The opinion of the court was delivered by: Judge Robert E. Blackburn
ORDER DENYING PLAINTIFF RALPH GAMBINA'S FORTHWITH MOTION TO AMEND FINAL PRETRIAL ORDER AND PERMIT ADDITIONAL WITNESSES
The matter before me is Plaintiff Ralph Gambina's Forthwith Motion To Amend Final Pretrial Order And Permit Additional Witnesses [#77] filed February 3, 2006.*fn1 I deny the motion on both procedural and substantive grounds. This written order is entered to reiterate, expatiate, and supplement the findings of fact, conclusions of law, and orders entered by me from the bench in open court during mid-trial proceedings conducted February 13, 2006.
In fashioning my ruling I have judicially noticed all relevant adjudicative facts in the file and record of this action pro tanto, I have considered all relevant evidence presented by plaintiff during his case in chief, and I have considered all reasons stated, all arguments advanced, and all authorities cited by the parties in their papers and during oral argument. I have considered and applied the principles enunciated in Davey v. Lockheed Martin Corp., 301 F.3d 1204 (10th Cir. 2002), and Palace Exploration Co. v. Petroleum Development Co., 316 F.3d 1110, 1117 (10th Cir. 2003).
Procedurally, the motion 1) is inexplicably and inexcusably filed out of time; and 2) does not conform to REB Civ. Practice Standard II.H1, which governs pretrial requests to present testimony by telephone or videoconferencing.
Substantively, the motion 1) comes as an unreasonable surprise to defendants; 2) is unreasonably prejudicial to defendants; 3) can not reasonably be cured by a continuance of the trial; 4) constitutes the needless presentation of cumulative evidence within the meaning of Fed.R.Evid. 403, and the needless consumption of time within the meaning of Fed.R.Evid. 611(a)(2); and 5) has been waived as to use of this witness during the plaintiff's case in chief. I address each in turn.
First, the motion constitutes unreasonable surprise 1) because the identity and testimony of plaintiff's witness was not disclosed to defendants until February 3, 2006; and 2) because the testimony to be presented is not proper rebuttal evidence.*fn2 The identity of this witness and a summary of his anticipated testimony was due by no later than entry of the Final Pretrial Order [#60] entered September 1, 2005. Additionally, the issue of this inmate witness could and should have been raised and addressed by plaintiff by no later than the Trial Preparation Conference held on January 27, 2006. It was not.
Further, the inmate witness is not a proper rebuttal witness. Plaintiff principally seeks to call this witness to testify about what he heard the parties say to each other during the altercation. Specifically, plaintiff expects this witness to testify consistent with his affidavit or declaration about what plaintiff and defendants said to each other. Rebuttal evidence is properly limited to evidence offered in response to some point raised for the first time by the defendants' evidence. McCormick on Evidence (5th Edition) § 4. Here, the plaintiff, not the defendants, first raised the issue of statements traded between plaintiff and defendants. Thus, the issue is not appropriate for rebuttal evidence.
Second, the timing of and relief requested in the motion is unreasonably prejudicial to defendants. By filing the motion on the eve of trial, defendants are effectively denied a reasonable opportunity to investigate the inmate witness, his expected testimony, and related circumstances.
Third, the surprise and prejudice inherent to the motion may not be effectively extenuated by a continuance, because such a cure would be worse than the proverbial disease. Based on my review of my professional calendar and docket, it would be in excess of a year before trial could commence if continued. This is a case that cries out to be tried. The alleged incident made the focus of the trial occurred on August 27, 1998. This is the second civil action brought by plaintiff against defendants in connection with this incident.*fn3 A lengthy continuance of an already aged case would only exacerbate, not ameliorate, any prejudice, stress, and expense to any party inherent to the passage of time.*fn4
Fourth, the testimony expected to be elicited from plaintiff's putative witness would be practically identical to the testimony already presented by plaintiff. Given the time requested by the parties and allocated by the court for the trial of this case, the probativity of essentially a second presentation of the same evidence, albeit by a different witness, would be substantially outweighed by the consideration of the needless presentation of cumulative evidence and involve inherently the needless consumption of time. See Fed.R.Evid 403 and 611(a)(2).
Finally, plaintiff rested his case in chief without first requesting that the court resolve this pending motion or without first attempting to call the witness himself.*fn5 Thus, plaintiff has waived the use of this witness during plaintiff's case in chief. However, plaintiff has suffered no discernible prejudice since the evidence sought to be presented through this inmate witness was, in fact, presented by plaintiff himself.*fn6
THEREFORE, IT IS ORDERED that Plaintiff Ralph Gambina's Forthwith Motion To Amend Final Pretrial Order And Permit Additional Witnesses [#77] filed February 3, 2006, IS DENIED.
Done in chambers February 14, 2006, to reiterate, expatiate, and supplement the findings of fact, conclusions of law, and orders entered by me from the bench in open court during ...