Sweeney et al v. Nationwide Mutual Insurance Company et al

Filing 224

ORDER - The Court DENIES without prejeduice Plaintiffs' 181 192 Motion to Exclude; and Plaintiffs' Objections to the Magistrate Judge's October 30, 2024 Order are OVERRULED 205 208 . The Court hereby ADOPTS the October 30, 2024 Magistrate's Order. Signed by Chief District Judge Sarah D. Morrison on 11/25/2024. (tb)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
RYAN SWEENEY, et al.,
Plaintiffs,

:
Case No. 2:20-cv-1569
Chief Judge Sarah D. Morrison
Magistrate Judge Chelsey M.
Vascura

v.
NATIONWIDE MUTUAL
INSURANCE CO., et al.,

:

Defendants.
ORDER
Plaintiffs filed suit against their former employer, Nationwide Mutual
Insurance Company and related entities, for alleged violations of the Employee
Retirement Income Security Act (“ERISA”), 29 U.S.C. § 1001 et seq., in connection
with the Nationwide Savings Plan, a § 401(k) employee pension benefit plan. The
matter is before the Court on Plaintiffs’ Motion to Exclude (Mot., ECF No. 181
(redacted) / ECF No. 192 (sealed)) and Plaintiffs’ Objections to the Magistrate
Judge’s October 30, 2024 Order (Objs., ECF No. 205 (redacted) / ECF No. 208
(sealed)). For the reasons below, Plaintiffs’ Motion to Exclude is DENIED without
prejudice and their Objections are OVERRULED.
I.

MOTION TO EXCLUDE
Per the case management schedule established by the Magistrate Judge, fact

discovery closed on April 10, 2024. (ECF No. 168.) One day before the close of
discovery, Defendants supplemented their response to Plaintiffs’ Interrogatory No.

3, which included the first-time disclosure of ten individuals described as “personnel
with knowledge relating to the assessment or calculation of the [GIF’s charges], as
well as the treatment of such components under the . . . Contract.” (Mot. Ex. 42,
ECF No. 181-43). Plaintiffs assert that, at this point, “it was too late to take
discovery of the Late-Disclosed Witnesses (either by deposition or by supplementing
the custodian list for purposes of document searches),” so Plaintiffs requested that
Defendants confirm they would not call these ten witnesses at trial. (Richter Decl.
¶ 13, ECF No. 181-1.) Defendants refused. (Id.)
On April 29, 2024, Plaintiffs contacted the chambers of the Magistrate Judge
to request an informal conference to (1) resolve the parties’ dispute over the ability
of the ten new witnesses to testifying at trial, and (2) to compel Defendants to
supplement their production in response to Plaintiffs’ Request for Production of
Documents Nos. 93, 94, 96, and 100. The Magistrate Judge’s chambers staff
conveyed that the Magistrate Judge would not rule on what evidence might be
admissible at trial, but a conference was scheduled for May 9, 2024, to address
Plaintiffs’ remaining concerns. During that conference, the Magistrate Judge denied
Plaintiffs’ motion to compel Defendants to supplement their document production.
(See ECF No. 177.) Plaintiffs raised no concerns related to the ten new witnesses
during the conference.
Instead, Plaintiffs waited until September 25, 2024—nearly five months after
requesting the conference—to file the subject motion to exclude the ten new
witnesses from testifying at trial. (Mot.) The motion also seeks to exclude

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documents that were attached to Defendants’ rebuttal expert report served on July
26, 2024, but not produced during discovery, as well as to exclude the rebuttal
expert report in its entirety. (Id.) Plaintiffs seek exclusion of all of this evidence as a
discovery sanction under Federal Rule of Civil Procedure 37. Exclusion of evidence
is mandatory unless the failure to disclose the evidence earlier is substantially
justified or harmless. See Bessemer & Lake Erie R.R. Co. v. Seaway Marine Transp.,
596 F.3d 357, 369 (6th Cir. 2010) (quoting Fed. R. Civ. P. 37(c)(1)).
Here, Defendants have demonstrated that any allegedly untimely disclosure
of witnesses or production of documents is harmless. Defendants point out that
Plaintiffs could have sought the depositions of, or additional written discovery
related to, the ten new witnesses—instead, Plaintiffs insist on exclusion as the only
possible remedy. Similarly, to the extent that additional discovery was required in
relation to any new documents appended to Defendants’ rebuttal expert report,
Plaintiffs could have sought an extension of the relevant deadlines to complete that
discovery. Plaintiffs have not explained why any remedies short of exclusion would
not cure their prejudice—prejudice that is largely of Plaintiffs’ own creation by
waiting several months after the relevant evidence was disclosed to file the subject
motion.
Plaintiffs’ Motion to Exclude is therefore DENIED without prejudice. The
parties are ORDERED to confer, via simultaneous means (such as a telephone or
video conference), as to a possible agreement to extend the fact and expert discovery
deadlines to account for any additional discovery needed in relation to the ten new

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witnesses and the new documents attached to Defendants’ rebuttal expert report. If
the parties reach an impasse after conferring, they are ORDERED to contact
Magistrate Judge Vascura’s chambers to request an informal discovery conference.
II.

OBJECTIONS
Plaintiffs also object to the Magistrate Judge’s denial of their motion to

reconsider her prior rulings as to two documents referenced in Defendants’ expert
report. (Objs.) When a party objects to a magistrate judge’s ruling on a nondispositive motion, the district court must “modify or set aside any part of the order
that is clearly erroneous or is contrary to law.” Fed. R. Civ. P. 72(a). Likewise, 28
U.S.C. § 636(b)(1)(A) provides that “[a] judge of the court may reconsider any
pretrial matter . . . where it has been shown that the magistrate judge’s order is
clearly erroneous or contrary to law.” The “clearly erroneous” standard applies to
factual findings and the “contrary to law” standard applies to legal conclusions.
Gandee v. Glaser, 785 F. Supp. 684, 686 (S.D. Ohio 1992) (Kinneary, J.) (citations
omitted). A factual finding is “clearly erroneous” when the reviewing court is left
with the definite and firm conviction that a mistake has been made. Heights Cmty.
Cong. v. Hilltop Realty, Inc., 774 F.2d 135, 140 (6th Cir. 1985). A legal conclusion is
“contrary to law” when the magistrate judge has “misinterpreted or misapplied
applicable law.” Hood v. Midwest Sav. Bank, No. C2-97-218, 2001 WL 327723, at *2
(S.D. Ohio Mar. 22, 2001) (Holschuh, J.) (citations omitted).
The Court has carefully reviewed the record and considered all relevant
briefing. Plaintiffs’ objections do nothing more than re-argue issues already decided.
The Magistrate Judge’s October 30, 2024 Order is neither clearly erroneous nor
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contrary to law. Accordingly, the Court OVERRULES Plaintiffs’ objections and
ADOPTS the October 30, 2024 Order (ECF No. 200).
III.

CONCLUSION
For these reasons, Plaintiffs’ Motion to Exclude (ECF Nos. 181, 192) is

DENIED without prejudice and Plaintiffs’ Objections to the Magistrate Judge’s
October 30, 2024 Order (ECF Nos. 205, 208) are OVERRULED.

IT IS SO ORDERED.
/s/ Sarah D. Morrison
SARAH D. MORRISON
CHIEF UNITED STATES DISTRICT JUDGE

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