govinfo:USCOURTS-ctd-3_24-cv-00707-0

UNITED STATES DISTRICT COURT 
DISTRICT OF CONNECTICUT 
KIMBERLY A. MCFADDEN, 
ADMINISTRATRIX OF THE ESTATE 
OF MARGARET ERICKSON, 
 Plaintiff, 
 
 v. 
 
UNITED STATES OF AMERICA et al., 
 Defendants. 
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3:24-CV-707 (SVN) 
 
 
 
 
 
June 8, 2026 
OMNIBUS RULING AND ORDER ON MOTIONS FOR RECONSIDERATION AND 
CERTIFICATION FOR INTERLOCUTORY APPEAL 
Sarala V. Nagala, United States District Judge. 
 Currently pending before the undersigned are motions for reconsideration filed by 
Defendants Almost Family, Inc. and Raella Mercuri (together, “Defendants”) , seeking 
reconsideration of the Court’s prior orders at ECF Nos. 101 and 102, which denied Defendants’ 
motions to amend their answers, ECF No. 101, and granted Plaintiff Kimberly A. McFadden’s 
motion to preclude Almost Family from relying on certain time keeping records that it produced 
to Plaintiff by email on September 17, 2025, and September 24, 2025, ECF No. 102. See Motions, 
ECF Nos. 104–107. Defendants’ motions also request that the Court certify its prior orders at ECF 
Nos. 101 and 102 for interlocutory appeal. Following an order permitting opposition briefing , 
Plaintiff has opposed Defendants’ motions . See Pl.’s Opp. Briefs, ECF Nos. 108 –110. Having 
considered the parties’ briefing, the Court DENIES Defendants’ motions for the reasons below. 
I. FACTUAL AND PROCEDURAL BACKGROUND 
The Court assumes the parties’ familiarity with the facts of this case and recounts only 
those relevant to this ruling. The Decedent, Margaret Erickson, had received home health care 
from Defendant Almost Family, through its former employee Defendant Mercuri. Plaintiff has 

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now brought suit against Defendants and others as the administratrix of Erickson’s estate, related 
to the home health care she received (or allegedly failed to receive). 
On August 29, 2025, Almost Family filed a motion to amend its answer to add two 
additional affirmative defenses : (1) a conditional defense that, even if A lmost Family failed to 
provide services to Decedent and fraudulently concealed that fact, it cannot be liable for her 
resulting injuries because she allegedly participated in the fraud with Mercuri by falsely reporting 
that Mercuri was providing services; and (2) Dece dent’s own negligence contributed to her 
damages. ECF No. 64 at 19–20. On November 24, 2025, Mercuri followed suit and filed a motion 
to amend her answer, also seeking to add two affirmative defenses: (1) a conditional defense that, 
even if Mercuri failed to provide services to Decedent, Decedent was contributorily negligent; and 
(2) Decedent consented to deviances from Mercuri’s approved schedule. ECF No. 79 at 20–21. 
Following oral argument, the Court denied Defendants’ motions for leave to amend as 
neither Defendant had satisfied the applicable standard under Federal Rule of Civil Procedure 16. 
ECF No. 101. Specifically, Defendants failed to demonstrate sufficient diligence to establish 
“good cause” as their proposed affirmative defenses were supported by facts brought out in 
discovery that had been available to Almost Family as early as June 2024, and to Mercuri even 
earlier. Id. Further, granting leave to amend a fter the close of fact discovery would have been 
severely prejudicial to Plaintiff, requiring the expense of time and finances and the re -opening of 
discovery, further delaying resolution of this action. Id. 
Separately, o n September 26, 2026, Plaintiff moved to preclude Almost Family from 
relying on electronic visit verification ( “EVV”) data produced by email on September 17, 2025, 
and September 24, 2025, at any trial in this action . ECF No. 71. While the motion was directed 
only to Almost Family, both Defendants opposed the motion. ECF Nos. 86, 89. The Court granted 

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Plaintiff’s motion, finding that under Rule 37(c)(1), Almost Family’s omission of the EVV data 
was not substantially justified and further, such omission was harmful to Plaintiff, who had 
constructed a deposition strategy around the data’s non-existence. ECF No. 102. In light of this, 
the Court found that preclusion, despite being a harsh sanction, was warranted under Second 
Circuit precedent. Id. 
Defendants have now moved for reconsideration of both of the Court’s orders . As to the 
Court’s order at ECF No. 101, Almost Family argues that the Court failed to consider outcome -
determinative caselaw and incorrectly failed to reach the question of whether Almost Family’s 
proposed amended answer satisfied Federal Rule of Civil Procedure 15’s futility standard; and that 
certification for interlocutory appeal is appropriate , as the Court’s order , in its view, involves a 
controlling question of law on which there is substantial ground for difference of opinion and an 
immediate appeal would materially advance termination of the litigation. ECF No. 104-1 at 6-12. 
Mercuri makes these same arguments , and also argues that the Court failed to consider her 
additional affirmative defense based on comparative contributory negligence. ECF No. 106 -1 at 
6-15. 
As to the Court’s order at ECF No. 102, Almost Family argues that the Court overlooked 
controlling law, Hoffer v. Tellone, 128 F.4th 433 (2d Cir. 2025), which requires a finding of intent 
before the imposition of sanctions under Rule 37(e)(2), that would lead to manifest injustice if left 
unaddressed. ECF No. 105 -1 at 6 –8. Almost Family further argues that certification for 
interlocutory appeal is appropriate. Id. at 8–12. Mercuri generally makes the same arguments in 
her motion. ECF No. 107-1 at 7–17. Plaintiff opposes both sets of motions. ECF Nos. 109–110. 

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II. LEGAL STANDARD 
A. Motion for Reconsideration 
Local Rule 7(c) allows the filing of “[m]otions for reconsideration,” but cautions that such 
motions “shall not be routinely filed and shall satisfy the strict standard applicable to such 
motions.” D. Conn. L. Civ. R. 7(c)1. “The standard for granting [reconsideration] 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.” Van Buskirk v. United Grp. of Cos., Inc., 935 F.3d 49, 
54 (2d Cir. 2019); see also D. Conn. L. Civ. R. 7(c)1; Cho v. Blackberry Ltd., 991 F.3d 155, 170 
(2d Cir. 2021) (cleaned up) (reconsideration warranted “only when the party identifies an 
intervening change of controlling law, the availability of new evidence, or the need to correct a 
clear error or prevent manifest injustice ”). A motion for reconsideration is “not a vehicle for 
relitigating old issues, presenting the case under new theories, securing a rehearing on the meri ts, 
or otherwise taking a second bite at the apple. ” Analytical Surveys, Inc. v. Tonga Partners, L.P. , 
684 F.3d 36, 52 (2d Cir. 2012) (citation and internal quotation marks omitted)). 
B. Certification of Order for Interlocutory Appeal 
Pursuant to 28 U.S.C. § 1292(b), “[w]hen a district judge, in making in a civil action an 
order not otherwise appealable under this section, shall be of the opinion that such order involves 
a controlling question of law as to which there is substantial ground for difference of opinion and 
that an immediate appeal from the order may materially advance the ultimate termination of the 
litigation, he shall so state in writing in such order.” The term “question of law” refers to a “pure 
question of law that the reviewing court could decide quickly and cleanly without having to study 
the record.” Capitol Recs., LLC v. Vimeo, LLC, 972 F. Supp. 2d 537, 551 (S.D.N.Y. 2013) (internal 
citation omitted). And a question of law is “controlling” when (1) reversal of the district court’s 

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opinion could result in dismissal of the action; (2) reversal of the district court’s opinion, though 
not resulting in dismissal, could significantly affect the conduct of the action, or (3) the certified 
issue has precedential value for a large number of cases. Flo & Eddie, Inc. v. Sirius XM Radio 
Inc., No. 13-CV-5784 (CM), 2015 WL 585641, at *1 (S.D.N.Y. Feb. 10, 2015). Finally, to show 
that there is “substantial ground for difference of opinion,” the moving party must show that there 
is conflicting authority on an issue or the case is particularly difficult and of first impression within 
the Second Circuit. U.S. ex rel. Drake v. NSI, Inc. , 736 F. Supp. 2d 489, 503 (D. Conn. 2010). 
“Because the statute is strictly construed, all three criteria must be met for the district court to 
certify an order.” James v. Venture Home Solar, LLC, 715 F. Supp. 3d 203, 217 (D. Conn. 2024). 
Upon the issuance of such an order by the district court, the relevant Court of Appeals 
“may thereupon, in its discretion, permit an appeal to be taken from such order, if application is 
made to it within ten days after the entry of the order .” 28 U.S.C. § 1292(b) . “[U] se of this 
certification procedure should be strictly limited because only exceptional circumstances will 
justify a departure from the basic policy of postponing appellate review until after the entry of a 
final judgment.” In re Flor, 79 F .3d 281, 284 (2d Cir. 1996) (quotation marks and alterations 
omitted). 
III. DISCUSSION 
Because Defendants have failed to demonstrate the need to correct a clear error to prevent 
a manifest injustice and otherwise cannot satisfy the requisite factors for this Court to certify its 
orders for interlocutory appeal, their motions must be denied. 
A. Court’s Order on Motions for Leave to Amend, ECF No. 101 
1. Reconsideration 
Defendants do not meet the stringent requirements for reconsideration of the Court’s order 
on their motions for leave to amend. 

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First, the Court rejects Defendants’ argument that the Court’s citation to F.D.I.C. v. Horn, 
No. 12 -CV-5958 (DRH) (AKT), 2015 WL 1611995, at *11 –12 (E.D.N.Y. Apr. 8, 2015) was 
erroneous. Defendants isolate the Court’s parenthetical descriptor for the Horn case from both the 
pin cite the Court provided, as well as the Court’s preceding analysis, which establish ed that 
Defendants were not diligent in pursing amendment of their answers, and thus could not establish 
good cause, regardless of whether fact discovery had closed. ECF No. 101. As the Court’s pin 
cite clarifies, Horn explicitly held that the defendant there “failed to act diligently in moving to 
amend his Answer,” where “he waited nearly seven months” to move to amend after discovering 
the information that formed the basis for his affirmative defense. Horn, 2015 WL 1611995, at 
*12. Moreover, Horn’s holding did not turn solely on the fact that discovery had closed; it was 
instead based on the defendant’s lack of diligence, like the Court’s holding here. And to be clear: 
the Court was under no misimpression about the timing of Defendants’ motions to amend their 
answers. Indeed, it specifically noted that the proposed affirmative defenses were “introduced 
very near the end of now -closed fact discovery.” ECF No. 101 (emphasis added). For these 
reasons, the Court did not improperly rely on Horn, and its citation to that case does not mandate 
reconsideration. 
Second, Defendants do not actually argue that the Court’s reliance on Kassner v. 2nd Ave. 
Delicatessen Inc., 496 F.3d 229, 244 (2d Cir. 2007) was clear error; rather, they take issue with 
the Court’s conclusion that allowing the belated amendments would have prejudiced Plaintiff. 
Kassner makes clear that a district court “ may consider” prejudice to the non -moving party. Id. 
Here, Defendants—the moving parties—request that the Court also consider any prejudice a failure 
to allow amendment would cause them. This request is wholly distinct from Kassner and 
Defendants have provided no support in the law for their request . Defendants’ contention is 

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precisely the type of second -bite argument that a L.R. 7(c) motion does not permit and , 
accordingly, the argument fails. Analytical Surveys, Inc., 684 F.3d at 52. 
 Third, Defendants argue that the Court declined to reach whether their proposed 
amendments would satisfy Rule 15’s standard, resulting in manifest error. To start, on the record, 
defense counsel agreed that Rule 16’s good cause standard, not Rule 15’s, governed this dispute. 
Feb. 24, 2026, Tr., ECF No. 118 at 6, 9.1 Further, the Second Circuit has made clear that “where 
a party’s motion to amend would require altering a court’s scheduling order, the party ‘must satisfy 
both Federal Rules of Civil Procedure 15 and 16 to be permitted to amend.’” Int’l Techs. Mktg., 
Inc. v. Verint Sys., Ltd., 850 F. App’x 38, 43 (2d Cir. 2021) (summary order) (quoting Pasternack 
v. Shrader, 863 F.3d 162, 174 n.10 (2d Cir. 2017) (emphasis in original)). Because Defendants 
failed to satisfy Rule 16’s standard, the Court did not need to reach the question of whether they 
could satisfy Rule 15’s standard, and thus there exists no clear error in this decision. 
 Finally, Mercuri independently argues that the Court committed clear error in failing to 
consider the fact that her second affirmative defense relied in part on Decedent’s unwillingness to 
attend doctor’s appointments, rather than the facts produced in discovery that the Court focused 
on in its order, and that the Court did not consider her request for leave to amend her answer itself. 
ECF No. 106-1 at 8–9. First, absent an affirmative indication in the record otherwise, a court is 
presumed to have considered all the evidence provided, even if such evidence is not explicitly 
addressed in a ruling. See United States v. Russo, 281 Fed. App’x. 43, 47 (2d Cir. 2008) (summary 
order) (collecting cases). The Court did consider Mercuri’s arguments but ultimately found them 
unpersuasive. As to the first argument, Mercuri’s reply in support of her motion seeking leave to 
 
1 The transcript of the hearing reflects that the undersigned stated on the record that the Court would analyze 
Defendants’ motions for leave to amend “under Rule 15 .” Tr., ECF No. 118 at 6. The undersigned misspoke. It is 
clear from the preceding portions of the transcript that the Court understood the Rule 16 good cause standard to apply. 
Additionally, both Defendants agreed Rule 16’s good cause standard was applicable. Id. at 6, 9. 

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amend includes an excerpt from the July 10, 2025, deposition of Rita Rohrberg, which allegedly 
demonstrates Erickson’s refusal to seek medical care, contributing to her own harm. Rohrberg 
Depo. Tr., Ex. D., ECF No. 92-4 at 2–10. Assuming arguendo that this was the first time Mercuri 
became aware of these facts, 2 that still would not explain the further delay until November 25, 
2025—even taking into account the stay of litigation during the federal government shutdown —
to seek leave to amend her answer. Second, Mercuri’s motion to amend focused wholly on her 
affirmative defenses and provided no legal support or separate argument for her request to amend 
her answer. See ECF No. 79. The moving party on a motion to amend must demonstrate good 
cause, see Scott v. Chipotle Mexican Grill, Inc., 300 F.R.D. 193, 198 (S.D.N.Y. 2014); as Mercuri 
failed to do so, the Court appropriately denied her requested relief. 
 In sum, Defendants’ arguments for reconsideration are unpersuasive, and their motions are 
denied as to this request. 
2. Certification for Interlocutory Appeal 
Next, the Court finds that neither Defendant has established that certification of the Court’s 
order at ECF No. 101 for interlocutory appeal is appropriate here. First, Defendants do not actually 
identify a controlling question of law that must be resolved. Defendants argue that the Court’s 
order implicates the legal question of what standard governs the “good cause” analysis under Rule 
16. ECF Nos. 104 -1 at 8; 106 -1 at 10–11. But this framing does not turn what is —at best—a 
mixed question of fact and l aw into a pure question of law that the Second Circuit could address 
“quickly and cleanly without having to study the record.” Capitol Recs., LLC, 972 F. Supp. 2d at 
551. To start, the “good cause” standard and what factors a court may consider in determining 
 
2 The Court notes that the United States’ answer to Plaintiff’s amended complaint, filed on November 11, 2024, raised 
Erickson’s alleged comparative fault as an affirmative defense, alerting Mercuri —whether through her former or 
current counsel—to the possibility of such a defense very early on in this action. U.S. Answer, ECF No. 33 at 6. 

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whether it has been satisfied is clear under Second Circuit law; Defendants instead take issue with 
how the Court has applied the standard as to them. Accordingly, Defendants have not identified 
an issue of law, much less a controlling one. Quite the opposite: the issues raised by the motions 
to amend, and Court’s ruling, were highly fact-specific. 
Because Defendants cannot satisfy the threshold criteria for certification of the Court’s 
order for interlocutory appeal, the Court need not reach the other factors. See Venture Home Solar, 
LLC, 715 F. Supp. 3d at 217. Nevertheless, the Court addresses them for good measure, and finds 
that Defendants fail to satisfy the remaining two criteria as well. As to the second criteria —
substantial ground for difference of opinion—Defendants point to no conflicting authority on the 
supposed “genuine strain” between the need to raise affirmative defenses early in the litigation and 
a party’s ability to reasonably wait for a fuller evidentiary record before moving to add an 
additional affirmative defense, nor do they contend that it is a particularly difficult issue or one of 
first impression. ECF No. 104-1 at 9–10; 106-1 at 12–13; see also U.S. ex rel. Drake, 736 F. Supp. 
2d at 503 (“Substantial ground for a difference of opinion requires more than a claim that the 
court’s ruling was wrong.”) (internal citation omitted). Defendants fall far short of carrying their 
burden. 
Finally, interlocutory appeal would not shorten the length of this litigation; it would do the 
opposite. If the Court certified its order for interlocutory appeal and was upheld by the Second 
Circuit, any ultimate resolution would have been needlessly del ayed. Resolution by the Second 
Circuit, in other words, would not “advance the ultimate termination of the litigation.” Venture 
Home Solar, LLC, 715 F. Supp. 3d at 219. 

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Because Defendants have failed to establish that reconsideration of the Court’s order at 
ECF No. 101 or certification of it for interlocutory appeal is appropriate, Defendants’ motions at 
ECF Nos. 104 and 106 are denied. 
B. Court’s Order on Plaintiff’s Motion to Preclude, ECF No. 102 
1. Reconsideration 
Defendants make one primary argument for reconsideration of the Court’s order at ECF 
No. 102: they argue that the Court committed clear error in failing to consider Hoffer v. Tellone, 
128 F.4th 433, 436–37 (2d Cir. 2025), cited in Almost Family’s original briefing. ECF Nos. 105-
1 at 7 –8; 107 -1 at 8 –11. Hoffer requires that, in order to impose a sanction for spoliation of 
discovery against a party pursuant to Rule 37(e)(2), the Court must find the party intended to 
deprive the opposing party of the “lost information.” 128 F.4th at 436–37. But the Court’s order 
at ECF No. 102 makes no mention of Rule 37(e)(2) ’s possible sanctions for spoliation of 
discovery; rather, the Court’s order clearly imposed a sanction permitted under Rule 37(b)(2)(A), 
and applied the four -factor test for whether it could impose a sanction under Rule 37 generally, 
rather than analyzing the irrelevant intentionality standard required under Rule 37(e)(2). 3 To the 
extent the Court mistakenly referenced Rule 37(e) in its order, this was a mere typographical error 
that is insufficient to contradict the weight of the Court’s analysis otherwise. 4 Further, it is clear 
that Rule 37(e) could not apply here, as the EVV data was not “lost” without the ability to “be 
restored or replaced through additional discovery”; indeed Almost Family—belatedly—produced 
 
3 The Court also notes that its chosen sanction, preclusion of the evidence at trial, is not one of the permissible sanctions 
listed under Rule 37(e)(2). 
4 Even Defendants’ own briefing seems to acknowledge that the Court’s imposition of sanctions was not pursuant to 
Rule 37(e)(2). See ECF No. 105-1 at 8 (“The Court’s Order precluding Almost Family from introducing EVV data at 
trial involves a controlling question of law regarding the proper application of Rule 37(c)(1) sanctions ”); ECF No. 
107-1 at 12 (“the Order raises the legal question of whether the extreme sanction of preclusion is appropriate under 
Rule 37(c)(1)”). 

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the EVV data to Plaintiff in September of 2025. ECF No. 101. Thus, Hoffer is wholly inapplicable 
to this action, and there was no need for the Court to address it in the first place. 
Mercuri also argues that the Court failed to consider lesser sanctions than preclusion. See 
ECF No. 107 -1 at 9. Not so. The Court’s order explicitly considered this issue , and held that 
“lesser sanctions would not carry the same efficacy here” for various reasons. See ECF No. 102. 
Accordingly, Defendants’ motions for reconsideration of the Court’s order precluding use 
of the timekeeping EVV data at trial are denied. The Court will direct the Clerk of Court to correct 
the errant reference to Rule 37(e) in the Court’s order at ECF No. 102 to instead refer to Rule 
37(b)(2)(A). 
2. Certification for Interlocutory Appeal 
Defendants’ arguments in support of certification of the Court’s order at ECF No. 102 for 
interlocutory appeal fare no better. The Court is utterly confused by Almost Family’s assertion 
that “whether the extreme sanction of preclusion is appropriate under Rule 37(c)(1) when the 
delayed production of evidence resulted from a system changeover that made the data temporarily 
inaccessible, the evidence was ultimately produced during the discovery period, and the producing 
party offered to mitigate any prejudice by paying for re -noticed depositions and providing an 
authenticating witness” is a “legal question.” See ECF No. 105-1 at 8. By its very framing, Almost 
Family acknowledges that the question is highly fact-dependent. Indeed, there app ears to be no 
legal question in its formulation whatsoever, much less a controlling one. Accordingly, 
Defendants fail to satisfy the first criteria under 28 U.S.C. § 1292(b). 
Again, because Defendants cannot satisfy the initial criterion under 28 U.S.C. § 1292(b) , 
the Court need not address the other criteria, see Venture Home Solar, LLC , 715 F. Supp. 3d at 
217, but even doing so, Defendants’ other arguments are not meritorious. As to the second criteria, 
because Defendants have failed to identify a controlling question of law, they necessarily cannot 

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prove a substantial ground for a difference of opinion as to that controlling question of law. And 
even assuming Defendants had properly identified a controlling question of law, Defendants argue 
only that courts may differ in how they weigh and apply the four factors identified in J.C. v. 
Zimmerman, 150 F.4th 136, 146 (2d Cir. 2025) . ECF Nos. 105-1 at 9–10; 107-1 at 13–15. That 
courts can differ on how to apply a four-factor balancing test is painfully obvious, and indeed 
inherent in the very nature of a balancing test. This argument amounts to no more than a contention 
that “ the court ’s ruling was wrong ,” and cannot justify grounds for interlocutory appeal —lest 
every district court’s different application of the Zimmerman factors become fertile grounds for 
interlocutory appeals. U.S. ex rel. Drake, 736 F. Supp. 2d at 503 . Finally, it is unclear whether 
resolution of Defendants ’ supposed controlling question of law would “materially advance” the 
ultimate termination of the litigation. Instead, it is all but certain a trip to the Second Circuit and 
back would further delay these proceedings. 
 Because Defendants have failed to establish that reconsider ation of the Court’s order at 
ECF No. 102 or certification of it for interlocutory appeal is appropriate, Defendants’ motions at 
ECF Nos. 105 and 107 are denied. 
IV. CONCLUSION 
For the reasons contained herein, Defendants Almost Family’s and Mercuri’s motions for 
reconsideration of the Court’s orders at ECF Nos. 101 and 102 and requesting certification of those 
orders for interlocutory appeal are DENIED. The Clerk of Court is directed to correct the Court’s 
 
 
 
 

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order at ECF No. 102, to replace the reference to “37(e)” with “37(b)(2)(A).” 
 
SO ORDERED at Hartford, Connecticut, this 8th day of June, 2026. 
 /s/ Sarala V. Nagala 
SARALA V. NAGALA 
UNITED STATES DISTRICT JUDGE 
 
 
 
 
 
 
 
 
 
 
 
 

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