Eller v. Tonche et al

Filing 208

ORDER ON PLAINTIFF'S MOTION TO STRIKE granting 200 Plaintiff's Motion to Strike the Testimony of Ten Previously Undisclosed Witnesses and Use of Undisclosed Document by Magistrate Judge Michael E. Hegarty on 08/31/2018. (mdave, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 15-cv-02693-REB-MEH
WILLIAM B. ELLER,
Plaintiff,
v.
TODD TONCHE,
TAMI RUCH,
JEANNIE PARK,
KENNETH LEFEVER,
SARAH DARULA,
CHARLENE LARSON, and
MEGHAN JACKSON,
Defendants.
______________________________________________________________________________
ORDER ON PLAINTIFF’S MOTION TO STRIKE
______________________________________________________________________________
The trial in this case is set to commence in less than one month. Despite the quickly
approaching trial date, Defendants recently disclosed one document and ten fact witnesses pursuant
to Federal Rule of Civil Procedure 26(a)(1). I find the untimely disclosure is not substantially
justified, and the prejudice to Plaintiff cannot be cured. Accordingly, I grant Plaintiff’s motion to
strike.
BACKGROUND
During the allegations giving rise to this case, Plaintiff was incarcerated at the Sterling
Correctional Facility, which is part of the Colorado Department of Corrections. Am. Compl. ¶ 2,
ECF No. 107. According to Plaintiff, Defendants Todd Tonche, Tami Ruch, and Jeannie Park
punched him in the face, slammed him into a concrete floor, and “stomped down violently on [his]
left leg.” Id. ¶¶ 41–44, 53. As a result, Plaintiff allegedly suffered “a serious displaced fracture of

[his] left fibula.” Id. ¶ 54. In an Amended Complaint filed on November 21, 2016, Plaintiff asserts
claims for excessive force and deliberate indifference to medical needs. Id. ¶¶ 144–73.
On March 14, 2018, I issued a recommendation on Defendants’ Motion for Summary
Judgment. R&R on Mot. for Summ. J., ECF No. 174. I first found that exhaustion did not bar
Plaintiff’s claims. Id. at 12–18. I then found summary judgment improper as to Officer Park,
Officer Ruch, Ms. Jackson, and Ms. Larson. Id. at 18–31. However, I found that Plaintiff failed to
present sufficient evidence that Ms. Albright and Mr. Kudlauskas committed a clearly established
constitutional violation. Id. Defendants Tonche, LeFever, and Darula did not seek summary
judgment on qualified immunity grounds. Id. at 10. The Honorable Robert E. Blackburn adopted
my recommendation in full. Order Adopting R&R, ECF No. 179.
In a May 8, 2018 order, Judge Blackburn set a five-day jury trial to begin on September 24,
2018. Trial Preparation Conference Order 4, ECF No. 181. Prior defense counsel moved to
withdraw on July 30, 2018, and present counsel entered their appearances. See ECF Nos. 183–84,
186.
On August 17 and 21, 2018, Defendants disclosed ten additional witnesses pursuant to Rule
26(a)(1)(A). Defendants’ Sixth Supplemental Disclosures, ECF No. 200-1. Defendants’ Seventh
Supplemental Disclosures, ECF No. 200-2. Each of these individuals interacted with Plaintiff
shortly after the alleged excessive force incident. Defendants also disclosed a document titled,
“Sterling Correctional Facility Punitive/Removal from Population Segregation Allowable List.”
Shortly thereafter, Plaintiff filed the present Motion to Strike, ECF No. 200. Plaintiff
contends failing to strike the document and permitting these witnesses to testify would significantly
prejudice him. Id. In response, Defendants argue Plaintiff learned of these witnesses during

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discovery. Resp. to Mot. to Strike 4–13, ECF No. 205. Additionally, Defendants assert any
prejudice could be cured by taking the witnesses’ depositions. Id. at 13. Plaintiff filed a reply brief
on August 28, 2018. Reply in Supp. of Mot. to Strike, ECF No. 206.
LEGAL STANDARD
Federal Rule of Civil Procedure 26(a)(1)(A) requires parties to disclose the identity “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.” If a party fails
to timely disclose a witness or piece of evidence, “the party is not allowed to use that information
or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was
substantially justified or is harmless.” Fed. R. Civ. P. 37(c)(1). “The determination of whether a
Rule 26(a) violation is justified or harmless is entrusted to the broad discretion of the district court.”
Woodworker’s Supply, Inc. v. Principal Mut. Life Ins. Co., 170 F.3d 985, 993 (10th Cir. 1999)
(quoting Mid-Am. Tablewares, Inc. v. Mogi Trading Co., 100 F.3d 1353, 1363 (7th Cir. 1996)).
ANALYSIS
I exercise my discretion to strike Defendants’ untimely disclosures. Pursuant to Federal Rule
of Civil Procedure 26(a)(1)(C), initial disclosures were due on or before January 24, 2017. See
Proposed Scheduling Order 13, ECF No. 125 (stating that the parties held the Rule 26(f) conference
on January 10, 2017). Because Defendants served their supplemental disclosures on August 17 and
21, 2018, they were untimely.
First, I find the untimely disclosures were not substantially justified. Defendants explain
their untimely disclosures by stating that their present counsel, who was retained on July 30, 2018,
recently realized that Defendants’ former attorney did not disclose a number of witnesses. Resp.

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to Mot. to Strike 2, ECF No. 205. However, “[r]etention of new counsel generally is not substantial
justification for late disclosure.” Valdez-Castillo v. Busch Entm’t Corp., No. 06-20772-CIVDIMITROULEAS, 2009 WL 10668210, at *2 (S.D. Fla. Jan. 8, 2009). Although I am certainly
sympathetic to the difficulties in being retained shortly before trial, Defendants’ decision to hire new
counsel does not justify disclosing witnesses for the first time one month before trial. See
Chamberlain Grp., Inc. v. Interlogix, Inc., No. 01 C 6157, 2002 WL 653893, at *5 (N.D. Ill. Apr.
19, 2002) (“Although [the plaintiff’s] new counsel may prefer [a different] expert, that rationale is
insufficient to justify an untimely disclosure.”); Edizone, L.C. v. Cloud Nine, No. 1:04-CV-117 TS,
2008 WL 584991, at *4 n.23 (D. Utah Feb. 29, 2018) (“The only possible reason to justify this late
disclosure is that Defendants’ new counsel disagrees with the actions taken by Defendants’ prior
counsel. This is not, however, a valid reason to allow this information to be admitted.”).
Second, the untimely disclosure is not harmless. In considering whether a failure to comply
with Rule 26(a) is harmless, courts analyze: (1) the prejudice or surprise to the party against whom
the testimony is offered, (2) the ability of the party to cure the prejudice, (3) the extent to which
introducing such testimony would disrupt the trial, and (4) the moving party’s bad faith or
willfulness. Woodworker’s Supply, Inc. v. Principal Mut. Life Ins. Co., 170 F.3d 985, 993 (10th Cir.
1999).
Regarding the first factor, Plaintiff will suffer significant surprise and prejudice. Defendants
argue Plaintiff should not be surprised by the addition of these witnesses, because Plaintiff had
contact with each of them shortly after the incident and all of their names appeared in discovery
documents or deposition testimony. Resp. to Mot. to Strike 4–13, ECF No. 205. However,
“knowledge of the existence of a person is distinctly different from knowledge that the person will

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be relied on as a fact witness.” Auraria Student Hous. at the Regency, LLC v. Campus Vill.
Apartments, LLC, No. 10-cv-02516-WJM-KLM, 2014 WL 2933189, at *2 (D. Colo. June 30, 2014).
Although knowing the scope of newly disclosed testimony generally makes a late disclosure
harmless, Newman v. GHS Osteopathic, Inc. v. Parkview Hosp. Div., 60 F.3d 153, 156 (3d Cir.
1995), Defendants do not produce evidence indicating that Plaintiff knew of the witnesses’ proposed
testimonies. Defendants assert that some of the discovery materials reference brief portions of the
proposed testimonies. Resp. to Mot. to Strike 7. However, it does not follow that Plaintiff
understood the scope of each witness’ testimony. For example, even assuming Plaintiff knew Ms.
Hux would testify that he did not complain of a broken leg, he may still be surprised by testimony
“related to [Ms. Hux’s] interactions and communications with Plaintiff, general CDOC and SCF
policies and procedures regarding medical treatment and use of force, and information regarding the
allegations set forth in Plaintiff’s Amended Complaint and all related issues.” Defendants’ Sixth
Supplemental Disclosures 1–2, ECF No. 200-1. Therefore, Plaintiff was not aware of the
information included in the untimely disclosures.
As for prejudice, Defendants disclosed the document and ten individuals one month before
the first day of trial. Permitting the document to be offered as evidence may require Plaintiff to
serve supplemental written discovery to learn about the document’s relevance and how Defendants
intend to use it. Similarly, unless I strike the witness disclosure, Plaintiff will be required to depose
ten new individuals in the next three weeks or cross-examine the witnesses without having the
opportunity to learn the entirety of their testimony. Either of these options would prejudice
Plaintiff’s ability to effectively try this case. See Lawson v. Plantation Gen. Hosp., L.P., No. 0861826-CIV-ROSENBAUM, 2010 WL 11504835, at *5 (S.D. Fla. May 3, 2010) (“Plaintiff amended

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her witness list one month prior to trial and, therefore, Defendant is not afforded the luxury of an
extended period of time to depose [the new witness]. The Court thus finds that the addition of [the
new witness] at this late date will be harmful to Defendant.”); Jackson v. Dollar Gen. Store, No.
2:11-cv-00726-TC-DBP, 2014 WL 2013351, at *2 (D. Utah May 16, 2014) (finding that if the court
had not continued the trial date, the defendant would have suffered prejudice, because it would have
had only “fifty-nine days to review the disclosures before the original April 28, 2014 trial date”).
In Mendoza v. A&A Landscape & Irrigation, LP, the court stated,
Defendants’ only explanation for the failure to timely disclose these witnesses was
that they were unaware that these witnesses had not been disclosed. While the
evidence may be important to Defendants, the potential prejudice to Plaintiffs is high
resulting from the disclosure of several witnesses approximately one month before
trial, and after the close of discovery.
No. 4:12-CV-562, 2014 WL 6627741 (E.D. Tex. Nov. 21, 2014). I agree with the court’s finding
in Mendoza and find that the disclosure of a new document and ten witnesses one month prior to
trial will significantly prejudice Plaintiff.
Further, it is far too late to cure the prejudice. This is not a case in which a party made
untimely disclosures six month before trial. Trial commences in approximately three weeks.
Effectively requiring Plaintiff to serve written discovery and depose these individuals to learn the
scope of their testimony would significantly interfere with Plaintiff’s trial preparation efforts.
Accordingly, the second Woodworker’s Supply factor favors striking the disclosures.
Regarding the third factor, it is reasonable to assume that allowing ten additional witnesses
will disrupt or alter the trial. Although Defendants contend they do not intend to testify again during
their case in chief, this alone does not convince me that permitting ten additional witnesses will not
extend the trial beyond the five days Judge Blackburn allotted. Indeed, even if each of these

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witnesses testified for only one hour, this would extend the trial by over a full day. Accordingly,
I find that permitting the testimony has the potential to disrupt the trial.
Although I find no evidence of bad faith on the part of Defendants, this does not permit an
untimely disclosure. As such, Defendants’ disclosure of ten witnesses and a new document a mere
month before trial was neither substantially justified nor harmless.
CONCLUSION
Defendants’ untimely supplemental disclosures were not substantially justified and will
cause Plaintiff significant incurable prejudice. Accordingly, I exercise my discretion to strike
Defendants’ supplemental disclosures. Plaintiff’s Motion to Strike the Testimony of Ten Previously
Undisclosed Witnesses and Use of Undisclosed Document [filed August 23, 2018; ECF No. 200]
is granted.
Entered and dated at Denver, Colorado, this 31st day of August, 2018.
BY THE COURT:

__________________________
Michael E. Hegarty
United States Magistrate Judge

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