Zambito v. United States

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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GARY ZAMBITO,

MEMORANDUM AND

Plaintiff,

ORDER

- against -

18-CV-3612(SIL)

THE UNITED STATES OF AMERICA,

Defendant.

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STEVEN I. LOCKE, United States Magistrate Judge:

On March 11, 2025, the Court issued a Memorandum and Order ruling on

several pre-trial motions submitted by both parties (the “Pretrial Motion Order”). See

Docket Entry (“DE”) [150]. This included: (1) Plaintiff Gary Zambito’s (“Plaintiff” or

“Zambito”) seven motions in limine; (2) Defendant The United States of America’s

(“Defendant” or the “Government”) three motions in limine; and (3) Defendant’s

motion for reconsideration of this Court’s July 29, 2024 Order (the “July 29 Order”)

precluding certain late-produced evidence from being presented at trial. Id.

Defendant seeks reconsideration of the Court’s ruling regarding Plaintiff’s motion in

limine No. 3 (“MIL No. 3”), which precludes testimony from Dr. Stanley Schneller,

M.D. at trial or introduction of Dr. Schneller’s expert report. DE [150] at 9-12. The

Government also seeks leave to file a declaration in support of its motion for

reconsideration. DE [152]. Plaintiff opposes both motions. See DE [153], [154]. Both

motions are denied.

I. Background1

In the July 29 Order, the Court held that Defendant is precluded from relying

at trial on certain discovery produced after September 15, 2023. See DE [131]. The

Court held that, due to Defendant’s untimely Fed. R. Civ. P. 26 disclosures, Plaintiff’s

experts incorrectly believed, through no fault of their own, that “they were operating

from the entire universe of documents” when producing their September 15, 2023

expert reports. Id. The Court observed that it “would not be fair to allow the parties

to proceed to trial” under this erroneous belief and that Plaintiff would be prejudiced

both by “further delaying a seven year-old case” and by incurring further expense to

have his expert create an amended report based on newly and untimely produced

discovery. Id.

On October 24, 2024, the parties submitted their motions in limine. DE [137]

– [146]. Relevant here, in Plaintiff’s MIL No. 3, Zambito moved to preclude testimony

from Dr. Schneller at trial on the grounds that, in forming his expert opinion, Dr.

Schneller relied on evidence produced after September 15, 2023 in contravention of

the Court’s July 29 Order. DE [139]. The Court agreed and reiterated that “it would

be inequitable to allow Defendant to rely on evidence that Plaintiff and his experts

did not have the opportunity to review or consider prior to issuing their expert

reports.” See Pretrial Motion Order at 6. Accordingly, and as stated in the July 29

1 The facts that form the basis of Zambito’s claims, as well as the procedural posture resulting in the

instant motion for reconsideration, have been described at length in previous filings, and the Court

presumes the parties’ familiarity. See DE [114], [131], [150]. Only those facts necessary to provide

relevant context for the instant motion for reconsideration are described herein.

Order, the Court again held that preclusion was an appropriate sanction. See

generally July 29 Order; Pretrial Motion Order at 10-11.

In conjunction with its motions in limine, on November 1, 2024, Defendant also

filed a motion for reconsideration of the July 29 Order. DE [147]. For the reasons

stated in the Pretrial Motion Order, the Court denied the Government’s motion for

reconsideration as untimely and meritless. DE [150] at 3-6. In the instant motion,

Defendant seeks reconsideration of the portion of the Pretrial Motion Order that

granted Zambito’s MIL No. 3, which precludes expert testimony from Dr. Schneller

and consideration of Dr. Schneller’s expert report. DE [151].

II. Legal Standard

Local Civil Rule 6.3 governs motions for reconsideration. Flores v. Cnty. of

Suffolk, No. 16-CV-2502(ADS)(ARL), 2019 WL 1298274, at *1 (E.D.N.Y. Mar. 21,

2019). In evaluating a motion for reconsideration, courts consider whether there: (1)

has been “an intervening change of controlling law;” (2) is new evidence presented

that was not previously available on the original motion; or (3) is a “need to correct a

clear error or prevent manifest injustice.” Bishop v. Cnty. of Suffolk, No. 13-CV-

446(JS)(AKT), 2018 WL 4623016, at *1 (E.D.N.Y. Sept. 25, 2018) (quoting Kolel Beth

Yechiel Mechil of Tartikov, Inc. v. YLL Irrevocable Tr., 729 F.3d 99, 104 (2d Cir.

2013)); see Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995) (“The

standard for granting such a motion is strict, and reconsideration will generally be

denied unless the moving party can point to controlling decisions or data that the

court overlooked—matters, in other words, that might reasonably be expected to alter

the conclusion reached by the court.”). Pursuant to Local Rule 6.3, “[n]o party is to

file an affidavit unless directed by the court.”

“[A] party may not use a motion for reconsideration to ‘relitigate an issue

already decided’ by advancing novel arguments that could have been raised

previously.” Hadid v. City of New York, 182 F. Supp. 3d 4, 13 (E.D.N.Y. 2016)

(quoting Shrader, 70 F.3d at 257). “Reconsideration ‘is an extraordinary remedy to be

employed sparingly in the interests of finality and conservation of scarce judicial

resources.’” Bishop, 2018 WL 4623016, at *2 (quoting Sigmon v. Goldman Sachs

Mortg. Co., 229 F. Supp. 3d 254, 257 (S.D.N.Y. 2017)). “The decision to grant or deny

a motion for reconsideration lies squarely within the discretion of the district court.”

Murphy v. First Reliance Standard Life Ins. Co., No. 08-CV-3603(DRH)(WDW), 2010

WL 2243356, at *3 (E.D.N.Y. June 1, 2010); see Bishop, 2018 WL 4623016, at *2 (“It

is within the sound discretion of the district court whether or not to grant a motion

for reconsideration.”).

III. Discussion

Applying these standards, Defendant’s motion for reconsideration is denied.

Initially, while the instant motion is styled as a motion for reconsideration of the

ruling on Plaintiff’s MIL No. 3, it effectively seeks a second bite at the apple with

respect to Defendant’s motion for reconsideration of the July 29 Order. In its

opposition to Plaintiff’s MIL No. 3, Defendant argued that the Court should

reconsider its July 29 Order, even though it had previously moved for identical relief.

DE [131], [147]. Accordingly, this is an impermissible attempt to relitigate an issue

that has already been decided. See Rivas v. Melecio, No. 23-CV-05718(JMA), 2024

WL 1096065, at *1 (E.D.N.Y. Feb. 21, 2024) (“[A] motion for reconsideration is not a

vehicle for relitigating old issues, presenting the case under new theories, securing a

rehearing on the merits, or otherwise taking a second bite at the apple.”) (citing

Analytical Surveys, Inc. v. Tonga Partners, L.P., 684 F.3d 36, 52 (2d Cir. 2012)); Klein

v. Brookhaven Health Care Facility, No. 17-CV-4841(JS)(ARL), 2022 WL 19567887,

at *2 (E.D.N.Y. Apr. 12, 2022) (denying motion for reconsideration where the plaintiff

failed to raise arguments other than what the court had already considered).

In any event, Defendant does not identify any controlling law that the Court

failed to consider. To this end, in its reply in support of its motion, the Government

does not address Plaintiff’s argument that the Court did not fail to consider any

controlling law. See Memorandum of Law in Opposition to Defendant’s Motion for

Reconsideration (“Pl.’s Opp’n”), DE [153], at 3. Accordingly, even had the

Government identified controlling law that the Court failed to consider, any such

argument has been abandoned. See Sjunde AP-Fonden v. Gen. Elec. Co., 722 F. Supp.

3d 347, 351 n.1 (S.D.N.Y. 2024) (deeming argument abandoned where not addressed

in reply brief); Doe v. Indyke, 465 F. Supp. 3d 452, 467 (S.D.N.Y. 2020) (“Defendants

do not respond to this argument in reply, and the Court deems them to have

abandoned the argument.”).

The Government also fails to identify any facts that the Court did not consider

in granting Plaintiff’s MIL No. 3. Defendant concedes that Dr. Schneller’s expert

report relies on documents that had not been produced to Plaintiff prior to September

15, 2023. See Defendant’s Memorandum of Law in Support of Motion for

Reconsideration (“Def.’s Mem.”), DE [151-1], at 4, 7-8. Although the Government

attempts to minimize the number of documents that it failed to produce, id. at 7-8, it

neither raised any such argument in opposition to Plaintiff’s MIL No. 3 nor disputed

its obligation to have produced the medical records at issue. Instead, in opposition to

MIL No. 3, Defendant argued that the third-party records upon which Dr. Schneller

based his expert opinion are admissible and reliable. DE [139] at 2-3. This is not the

relevant inquiry, however, as preclusion of Dr. Schneller’s report was not an issue of

admissibility or reliability, and instead was a sanction for Defendant’s failure to make

timely disclosures resulting in Plaintiff’s expert formulating an opinion based on

incomplete information. See Pretrial Motion Order at 9-12 (holding that Defendant’s

untimely production, as well as the resulting prejudice to Plaintiff, formed the basis

of the Court’s sanction of precluding Dr. Schneller’s testimony and expert report).

To this end, Dr. Schneller’s report states that he reviewed certain materials

and records that were neither produced nor subsequently addressed further in his

expert report. DE [139-2]. It is therefore impossible to discern how these records

may have influenced Dr. Schneller’s opinions or, had they been properly disclosed,

how they may have impacted Plaintiff’s expert’s opinion. Defendant possessed these

records, neither produced them nor informed Plaintiff that the Government’s expert

would be relying on them, and allowed it’s expert to formulate a report based, at least

in part, on these unproduced records. As Defendant’s own motion establishes that it

possessed all facts that it now seeks to introduce in support of its motion for

reconsideration, the Government fails to identify facts that were previously

unavailable as required to prevail on a motion for reconsideration. See Columbo v.

Philips Bryant Park LLC, No. 22-CV-775(RA), 2024 WL 3227090, at *1 (S.D.N.Y.

June 28, 2024) (“[T]o prevail on a motion for reconsideration based on the availability

of new evidence, ‘the movant must present evidence that is truly newly discovered or

could not have been found by due diligence.’”) (quoting United States v. Potamkin

Cadillac Corp., 697 F.2d 491, 493 (2d Cir. 1983)); Am. Empire Surplus Lines Ins. Co.

v. Ventura, No. 21-CV-2177(FB)(JRC), 2023 WL 4420236, at *2 (E.D.N.Y. July 10,

2023) (denying motion for reconsideration where the plaintiff “failed to identify

overlooked issues of law or fact that could have changed the outcome” of the order at

issue); In re Facebook, Inc., IPO Sec. & Derivative Litig., 43 F. Supp. 3d 369, 373

(S.D.N.Y. 2014) (“A party seeking reconsideration may . . . no[t] advance new facts,

issues or arguments not previously presented to the Court.”) (quoting Schonberger v.

Serchuk, 742 F. Supp. 108, 119 (S.D.N.Y. 1990)). The Court considered the applicable

law and available facts and exercised its discretion in imposing the sanction of

preclusion. See Hein v. Cuprum, S.A., De C.V., 53 F. App’x 134, 136 (2d Cir. 2002)

(“The imposition of sanctions for abuse of discovery . . . is a matter within the

discretion of the trial court.”); Williams v. Bethel Springvale Nursing Home, Inc., No.

14-CV-9383(NSR), 2018 WL 1662644, at *5 (S.D.N.Y. Apr. 5, 2018) (“[U]ntimely

disclosures rob opposing counsel of the opportunity to take discovery of the named

witness, build a complete theory of the case, plan appropriate trial strategies, and

find other evidence to use for trial.”).

Having offered no change in the controlling law or newly discovered facts,

Defendant argues that “[p]recluding Dr. Schneller’s testimony would only hinder the

fact-finding mission of the Court.” DE [151] at 11. The Court recognizes that

preclusion of expert testimony is a significant sanction. Nevertheless, as described

in prior Orders, Defendant’s failure to make timely disclosures is sufficiently

prejudicial to Plaintiff to warrant this relief. See Electronic Order dated July 29,

2024, DE [150] at 9-12. Accordingly, the Government’s motion for reconsideration is

denied. See Williams, 2018 WL 1662644, at *5 (granting motion to preclude witness

testimony as a sanction); Simon v. City of New York, No. 14-CV-8391(JMF), 2017 WL

57860, at *6 (S.D.N.Y. Jan. 5, 2017) (acknowledging that preclusion is a harsh

sanction, but holding that preclusion of expert testimony was appropriate based on

untimely disclosure).

Finally, Defendant seeks to file an affidavit demonstrating the records that

had been received prior to March 2024. DE [152]. Local Civil Rule 6.3 provides that

“[n]o party is to file an affidavit [in support of a motion for reconsideration] unless

directed by the court.” Local Civ. R. 6.3; see Boarding Sch. Review, LLC v. Delta

Career Educ. Corp., No. 11 Civ. 8921(DAB), 2013 WL 6670586, at *1 (S.D.N.Y. Oct.

16, 2013) (“Local Rule 6.3 does not afford a losing party the right to submit any

affidavits or new evidence.”). To this end, “the court ‘[should] not consider facts not

in the record to be facts that the court overlooked.’” Christians of Cal., Inc. v. Clive

Christian New York, LLP, No. 13 Civ. 275(KBF)(JCF), 2014 WL 3605526, at *2

(S.D.N.Y. July 18, 2014) (quoting Rafter v. Liddle, 288 F. App’x 768, 769 (2d Cir.

2008)). Defendant does not plausibly argue that the Court failed to consider any law

or facts, and its motion for leave to file a declaration does not alter this determination.

Having concluded that Defendant fails to identify any law or fact that the Court

overlooked or otherwise failed to consider, the motion for leave file a declaration is

denied.

IV. CONCLUSION

For the reasons set forth herein, Defendant’s motion for reconsideration, DE

[151], and motion for leave to submit a declaration and exhibits in support of its

motion for reconsideration, DE [152], are both denied.

A bench trial is scheduled to begin on August 11, 2025 at 10:00 a.m. in

Courtroom 820 of the Central Islip courthouse. The parties are advised to

review the Court’s Individual Rules of Practice regarding required pre-trial filings.

Dated: Central Islip, New York SO ORDERED

June 11, 2025

/s/ Steven I. Locke

STEVEN I. LOCKE

United States Magistrate Judge