128

Filed 06/07/2004

Page 5 of 5

CERTIFICATION I certify that a copy of the above was mailed on June 7, 2004 to all counsel and pro se parties of record as follows: Sean Kane, Esq. Landman, Corsi, Ballaine & Ford, P.C. 120 Broadway, 27th Floor New York, NY 10271-0079 (212-238-4800) (Counsel to Defendants) Joseph A. LaBella, Esq. D Attelo & Shields 500 Enterprise Drive, Suite #4B Rocky Hill, CT 06067 (860) 571-7999 (Counsel to Defendants) Brian J. Farrell, Jr., Esq. Law Offices of Brian J. Farrell, Jr. 200 Glastonbury Blvd., Suite 301 Glastonbury, CT 06033 (860-633-4797) (Counsel to Defendant) Genovese, Vehslage & LaRose 500 Enterprise Drive Rocky Hill, CT 06067 (860) 513-3760 (Counsel to Intervening Plaintiff Ducci Electrical Contractors) David J. Crotta, Jr., Esq. Mulvey, Oliver, Gould & Crotta 83 Trumbull Street New Haven, CT 06511 (203) 624-5111 (Counsel to Third-Party Defendant Ducci Electrical Contractors)

________________________________

Eric P. Smith, Esq.

-5LYNCH, TRAUB, KEEFE AND ERRANTE, P. C. ATTORNEYS AT LAW
52 TRUMBULL STREET P.O. BOX 1612 NEW HAVEN, CONNECTICUT 06506-1612 TELEPHONE (203) 787-0275 FACSIMILE (203) 782-0278

C:\DOCUMENTS AND SETTINGS\IBEEBE\LOCAL SETTINGS\TEMPORARY INTERNET FILES\OLK19\REPLY - MOTION TO PRECLUDE 6-7-04.DOC