United States District Court, D. South Carolina, Columbia Division
V. Hodges United States Magistrate Judge.
and Heather Livingston (collectively “Plaintiffs”
or “the Livingstons”) brought this case alleging
violations of their civil rights pursuant to 42 U.S.C. §
1983, related to the investigation and prosecution of
Michael for alleged abuse of their children.
Plaintiffs sue Dr. Susan Luberoff, a physician who opined
their children had been abused; the South Carolina Department
of Social Services and its caseworker Angela Scott
(collectively “DSS Defendants”); Richland County
Sheriffs Department (“RCSD”) and RCSD officers
Misty Puckett, Don Robinson, and Kevin Preston (collectively
“RCSD Defendants”) (all defendants collectively
matter comes before the court on the following motions: (1)
Plaintiffs' motion to strike the affidavit of Kathryn
Cavanaugh (“Cavanaugh”) [ECF No. 56] and (2)
Defendants' motion to strike the changes made to
Michael's deposition errata sheet [ECF No. 76]; and (3)
Plaintiffs' motion for a hearing on outstanding motions
[ECF No. 78]. The motions having been fully briefed [ECF Nos.
73, 77, 79-81], they are ripe for disposition.
pretrial proceedings in this case were referred to the
undersigned pursuant to the provisions of 28 U.S.C. §
636(b)(1)(B) and Local Civ. Rule 73.02(B)(2)(f) (D.S.C.). For
the reasons that follow, the undersigned denies the motions.
Plaintiffs' Motion to Strike Kathryn Cavanaugh affidavit
initial matter, the undersigned notes that neither of the
motions to strike provide authority for
“striking” the contents. Rather, the parties wish
to exclude the material from consideration for purposes of
to their motion for summary judgment, RCSD Defendants
submitted the affidavit of Assistant Solicitor Cavanaugh.
Plaintiffs seek to exclude Cavanaugh's affidavit because
RCSD Defendants did not disclose her as a witness in
discovery or as an expert witness. Although Cavanaugh was not
identified as a witness in this case, Michael was aware that
Cavanaugh was a prosecutor during his criminal proceedings
and has knowledge related to the facts of his prosecution.
37(c)(1) governs exclusion of Cavanaugh's affidavit,
providing two exceptions to the general rule excluding
evidence that a party seeks to offer but has failed to
properly disclose: (1) when the failure to disclose is
“substantially] justified], ” and (2) when the
nondisclosure is “harmless.” Fed.R.Civ.P. Rule
37(c)(1); see also S. States Rack & Fixture, Inc. v.
Sherwin-Williams Co., 318 F.3d 592, 596 (4th Cir. 2003).
Here, for purposes of summary judgment, the undersigned has
relied on the affidavit only for a citation from the record
that the criminal charges against Michael were nolle
prossed. The undersigned has not considered Cavanaugh as
an expert in this matter and gives no weight to any
“expert” opinion expressed in her affidavit.
Therefore, the undersigned's consideration of
Cavanaugh's affidavit was for a limited purpose and the
undersigned finds the non-disclosure harmless.
Plaintiffs' motion to strike her affidavit is denied, but
such ruling is without prejudice to Plaintiffs' right to
file motions in limine prior to trial, if any, for the
district judge's consideration.
Motion to Strike Michael's Errata Sheet to his Deposition
review of his deposition, Michael submitted an errata sheet
that attempts to substantially change his deposition
testimony. For instance, in response to a question in which
he responded only “Yes” during his deposition,
his errata sheet reflects a new response that states
“Yes, RCSD concocted this story when they refused to
accept the truth from me, the truth that neither Heather nor
I hurt our children. They coerced me into signing by
threatening my family and ignoring my request for an
attorney.” [ECF No. 76-2 at 3]. In another example,
when asked at his deposition: “Is it fair to say though
that DSS dropped its case?”, Michael initially stated
“Yes, that's fair.” Michael Dep. at 68:6-10.
In his errata sheet, Michael attempts to change his answer to
“Yes, it is fair to say that DSS did not
‘drop' the case. They closed the case after 3.5
years of doing nothing but ignoring evidence proving they
were wrong.” [ECF No. 76-2 at 3].
undersigned denies the motion to exclude the existence of the
errata sheet and instructs the court reporter or officer to
attach the errata sheet to the end of Michael's
deposition pursuant to Fed.R.Civ.P. 30(e)(2). However,
Plaintiffs original deposition remains a part of the record
and may be used at trial subject to the Federal Rules of
Evidence and the district judge's discretion. See
Podell v. Citicorp Diners Club, Inc., 112 F.3d 383,
388-89 (2d. Cir. 1997 (finding that the changes made do not
replace the deponent's original answers; the original
information remains part of the record and may be introduced
Plaintiffs' Motion for a Hearing
motion for a hearing states that the motion is “based
on the grounds that the case is currently at a standstill and
cannot even be mediated” until the court rules on the
motion. [ECF No. 78]. Plaintiffs' motion is denied, and
counsel is advised that any attempts to rush the court into
making a judgment is improper. To the extent the parties and
their counsel wish to resolve their disputes on their
preferred timeline, they are free to do so. In cases in which
they are unable to do so and file an action in this court,
they must abide by the court's schedule. Furthermore, the
court notes counsel requested and was granted multiple
generous extensions of the deadlines in the court's
scheduling order, culminating in a Fourth and Final ...