United States District Court, D. Colorado
PHILIP A. BRIMMER United States District Judge
This matter is before the Court on defendants’ Motion in Limine to Exclude Undisclosed Witnesses [Docket No. 194], Motion in Limine to Preclude Testimony by W. Glenn Soileau, Documents from the Soileau Case and Evidence of Discovery Disputes [Docket No. 195], Motion in Limine to Exclude Newly Disclosed Exhibits [Docket No. 197], and Motion in Limine to Preclude Plaintiff from Relying on Deposition Testimony for Witnesses Within Subpoena Power or Present at Trial [Docket No. 199].
This is a products liability action that arises out of an accident that occurred on August 17, 2011 while plaintiff Miriam White was operating her Deere Model 4600 compact utility tractor and Model 460 loader. Ms. White claims that she suffered facial injuries and traumatic brain injury as a result of a hay bale falling onto her while operating the tractor. Docket No. 150 at 2. Ms. White alleges that her tractor had design defects that created an unreasonable risk of injury from falling hay bales and that her injuries resulted from these defects. Docket No. 150 at 2-3.
A. Defendants’ Motion in Limine to Exclude Undisclosed Witnesses
In defendants’ Motion in Limine to Exclude Undisclosed Witnesses [Docket No. 194], defendants seek to exclude five witnesses that defendants claim were never disclosed until the Final Pretrial Order submitted on August 27, 2015. In response, plaintiff correctly points out that one of them, Lisa Hebinck, is not named on plaintiff’s trial witness list. See Docket No. 172-2. Plaintiff also states that she listed Matthew White in her initial Rule 26 Disclosure on January 15, 2014. Assuming that is true, Matthew White may testify.
As to the other three witnesses, Ryan White, Ursula Hotz, and Dr. Susan Simon, plaintiff’s only response is to say that they were listed in the parties’ proposed Final Pretrial Order [Docket No. 143] and defendants have not complained about the inclusion of those witnesses until now. Docket No. 211 at 1. Plaintiff cites no authority for the proposition that listing witnesses for the first time in a draft final pretrial order satisfies Fed.R.Civ.P. 26 or 37(c)(1) or for the proposition that a party’s failure to object to an opponent doing so until shortly before trial somehow waives that party’s right to object. The Court finds that defendants have not waived their ability to object to plaintiff’s late disclosure of these witnesses under the discovery rules.
A party violates Rule 26 by failing to disclose witnesses prior to the close of discovery, which effectively forecloses the opposing party from conducting discovery on the supplemental disclosures. See Four Corners Nephrology Assocs., P.C. v. Mercy Medical Ctr. of Durango, No. 05-cv-02084-PSF-CBS, 2007 WL 1613352, at *1 (D. Colo. June 1, 2007). Discovery in this case closed on May 29, 2015. Docket No. 145 at 5. A party who fails to properly make a disclosure in violation of Rule 26 may not use at trial any witnesses or information that was not disclosed, unless the court determines that the failure to disclose was substantially justified or harmless. Fed.R.Civ.P. 37(c)(1). The non-moving party has the burden of showing that it was substantially justified in failing to comply with Rule 26(a) or that such failure was harmless. See Sender v. Mann, 225 F.R.D. 645, 655 (D. Colo. 2004). The Tenth Circuit has identified four factors the Court should consider to guide its discretion in determining whether a Rule 26(a) violation is substantially justified or harmless: “(1) the prejudice or surprise to the party against whom the testimony is offered; (2) the ability of the party to cure the prejudice; (3) the extent to which introducing such testimony would disrupt the trial; and (4) the moving party’s bad faith or willfulness.” Woodworker’s Supply, Inc. v. Principal Mut. Life Ins. Co., 170 F.3d 985, 993 (10th Cir. 1999) (citations omitted); see also Jacobsen v. Deseret Book Co., 287 F.3d 936, 953 (10th Cir. 2002).
In analyzing the four factors, the Court finds that none of them weigh in favor of plaintiff. Plaintiff offers no reason for not disclosing the three witnesses earlier or any reason why defendants would not be surprised or prejudiced by the fact that they were disclosed after the opportunity to depose them had passed. Moreover, plaintiff has not suggested ways that prejudice to the defendants could be mitigated. The Court therefore finds that plaintiff’s Rule 26(a) violation was not substantially justified or harmless.
B. Defendants’ Motion in Limine to Preclude Testimony by W. Glenn Soileau, Documents from the Soileau Case and Evidence of Discovery Disputes
In Docket No. 195, defendants seek to preclude plaintiff from “(i) calling W. Glenn Soileau as a witness, (ii) submitting newly disclosed documents concerning discovery in a Louisiana case titled Soileau v. Smith True Value and Rental, et al., and (iii) referring at trial to previously resolved discovery disputes in this case.” Docket No. 195 at 1.
In Plaintiff Miriam White’s Rule 26 Supplemental Disclosure of Witness [Docket No. 166], plaintiff states that Glenn Soileau is the attorney of record for Mary Phyllis Soileau, the plaintiff in Soileau v. Smith True Value and Rental and Deere and Company, a case from Evangeline Parish, Louisiana. Docket No. 166 at 1. This supplemental disclosure, wherein plaintiff identified Mr. Soileau as a witness for the first time, was filed on January 15, 2016. The supplemental disclosure indicates that Mr. Soileau
has direct knowledge and can testify as to documents regarding design and testing of Deere’s Model 460 Loader, which Deere did not furnish to Plaintiff Miriam White but which in fact did exist and were also not furnished to Plaintiff Mary Soileau in Mr. Soileau’s case until such time as ordered by the court after exhaustive research on the part of Mr. Soileau. Mr. Soileau will testify to court findings of discovery obfuscation, ...