American Home Assurance Company et al v. Greater Omaha Packing Company Inc.

Filing 213

MEMORANDUM AND ORDER - Plaintiffs' objection, filing 204 , is sustained as to the 57 witnesses which had not been previously identified. Ordered by Senior Judge Lyle E. Strom. (GJG)

IN THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEBRASKA
AMERICAN HOME ASSURANCE
COMPANY and CARGILL MEAT
SOLUTIONS CORPORATION,

)
)
)
)
Plaintiffs,
)
)
v.
)
)
GREATER OMAHA PACKING COMPANY,)
INC.,
)
)
Defendant.
)
______________________________)

8:11CV270

MEMORANDUM AND ORDER

This matter is before the Court on the objection of the
plaintiffs to the defendant’s nonexpert witness pretrial
disclosure report (Filing No. 204).

The plaintiffs have filed an

accompanying index of evidence (Filing No. 205).

The plaintiffs

want the Court to limit the number of witnesses the defendant may
call at trial.
objection.

The defendant did not reply to the plaintiffs’

The Court will sustain the plaintiffs’ objection to

57 of the 120 witnesses.
I.

BACKGROUND
In 2007, a U.S.D.A. inspection discovered a strain of

E. coli in ground beef which led to a recall of approximately
845,000 pounds of product (Filing No. 1, at 2-3).

The

plaintiffs, American Home Assurance Company (“Assurance”) and
Cargill Meat Solutions, Corp. (“Cargill”), are both in the meat

industry and were affected by the recall.

The plaintiffs claim

that the defendant, Greater Omaha Packing Company, Inc.
(“GOPAC”), adulterated the meat and caused the infection.
3.

Id. at

The plaintiffs bring the following actions against GOPAC:

breach of express warranty, breach of implied warranty of
merchantability, breach of implied warranty of fitness for a
particular purpose, breach of contract, and indemnity.
9.

Id. at 5-

GOPAC denies all claims and asserts a counterclaim against

the plaintiffs for the tortious interference with business
relationships and expectancies (Filing No. 40, at 8).
The Court has continually extended discovery deadlines
at the parties’ request.

The Rule 26(f) report was originally

due on October 31, 2011, but after numerous extensions, the
report came to the Court on July 5, 2012 (Filing Nos. 22, 23, 31,
32, 37, 39, 41, 42, 43, 49, 65, 66, 68).

After receiving the

Rule 26 report, the Court set a progression order and scheduled
discovery to end on September 3, 2013 (Filing No. 75, at 1).

The

Court scheduled the disclosure of non-expert witnesses thirty
(30) days prior to the deposition deadline.

Id. at 3.

On September 11, 2012, GOPAC served the plaintiffs with
an initial disclosure in accordance with Federal Rule of Civil
Procedure 26(a)(1) (Filing No. 205-1).

In this disclosure, GOPAC

named twelve (12) nonexpert persons whom GOPAC believed had
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discoverable information.
supplement that list.

Id.

GOPAC reserved the right to

Id.

On April 11, 2013, the Court amended its final
progression order (Filing No. 116).

GOPAC urged the Court to

amend the final progression because the plaintiffs were not
diligent in identifying those who claimed E. coli poisoning
(Filing No. 111, at 4).

The Court extended discovery until

February 3, 2014.
On November 1, 2013, GOPAC again asked the Court to
extend its deadlines (Filing No. 156).

Over the strong

objections of the plaintiffs and after a conference with the
attorneys, the Court extended the deadline for depositions until
February 18, 2014.

Id.

Then, on January 21, 2014, the plaintiffs and GOPAC
agreed, inter se, to extend the disclosure supplement deadline
from the Court’s progression order to January 27, 2014 -- 22
calender days before the end of depositions instead of 30 days
(Filing No. 205-2).

In an e-mail between counsel, the plaintiffs

state that they were “relying upon [defense counsels’] statement
that you don’t expect any surprises on your list and if there are
we can work through it.”

Id.

The parties supplemented their

lists of nonexpert witnesses for trial on January 27, 2014
(Filing No. 202).
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GOPAC’s disclosure includes 132 potential witnesses,
including 120 theretofore undisclosed additional witnesses from
GOPAC’s initial disclosure.
additional witnesses.

The plaintiffs object to the 120

The plaintiffs note that GOPAC only

disclosed twelve (12) nonexpert witnesses to the Court, GOPAC
never filed a supplement for additional witnesses from September
11, 2012, through the final disclosure date, and GOPAC’s final
disclosure was not timely (Filing Nos. 204 and 205).

The issue

in this matter is whether GOPAC complied with its duty to
supplement reports and the effects of GOPAC’s actions.
II.

LAW
Federal Rule of Civil Procedure 26(e) governs the duty

for parties to supplement discovery.1

1

Parties must supplement

The statute reads:
(1) In General. A party who has
made a disclosure under Rule 26(a)
. . . must supplement or correct
its disclosure or response:
(A) in a timely manner if the party
learns that in some material
respect the disclosure or response
is incomplete or incorrect, and if
the additional or corrective
information has not otherwise been
made known to the other parties
during the discovery process or in
writing; or
(B) as ordered by the court.

Fed. R. Civ. Pro. § 26(e).
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disclosures when additional “information has not otherwise been
made known to the other parties” or when ordered by the Court.
When a party fails to disclose a witness properly, the
court “may exclude the . . . testimony . . . unless the party's
failure to comply is substantially justified or harmless.”
Jenkins v. Med. Lab. Of E. Iowa, Inc., 880 F. Supp. 2d 946, 956
(N.D. Iowa 2012) (citing Wegener v. Johnson, 527 F.3d 687, 692
(8th Cir. 2008).

In making this determination, the Court should

consider, among other things, “the reason for noncompliance, the
surprise and prejudice to the opposing party,” the nature of the
testimony and the severity of the sanction.

Id.

“‘[T]he

exclusion of evidence is a harsh penalty and should be used
sparingly.’”

Id.

GOPAC’s deadline for filing a responsive motion has
passed.

Civil Rule of the United States District Court for the

District of Nebraska (“Nebraska Local Rule”) 7.1 states that an
opposing brief (other than dismissal or summary judgement) must
be filed within 14 days after the motion and supporting brief are
filed and served.

Neb. Civ. R. 7.1(b)(1).

Nebraska Local Rule

6.1 extends any filing deadline three days for the federal
mailing rule.

Neb. Civ. R. 6.1(b).

III. ANALYSIS

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GOPAC had a duty to disclose the witnesses to opposing
counsel.

Under Fed. R. Civ. Pro. 26(A), GOPAC had a duty to

disclose additional names to the plaintiffs as GOPAC became aware
of these persons if the plaintiffs did not otherwise know of
those names.

According to the plaintiffs’ motion, at least 57 of

the 120 new nonexperts were never previously identified in
disclosures or discovery responses.

Therefore, the plaintiffs

“otherwise knew” of 63 of the 120 nonexpert witnesses.
Consequently, GOPAC had an on-going duty throughout discovery to
disclose the 57 previously unknown names to the plaintiffs.
GOPAC has failed to respond to the plaintiffs’
objection.

The plaintiffs electronically filed in CM/ECF on

February 4, 2014, thereby satisfying both filing and service
requirements.

See Am. Boat Co. v. Unknown Sunken Barge, 567 F.3d

348, at 349-51.

After February 21, 2014, seventeen days after

the plaintiffs filed, GOPAC failed to respond.

See Neb. Civ. R.

6.1(b), 7.1(b)(1).
GOPAC’s failure to disclose nonexpert witnesses was not
substantially justified or harmless.

First, there is literally

no excuse for GOPAC’s noncompliance.

GOPAC should have delivered

supplemental disclosures to the plaintiffs over the course of
litigation.

The parties’ failure to file supplemental

disclosures in accordance with the Court’s progression order,
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however, is excused because the parties have the right to extend
certain deadlines between themselves, such as the supplemental
disclosures.
Second, the Court finds the delay harmed the
plaintiffs.

The plaintiffs will experience surprise and

prejudice at the newly disclosed witnesses.

GOPAC’s initial

disclosure constituted twelve (12) witnesses and then multiplied
eleven times to 132.

The deadline for depositions has passed.

The plaintiffs have no way of deposing all these people.

It

cannot be said, however, that the plaintiffs were totally
surprised.

The plaintiffs complained they never heard of 57 out

of the 120 witnesses, meaning the plaintiffs “otherwise knew” of
63 witnesses (Filing No. 204).

Also, the plaintiffs knew of the

short time in which they might depose newly disclosed witnesses
because they agreed with GOPAC to delay filing by one week.
Though the parties have the authority to delay certain deadlines
through mutual assent, the parties did not have the authority to
condition their acceptance upon whether there were “surprises.”
Therefore, the Court will only exclude the 57 theretofore unknown
witnesses.

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IT IS ORDERED that plaintiffs’ objection is sustained
as to the 57 witnesses which had not been previously identified.
DATED this 24th day of February, 2014.
BY THE COURT:
/s/ Lyle E. Strom
____________________________
LYLE E. STROM, Senior Judge
United States District Court

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