HARRISBURG – A federal magistrate judge has approved a motion for class certification among disabled plaintiffs who are residents of state-run residential facilities and are suing Gov. Tom Wolf and a host of other officials for alleged civil rights violations – but denied the plaintiffs’ attempt to secure preliminary injunctions in their case.
U.S. Magistrate Judge Martin C. Carlson issued a decree for the above decisions on Nov. 2, in the class action led by named plaintiff Russel “Joey” Jennings and a dozen others, against Wolf, Secretary of the Pennsylvania Department of Human Services Teresa D. Miller, two separate residential facilities and their supervisory leadership.
“This is a putative class action brought by the named plaintiffs on behalf of themselves and others similarly situated against Governor Tom Wolf and other Commonwealth of Pennsylvania officials and agencies. This action was brought on behalf of the named plaintiffs, who are individuals with profound and severe intellectual disabilities residing in state-run residential facilities in the Commonwealth, by their guardians or decision-makers. The complaint alleges that the defendants have violated and continue to violate the plaintiffs’ and other putative class members’ civil rights, in that the Commonwealth is closing two of these residential facilities – Polk Center and White Haven Center – and are transferring the residents to other facilities in the Commonwealth without their consent,” Carlson said.
“The parties in this case consented to magistrate judge jurisdiction, and the case was assigned to the undersigned on Sept. 20, 2022. At that time, despite the diligent efforts of the court, the parties, and counsel, a number of time-sensitive and significant issues remained to be resolved. These pending questions included a motion to certify the plaintiff class as well as two motions seeking preliminary injunctive relief. By the time that the parties consented to magistrate judge jurisdiction, there was an immediate exigency to these issues since the state’s announced deadline for closure of the White Haven Center and Polk Center was Nov. 30, 2022.”
One day prior to a scheduled hearing on the merits of a preliminary injunction and class certification, the plaintiffs filed a motion to exclude the report and testimony of one defense witness, Dr. Mark Diorio, as a discovery sanction.
This motion explained that the deadline for expert report supplementation previously set by the Court was June 6, 2022 and that the report from Dr. Diorio, who had not been identified as a defense expert, was submitted one day late on June 7.
In response, the plaintiffs launched a two-fold objection to Dr. Diorio’s report and testimony, arguing that: (1) The report was provided beyond the report supplementation deadline; and (2) That the tardy report could not properly be characterized as a supplemental report, since Dr. Diorio had never previously been identified as an expert witness.
“Thus, the chronology set forth in the plaintiffs’ motion disclosed a potential discovery default by the defense, albeit one which had occurred more than four months ago and had never previously been brought to the court’s attention in a manner which would have enabled us to timely address these discovery issues. Presented with this belated motion on the eve of the preliminary injunction hearing relating to a tardy expert witness disclosure which had occurred four months earlier, we initially indicated that we would entertain Dr. Diorio’s testimony and report, while permitting the plaintiffs a full opportunity to have their experts critique Dr. Diorio’s findings, which had been in the plaintiffs’ possession since June 7, 2022,” Carlson stated.
“At the preliminary injunction hearing, the plaintiffs took full advantage of this opportunity, presenting testimony and a report from their experts assailing Dr. Diorio’s methodology and conclusions. Moreover, as we have noted in our opinion addressing the motions for preliminary injunction, having conducted this hearing, we find that Dr. Diorio’s testimony was merely corroborative of the evidence provided by state officials, which we have credited. Therefore, admission of the Diorio testimony and report did not materially alter the quantum of proof here and we would have reached the same conclusions with respect to these motions even in the absence of this contested testimony.”
Carlson concluded that complete exclusion of Dr. Diorio’s report and testimony – the most severe sanction possible – was not appropriate in this case.
“At the outset, when we consider the first two discretionary factors that apply here; namely, the prejudice or surprise of the party against whom the excluded evidence would have been admitted and the ability of the party to cure that prejudice, we find that preclusion of this evidence is not warranted. To be sure, the disclosure of the Diorio report appears to have been tardy and inappropriate since the report was released one day after the June 6, 2022 supplementation deadline and this report cannot be characterized as a supplemental report since it was the first report issued by this witness,” Carlson said.
“However, the immutable fact remains that the plaintiffs had four months in which to prepare to respond to Dr. Diorio’s findings, and they in fact used this opportunity to submit their own expert critiques of this testimony. Thus, at the time of the preliminary injunction hearing on Oct. 18, 2022, Dr. Diorio’s report and testimony came as no surprise to the plaintiffs, and their own rebuttal of that report, which we authorized, largely addressed any perceived prejudice that they may have otherwise suffered.”
Carlson also found that the plaintiffs “had the ability to cure this prejudice by filing a timely discovery motion when they received the report in mid-June 2022, but chose not to present this issue to us until the very eve of the preliminary injunction hearing.”
“Given that the plaintiffs elected to forego the chance to address this question when the issue first arose in June of 2022, they cannot now seek the most severe of sanctions – exclusion of evidence. Indeed, allowing a party to raise a discovery issue in this untimely manner on the eve of a hearing as grounds to exclude evidence would present precisely the type of prejudice that the rules are designed to avoid since it would disrupt the orderly and efficient trial of the case,” Carlson said.
“Finally, as we have noted, Dr. Diorio’s report and testimony ultimately were not of critical importance in this case. Rather, we have found that the report and testimony were simply corroborative of other evidence which we independently credited, and we would have reached the same conclusions even in the absence of this evidence. Therefore…the motion to preclude this evidence will be denied.”
U.S. District Court for the Middle District of Pennsylvania case 3:20-cv-00148
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com