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Tracey v. St. Jude Medical S.C., Inc.

United States District Court, D. Nebraska

September 3, 2016

LISA TRACEY, Plaintiff,
ST. JUDE MEDICAL S.C., Inc.; Defendant.


          Robert F. Rossiter, Jr. United States District Judge

         This matter is before the Court on Defendant St. Jude Medical S.C., Inc.'s (“St. Jude”) objections (Filing No. 232) pursuant to Federal Rule of Civil Procedure 72(a) to the magistrate judge's August 11, 2016, order (Filing No. 213) granting Plaintiff Lisa Tracey's (“Tracey”) Motion in Limine to Exclude the Testimony of Dr. Van de Graff [sic] and Motion to Quash (Filing No. 187). For the reasons stated below, St. Jude's objections are sustained in part and the magistrate judge's order is vacated.


         In this diversity case, see 28 U.S.C. § 1332(a)(1), Tracey alleges her former employer, St. Jude, terminated her employment in June 2013 in violation of the Nebraska Fair Employment Practice Act, Neb. Rev. Stat. §§ 48-1104 and 48-1114(3), and Nebraska public policy for refusing to participate in St. Jude's unlawful billing practices. St. Jude denies participating in any unlawful practices and maintains it terminated Tracey because of her poor job performance.

         On July 7, 2016, St. Jude filed an Amended Witness List (Filing No. 184) that included Dr. Eric Van De Graaff (“Dr. Van De Graaff”) as a fact witness. St Jude reported “Dr. Van De Graaff worked with Plaintiff when she was employed with St. Jude Medical S.C., Inc., experienced problems with her performance, and communicated those issues to St. [Jude] Medical S.C., Inc. Plaintiff's counsel is familiar with the information Dr. Van De Graaff possesses, having already interviewed him.” Tracey moved in limine to prevent Dr. Van De Graaff from testifying at trial and sought to prohibit St. Jude from taking his deposition. Pointing out St. Jude's disclosure of Dr. Van De Graaff was untimely under the progression order in this case, [1] Tracey argued “[t]he late disclosure prejudice[d] [her] in that she [wa]s left with no time to discover and offer rebuttal witnesses and exhibits.” See, e.g., Trost v. Trek Bicycle Corp., 162 F.3d 1004, 1009 (8th Cir. 1998) (finding late production of an expert's opinion was prejudicial because of a “lack of time to prepare to refute the evidence at trial”).

         St. Jude responded that it did not need to identify Dr. Van De Graaff on its witness list because he was an impeachment witness. St. Jude also argued that, even if Dr. Van De Graaff should have been listed, Tracey could not show the late disclosure caused her prejudice because she and her counsel knew about him as early as September 9, 2015, and had already interviewed him. St. Jude further explained the delay resulted from its efforts to resolve a discovery dispute with Tracey without involving the magistrate judge.

         The magistrate judge rejected St. Jude's argument that Dr. Van De Graaff was only an impeachment witness. The magistrate judge further found (1) St. Jude had “lack[ed] sufficient legal or factual justification to allow the untimely listing” and (2) Tracey showed she “would suffer prejudice by rushing to complete or curtail her own discovery related to the newly identified witness within [the short] time before trial.” The magistrate judge granted Tracey's motion and prohibited St. Jude from deposing Dr. Van De Graaff for any purpose. On August 22, 2016, St. Jude timely objected to the magistrate judge's order.


         Title 28 U.S.C. § 636(b)(1)(A) authorizes the Court to “reconsider any pretrial matter . . . where it has been shown that the magistrate judge's order is clearly erroneous or contrary to law.” Id.; see also Fed. R. Civ. P. 72 (“The district judge in [a] case [in which a magistrate judge has issued an order on a nondispositive pretrial matter] must consider timely objections and modify or set aside any part of the order that is clearly erroneous or is contrary to law.”). “A finding is ‘clearly erroneous' when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948).

         Noting the Eighth Circuit has cautioned that “the exclusion of critical testimony by unlisted witnesses is disfavored, ” Morfeld v. Kehm, 803 F.2d 1452, 1455 (8th Cir. 1986), St. Jude argues, among other things, that the magistrate judge erred in prohibiting St. Jude from taking Dr. Van De Graaff's deposition and excluding his testimony at trial. The Court agrees.

         Federal Rule of Civil Procedure 26(a)(3)(A) requires each party to file certain information about the non-impeachment witnesses “the party expects to present [at trial] and those it may call if the need arises.” By rule, a party must disclose its witnesses “at least 30 days before trial” “[u]nless the court orders otherwise.” Fed.R.Civ.P. 26(a)(3)(B). In this case, the magistrate judge ordered each party to disclose its trial witnesses by June 30, 2016.

         St. Jude did not formally identify Dr. Van De Graaff as a witness until July 7, 2016-one week (four business days) after the deadline. When a party fails to identify a witness as required by Rule 26(a), “the district court has wide discretion to fashion a remedy or sanction as appropriate for the particular circumstances of the case.” Wegener v. Johnson, 527 F.3d 687, 692 (8th Cir. 2008) (citing Fed.R.Civ.P. 37(c)(1)). Under Rule 37(c)(1), “[t]he district court may exclude the . . . testimony as a self-executing sanction unless the party's failure to comply is substantially justified or harmless.” Id.

         “The primary purpose of the pretrial witness disclosure rule is to give parties notice of who will be called to testify, thereby avoiding unfair surprise or prejudice at trial.” Morfeld, 803 F.2d at 1455. “The rule should be applied flexibly and pragmatically and should seldom be used to bar a party's use of a witness not disclosed unless bad faith is involved.” Id. at 1456. “When fashioning a remedy, the district court should consider, inter alia, the reason for noncompliance, the surprise and prejudice to the opposing party, the extent to which allowing the . . . testimony would disrupt the order and efficiency of the trial, and the importance of the . . . testimony.” Wegener, 527 F.3d at 692.

         Applying these standards to the facts of this case, the Court concludes St. Jude's short delay in naming Dr. Van De Graaff as a fact witness was harmless and did not warrant the “harsh penalty” of excluding Dr. Van De Graaff's testimony. ELCA Enters. v. Sisco Equip. Rental & Sales, 53 F.3d 186, 190 (8th Cir. 1995). There is no question St. Jude failed to comply with the progression order, and the Court does not take St. Jude's failure lightly. See, e.g., Bradford v. DANA Corp., 249 F.3d 807, 809 (8th Cir. 2001) (“[W]e do not take case management orders lightly, and will enforce them.”); Trost, 162 F.3d at 1008 ...

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