Cole v. Munoz et al

Filing 93

ORDER After Hearing signed by Magistrate Judge Stanley A Boone on 03/11/2013. (Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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JAMES COLE,

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CASE NO. 1:09-cv-00476-SAB (PC)
Plaintiff,

ORDER AFTER HEARING

v.

(ECF No. 87.)

LIEUTENANT MUNOZ, et al.,
Defendants.
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Plaintiff James Cole (“Plaintiff”), a state prisoner proceeding pro se and in forma pauperis,

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filed this civil rights action pursuant to 42 U.S.C. § 1983 on March 13, 2009. Jury trial is set to

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begin on Tuesday, April 2, 2013. On March 4, 2013, the Court held a telephonic motions in limine

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hearing on the issue of incarcerated witness Patrick Brady testifying at trial. (ECF No. 87.) During

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the hearing, Plaintiff raised, for the first time, the issue of submitting medical records as exhibits

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at trial to prove damages for emotional injury. The Court’s pretrial order did not include any exhibits

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regarding Plaintiff’s medical records. (ECF No. 60.) The Court liberally construes Plaintiff’s

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request as a motion to amend the pretrial order to include Plaintiff’s medical records as trial exhibits.

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Federal Rule of Civil Procedure 16(e) provides that the pretrial order shall only be modified to

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“prevent manifest injustice.”

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In response to Plaintiff’s request, Defendants argued that Plaintiff failed to raise the issue

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of emotional damages during discovery, and Plaintiff is therefore precluded from offering evidence

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at trial on the issue. Following the hearing, Defendants submitted copies of Plaintiff’s responses to

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all four defendants’ discovery requests and a copy of Plaintiff’s deposition. Upon review of the
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submitted documents, the Court finds that Plaintiff failed to disclose evidence of emotional damages

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during discovery. “If a party fails to provide information or identify a witness as required by Rule

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26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a

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motion, or a hearing, or at a trial, unless the failure was substantially justified or harmless.” Fed. R.

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Civ. P. 37(c). Plaintiff has not provided any information to show that the failure to disclose was

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substantially justified. Additionally, the failure to disclose evidence of emotional injury was not

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harmless because Defendants were not given a fair opportunity to rebut this evidence and to

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adequately prepare their defense before trial. Accordingly,

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Plaintiff’s request to amend the pretrial order to include medical records of emotional injury

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as trial exhibits is hereby DENIED.

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IT IS SO ORDERED.

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Dated:
i1eed4

March 11, 2013
UNITED STATES MAGISTRATE JUDGE

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