Wilson Road Development Corporation et al v. Fronabarger Concreters, Inc. et al

Filing 298

MEMORANDUM AND ORDER re: 179 MOTION to Strike 28 of the Witnesses on Plaintiffs' Witness List That Were Not Disclosed During Discovery filed by Defendant Fronabarger Concreters, Inc. IT IS HEREBY ORDERED that defendant's motion to strike twenty-eight witnesses from plaintiffs' witness list and for a protective order [Doc. #179] is denied. Signed by District Judge Carol E. Jackson on 1/21/15. (CSG)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
WILSON ROAD DEVELOPMENT
CORPORATION, et al.,
Plaintiffs,
vs.
FRONABARGER CONCRETERS, INC.,
et al.,
Defendants.

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Case No. 1:11-CV-00084-CEJ

MEMORANDUM AND ORDER
This matter is before the Court on the motion of defendant Fronabarger
Concreters, Inc., to strike twenty-eight proposed witnesses from plaintiffs’ witness list
and for a protective order preventing plaintiffs from calling any of those witnesses to
testify at trial. The issues are fully briefed.
I.

Background

On August 11, 2014, the Court severed plaintiffs’ common law claims for
negligence, nuisance, and trespass against defendant Fronabarger from plaintiffs’
claims against Fronabarger and the other defendants (and the cross-claims and
counterclaims) for alleged violations of the Comprehensive Environmental Response,
Compensation, and Liability Act (CERCLA), 42 U.S.C. § 9601, et seq. A jury trial on the
common law claims was scheduled for August 18, 2014. On August 12, 2014, however,
in response to a new report by the United States Environmental Protection Agency
(EPA), the Court removed the case from the trial docket and reopened limited discovery
pertinent to the findings in that report. The Court reset the jury trial for February 17,
2015.

On July 21, 2014, plaintiffs filed a witness list, which includes seventeen
witnesses that plaintiffs “will call to testify” at the jury trial or the bench trial, or both,
and thirty additional witnesses that plaintiffs “may call to testify.” [Doc. #180] In
response, Fronabarger moved to strike twenty-eight of plaintiffs’ proposed witnesses
because those witnesses were never identified in plaintiffs’ Rule 26 disclosures. [Doc.
#179]
II.

Legal Standard

Fed. R. Civ. P. 37(c)(1) provides that “[i]f a party fails to . . . identify a witness
as required by Rule 26(a) or (e), the party is not allowed to use that . . . witness to
supply evidence . . . at a trial, unless the failure was substantially justified or is
harmless.” See Doe v. Young, 664 F.3d 727, 734 (8th Cir. 2011). Whether a Rule 26
violation was substantially justified or is harmless is determined by weighing the
following factors:
(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.
Rodrick v. Wal-Mart Stores E., L.P., 666 F.3d 1093, 1097 (8th Cir. 2012) (citation
omitted). However, “the court need not make explicit findings concerning the existence
of a substantial justification or the harmlessness.” Id.
III.

Discussion

Plaintiffs admit that the twenty-eight witnesses that Fronabarger identified in its
motion to strike were not included in their Rule 26(a) initial disclosures or in any
supplemental disclosures. Plaintiffs have also agreed not to call twenty-five of those
witnesses to testify at the jury trial. Therefore, Fronabarger’s motion seeking to strike
those twenty-five witnesses is moot. The motion is also moot as to Dale Guariglia, who

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is an attorney for the defendant. In a separate order, the Court struck Guariglia from
plaintiffs’ witness list and prohibited plaintiffs from calling him to testify.
Plaintiffs state that they intend to call Barbara Peterson, an EPA employee, as a
witness at trial. Peterson communicated with Guariglia about Fronabarger’s proposals to
limit the deed restrictions that the EPA placed on the superfund site. (One of plaintiffs’
motions in limine seeks to exclude all evidence of those communications from the trial.)
Fronabarger’s rationale for preventing plaintiffs from calling Guariglia to testify about
those communications was that plaintiffs could call Peterson to testify about them.
Having successfully demonstrated that Peterson should be called to testify in lieu of
Guariglia, Fronabarger is precluded from arguing that plaintiffs should now be
prohibited from calling Peterson to testify. Plaintiffs’ failure to identify Peterson as a
potential witness in their Rule 26 disclosures is harmless.
Finally, defendant Fronabarger seeks to preclude plaintiffs from calling Stan
Polivik, yet Fronabarger has included Polivik in its own witness list.

The plaintiffs’

failure to identify Polivik as a potential witness in their Rule 26 disclosures is rendered
harmless by the fact that Fronabarger anticipates that Polivik may be one of its own
witnesses at trial.
For the foregoing reasons,
IT IS HEREBY ORDERED that defendant’s motion to strike twenty-eight
witnesses from plaintiffs’ witness list and for a protective order [Doc. #179] is denied.

CAROL E. JACKSON
UNITED STATES DISTRICT JUDGE
Dated this 21st day of January, 2015.

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