Tracey v. St. Jude Medical, Inc.

Filing 213

ORDER granting 187 Lisa Tracey's Motion in Limine to Exclude the Testimony of Dr. Van De Graff [sic] and Motion to Quash. Ordered by Magistrate Judge Thomas D. Thalken. (TRL)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
LISA TRACEY,
Plaintiff,

8:14CV198

vs.
ORDER
ST. JUDE MEDICAL, INC.,
Defendant.
This matter is before the court on Lisa Tracey’s Motion in Limine to Exclude the
Testimony of Dr. Van De Graff [sic] and Motion to Quash (Filing No. 187). Tracey seeks
to prevent a deposition and exclude trial testimony from a lay witness identified by St.
Jude Medical, Inc. (St. Jude) after the deadline for listing trial witnesses. Tracey filed a
brief (Filing No. 188) and an index of evidence (Filing No. 189) in support of the motion.
St. Jude filed a brief (Filing No. 190) and an index of evidence (Filing No. 191) opposing
the motion. Tracey filed a brief (Filing No. 204) and an index of evidence (Filing No.
205) in reply.
Tracey alleges St. Jude wrongfully terminated her from her job at St. Jude as a
Senior Technical Sales Specialist after she opposed and reported unlawful billing
activities.

See Filing No. 1 - Complaint. Specifically, Tracey alleges she opposed

fraudulently billing a patient for a medical device in order to provide such device, free of
charge, to a different patient and other false purchase orders. Id. ¶¶ 30-42. Tracey
asserts St. Jude retaliated against her in violation of the Nebraska Fair Employment
Practices Act (NFEPA) and Nebraska public policy. Id. ¶¶ 29-49. St. Jude denies
fraudulent billing activity and denies terminating Tracey’s employment because of her
opposition to alleged fraudulent activity, instead alleging Tracey’s poor performance led
to her termination. See Filing No. 12 - Answer.
The current discovery dispute arises from St. Jude’s listing of Dr. Eric Van De
Graaff as a trial witness in the July 7, 2016, Amended Witness List (Filing No. 7) and
attempting to schedule his deposition. Tracey opposes St. Jude’s late listing of the
witness. Tracey contends the late disclosure was unjustified and prejudices Tracey.
See Filing No. 188 - Brief p. 2-5.

Tracey argues she is prejudiced because the

discovery period has expired and she would be unable to conduct any necessary
discovery stemming from Dr. Van De Graaff’s deposition. Id. at 4-5.
St. Jude admits the disclosure was untimely, by “a mere four business days,” and
filed without leave of court. See Filing No. 190 - Response p. 2. Nevertheless, St. Jude
contends it was not required under the federal rules to identify Dr. Van De Graaff
because he is an impeachment witness. Id. at 1. Specifically, St. Jude states, “[t]he
testimony of Dr. Eric Van De Graaff, one of St. Jude’s important physician-customers,
will rebut/impeach testimony from another physician-customer Plaintiff deposed July 11
(Dr. Kent Gleed) as well as Plaintiff’s own contention that she was competent.” Id.
(footnote omitted).

Tracey denies Dr. Van De Graaff is an impeachment witness

because his testimony would be more akin to rebuttal or substantive evidence. See
Filing No. 204 - Reply p. 13-19.
The parties have known about Dr. Van De Graaff’s identity as a possible witness
since, at least, September 9, 2015, when a St. Jude employee described Dr. Van De
Graaff’s complaints about Tracey. See Filing No. 190 - Response p. 3-4. St. Jude did
not list him as a witness because St. Jude did not want to “unnecessarily inconvenience
or annoy” its customers. Id. at 4. On June 21, 2016, Tracey’s counsel attempted to
schedule the deposition of another customer-witness, Dr. Kent Gleed.

The parties

continued to discuss when, or if, Dr. Gleed’s deposition should occur and, on June 29,
2016, Tracey’s counsel conveyed the intent to proceed with the deposition over St.
Jude’s objection. Tracey’s counsel interviewed Dr. Van De Graaff on June 30, 2016, for
less than ten minutes. See Filing No. 204 - Reply p. 3. On June 30, 2016, both parties
filed witness lists, neither listing Dr. Van De Graaff. See Filing Nos. 177 and 179. On
July 6, 2016, St. Jude withdrew its objections to Dr. Gleed’s deposition. On the same
date, St. Jude’s counsel spoke to Dr. Van De Graaff about his interview with Tracey’s
counsel and about his willingness to testify at trial. On July 7, 2016, St. Jude filed the
amended witness list (Filing No. 184), including Dr. Van De Graaff, and sought to
schedule his deposition.
Tracey’s combined motion in limine and to quash was filed on July 12, 2016.
See Filing No. 187. The deadline for the parties to identify witnesses for trial pursuant
to Fed. R. Civ. P. 26(a)(3) was June 30, 2016. See Filing No. 154. Additionally, the
progression order provides:
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All requests for changes of deadlines or settings established
herein shall be directed to the magistrate judge by
appropriate motion, . . . Such motions shall not be
considered in the absence of a showing by counsel of due
diligence in the timely development of this case for trial and
the recent development of circumstances, unanticipated
prior to the filing of the motion, which require that additional
time be allowed.
Id. The discovery deadline was July 29, 2016, and the pretrial conference is scheduled
for August 19, 2016, with trial to follow on September 19, 2016. Id.
Federal Rule of Civil Procedure 16(b)(4) requires a party show good cause
justifying any modifications to a scheduling order. See Fed. R. Civ. P. 16(b); Bradford
v. DANA Corp., 249 F.3d 807, 809-10 (8th Cir. 2001); see also Thorn v. Blue Cross &
Blue Shield of Fla., Inc., 192 F.R.D. 308, 309 (M.D. Fla. 2000) (“In demonstrating good
cause, the moving party must establish that the ‘scheduling deadlines cannot be met
despite a party’s diligent efforts.’”) (paraphrasing Fed. R. Civ. P. 16 advisory committee
notes (1983 amendment)).
The court finds Dr. Van De Graaff’s testimony cannot be considered
impeachment. For this reason, the rules required St. Jude to timely disclose its intent to
call him as a witness. St. Jude failed to seek leave of court to amend the witness list.
Although St. Jude provides some explanation for the delay in identifying Dr. Van De
Graaff as a lay witness, the court finds St. Jude lacks sufficient legal or factual
justification to allow the untimely listing. Additionally, St. Jude suggests the testimony
would be unnecessarily redundant and used to corroborate other witnesses. The court
also finds Tracey has shown, under the circumstances, she will suffer prejudice by
rushing to complete or curtail her own discovery related to the newly identified witness
within short the time before trial. Accordingly,

IT IS ORDERED:
Lisa Tracey’s Motion in Limine to Exclude the Testimony of Dr. Van De Graff [sic]
and Motion to Quash (Filing No. 187) is granted.
Dated this 11th day of August, 2016.
BY THE COURT:
s/ Thomas D. Thalken
United States Magistrate Judge
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