In the damages suit stemming from the Bridgegate lane realignments of 2013, the Port Authority of New York and New Jersey is seeking to put discovery on hold until appeals are decided in the related criminal case.
An expert report submitted on behalf of the putative class gave a $5 million estimate for damages suffered by drivers crossing the George Washington Bridge during a week of politically motivated traffic jams. But the Port Authority wants permission to postpone filing a response to the expert report until the outcome of the parallel criminal appeal is announced by the U.S. Court of Appeals for the Third Circuit.
According to the Port Authority, an affirmance of the conviction of William Baroni Jr., a former deputy director of the agency, would demonstrate he lacked final policymaking authority on behalf of his employer. Such a finding would demonstrate the Port Authority is not liable for Baroni’s actions, the agency claims in court papers.
Meanwhile, lawyers for plaintiffs and the class said the Port Authority’s request for a stay of discovery pending resolution of a purportedly dispositive issue is akin to a request to stay discovery pending outcome of a motion to dismiss, which they said is disfavored in this district.
On Monday the Port Authority’s lawyer asked U.S. Magistrate Judge Joseph Dickson for leave to file a motion to stay expert discovery. On Thursday, lawyers representing plaintiffs and the potential class told DIckson that the Port Authority had not set forth a sufficient basis for a stay.
Galicki v. New Jersey, which was filed in 2014, seeks damages on behalf of motorists who were delayed in traffic while crossing the bridge during the week of politically motivated lane reassignments in September 2013. Some toll booths on the George Washington Bridge that were usually reserved for Fort Lee residents were opened to other traffic that week, causing gridlock in that town. Prosecutors said Baroni and co-defendants Bridget Kelly and David Wildstein took away some of Fort Lee’s dedicated lanes because its Democratic mayor, Mark Sokolich, declined to endorse Gov. Chris Christie’s re-election campaign in 2013.
Wildstein pleaded guilty to charges related to the lane closures and received a sentence of probation and community service. Baroni, a former deputy director of the Port Authority, and Kelly, an aide to Christie, were convicted of misapplication of government property following a six-week trial in November 2016. Both were sentenced to jail—24 months for Baroni, 18 months for Kelly. The Third Circuit heard arguments in April concerning Baroni and Kelly’s appeal of their convictions, and the parties are awaiting a ruling.
In the Port Authority’s bid for a stay of discovery, agency attorney David Kromm said in a letter to Dickson on Oct. 15 that Chief U.S. District Judge Jose Linares ruled in 2016 that the Port Authority could only be found liable for the alleged tortious conduct of Baroni and Wildstein if those individuals had “final policymaking authority” to order the lane realignments. Linares said Baroni and Wildstein lacked such authority under state law and Port Authority bylaws, but he declined to rule on whether they held such authority by delegation, Port Authority lawyer Kromm wrote.
But the question of delegation was later answered in the criminal trial of Baroni and Kelly, Kromm wrote. In his motion for acquittal, Baroni argued that the prosecution did not present sufficient evidence that Baroni acted without authority, and that all of his actions in the lane reassignment episode were taken within his authority as deputy executive director of the Port Authority. But U.S. District Judge Susan Wigenton, who presided before Baroni’s criminal trial, held that the evidence supported a jury finding that Baroni lacked such authority, Kromm wrote.
“An affirmance based on this finding would conclusively determine that Mr. Baroni lacked the requisite authority to order the reassignments,” Kromm said in his letter to Dickson.
The Port Authority intends to defend against the claims advanced by the plaintiff’s expert report, but doing so would be costly, Kromm said in his letter. “That expenditure would be unnecessary should the Third Circuit affirm Mr. Baroni’s conviction,” Kromm said. A stay would serve the interests of efficiency and judicial economy, he added.
Counsel for plaintiffs and the potential class in Galicki, Barry Epstein and Michael Epstein of the Epstein Law Firm in Rochelle Park, said the timing of the Port Authority’s request was “curious” and should be rejected. Although Baroni was found guilty in November 2016, the Port Authority never raised its theory about the effect of the conviction until after plaintiffs expended “substantial resources” to obtain and serve their expert report, the plaintiffs lawyers said in an Oct. 18 letter to Dickson. The Port Authority’s request would only further delay the progress of the litigation, said the plaintiffs lawyers.
In addition, counsel for plaintiffs and the class said in their letter to Dickson that Baroni’s conviction does not have the sweeping preclusive effect that the Port Authority claims. The issue of Baroni’s final policymaking authority is separate from his criminal culpability for violating the statute he was charged under 18 U.S.C. 666, Barry Epstein and Michael Epstein stated in their letter.
The plaintiffs’ expert report, served on the defendant about a month ago, is not a public document. It was produced by Orley Ashenfelter, a Princeton University economist, Michael Epstein said in a phone interview.
Michael Epstein said he was “a little taken aback by this request. We have been in class certification issues for the last 12 to 24 months. Through all those meetings, they never raised this until now. We have spent a substantial amount of money to obtain this report from Dr. Ashenfelter. I think this is very late in the game and highly prejudicial and unfair to the plaintiffs and class representatives and putative class members,” he said.
Port Authority lawyer Kromm did not return a call about the case.