Goines v. Lee Memorial Health System et al
Filing
186
ORDER denying 182 Motion for Leave of Court to Amend Witness List. Signed by Judge John E. Steele on 4/17/2019. (FWH)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
DONIA GOINES,
Plaintiff,
v.
Case No:
2:17-cv-656-FtM-29UAM
LEE MEMORIAL HEALTH SYSTEM,
d.b.a. Cape Coral Hospital
and JEOVANNI HECHAVARRIA,
Defendants.
OPINION AND ORDER
This matter comes before the Court on plaintiff’s Motion for
Leave of Court to Amend Witness List (Doc. #182) filed on March
20, 2019.
Defendant Lee Memorial filed a Response (Doc. #183) on
April 3, 2019.
For the reasons that follow, the motion is denied.
I.
A. Background Information
Lee Memorial is a public health care system codified under
Florida
law
and
Hechavarria,
who
Hospital.
the
former
worked
as
a
employer
night
of
nurse
defendant
at
the
Jeovanni
Cape
Coral
In March of 2015, non-party Briana Hammer was a patient
at the Cape Coral Hospital and accused Hechavarria of sexual
assault.
Lee
Memorial
investigated
determined it was unsubstantiated.
Hammer’s
allegation
and
In July of 2016, plaintiff was
a patient at the hospital and also accused Hechavarria of sexual
assault.
Plaintiff
subsequently
filed
an
Amended
Complaint
asserting a section 1983 claim and several common law negligence
claims against Lee Memorial, as well as a common law assault and
battery claim against Hechavarria.
B. Procedural History
In July of 2018, the Court issued an Amended Case Management
and Scheduling Order setting various deadlines for this case.
(Doc. #55.)
The parties were to submit a final pretrial statement
by February 5, 2019, and the statement was to include, inter alia,
the parties’ witness lists.
(Id. p. 2.)
On the day of the
deadline, the parties submitted a Joint Final Pre-Trial Statement
listing
each
addition
to
party’s
her
proposed
expert
witnesses.
witnesses,
(Doc.
plaintiff’s
#146.)
In
witness
list
contains separate lists of individuals who “WILL BE CALLED,” “WILL
LIKELY BE CALLED,” and “MAY BE CALLED.”
(Doc. #146-4, pp. 56-60.)
In total, plaintiff lists over fifty individuals, either by name
or title.
(Id. pp. 56-62.)
Plaintiff now moves for leave to amend her witness list to
add an additional witness: Dr. Juan J. Galarraga.
(Doc. #182.)
Dr. Galarraga was the attending physician who treated Hammer the
day after she accused Hechavarria of sexually assaulting her.
(Doc. #183-1, p. 21.)
Like plaintiff, Hammer has filed a suit
against Lee Memorial and Hechavarria which is currently before the
Court.
Brianna Hammer v. Lee Memorial Health System and Jeovanni
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Hechavarria, Case No. 2:18-cv-347FtM-29MRM.
As part of that
lawsuit, Dr. Galarraga was deposed on March 14, 2019 by the same
attorneys who represent plaintiff and Lee Memorial in the instant
case.
(Doc. #183-1, p. 20.)
During the deposition, Dr. Galarraga
testified that Hammer informed him she had been sexually assaulted
and that she was “very angry.”
(Id. pp. 21-22.)
Dr. Galarraga
also testified that Hammer did not appear inconsistent in her
factual description of the events and that she seemed believable.
(Id. p. 22.)
Plaintiff now requests the Court allow her to file
an amended witness list inclusive of Dr. Galarraga.
(Doc. #182,
p. 8.)
II.
Leave to amend a trial witness list after a scheduling order
deadline “will only be given upon a showing of ‘good cause’ under
Rule 16(b).”
Graf v. Morgan, 2012 WL 869004, *1 (S.D. Ala. Mar.
13, 2012) (citing Sosa v. Airprint Sys., Inc., 133 F.3d 1417, 1418
(11th Cir. 1998)); see also Romano v. Sec’y, DOC, 2011 WL 2292135,
*2 (M.D. Fla. June 8, 2011) (applying “good cause” standard to
plaintiff’s
request
to
supplement
his
witness
list).
When
reviewing a district court’s exclusion of a witness not listed on
a
party’s
considered
pretrial
the
witness
following
list,
factors:
the
(1)
Eleventh
the
Circuit
importance
of
has
the
testimony; (2) the reason for the party’s failure to disclose the
witness earlier; and (3) the prejudice to the opposing party if
- 3 -
the witness is allowed to testify.
See Bearint ex rel. Bearint
v. Dorell Juvenile Grp., Inc., 389 F.3d 1339, 1353 (11th Cir.
2004).
The Court will address each of these factors as they relate
to plaintiff’s request.
A. Importance of the Testimony
Plaintiff argues that Dr. Galarraga’s testimony is important
because it contradicts Lee Memorial’s defense.
(Doc. #182, p. 5.)
As noted previously, Lee Memorial investigated Hammer’s accusation
and
determined
it
could
not
be
substantiated.
The
record
indicates that Lee Memorial’s risk manager interviewed Hammer and
believed she was being untruthful during the interview.
#98-9, p. 188.)
allegation.”
manager
The manager concluded Hammer had “made up the
(Id. at 189.)
relied
(Doc.
in
part
on
In coming to this determination, the
findings
by
the
responding
police
officer, who found Hammer’s account inconsistent and determined
she was making up the allegation.
because
Lee
Memorial
has
(Id.)
called
Plaintiff argues that
into
question
Hammer’s
believability and credibility, Dr. Galarraga’s testimony that her
account was not inconsistent and was believable is “vital to the
case.”
(Doc. #182, p. 5.)
Lee Memorial responds that Dr. Galarraga’s testimony is not
important because it is not relevant.
(Doc. #183, pp. 11-13.)
Specifically, Lee Memorial argues that because Dr. Galarraga was
not present when Hammer spoke with the police officer and Lee
- 4 -
Memorial’s risk manager, his testimony would be immaterial as to
whether Hammer was believable during those interviews.
(Id. pp.
12-13.)
Finally, Lee Memorial argues that because Dr. Galarraga
admitted
in
his
deposition
that
he
never
expressly
told
Lee
Memorial he believed Hammer’s story, (Doc. #183-1, p. 28), such a
belief
would
be
irrelevant
to
whether
Lee
Memorial
acted
negligently in the aftermath of the Hammer accusation, (Doc. #183,
p. 13.)
Having considered the arguments of the parties, the Court is
unconvinced Dr. Galarraga’s testimony is as important as plaintiff
asserts.
Indeed, such testimony may not be admissible at all.
Based on the record before the Court, Lee Memorial’s determination
that Hammer’s account was not believable was based on interviews
conducted
with
Hammer
when
Dr.
Galarraga
was
not
present.
Nonetheless, the Court will assume for purposes of this analysis
that
Dr.
Galarraga’s
testimony
regarding
the
credibility
of
Hammer’s account is valuable to plaintiff’s case.
B. Reason for Failure to Disclose the Witness Earlier
Regarding the second factor, plaintiff admits that she knew
of Dr. Galarraga’s existence prior to the deadline, but asserts
she was not aware of the substance of his testimony.
pp. 5-6.)
(Doc. #182,
Lee Memorial responds that plaintiff was aware of Dr.
Galarraga and the facts to which he might testify, and nonetheless
failed to include him in her witness list.
- 5 -
(Doc. #183, p. 5.)
Having considered the arguments, the Court finds plaintiff has not
offered sufficient justification for her failure to identify Dr.
Galarraga as a witness earlier.
Plaintiff admits that her attorney not only knew Dr. Galarraga
was Hammer’s treating physician prior to the February 5, 2019
deadline, but also that her attorney actually spoke with Dr.
Galarraga
prior
to
the
deadline.
(Doc.
#182,
pp.
5-6.)
Nonetheless, plaintiff did not include Dr. Galarraga on her witness
list.
Plaintiff
asserts
that
her
attorney
“was
hesitant
to
include [Dr. Galarraga] as a witness out of fairness to [Lee
Memorial] and the fact that he was not previously disclosed.”
(Id. p. 6.)
Plaintiff states that at the time her counsel spoke
with Dr. Galarraga, the trial was only a month away 1 and he had
not been deposed.
(Id. p. 7.)
However, the fact remains that
plaintiff’s counsel was not only aware of Dr. Galarraga’s existence
prior to the deadline, but spoke with him as well.
plaintiff
filed
a
witness
list
with
over
fifty
Given that
individuals,
including twenty-eight under the “MAY BE CALLED” category, (Doc.
#146-4, pp. 60-62), the Court finds plaintiff’s explanation for
failing to include Dr. Galarraga insufficient. 2
1
The trial was recently rescheduled from April 1, 2019 to
November 4, 2019. (Doc. #179.)
2
Regarding plaintiff’s assertion that she did not list Dr.
Galarraga on her witness list because she had not deposed him yet,
(Doc. #182, pp. 6-7), Lee Memorial responds that the majority of
the individuals from plaintiff’s witness list have not been
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C. Prejudice to Opposing Party
Turning to the final factor, plaintiff argues Lee Memorial
“will face absolutely no prejudice” because it participated in the
deposition of Dr. Galarraga and therefore “had the opportunity to
question him on all of his perceptions and actions.”
p. 7.)
(Doc. #182,
Lee Memorial disputes this assertion, arguing that the
opportunity to depose Dr. Galarraga in the Hammer case does not
cure the prejudice caused by plaintiff’s late disclosure in this
case.
(Doc. #183, pp. 7-8.) Lee Memorial further states that it
would have approached the deposition differently had it known
plaintiff intended to call Dr. Galarraga as a witness.
(Id. p.
9.)
Having
considered
the
arguments,
the
Court
finds
Lee
Memorial has sufficiently demonstrated that it would be prejudiced
by plaintiff’s late amendment to her witness list.
While the
Hammer case also involves an allegation of sexual assault by a
hospital patient against Lee Memorial’s former employee, the two
cases are not the same.
When Lee Memorial participated in the
deposition of Dr. Galarraga, it did so in preparation for the
claims and issues raised in the Hammer case.
The Court agrees
with Lee Memorial’s argument that prejudice is established because
it would have approached the deposition differently if it knew
deposed, (Doc. #183, p. 6.)
- 7 -
plaintiff intended to call Dr. Galarraga as a witness in this case.
The
Court
also
finds
that
this
prejudice
is
compounded
by
plaintiff’s assertion that Dr. Galarraga’s testimony “will likely
be limited to playing sections of his video deposition for the
jury.”
(Doc. #182, p. 3.)
Accordingly, the Court finds plaintiff
would be prejudiced if Dr. Galarraga were allowed to testify and
such prejudice is not cured by Lee Memorial’s participation in the
prior deposition.
Having considered the three factors, the Court finds only the
first weighs in favor of allowing plaintiff to add Dr. Galarraga
to her witness list.
However, even assuming Dr. Galarraga’s
testimony is as important as plaintiff asserts, the Court finds
plaintiff has still failed to demonstrate good cause to amend the
witness list due to the remaining factors discussed above.
See
Bearint, 389 F.3d at 1353 (“Regardless of the importance of Dyer’s
testimony, the reasons for the delay in the Bearints’ disclosure
and the consequent prejudice that his testimony would have caused
Cosco require us to affirm the district court’s ruling.”); Graf,
2012 WL 869004, *1 (“While the court agrees that Reichley may be
an important witness for plaintiffs, plaintiffs’ predicament is
the result of their own failure to diligently pursue discovery in
this case.”)
cause
to
As plaintiff has not demonstrated the required good
permit
Dr.
Galarraga’s
testimony,
the
Court
plaintiff’s request for leave to amend her witness list.
- 8 -
denies
Accordingly, it is hereby
ORDERED:
Plaintiff’s Motion For Leave of Court to Amend Witness List
(Doc. #182) is DENIED.
DONE and ORDERED at Fort Myers, Florida, this
of April, 2019.
Copies:
Counsel of Record
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17th
day
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