United States District Court, D. Nebraska
MEMORANDUM AND ORDER
F. Rossiter, Jr. United States District Judge
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.
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
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,  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”).
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.
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
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).
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.
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.
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.”
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.
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