Hammler v. Wright

Filing 190

ORDER signed by District Judge Troy L. Nunley on 01/08/20 GRANTING defendant's 173 Motion to Modify the Pretrial Order to add Nurse Yacoubou as a witness. (Benson, A.)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10
11

ALLEN HAMMLER,

12
13
14
15

No. 2:15-cv-01645-TLN-EFB

Plaintiff,
v.

ORDER

J. WRIGHT,
Defendant.

16
17

This matter is before the Court pursuant to Defendant J. Wright’s (“Defendant”)

18

unopposed motion to modify the Final Pretrial Order. (ECF No. 173.) Defendant seeks to add

19

Nurse Yacoubou (“Yacoubou”) as a witness to authenticate and provide testimony regarding the

20

medical records Defendant identified as exhibits in the Pretrial Order. (ECF No. 173-1.)

21

Defendant’s motion is GRANTED for the reasons discussed herein.

22

As noted in the Pretrial Order, any attempt to modify the Final Pretrial Order following

23

the close of the 30-day period to file objections is governed by Federal Rule of Civil Procedure

24

16. (ECF No. 106 at 14.) Rule 16 provides that the Court may modify the order issued after a

25

final pretrial conference only to prevent manifest injustice. Fed. R. Civ. P. 16(e).

26

The Ninth Circuit has held that a district court should consider the following factors when

27

evaluating a motion to amend the pretrial order: (1) the degree of prejudice or surprise to the

28

opposing party; (2) the ability of the moving party to cure any prejudice; (3) the impact of the
1

1

modification on the orderly and efficient conduct of the trial; and (4) any degree of willfulness or

2

bad faith on the part of the party seeking the modification. Hunt v. County of Orange, 672 F.3d

3

606, 616 (9th Cir. 2012).

4

On balance, the Court finds these factors weigh in favor of modifying the Pretrial Order.

5

First, Defendant notes that Yacoubou is the author of the medical report dated October 20, 2014,

6

which pertains to Plaintiff’s medical examination following the alleged excessive force incident.

7

(ECF No. 173-1 at 2.) This report was previously identified in the August 14, 2018, Pretrial

8

Order as Defendant’s Exhibit C (see ECF No. 106 at 10). (ECF No. 173-1 at 2.) Defendant

9

appears to seek to add Yacoubou as a witness in lieu of the previously identified custodian of

10

medical records, mainly to alleviate any potential evidentiary and hearsay issues with presentation

11

of those medical records. (See id. at 3.) Because Yacoubou’s signature appears at the bottom of

12

the record, it does not appear that permitting Yacoubou to testify regarding the report he authored

13

would cause any prejudice or surprise to Plaintiff. (Id. at 2.) Similarly, amendment will not

14

negatively impact the orderly and efficient conduct of the trial where Defendant identified the

15

report in his Pretrial Statement, thus providing Plaintiff notice of the report, as early as April 18,

16

2018. (ECF No. 101 at 10.) Finally, there does not appear to be any bad faith on the part of

17

Defendant for not previously seeking to include Yacoubou as a witness for this purpose (see ECF

18

No. 173-1 at 3), and Plaintiff has not filed any opposition to the motion. For these reasons, the

19

Court finds amendment is appropriate.

20
21
22
23

Accordingly, IT IS HEREBY ORDERED that Defendant’s Motion to Modify the Pretrial
Order to add Nurse Yacoubou as a witness (ECF No. 173) is GRANTED.
IT IS SO ORDERED.
Dated: January 8, 2020

24
25
26

Troy L. Nunley
United States District Judge

27
28
2