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Union Pacific Railroad Co. v. Colony National Insurance Co.

United States District Court, D. Nebraska

February 22, 2018




         This matter is before the Court on the Plaintiff's Motion in Limine to Exclude Certain Witnesses from Trial, ECF No. 191. The Plaintiff, Union Pacific Railroad Company (UP), seeks to preclude Defendant, Colony National Insurance Company (Colony), from offering trial testimony of Kenneth W. Heathington, Thomas C. Jones, Timothy C. Gaarder, Grant L. Davis, and Robert Pottroff, because Colony failed to disclose their names in Colony's initial disclosures under Fed.R.Civ.P. 26(a)(1)(A)(i). For the reasons discussed below, the Motion will be granted as to Heathington and Pottroff, and denied as to Jones, Gaarder, and Davis, with the condition that Colony make these witnesses available to UP for depositions no later than February 28, 2018, at Colony's expense.


         In its initial Rule 26 disclosures, served on April 10, 2015, Colony listed the names, addresses, and telephone numbers of individuals likely to have discoverable information. Def.'s Initial Disclosures, ECF No. 193-1, Page ID 5941-43. Colony also listed: “All counsel for plaintiffs and defendants in the underlying action styled Betty Jay, et al. v. Union Pacific Railroad Company and Donald Wilson, No. CJ-2008-343 (ln the District Court in and for Rogers County, Oklahoma). (Subject: Claims, discovery, evidence, liability, demands, exposure and negotiations in that action).” Id., Page ID 5944.

         Pursuant to the Court's Fourth Amended Progression Order, ECF No. 154, all fact discovery, including depositions, was to be completed on or before September 30, 2017, and each party was to disclose to opposing counsel on or before December 1, 2017, the names, addresses, and telephone numbers of all non-expert witnesses whom the party expected to present at trial, or whom the party might call.

         On December 1, 2017, Colony filed its Disclosure of Non-Expert Witnesses, ECF No. 173, listing, among others, the five individuals who are the subject of UP's Motion in Limine. Those individuals were not listed by name in Colony's initial Rule 26 disclosures, nor in any supplementary disclosures, nor in response to UP's interrogatories requesting names of witnesses and the subject matter of their testimony.

         In UP's Brief in Support of its Motion in Limine, ECF No. 192, UP states that Jones, Gaarder, and Davis were among plaintiffs' lawyers in the Rogers County, Oklahoma, action (Underlying Action); Pottroff was among the defendants' lawyers; more than eleven lawyers represented the parties; and Heathington was an expert witness. Colony does not deny these assertions. In its Brief in Opposition to UP's Motion in Limine, ECF No. 202, Colony addresses only the proposed testimony of Jones, Gaarder, and Davis, plaintiffs' counsel in the Underlying Action, and states that Colony will not call Pottroff and Heathington as witnesses.


[A] party must, without awaiting a discovery request, provide to the other parties: (i) the name and, if known, the address and telephone number of each individual likely to have discoverable information-along with the subjects of that information-that the disclosing party may use to support its claims or defenses, unless the use would be solely for impeachment.

Fed. R. Civ. P. 26(a)(1)(A).

A party who has made a disclosure under Rule 26(a)-or who has responded to an interrogatory, request for production, or request for admission--must supplement or correct its disclosure or response: (A) in a timely manner if the party learns that in some material respect the disclosure or response is incomplete or incorrect, and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing . . . .

Fed. R. Civ. P. 26(e).

If a party fails to provide information or identify a witness as required by Rule 26(a) . . . the party is not allowed to use that . . . witness . . . at trial, unless the failure was substantially justified or is harmless. In addition to or instead of this sanction, the court, on motion and after giving an opportunity to be heard: (A) may order payment of ...

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