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American Home Assurance Co. v. Greater Omaha Packing Company, Inc.

United States District Court, D. Nebraska

February 24, 2014



LYLE E. STROM, Senior District Judge.

This matter is before the Court on the objection of the plaintiffs to the defendant's nonexpert witness pretrial disclosure report (Filing No. 204). The plaintiffs have filed an accompanying index of evidence (Filing No. 205). The plaintiffs want the Court to limit the number of witnesses the defendant may call at trial. The defendant did not reply to the plaintiffs' objection. The Court will sustain the plaintiffs' objection to 57 of the 120 witnesses.


In 2007, a U.S.D.A. inspection discovered a strain of E. coli in ground beef which led to a recall of approximately 845, 000 pounds of product (Filing No. 1, at 2-3). The plaintiffs, American Home Assurance Company ("Assurance") and Cargill Meat Solutions, Corp. ("Cargill"), are both in the meat industry and were affected by the recall. The plaintiffs claim that the defendant, Greater Omaha Packing Company, Inc. ("GOPAC"), adulterated the meat and caused the infection. Id. at 3. The plaintiffs bring the following actions against GOPAC: breach of express warranty, breach of implied warranty of merchantability, breach of implied warranty of fitness for a particular purpose, breach of contract, and indemnity. Id. at 5-9. GOPAC denies all claims and asserts a counterclaim against the plaintiffs for the tortious interference with business relationships and expectancies (Filing No. 40, at 8).

The Court has continually extended discovery deadlines at the parties' request. The Rule 26(f) report was originally due on October 31, 2011, but after numerous extensions, the report came to the Court on July 5, 2012 (Filing Nos. 22, 23, 31, 32, 37, 39, 41, 42, 43, 49, 65, 66, 68). After receiving the Rule 26 report, the Court set a progression order and scheduled discovery to end on September 3, 2013 (Filing No. 75, at 1). The Court scheduled the disclosure of non-expert witnesses thirty (30) days prior to the deposition deadline. Id. at 3.

On September 11, 2012, GOPAC served the plaintiffs with an initial disclosure in accordance with Federal Rule of Civil Procedure 26(a)(1) (Filing No. 205-1). In this disclosure, GOPAC named twelve (12) nonexpert persons whom GOPAC believed had discoverable information. Id. GOPAC reserved the right to supplement that list. Id.

On April 11, 2013, the Court amended its final progression order (Filing No. 116). GOPAC urged the Court to amend the final progression because the plaintiffs were not diligent in identifying those who claimed E. coli poisoning (Filing No. 111, at 4). The Court extended discovery until February 3, 2014.

On November 1, 2013, GOPAC again asked the Court to extend its deadlines (Filing No. 156). Over the strong objections of the plaintiffs and after a conference with the attorneys, the Court extended the deadline for depositions until February 18, 2014. Id.

Then, on January 21, 2014, the plaintiffs and GOPAC agreed, inter se, to extend the disclosure supplement deadline from the Court's progression order to January 27, 2014 - 22 calender days before the end of depositions instead of 30 days (Filing No. 205-2). In an e-mail between counsel, the plaintiffs state that they were "relying upon [defense counsels'] statement that you don't expect any surprises on your list and if there are we can work through it." Id. The parties supplemented their lists of nonexpert witnesses for trial on January 27, 2014 (Filing No. 202).

GOPAC's disclosure includes 132 potential witnesses, including 120 theretofore undisclosed additional witnesses from GOPAC's initial disclosure. The plaintiffs object to the 120 additional witnesses. The plaintiffs note that GOPAC only disclosed twelve (12) nonexpert witnesses to the Court, GOPAC never filed a supplement for additional witnesses from September 11, 2012, through the final disclosure date, and GOPAC's final disclosure was not timely (Filing Nos. 204 and 205). The issue in this matter is whether GOPAC complied with its duty to supplement reports and the effects of GOPAC's actions.


Federal Rule of Civil Procedure 26(e) governs the duty for parties to supplement discovery.[1] Parties must supplement disclosures when additional "information has not otherwise been made known to the other parties" or when ordered by the Court.

When a party fails to disclose a witness properly, the court "may exclude the... testimony... unless the party's failure to comply is substantially justified or harmless." Jenkins v. Med. Lab. Of E. Iowa, Inc., 880 F.Supp.2d 946, 956 (N.D. Iowa 2012) (citing Wegener v. Johnson, 527 F.3d 687, 692 (8th Cir. 2008). In making this determination, the Court should consider, among other things, "the reason for noncompliance, the surprise and prejudice to the opposing party, " the nature of the testimony and the severity of the sanction. Id. "[T]he exclusion of evidence is a harsh penalty and should be used sparingly.'" Id.

GOPAC's deadline for filing a responsive motion has passed. Civil Rule of the United States District Court for the District of Nebraska ("Nebraska Local Rule") 7.1 states that an opposing brief (other than dismissal or summary judgement) must be filed within 14 days after the motion and supporting brief are filed and served. Neb. Civ. R. 7.1(b)(1). Nebraska Local ...

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