Introduction

In Estate of Frank P. Lagano v. Bergen County Prosecutor’s Office, the Third Circuit affirmed two District Court orders: a November 23, 2021 order denying additional discovery and a March 24, 2023 order granting summary judgment against the Estate on its state-created danger claims brought under 42 U.S.C. § 1983 and the New Jersey Civil Rights Act (NJCRA), N.J.S.A. 10:6-2(c).

The Estate alleged that Bergen County Prosecutor’s Office (BCPO) officials, particularly defendant Michael Mordaga, created or increased the risk that Frank Lagano would be murdered—principally through a purported statement to Lagano that “Don’t count on Sweeney helping you, he’s going to jail” (the “Sweeney comment”), which the Estate treated as an effective disclosure about law-enforcement dynamics relevant to Lagano’s safety. After an earlier appeal (Estate of Lagano I) cleared timeliness and immunity barriers, the case returned to the District Court for discovery and merits rulings. On remand, the District Court found no immunity but ultimately granted summary judgment on causation grounds and denied the Estate’s multiple requests for further discovery, including under Rule 56(d).

The central legal questions on appeal were:

• Whether the District Court abused its discretion in denying additional discovery, including Rule 30(b)(6) depositions, expert discovery, and a deposition of Paul Morris (limited to interrogatories); and
• Whether the District Court erred in granting summary judgment on the Estate’s state-created danger theory for lack of causation.

The Third Circuit affirmed across the board. While noting the District Court should have expressly addressed the Rule 56(d) declaration, the court held any error was harmless because the discovery sought was immaterial to the dispositive causation element. The court also reaffirmed that the fourth element of the state-created danger doctrine requires a direct, but-for causal relationship between a state actor’s affirmative act and the harm suffered—one the Estate failed to establish on this record.

Summary of the Opinion

• Appellate Jurisdiction over Discovery Order: Although the Estate’s notice of appeal did not specify the November 23, 2021 discovery order, the court exercised jurisdiction under a liberal construction rule where the unspecified order was connected to the specified summary judgment order, the intent to appeal was apparent, and the appellees were not prejudiced because they fully briefed the issues (citing Pension Trust Fund for Operating Engineers v. MAST, 730 F.3d 263, 269 (3d Cir. 2013)).
• Discovery (Rule 56(d) and related requests): The court found no abuse of discretion in denying additional discovery. Even if the District Court should have expressly ruled on the Estate’s Rule 56(d) declaration (In re Avandia), the error was harmless because the court substantively considered, and properly rejected, the discovery requests as immaterial to causation—the dispositive issue—or as obtainable through other means, cumulative, or unsupported by a genuine need.
• Summary Judgment (State-Created Danger): The court affirmed summary judgment de novo, holding the Estate failed to raise a genuine dispute as to causation—the fourth element—because the record lacked evidence that the alleged “Sweeney comment” by Mordaga directly caused or increased the risk of Lagano’s murder. The court reiterated that this element requires a direct causal relationship and but-for causation (Ye; Kaucher; Bennett).
• Denial of Sur-Reply: No abuse of discretion. The District Court assumed the truth of the Estate’s key memorandum at summary judgment and found causation lacking regardless, rendering any sur-reply on admissibility or credibility immaterial.

Analysis

Precedents Cited and Their Influence

Appellate jurisdiction and notices of appeal:

• Pension Trust Fund for Operating Engineers v. Mortgage Asset Securitization Transactions, Inc., 730 F.3d 263, 269 (3d Cir. 2013): Supports liberal construction of notices of appeal when an unspecified order is connected to the specified one, intent to appeal is apparent, and appellees are not prejudiced. This allowed the Third Circuit to reach the 2021 discovery order despite its omission from the notice.

Discovery management and Rule 56(d):

• Dowling v. City of Philadelphia, 855 F.2d 136, 139 (3d Cir. 1988): Parties opposing summary judgment must have adequate opportunity for discovery. The court recognized this baseline but found it satisfied here.
• In re Avandia Marketing, Sales & Products Liability Litigation, 945 F.3d 749, 761 (3d Cir. 2019): It is error to grant summary judgment without considering a Rule 56(d) declaration. The panel acknowledged the District Court’s failure to expressly rule but deemed the error harmless given the court’s substantive consideration and the immateriality of the requested discovery.
• Miller v. Beneficial Management Corp., 977 F.2d 834, 841 (3d Cir. 1992); Marroquin-Manriquez v. INS, 699 F.2d 129, 134 (3d Cir. 1983); Hanover Potato Products v. Shalala, 989 F.2d 123, 127 (3d Cir. 1993); Anderson v. Wachovia Mortgage Corp., 621 F.3d 261, 281 (3d Cir. 2010): Set the abuse-of-discretion and prejudice frameworks—appellants must show interference with a substantial right or gross abuse causing fundamental unfairness and actual, substantial prejudice. The Estate made no such showing.
• Gorrio v. Francis, 141 F.4th 90, 94 (3d Cir. 2025): Denial of discovery must have made it impossible to obtain crucial evidence. The court referenced this to underscore that the Estate’s requests were not essential to causation and thus properly denied.
• Robin Construction Co. v. United States, 345 F.2d 610, 614 (3d Cir. 1965): A Rule 56(d) declaration must be “genuine and convincing,” not perfunctory. The Estate undermined its own 56(d) request by asserting enough evidence already existed to reach trial.
• Turner v. Schering-Plough Corp., 901 F.2d 335, 341 n.4 (3d Cir. 1990); Pacitti v. Macy’s, 193 F.3d 766, 778 (3d Cir. 1999): Discovery can be denied where it could have been obtained earlier or is not directly relevant to the core dispute. The court leaned on these concepts to reject new 30(b)(6) and other requests.
• LabMD Inc. v. Boback, 47 F.4th 164, 187–88 (3d Cir. 2022): Precluding expert discovery may infringe a substantial right if the case strongly indicates expert testimony is needed. But the court distinguished that principle; a “policing expert” was not necessary to prove the dispositive causation element tied to a specific remark.
• Baer v. Chase, 392 F.3d 609, 630 (3d Cir. 2004): Parties cannot use expert submissions to bootstrap liability at summary judgment when the liability theory itself lacks factual support. This supported excluding putative “protected information” expert review untethered to causation.
• Sempier v. Johnson & Higgins, 45 F.3d 724, 736 (3d Cir. 1995): Limits judicial rewriting of discovery requests, but permits intervention to ensure clarity and scope. The panel found the Magistrate Judge’s limited edits (“to the best of your recollection”) and scope pruning of interrogatories to Paul Morris permissible.
• Arnold Pontiac-GMC, Inc. v. General Motors Corp., 786 F.2d 564, 577 (3d Cir. 1986): Affirms ample discovery time allocation; the court relied on this to reject claims that more discovery time was required.

State-created danger and causation:

• Ye v. United States, 484 F.3d 634, 636, 643 (3d Cir. 2007); Bright v. Westmoreland County, 443 F.3d 276, 281–83 & n.7 (3d Cir. 2006); Kaucher v. County of Bucks, 455 F.3d 418, 432 (3d Cir. 2006); Bennett v. City of Philadelphia, 499 F.3d 281, 287 (3d Cir. 2007): Reiterate that the state-created danger doctrine is an exception to the no-affirmative-duty rule and that its fourth element requires an affirmative act by the state that is the but-for cause of the harm, with a “direct causal relationship.” The panel applied this stringent causation requirement to hold that the alleged “Sweeney comment” did not satisfy the fourth element.

Sur-replies:

• Cureton v. NCAA, 252 F.3d 267, 276 (3d Cir. 2001); In re Fine Paper Antitrust Litigation, 685 F.2d 810, 817 (3d Cir. 1982): Sur-replies are within the District Court’s discretion. Given the court assumed the truth of the Estate’s memorandum and still found no causation, denying a sur-reply was proper.

Prior appeal (procedural context):

• Estate of Lagano v. Bergen County Prosecutor’s Office, 769 F.3d 850 (3d Cir. 2014) (Estate of Lagano I): Earlier Third Circuit decision holding claims not time-barred and vacating immunity findings. The panel rejected the Estate’s suggestion that Estate of Lagano I mandated discovery on alleged BCPO corruption or Sweeney-related materials; it did not.

Legal Reasoning

1) Discovery denials were not an abuse of discretion.

The Third Circuit’s discovery analysis is anchored in materiality and prejudice. The District Court framed causation as the dispositive issue, asking whether the Estate could prove that Mordaga (and the BCPO) caused Lagano’s death. From that vantage point:

• Rule 56(d) declaration: While the District Court erred by not expressly ruling on the pending 56(d) declaration (per Avandia), the error was harmless because the court substantively evaluated the discovery sought and correctly found it immaterial to causation. The Estate also blunted its own 56(d) request by arguing “sufficient evidence already exists,” contradicting Rule 56(d)’s premise that facts are unavailable to the nonmovant.
• 30(b)(6) depositions (BCPO and DCJ): The court held the Estate did not show why alleged BCPO corruption or DCJ files would materially advance causation. Estate of Lagano I’s stray reference to a complaint alleging BCPO corruption did not establish its truth or materiality. Nor did the Estate show the information could not have been obtained earlier or through other discovery taken (including the deposition of Mordaga and voluminous BCPO productions).
• Policing expert: The Estate did not show why a policing expert’s review of “protected information” bore on the only dispositive question—whether the Sweeney comment caused the murder. Excluding expert discovery not tied to summary judgment issues is permissible.
• Paul Morris interrogatories: The Magistrate Judge’s decision to require interrogatories rather than a deposition, and to edit questions minimally (“to the best of your recollection”) while striking those beyond scope, was within the court’s discretion, especially given parallel discovery taken from Mordaga and the late stage of discovery.
• No discovery “mandate” from Estate of Lagano I: The earlier appellate decision allowed the suit to proceed by removing immunity and timeliness obstacles; it did not command discovery into BCPO corruption or Sweeney complaint materials. The District Court provided ample discovery opportunity on matters directly relevant to the merits.

2) Summary judgment: failure of proof on causation.

Turning to the merits, the Third Circuit confined its analysis to the fourth element of the state-created danger doctrine. The Estate’s theory centered on a single alleged affirmative act: Mordaga’s statement to Lagano that “Don’t count on Sweeney helping you, he’s going to jail.” The panel reiterated that the fourth element requires:

• A direct causal relationship between the affirmative state act and the harm; and
• But-for causation—that the harm would not have occurred absent the state action.

The record, even viewed favorably to the Estate, lacked admissible or corroborated evidence from which a reasonable jury could find that the Sweeney comment created a new danger or increased Lagano’s vulnerability to the point of being a but-for cause of his murder. Key gaps included:

• Disputed occurrence and content: The “Sweeney memorandum” (the Estate’s principal evidence) lacked detail on time and place and conflicted with other evidence. The only other living witness (Trobiano) denied hearing the comment and disputed being present at the dinner described. Corinne Lagano’s testimony introduced additional discrepancies (e.g., the presence of Frank Walsh, absent from the memorandum).
• No tie to third-party perpetrators: The record did not show that anyone in the relevant setting was connected to organized crime in a way that would convert the statement into a lethal disclosure. The murder remains unsolved, and the Estate identified no actor who relied on the statement to cause harm.
• Informant status immaterial without causation: Even if Lagano were a confidential informant, that status by itself does not establish the requisite causal chain between the Sweeney comment and his murder.

Because the Estate could not establish the fourth element, the court affirmed summary judgment without reaching the other elements. It also noted that any “special relationship” theory was neither pleaded nor supported and, in any event, would be incongruent with the Estate’s own theory that a different agency (DCJ) was Lagano’s handler.

3) Sur-reply denial was within discretion.

The District Court assumed the truth of the Sweeney memorandum and still found the causation element lacking. In that posture, a sur-reply addressing the memorandum’s credibility or admissibility would not alter the outcome, making denial a sound exercise of discretion.

Impact and Implications

Although designated “not precedential,” the decision is a clear and practical reaffirmation of two core propositions in the Third Circuit:

• Stringent causation in state-created danger claims: Plaintiffs must marshal concrete, non-speculative evidence that a state actor’s affirmative act directly caused the harm and was a but-for cause. Ambiguous statements, attenuated chains of inference, or unresolved third-party criminal agency will not suffice.
• Materiality-limited discovery under Rule 56(d): Courts may deny additional discovery when the information sought does not speak to the dispositive element in dispute—in this case, causation. Parties should tailor Rule 56(d) requests tightly to the precise merits issue impeding summary judgment and avoid “in the alternative” filings that concede sufficiency without the requested discovery.

For practitioners:

• Crafting 56(d) declarations: Identify specific, unavailable facts that discovery will likely yield; explain why those facts are crucial to a particular element (here, causation); and show diligence and unavailability from other sources. Avoid generalized allegations (e.g., “widespread corruption”) unless tied to the element at issue and to the harm.
• 30(b)(6) depositions and agency-wide discovery: Demonstrate not only relevance but necessity—why existing discovery and depositions of individual actors (e.g., the named defendant) cannot supply the needed proof.
• Experts before summary judgment: Make a specific showing that expert testimony is essential to resolve the element in dispute; otherwise courts may bar expert discovery as a detour from the dispositive merits question.
• State-created danger pleadings and proof: Anchor the claim in a discrete affirmative act and build a clear causal chain with corroborated facts. Establish the identity of third-party actors where possible and the mechanism by which the state act enabled the harm.
• Preserving appellate review: While the Third Circuit will liberally construe notices of appeal in appropriate circumstances, best practice is to specify all orders intended for appellate review.

Substantively, the opinion underscores that allegations about a decedent’s confidential-informant status, without more, are insufficient to carry a state-created danger claim. The court’s treatment of discovery also signals skepticism toward broad “pattern and practice” discovery when the merits turn on a narrow causation inquiry linked to a specific alleged act.

Complex Concepts Simplified

• State-created danger doctrine: An exception to the general rule that the Due Process Clause does not require the state to protect individuals from private harm. To recover, a plaintiff must prove (among other elements) that a state actor took an affirmative step that directly and foreseeably caused or heightened the danger, and that this affirmative act was a but-for cause of the harm.
• But-for causation vs. direct causal relationship: “But for” means the harm would not have occurred without the state act. A “direct causal relationship” further requires that the act materially enabled the harm, not merely in some speculative or attenuated way.
• Rule 56(d) (formerly 56(f)) declarations: A mechanism for a party opposing summary judgment to request time for targeted discovery when essential facts are unavailable. The request must specify the facts sought, why they are essential, and why they could not be obtained earlier; courts may deny requests that are immaterial or cumulative.
• Rule 30(b)(6) depositions: Depositions of an organization through designated representatives. Parties must show why such testimony is necessary beyond what individual witnesses and document discovery already provide.
• Special relationship exception: A separate due process exception that may arise when the state has custody or similar control over a person (e.g., prisoners). It was neither pleaded nor supported here and is distinct from the state-created danger theory.
• Sur-reply: An extra round of briefing permitted at the court’s discretion to respond to new material raised in a reply. Courts may deny when the proposed sur-reply would not alter the outcome or duplicates arguments.
• Harmless error: Even if a court errs (e.g., failing to explicitly rule on a 56(d) motion), the appellate court will affirm if the error did not affect the outcome—such as where the court’s reasoning otherwise addressed the issue and the requested discovery was immaterial.

Conclusion

Estate of Lagano reinforces two practical and doctrinal constraints in § 1983 state-created danger litigation. First, plaintiffs must prove a direct, but-for causal link between a specific affirmative act by a state actor and the harm—mere informant status, speculation about motives, or inconsistent accounts will not cross the summary judgment threshold. Second, discovery—particularly under Rule 56(d)—must be tightly tethered to the dispositive element; courts may deny further inquiry into tangential topics (like broad allegations of agency corruption) when they do not bear on the required causal nexus.

While non-precedential, the opinion offers clear guidance: causation is king in state-created danger cases, and discovery will be channeled toward that element. Litigants should frame both their merits theories and discovery strategies accordingly, ensuring that each request materially advances proof of a direct causal relationship between the state’s affirmative act and the private harm.