Hull v. Arvest Bank Operations Inc

Filing 129

ORDER denying 119 Motion to Strike Allison Vinson As Plaintiff's Trial Witness. Signed by Honorable Timothy D. DeGiusti on 10/31/2017. (mb)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
STEPHEN CHARLES HULL,
Plaintiff,
v.
ARVEST BANK OPERATIONS, INC.,
d/b/a ARVEST BANK,
Defendant.

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Case No. CIV-16-69-D

ORDER
Before the Court is Defendant’s Motion to Strike Allison Vinson as Plaintiff’s Trial
Witness [Doc. No. 119]. Defendant seeks to prevent Plaintiff from calling a fact witness
whom he failed to identify in his final witness list, as required by Fed. R. Civ.
P. 26(a)(3)(A)(i) and the Court’s Scheduling Order. Plaintiff has responded by making a
curious argument that he did not violate any disclosure obligation and he properly cured
the nondisclosure by simply adding Ms. Vinson as a witness in the Final Pretrial Report.
Plaintiff also explains why he failed to disclose Ms. Vinson as a trial witness and why he
should be permitted to amend his witness list to add her. Plaintiff argues that, in any event,
Ms. Vinson is a proper rebuttal witness. In reply, Defendant argues that Plaintiff has failed
to show good cause for a late amendment of his witness list and that it would be prejudiced
by the amendment. Alternatively, Defendant asks the Court to limit any testimony by
Ms. Vinson during Plaintiff’s case-in-chief to the subject areas identified by Plaintiff in his
brief.

A jury will decide Plaintiff’s claims that Defendant terminated his employment in
violation of the Americans with Disabilities Act of 1990 as amended, 42 U.S.C. § 12101
et seq., and state law. It is undisputed that Plaintiff was disabled at the relevant time by a
cancer diagnosis and treatment. It appears that a contested issue at trial will be Defendant’s
knowledge of the nature and extent of Plaintiff’s disability, as well as whether the
nondiscriminatory reasons given by Defendant for Plaintiff’s termination are pretextual.
Plaintiff proposes to call Ms. Vinson, who is now a former employee of Defendant, to
testify as a witness to conversations in which Plaintiff’s cancer treatment was discussed
and about her knowledge regarding Plaintiff’s job performance.
The issue raised by Defendant’s Motion is the appropriate consequence of Plaintiff’s
failure to disclose Ms. Vinson as a potential witness in a timely manner. Plaintiff does not
dispute that he first disclosed Ms. Vinson as a trial witness by including her in a draft of
the Final Pretrial Report that was submitted to counsel for Defendant on September 5,
2017. Ms. Vinson was not identified in Plaintiff’s final witness list within the deadline set
by the Scheduling Order, nor disclosed during the time period to complete discovery.1
Thus, Plaintiff clearly failed to satisfy his obligation under Rule 26(a)(3) to disclose a trial
witness within the time period set by the Court. Further, the Scheduling Order expressly
provided: “Except for good cause shown, no witness will be permitted to testify and no
exhibit will be admitted in any party’s case in chief unless such witness or exhibit was
included in the party’s filed witness or exhibit list.” See Sched. Order [Doc. No. 18] at 1.

1

Plaintiff’s final witness list was due, and timely filed, on August 19, 2016. The discovery
cut-off was October 7, 2016. See Sched. Order [Doc. No. 18], ¶¶ 5, 6.

2

Plaintiff gives several reasons why he did not list Ms. Vinson sooner: 1) he was
surprised by a defense argument that first appeared in Defendant’s summary judgment
briefs that Plaintiff lacked evidence Defendant knew of his chemotherapy treatments;
2) Plaintiff first advised his counsel while preparing trial pleadings that Ms. Vinson was
no longer employed by Defendant, and at that time, his attorneys could ethically engage in
ex parte communications with her; and 3) counsel promptly interviewed Ms. Vinson, and
she volunteered important information regarding Plaintiff’s communications to Defendant
about his chemotherapy, as well as other information that may counter Defendant’s
performance-related reasons for his termination. Plaintiff argues, among other things, that
excluding Ms. Vinson as a witness would be a harsh sanction and, under the circumstances,
would constitute an abuse of the Court’s discretion to enforce its case management
deadlines.

Plaintiff asserts that Defendant’s counsel interviewed Ms. Vinson during

discovery and knew all along the substance of her proposed testimony. Defendant does
not deny that its counsel interviewed Ms. Vinson but expresses uncertainty “even now . . .
what exactly Ms. Vinson’s proposed testimony will be.” See Def.’s Reply Br. [Doc.
No. 125] at 2.
A district court’s decision to exclude evidence as a sanction for a party’s failure to
disclose information required by Rule 26(a), is governed by Rule 37(c). Before imposing
the sanction, a district court must consider whether “the failure was substantially justified
or is harmless.” See Fed. R. Civ. P. 37(c)(1). In making this determination, “the [district]
court should consider 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;
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(3) the extent to which introducing such testimony would disrupt the trial; and (4) the
[errant] party’s bad faith or willfulness.” Jacobsen v. Deseret Book Co., 287 F.3d 936, 953
(10th Cir. 2002) (quoting Woodworker’s Supply, Inc. v. Principal Mut. Life Ins. Co., 170
F.3d 985, 993 (10th Cir. 1999)); see HCG Platinum, LLC v. Preferred Prod. Placement
Corp., No. 15-4157, 2017 WL 4637713, *6 (10th Cir. Oct. 17, 2017) (to be published);
ClearOne Commc’ns, Inc. v. Biamp Sys., 653 F.3d 1163, 1176 (10th Cir. 2011). Plaintiff
addresses these factors indirectly, in the context of arguing that the Court should allow an
amendment of the pretrial schedule so Ms. Vinson can be included as a witness. See Pl.’s
Resp. Br. [Doc. No. 122] at 10-13. Defendant, of course, disagrees with Plaintiff’s
assessment.
Upon careful consideration, the Court finds that Plaintiff’s delay in identifying and
disclosing Ms. Vinson as a potential fact witness is relatively harmless and that she should
be permitted to testify in Plaintiff’s case-in-chief, if called to do so, regarding the limited
subject areas identified in Plaintiff’s brief.2 While the Court does not condone the manner
in which Plaintiff attempted to add Ms. Vinson to his witness list, Defendant has not
identified any real surprise or prejudice from the last-minute addition of Ms. Vinson as a
witness. Defendant does not assert that it will be unable to cure any prejudice or that
Plaintiff or his counsel acted in bad faith. Nor will there be any disruption of the trial,
which is still a week away. Accordingly, the Court finds that all four of the factors guiding

2

Plaintiff identifies Ms. Vinson as a “may call” witness in the latest draft of the Final
Pretrial Report [Doc. No. 127], and describes additional topics of potential testimony that are not
addressed in his brief. See id. at 38.

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its determination weigh in favor allowing Ms. Vinson to testify as a witness for Plaintiff.
The Court further finds, however, that Plaintiff has only provided sufficient notice to
Defendant regarding the facts to which Ms. Vinson can be expected to testify through
argument in Plaintiff’s brief. Therefore, Ms. Vinson’s testimony should be limited to these
subject areas.
IT IS THEREFORE ORDERED that Defendant’s Motion to Strike Allison Vinson
as Plaintiff’s Trial Witness [Doc. No. 119] is DENIED, as set forth herein.
IT IS SO ORDERED this 31st day of October, 2017.

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