Keiser v. The Borough of Carlisle
MEMORANDUM OPINION AND ORDER - IT IS ORDERED that the plaintiffs motion in limine to exclude the testimony of Mark Malarich, (Doc. 69.), is DENIED. 69 Signed by Magistrate Judge Martin C. Carlson on 9/13/2017. (sc)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
MICHAEL T. KEISER,
THE BOROUGH OF CARLISLE,
Civil No. 1:15-CV-450
(Magistrate Judge Carlson)
MEMORANDUM OPINION AND ORDER
Factual and Procedural Background
This is a workplace age discrimination lawsuit brought by the plaintiff
against a local municipality under the Age Discrimination in Employment Act, 29
U.S.C. §§ 621 (“ADEA”). The plaintiff in this action, Michael Keiser, worked for
27 years as the Director of Public Works for the Borough of Carlisle before he was
fired on May 1, 2014, just hours after formally complaining to his supervisor about
what he perceived as his supervisor’s repeated ageist and discriminatory comments
and criticism. Keiser alleges that his firing constituted unlawful age discrimination
and was retaliatory.
The Borough, and Keiser’s supervisor, Mathew H. Candland, Sr., maintain
that Candland was compelled to terminate Keiser’s employment because it had
become impossible to work cooperatively with Keiser; because of fundamental
disagreements over significant public-works projects; and because morale had
reached an unacceptable low within Keiser’s department. Keiser retorts that these
given reasons were pretextual cover for his unlawful firing.
We have previously concluded that this case is riddled with factual disputes
that make summary judgment inappropriate. Accordingly, we have scheduled this
case for trial in October 2017 and in anticipation of that trial the parties have filed
an array of motions in limine, including a motion in limine filed by the plaintiff
which seeks to exclude any testimony by Mark Malarich, a witness who was
disclosed to the plaintiffs on May 22, 2017. (Doc. 69.)
With respect to this motion in limine, the pertinent facts can be simply
stated: Following Keiser’s termination in May of 2014, Mark Malarich was hired
as the Carlisle Borough Public Works Director in November of 2014, and remains
employed in this capacity. At the time that he was hired Malarich, who was born
in 1959 was more than five years younger than the plaintiff, but was older than
Candland and was substantially closer in age to Keiser.
In their response to this motion in limine the defendant has acknowledged
that the defense first designated Malarich as a potential witness some five months
ago, on May 22, 2017, and has indicated that the proposed testimony of Malarich
would be limited to the fact of his hiring, his age, date of hire, and position, as well
as the statements allegedly made by Keiser to Malarich on May 5, 2017, relating to
Candland, Keiser’s employment with the Borough, his future employment plans
and something called the Valley Meadows project. The Valley Meadows Storm
Water project was a flashpoint between Keiser and Candland, and their disputes
regarding this project were a crucial point of conflict in their workplace
relationship. Thus, much of what was contested between Candland and Keiser
during the time when they worked together related to the Valley Meadow project.
As we understand it, if he was called as a witness and testified, Malarich
would recount that on May 5, 2017, as part of his duties he traveled to Valley
Meadows following a heavy rainfall to observe run-off at that site. When he drove
to Valley Meadows Malarich encountered Keiser also watching the run-off. Keiser
approached Malarich and informed Malarich of his disgust over the Borough
undertaking the Valley Meadows Improvement project, stating that it was an
unnecessary project that performed no better than the project he had completed
while Public Works Director. Keiser further expressed his displeasure with the
current Borough Manager and said that he would be running for Borough office
once his lawsuit was resolved and would then take care of the problem.
Alerted to this May 5, 2017, contact between Malarich and Keiser, on May
22, 2017, the defendant submitted a supplemental Rule 26(s) disclosure statement
which disclosed Malarich as a potential witness in this matter. This disclosure
statement was submitted after the discovery deadline had passed in this case, but
Malarich’s employment and his institutional role in this litigation as Keiser’s
successor had been known to all parties long prior to the submission of this
supplemental disclosure form. Thus, the Joint Case Management Plan filed in this
case on June 17, 2015, identified one of the facts in dispute as:
replacement, Mark Malarich, an external candidate, was age 55 at the time of his
hire in October 2014.” (Dkt. Doc. 10, p. 5, at ¶1.2.23). In addition, Malarich’s
personnel file was produced on or about July 30, 2015, as part of Defendant’s
Initial Disclosures (Section B., para. 10) following receipt of an executed
Stipulation of Confidentiality. Malarich was also identified in both written and
deposition discovery. In written discovery responses dated December 31, 2015,
the Borough stated that “Mark Malarich was hired as the Director of Public Works
effective November 12, 2014, and remains employed in that capacity.”
(Defendant’s Answer to Interrogatory No. 4, dated December 21, 2015). Malarich
has also been the subject of some deposition testimony by other witnesses in the
course of discovery. Moreover, Malarich was identified as Keiser’s successor in
the summary judgment litigation of this case, and the potential evidentiary
relevance of his hiring was thoroughly aired by the parties at that time. Thus, some
of the matters that the defendant has proffered it might present at trial through this
witness; namely, the fact of his hiring, his age, date of hire, and position have been
completely disclosed to all parties for several years.
What was not previously known was the content of Mr. Malarich’s
conversation with Mr. Keiser on May 5, 2017. However, to the extent that the
defendant’s May 22, 2017, Supplemental Rule 26 designation of Malarich as a
potential witness was based upon this May 5, 2017, encounter between these two
men, it cannot be said that the supplemental disclosure was untimely. Indeed, that
May 2017 disclosure could not have been made prior to May 2017 since this
conversation allegedly only occurred in May of 2017.
It is against this backdrop that Keiser has filed a motion in limine seeking to
exclude Malarich as a witness. In his motion Keiser advances a single specific
argument, contending that the belated disclosure of Malarich as a potential witness
compels exclusion of this testimony under Rule 37 of the Federal Rules of Civil
Procedure.1 This motion is fully briefed by the parties and is, therefore, ripe for
For the reasons set forth below this motion will be DENIED.
The Court is vested with broad inherent authority to manage its cases, which
carries with it the discretion and authority to rule on motions in limine prior to trial.
See Luce v. United States, 469 U.S. 38, 41 n.4 (1984); In re Japanese Elec. Prods.
The plaintiff’s motion in limine does not otherwise argue the evidentiary
relevance of any of this proffered testimony by Mr. Malarich, and we will reserve
such objections for trial.
Antitrust Litig., 723 F.2d 238, 260 (3d Cir. 1983), rev’d on other grounds sub
nom., Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986) (the
court exercises its discretion to rule in limine on evidentiary issues “in appropriate
cases”). Courts may exercise this discretion in order to ensure that juries are not
exposed to unfairly prejudicial, confusing or irrelevant evidence. United States v.
Romano, 849 F.2d 812, 815 (3d Cir. 1988). Courts may also do so in order to
“narrow the evidentiary issues for trial and to eliminate unnecessary trial
interruptions.” Bradley v. Pittsburgh Bd. of Educ., 913 F.2d 1064, 1069 (3d Cir.
1990) (citation omitted.) Further, it is also well-settled that “[a] trial court is
afforded substantial discretion when striking a . . . balance with respect to
proffered evidence, and a trial judge’s decision to admit or exclude evidence . . .
may not be reversed unless it is arbitrary and irrational.” McKenna v. City of
Philadelphia, 582 F.3d 447, 461 (3d Cir. 2009).
One basis for the exclusion of evidence at trial may relate to a party’s failure
to timely comply with discovery disclosure requirements. See Ely v. Cabot Oil &
Gas Corp., No. 3:09-CV-2284, 2016 WL 4169197, at *1 (M.D. Pa. Feb. 17, 2016).
Where there has been a late disclosure of witnesses, or exhibits, the legal standards
which govern the exercise of our discretion are defined both by rule and case law.
At the outset, Rule 37(c)(1) of the Federal Rules of Civil Procedure provides that
“[i]f a party fails to provide information or identify a witness as required by Rule
26(a) or (e), the party is not allowed to use that information or witness to supply
evidence on a motion, at a hearing, or at a trial, unless the failure was substantially
justified or harmless.” Fed. R. Civ. P. 37(c)(1)(emphasis added.). Rule 26(a), in
turn, requires parties to disclose “the name and, if known, the address and
telephone number of each individual likely to have discoverable information-along with the subjects of that information--that the disclosing party may use to
support its claims or defenses . . .” Fed. R. Civ. P. 26(a)(1)(A).
These rules are, by their terms, mandatory, but excuse belated disclosures
when the failure was substantially justified or harmless.
Newman v. GHS
Osteopathic, Inc., Parkview Hosp. Div., 60 F.3d 153, 156 (3d Cir. 1995) (“Rule 37
is written in mandatory terms, and is designed to provide a strong inducement for
disclosure of Rule 26(a) material.”); see also Finley v. Marathon Oil Co., 75 F.3d
1225, 1230 (7th Cir. 1996) (“The sanction of exclusion is thus automatic and
mandatory unless the party to be sanctioned can show that is violation of Rule
26(a) was either justified or harmless.”). On this score “[t]he non-producing party
shoulders the burden of proving substantial justification for its conduct or that the
failure to produce was harmless.” Tolerico v. Home Depot, 205 F.R.D. 169, 175
(M.D.Pa.2002). Therefore, the burden here rests with the defendant to provide
good cause to excuse this failure to timely disclose information by showing either
substantial justification for that non-disclosure or demonstrating that the non7
disclosure was harmless. While the Third Circuit has not directly addressed this
“substantial justification” standard, see Grider v. Keystone Health Plan Central,
Inc., 580 F.3d 119, 140 n. 23 (3d Cir.2009), district courts in this circuit have
defined “substantial justification” as “justification to a degree that could satisfy a
reasonable person that parties could differ as to whether the party was required to
comply with this disclosure request.” Tolerico, 205 F.R.D. at 175.
Where a party has not satisfied this burden of proving substantial
justification or harmlessness, the Court is vested with discretion to exclude
witnesses or exhibits that were never previously disclosed during pre-trial litigation
pursuant to Rule 37(c)(1).
Klatch-Maynard, 2011 WL 2006424, at *3.
determining whether evidence should be excluded for a party’s alleged failure to
comply with its discovery obligations, courts are enjoined to consider the
following factors: (1) the prejudice or surprise of the party against whom the
evidence would be used; (2) the ability of that party to cure the prejudice; (3) the
extent to which waiver of the rule against allowing the use of undisclosed evidence
would disrupt the orderly and efficient trial of the case; and (4) bad faith or
willfulness in failing to comply with the court’s orders. Meyers v. Pennypack
Woods Home Ownership Ass’n, 559 F.2d 894, 904-05 (3d Cir. 1977), overruled on
other grounds, Goodman v. Lukens Steel Co., 777 F.2d 113 (3d Cir.1985). The
Court should also consider the importance of the excluded testimony.
Konstantopoulous v. Westvaco Corp., 112 F.3d 710, 719 (3d Cir. 1997).
Guided by these legal benchmarks, we conclude that wholesale exclusion of
Malarich as a witness is not warranted here under Rule 37 because, given the
nature of the defense proffer, any delay in disclosing Malarich’s identity as a
potential witness or the substance of his testimony is either harmless or
substantially justified. In this case the defendant has proffered that the proposed
testimony of Malarich would be limited to two essential matters: (1) the fact of his
hiring, his age, date of hire, and position, as well as (2) the statements made by the
plaintiff to Malarich on May 5, 2017, concerning the Valley Meadows project and
other related issues at the borough.
Turning to the first category of proffered testimony—the fact of Malarich’s
hiring, his age, date of hire, and position—we find that any delay in identifying
Malarich as a potential witness to these matters is harmless since these facts have
been fully disclosed to all parties for several years, are largely undisputed, and
there is no unfair surprise that arises from permitting Malarich to testify to these
As for the second category of proffered testimony—the substance of
Malarich’s May 5, 2017 conversation with Mr. Keiser—we find that the defendant
is substantially justified in the timing of the disclosure of Malarich’s witness status
based upon this episode in May of 2017. Indeed, we are constrained to note that
the defense could not have made this disclosure prior to May 2017, since this
conversation did not occur until May 5, 2017. Thus, the disclosure that Malarich
might be a witness based upon this alleged communication with Keiser, which was
made 17 days after the conversation occurred and five months prior to trial, was
justified and timely.
We also note that the failure to list Malarich on prior
disclosures in 2015 also seems reasonable and substantially justified.
inception of this case, it was not unreasonable for the defendant to conclude that
Malarich, who was hired to fill Keiser’s vacant position six months after Keiser
left that position, would not be a relevant witness in this wrongful termination
Finally, when we consider the factors which govern exclusion of evidence
due to late disclosure of witness identities, we note that a dispassionate assessment
of these factors weighs against excluding Malarich as a trial witness. Thus, when
we consider the first of these factors—the prejudice or surprise of the party against
whom the evidence would be used—we note that there is little unfair surprise that
would arise here since Malarich’s status as Keiser’s successor has long been
known by all, Malarich’s age is a well-known and immutable fact, and Malarich’s
most recent contacts with the plaintiff were promptly disclosed in May 2017 near
the time when they occurred. Second, with respect to the ability of the plaintiff
party to cure any potential prejudice, the only prejudice cited by the plaintiff is the
inability to depose Malarich, a form of prejudice which could be cured by the court
prior to trial on a proper applicable by Keiser’s counsel to depose this witness.
Third, in the circumstances of this case, when this disclosure was made in May and
the trial is set to commence five months later in October, allowing the use of this
previously undisclosed evidence would result in little or no disruption of the
orderly and efficient trial of the case.
Finally, we conclude that there is no
indication of bad faith or willfulness on the part of the defendant with respect to
the timing of this disclosure.
Finding that all of the factors that govern our discretion in this field caution
against the exclusion of this evidence, the plaintiff’s motion in limine to exclude
the testimony of Mark Malarich, (Doc. 69.), is DENIED.
An appropriate order follows.
For the foregoing reasons, IT IS ORDERED that the plaintiff’s motion in
limine to exclude the testimony of Mark Malarich, (Doc. 69.), is DENIED .
So ordered this 13th day of September 2017.
/s/ Martin C. Carlson
Martin C. Carlson
United States Magistrate Judge
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