Guerrero et al v. Meadows et al

Filing 94

MEMORANDUM OPINION AND ORDER, re 93 USCA Order. Signed by Honorable Robin J. Cauthron on 4/13/16. (lg)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
MIGUEL GUERRERO and
EVA GUERRERO,
Plaintiffs,
vs.
JACOB MEADOWS and TRANSPORT
AMERICA a/k/a TRANSPORT
CORPORATION OF AMERICA, INC.,
Defendants.

)
)
)
)
)
)
)
)
)
)
)
)

Case Number CIV-14-537-C

MEMORANDUM OPINION AND ORDER
Plaintiffs brought this action after they were injured in a traffic collision with
Defendants. The matter was tried to a jury, which rendered a verdict in favor of Plaintiff
Miguel Guerrero and awarded him damages. The jury attributed 45% negligence to Plaintiff
Miguel Guerrero and 55% to Defendants. The jury declined to award damages in favor of
Plaintiff Eva Guerrero. Plaintiffs appealed the verdict and it is now pending before the Tenth
Circuit. One of the issues raised on appeal is a challenge to the Court’s ruling on a pretrial
motion excluding Jason Swihart, who was a volunteer for the Hydro Fire Department. The
Court prohibited Plaintiffs from calling Mr. Swihart as a witness, stating: “If Plaintiffs
intended to call Mr. Swihart and/or Mr. Entz, they were obligated to identify them by the
discovery cut-off. That both parties made a generic reference to firemen/responders is
insufficient. Defendants are entitled to know who Plaintiffs intend to call as witnesses.”
(Dkt. No. 51, p. 7.) The Circuit Court issued a limited remand for this Court to provide
additional explanation of this issue, specifically examining the factors set forth in

Woodworker’s Supply, Inc. v. Principal Mut. Life Ins. Co., 170 F.3d 985, 993 (10th Cir.
1999).
Before considering the specific Woodworker’s factors, some background is necessary.
The date of the accident was April 27, 2012. Plaintiffs originally filed in state court on April
21, 2014. Defendants removed the action to this Court and on August 22, 2014, and pursuant
to the Scheduling Order, Plaintiffs were to file their final witness list not later than January
10, 2015. Plaintiffs were directed to separately identify those witnesses they expected to call
and those witnesses who “may” be called. Further, the Scheduling Order included a specific
admonition that any witnesses who were not listed would not be permitted to testify at trial.
Finally, the Scheduling Order set a discovery completion date of April 15, 2015. In
accordance with the Scheduling Order, Plaintiffs timely filed their final witness list. Included
on that list was the following identification: “Firemen/flagmen on highway at the time of the
accident – identity as yet unknown.” (Dkt. No. 19, p. 4.) Plaintiffs classified these witnesses
in the “may be called” category. Trial was set for May 12, 2015, with the Pretrial Report due
by April 21, 2015. Prior to trial, Defendants filed a motion in limine, arguing that Plaintiffs
for the first time, on April 16, 2015, identified Mr. Swihart as a probable witness. As noted
above, the Court granted that motion and excluded Mr. Swihart as a trial witness. Plaintiffs
then filed a motion to reconsider on May 11, 2015, to which Defendants responded, and the
Court held a brief hearing with the parties immediately before the start of trial. In their
motion to reconsider, Plaintiffs expounded on their attempts to identify the responders at the
scene and the interviews of those persons. Plaintiffs also made much of the fact that
2

Defendants allegedly delayed providing a photograph for some period of time and that earlier
provision of that photograph would have permitted an earlier identification of Mr. Swihart.
As made clear at the hearing, the Court viewed the photograph, considered Plaintiffs’
arguments, and agreed with Defendants that the photograph was a red herring and provided
no reasonable basis for the delay in identifying Mr. Swihart.
Specific to Plaintiffs’ efforts to identify the first responders, the following facts are
relevant: This matter was originally filed in 2014. However, Plaintiffs state that it was not
until February 2, 2015, that they began the process of obtaining incident reports relating to
the accident from the Weatherford and Hydro fire departments. Notably, this is after the
January 10, 2015, deadline for filing final witness and exhibit lists. Additionally, it was not
until March 16, 2015, two months after their final witness list was due, nearly a year after the
case was filed, and nearly three years after the accident, that Plaintiffs first spoke to the
Hydro Fire Chief regarding the other first responders at the scene. Less than a month later,
on April 10, 2015, Plaintiffs were told they should speak to Mr. Swihart. On April 14,
approximately three months after their witness list was due, three years after the accident,
and one year after the case was filed, Plaintiffs for the first time spoke with Mr. Swihart.
Importantly, this day was also less than one month prior to the scheduled start of the trial.
In their motion in limine Defendants argued that the witness should be excluded because the
late disclosure violated the terms of the Scheduling Order and/or that pursuant to
Fed. R. Civ. P. 37(c)(1) they could not use undisclosed information or witnesses at trial.

3

In Woodworker’s, the Tenth Circuit set forth the following four factors to be
considered in determining whether or not exclusion of a witness or evidence was proper.
Those factors are: “(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.”
Id. at 993. In the remand order, the appellate court directed the Court to explain whether it
excluded Mr. Swihart because he was not disclosed on the final witness list and Plaintiffs
failed to show good cause for the failure to disclose, and/or whether the Court excluded Mr.
Swihart because Plaintiffs failed to timely update their Rule 26 disclosures and the failure
to do so was not substantially justified or harmless. The appellate court noted that regardless
of which reason provided the basis for exclusion, the Court should provide an explanation
of findings under the Woodworker’s factors.
As Defendants argued in their motion in limine and the response to Plaintiffs’ motion
to reconsider, they were unaware that Plaintiffs intended to call Mr. Swihart until after
discovery had closed. Thus, Defendants were precluded from obtaining discovery related
to Mr. Swihart. The fact that Plaintiffs first disclosed Mr. Swihart less than a month before
the scheduled trial date further compounds the prejudice to Defendants. Plaintiffs argue that
their listing of first responders and/or the fact that Defendants also listed first responders cuts
against any finding of prejudice. The Court disagrees. Defendants are not required to
anticipate what evidence or witnesses Plaintiffs will offer at trial. Defendants are not
required to interview every potential witness or uncover every possible shred of evidence in
4

preparing their case. Rather, they are entitled to rely on Plaintiffs, who have the burden of
proof, to set forth those witnesses they intend to call to satisfy their burden and then respond
accordingly. See Robinson v. Audi Nsu Auto Union Aktiengesellschaft, 739 F.2d 1481,
1483 (10th Cir. 1984) (stating “the clear purpose[] of the federal discovery rules [is] to
facilitate fact finding and prevent unfair surprise.”). Further, the fact that Plaintiffs listed the
generically identified “first responders” as ones they “may” call, adds additional weight in
favor of exclusion. For these reasons, the Court finds the first factor weighs in favor of
exclusion.
The second and third factors also weigh in favor of excluding the witness. Those
factors look at the ability of the party to cure the prejudice and the extent to which
introducing such testimony would disrupt the trial. Given the limited period of time between
Plaintiffs’ late disclosure of Mr. Swihart as a witness and the scheduled trial date, and
considering the other actions necessary for preparation of trial, there simply was insufficient
time for Defendants to interview and/or depose Mr. Swihart in time to continue the trial as
originally scheduled. As noted above, Plaintiffs had been working this case for a substantial
period of time prior to disclosure of Mr. Swihart as a witness. Diligent efforts by Plaintiffs
would have identified Mr. Swihart in time for his listing on the January witness list.
Plaintiffs had nearly nine months from the date this case was filed until that witness list was
due to identify the witnesses on whom they were going to base their claims. If, indeed, Mr.
Swihart was as central to their proof of liability as Plaintiffs suggest in their motion, it
certainly was incumbent upon them to secure his identity and make him known to all parties
5

much earlier in this litigation. To wait until the eve of trial to conduct a proper investigation
of the facts allegedly supporting their claims is an insufficient basis to overcome their duty
under the discovery guidelines.
Finally, considering Plaintiffs’ bad faith or willfulness, as the Court noted above, the
delay in investigating demonstrates Plaintiffs’ willful failure to properly prepare and to
present their case.
After considering the factors in Woodworker’s, and the facts surrounding the late
disclosure of Mr. Swihart, the Court holds that he should be excluded as a witness based on
Plaintiffs’ failure to comply with the terms of the Court’s Scheduling Order. Alternatively,
relying on the same analysis, Mr. Swihart should not be allowed to testify because Plaintiffs
failed to timely update their Fed. R. Civ. P. 26 disclosures and that failure was not
substantially justified or harmless.
IT IS SO ORDERED this 13th day of April, 2016.

6