Valiavacharska v. Celaya et al

Filing 122

ORDER RE: ADMISSIBILITY OF WITNESSES PROPOSED BY DEFENDANT (Dkt. Nos. 114, 119). Signed by Magistrate Judge Jacqueline Scott Corley on 1/31/2012. (ahm, COURT STAFF) (Filed on 1/31/2012)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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Northern District of California

United States District Court

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ZHIVKA VALIAVICHARSKA,
Plaintiff,

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v.

Case No.: CV 10-4847 JSC
ORDER RE: ADMISSIBILITY OF
WITNESSES PROPOSED BY
DEFENDANT (Dkt. Nos. 114, 119)

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BRENDAN TINNEY, et al.,
Defendants.

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Defendant Brendan Tinney’s witness list for trial, filed January 12, 2012, includes

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Barbara Fisher and Teresa Wong and explains that each will testify that they heard Plaintiff

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“say that she got her finger caught in the barricade.” (Dkt. No. 91.) Plaintiff has moved to

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exclude both witnesses from testifying at trial on the ground that Defendant did not properly

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disclose them as required by Federal Rule of Civil Procedure 26(a). (Dkt. No. 97.) The Court

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asked for further briefing on this issue following the January 19, 2012 pretrial conference.

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Now pending before the Court is Defendant’s January 24, 2012 letter on the admissibility of

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these witnesses. (Dkt. No. 114.) The Court also reviewed Plaintiff’s response, which was due

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January 27, 2012 but not filed until January 30, 2012. (Dkt. No. 119.)

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Both of the proposed witnesses, neither of whom was deposed, are nurses who treated
Plaintiff at the Tang Center immediately after her injury, and Defendant states that their

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identities are noted in Plaintiff’s medical records. (Dkt. No. 114.) Defendant represents that

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Barbara Fisher was disclosed as a potential witness pursuant to Federal Rule of Civil

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Procedure 26 as “Barbara Fisher, RN, Tang Center-University Health Services Urgent Care.”

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(Dkt. No. 114.) Teresa Wong was not disclosed by Defendant pursuant to Rule 26. The

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question before the Court is whether Defendant should be allowed to call these witnesses at

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trial given the manner in which Barbara Fisher was disclosed and the nondisclosure of Teresa

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Wong.

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FEDERAL RULE OF CIVIL PROCEDURE 26(a)
Federal Rule of Civil Procedure 26(a) requires a party to provide “the name and, if

Northern District of California

known, the address and telephone number of each individual likely to have discoverable

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United States District Court

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information—along with the subjects of that information—that the disclosing party may use to

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support its claims or defenses, unless the use would be solely for impeachment.” Rule

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26(e)(i) requires parties to supplement their Rule 26 witness disclosures if a party learns the

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disclosure is incomplete or inaccurate. Under Federal Rule of Civil Procedure 37(c)(1), “a

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party that without substantial justification fails to disclose information required by Rule 26(a)

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. . . is not, unless such failure is harmless, permitted to use as evidence at a trial . . . any

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witness or information not so disclosed.” The “underlying purpose of Rule 26’s disclosure

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requirements is to provide parties notice.” Fonseca v. City of Fresno, 2012 WL 44041 at *5

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(E.D. Cal. Jan. 9, 2012).

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A. Barbara Fisher

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The Court finds that Defendant’s disclosure of Ms. Fisher complied with Rule 26.

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Defendant’s Rule 26 disclosure identifies the witness by first and last name, professional title,

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and place of work, which put Plaintiff on notice that she was a hospital employee involved in

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Plaintiff’s treatment. Further, Defendant asserts that “Ms. Fisher’s role in caring for the

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plaintiff is well documented” in Plaintiff’s own medical records. (Dkt. No. 114.) Under such

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circumstances Plaintiff was on notice as to Barbara Fisher’s identity and relevance as a

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medical treating professional. See, e.g., Johnson v. Couturier, 2009 WL 3169965 at *2 (E.D.

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Cal. Sept. 28, 2009) (finding that a witness “who was not named specifically” was nonetheless

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“properly listed in the Plaintiffs’ initial disclosures” when Plaintiffs listed “Noll Board of

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Directors” and “Defendants had personal knowledge of those persons who had served on the

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Noll Board”).

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Plaintiff nonetheless contends that the subject of Barbara Fisher’s proposed testimony
witness’s expected testimony” but merely that “the party identify the specific subjects or

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topics on which the witness may be called to testify.” Colony Ins., Co. v. Kuehn, 2011 WL

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4402738 at *3 (D. Nev. Sept. 20, 2011). The scope of Barbara Fisher’s proposed testimony is

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limited to what occurred at “Tang Center-University Health Services Urgent Care”—the

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subject enumerated in Defendant’s Rule 26 disclosure. Further, at Plaintiff’s deposition

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Northern District of California

was not properly enumerated. Rule 26 “does not require a detailed summary of a potential

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United States District Court

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Plaintiff was asked about the statement in her medical records reflecting that she had reported

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to Tang Center personnel that her finger had been cut off by the barricades. Thus, long before

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discovery closed Plaintiff has been on notice of the subject of the specific statement to which

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Defendant proposes to have Ms. Fisher testify.

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B. Teresa Wong

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Plaintiff asserts that Teresa Wong should not be permitted to testify as Defendant did

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not disclose her as required by Rule 26. Defendant admits that he did not disclose Ms. Wong.

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He nonetheless contends that he was not required to identify Ms. Wong in his Rule 26(a)

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disclosures because he intends to offer her testimony for impeachment only. See Fed. R. Civ.

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P. 26(a) (a party does not need to disclose witnesses if “the use would be solely for

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impeachment”). “Impeachment” as contemplated by the Rule 26(a) exception “refers to

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attacks on the credibility of a witness” and not to rebuttal evidence, which tends “to prove any

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element of [a party’s] claims.” Committee for Immigrant Rights of Sonoma County v. County

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of Sonoma, 2009 WL 18333988 at *3 (N.D. Cal. June 23, 2009).

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The proposed “impeachment” actually goes to the substance of a potential defense,

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namely, that Plaintiff’s injury was not caused by Officer Tinney but instead occurred (at least

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in part) because her finger got caught in the barricades. Indeed, it is apparent that Defendant

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questioned Plaintiff about this purported statement during her deposition precisely because of

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its substantive value. While Ms. Wong’s testimony may bear on Plaintiff’s credibility, it

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bears equally—if not even more strongly—on causation. Thus, Ms. Wong’s proposed

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testimony is not “solely for impeachment” as required for the Rule 26(a) exception. Fed. R.

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Civ. P. 26(a)(emphasis added). Defendant’s assertion that he is not offering Ms. Wong for

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causation is of no moment unless and until Defendant will stipulate as to causation.

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Accordingly, and in light of Defendant’s unexplained failure to identify Ms. Wong in his Rule

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26 disclosures, Defendant is not permitted to call Ms. Wong as a witness at trial.

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IT IS SO ORDERED.
Dated: January 31, 2012

_________________________________
JACQUELINE SCOTT CORLEY
UNITED STATES MAGISTRATE JUDGE

Northern District of California

United States District Court

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