United States District Court, D. Nebraska
D. Thalken United States Magistrate Judge
matter is before the court on Lisa Tracey’s Motion in
Limine to Exclude the Testimony of Dr. Van De Graff [sic] and
Motion to Quash (Filing No. 187). Tracey seeks to prevent a
deposition and exclude trial testimony from a lay witness
identified by St. Jude Medical, Inc. (St. Jude) after the
deadline for listing trial witnesses. Tracey filed a brief
(Filing No. 188) and an index of evidence (Filing No. 189) in
support of the motion. St. Jude filed a brief (Filing No.
190) and an index of evidence (Filing No. 191) opposing the
motion. Tracey filed a brief (Filing No. 204) and an index of
evidence (Filing No. 205) in reply.
alleges St. Jude wrongfully terminated her from her job at
St. Jude as a Senior Technical Sales Specialist after she
opposed and reported unlawful billing activities.
See Filing No. 1 - Complaint. Specifically,
Tracey alleges she opposed fraudulently billing a patient for
a medical device in order to provide such device, free of
charge, to a different patient and other false purchase
orders. Id. ¶¶ 30-42.
Tracey asserts St. Jude retaliated against her in violation
of the Nebraska Fair Employment Practices Act (NFEPA) and
Nebraska public policy. Id.
¶¶ 29-49. St. Jude denies fraudulent billing
activity and denies terminating Tracey’s employment
because of her opposition to alleged fraudulent activity,
instead alleging Tracey’s poor performance led to her
termination. See Filing No. 12 - Answer.
current discovery dispute arises from St. Jude’s
listing of Dr. Eric Van De Graaff as a trial witness in the
July 7, 2016, Amended Witness List (Filing No. 7) and
attempting to schedule his deposition. Tracey opposes St.
Jude’s late listing of the witness. Tracey contends the
late disclosure was unjustified and prejudices Tracey.
See Filing No. 188 - Brief p. 2-5. Tracey
argues she is prejudiced because the discovery period has
expired and she would be unable to conduct any necessary
discovery stemming from Dr. Van De Graaff’s deposition.
Id. at 4-5.
Jude admits the disclosure was untimely, by “a mere
four business days, ” and filed without leave of court.
See Filing No. 190 - Response p. 2.
Nevertheless, St. Jude contends it was not required under the
federal rules to identify Dr. Van De Graaff because he is an
impeachment witness. Id. at 1.
Specifically, St. Jude states, “[t]he testimony of Dr.
Eric Van De Graaff, one of St. Jude’s important
physician-customers, will rebut/impeach testimony from
another physician-customer Plaintiff deposed July 11 (Dr.
Kent Gleed) as well as Plaintiff’s own contention that
she was competent.” Id.
(footnote omitted). Tracey denies Dr. Van De Graaff is an
impeachment witness because his testimony would be more akin
to rebuttal or substantive evidence. See
Filing No. 204 - Reply p. 13-19.
parties have known about Dr. Van De Graaff’s identity
as a possible witness since, at least, September 9, 2015,
when a St. Jude employee described Dr. Van De Graaff’s
complaints about Tracey. See Filing No. 190
- Response p. 3-4. St. Jude did not list him as a witness
because St. Jude did not want to “unnecessarily
inconvenience or annoy” its customers.
Id. at 4. On June 21, 2016,
Tracey’s counsel attempted to schedule the deposition
of another customer-witness, Dr. Kent Gleed. The parties
continued to discuss when, or if, Dr. Gleed’s
deposition should occur and, on June 29, 2016, Tracey’s
counsel conveyed the intent to proceed with the deposition
over St. Jude’s objection. Tracey’s counsel
interviewed Dr. Van De Graaff on June 30, 2016, for less than
ten minutes. See Filing No. 204 - Reply p.
3. On June 30, 2016, both parties filed witness lists,
neither listing Dr. Van De Graaff. See
Filing Nos. 177 and 179. On July 6, 2016, St. Jude withdrew
its objections to Dr. Gleed’s deposition. On the same
date, St. Jude’s counsel spoke to Dr. Van De Graaff
about his interview with Tracey’s counsel and about his
willingness to testify at trial. On July 7, 2016, St. Jude
filed the amended witness list (Filing No. 184), including
Dr. Van De Graaff, and sought to schedule his deposition.
combined motion in limine and to quash was filed on July 12,
2016. See Filing No. 187. The deadline for
the parties to identify witnesses for trial pursuant to
Fed.R.Civ.P. 26(a)(3) was June 30, 2016. See
Filing No. 154. Additionally, the progression order provides:
All requests for changes of deadlines or settings established
herein shall be directed to the magistrate judge by
appropriate motion, . . . Such motions shall not be
considered in the absence of a showing by counsel of due
diligence in the timely development of this case for trial
and the recent development of circumstances, unanticipated
prior to the filing of the motion, which require that
additional time be allowed.
Id. The discovery deadline was July
29, 2016, and the pretrial conference is scheduled for August
19, 2016, with trial to follow on September 19, 2016.
Rule of Civil Procedure 16(b)(4) requires a party show good
cause justifying any modifications to a scheduling order.
See Fed. R. Civ. P. 16(b); Bradford v.
DANA Corp., 249 F.3d 807, 809-10 (8th Cir. 2001);
see also Thorn v. Blue Cross & Blue Shield of
Fla., Inc., 192 F.R.D. 308, 309 (M.D. Fla.
2000) (“In demonstrating good cause, the moving party
must establish that the ‘scheduling deadlines cannot be
met despite a party’s diligent efforts.’”)
(paraphrasing Fed.R.Civ.P. 16 advisory committee notes (1983
court finds Dr. Van De Graaff’s testimony cannot be
considered impeachment. For this reason, the rules required
St. Jude to timely disclose its intent to call him as a
witness. St. Jude failed to seek leave of court to amend the
witness list. Although St. Jude provides some explanation for
the delay in identifying Dr. Van De Graaff as a lay witness,
the court finds St. Jude lacks sufficient legal or factual
justification to allow the untimely listing. Additionally,
St. Jude suggests the testimony would be unnecessarily
redundant and used to corroborate other witnesses. The court
also finds Tracey has shown, under the circumstances, she
will suffer prejudice by rushing to complete or curtail her
own discovery related to the newly identified witness within
short the time before trial. Accordingly, IT IS
Tracey’s Motion in Limine to Exclude the Testimony of
Dr. Van De Graff [sic] and Motion to ...