Sadid v. Idaho State University et al

Filing 208

MEMORANDUM DECISION AND ORDER Defendants' Motion In Limine to Admit the Lay Opinion Testimony of Frank Zang as a Skilled Lay Observed (Dkt. 153 ) is DENIED. Signed by Judge B. Lynn Winmill. (jp)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
HABIB SADID, an individual,
v.

Case No. 4:11-cv-00103-BLW

Plaintiff,

IDAHO STATE UNIVERSITY,
ARTHUR VAILAS, RICHARD
JACOBSEN, GRAHAM GARNER,
DAVID BEARD, and JOHN/JANE
DOES 1 through X, whose true identities
are presently unknown,

MEMORANDUM DECISION AND
ORDER RE: FRANK ZANG

Defendants.
INTRODUCTION
Before the Court is plaintiff’s Motion to Admit Lay Opinion Testimony of Frank
Zang as a Skilled Lay Observer (Dkt. 153). The Court has determined oral argument
would not significantly assist the decisional process and will decide the motion without a
hearing. For the reasons expressed below, the Court will deny the motion.
BACKGROUND
After the summary judgment rulings in this case, plaintiff Dr. Habib Sadid has one
remaining claim against one defendant – defamation against Graham Garner. After ISU
terminated Dr. Sadid, Mr. Garner told a reporter at the ISU student newspaper that,
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among other things, Dr. Sadid “presented a lot of safety issues.” ISU Bengal Article, Dkt.
88-15, at 2. Dr. Sadid’s defamation suit is based on these comments. One of Mr.
Garner’s affirmative defenses is that he is immune from suit under Idaho’s Tort Claims
Act. See Idaho Code § 6-904(3). Specifically, if Mr. Garner made these comments
within the course and scope of his employment at ISU, and without malice or criminal
intent, then he is immune from suit. See id.
At the upcoming trial, Dr. Sadid wishes to uses the testimony of Frank Zang to
show that Mr. Garner was not acting in the course and scope of his employment when he
made his remarks. Mr. Zang was an employee of another Idaho state university (Boise
State University) for over eight years. The defendant objects on grounds that Dr. Sadid
failed to disclose Mr. Zang during discovery.
ANALYSIS
Under Rule 37 of the Federal Rules of Civil Procedure, “[i]f a party fails to
provide information or identify a witness as required by Rule 26(a) or (e), the party is not
allowed to use that information or witness to supply evidence . . . at trial, unless the
failure was substantially justified or is harmless.”
Dr. Sadid first says – without any supporting analysis – that he “properly disclosed
Mr. Zang under Rule 26” by listing Mr. Zang on his November 5, 2013 trial witness list.
Reply, Dkt. 190, at 2. But parties cannot comply with their pretrial discovery obligations
by identifying a witness for the first time in their trial witness list. Dr. Sadid has thus
failed to show that he complied with his discovery obligations.
Dr. Sadid has also failed to demonstrate that his late disclosure is substantially
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justified or harmless. Dr. Sadid argues that he was justified in waiting until the last
minute to disclose Mr. Zang by suggesting that the statutory-immunity question arose for
the first time after the Court ruled on the parties’ motions for summary judgment. See
Reply, Dkt. 190, at 3. But the immunity question has been in the lawsuit all along. Mr.
Garner asserted this affirmative defense back in January 2012 when he answered Dr.
Sadid’s complaint. See Answer, Dkt. 48, at 6 (“The defendants are immune from liability
pursuant to Idaho Code § 6-904 and/or any other applicable immunity.”) Granted, the
summary-judgment rulings stripped away other claims and issues, but the immunity
question certainly did not arise for the first time after those rulings. So there is no
justification for the late disclosure.
Further, allowing Mr. Zang to testify would substantially prejudice the defense.
Mr. Garner had no chance to depose Mr. Zang or otherwise prepare for his testimony at
trial. Thus, Mr. Zang will be barred from testifying at trial.
With this ruling, the Court need not address the parties’ remaining arguments.
The Court is aware that defendant has objected to various exhibits Dr. Sadid attached to
his reply brief. See Nov. 18, 2013 Objection, Dkt. 194. If Dr. Sadid still intends to rely
on any of these exhibits at trial – even though Mr. Zang will not be allowed to testify –
the Court will address that issue later.

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ORDER
Defendants’ Motion In Limine to Admit the Lay Opinion Testimony of Frank
Zang as a Skilled Lay Observer (Dkt. 153) is DENIED.

DATED: December 5, 2013
_________________________
B. Lynn Winmill
Chief Judge
United States District Court

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