Braziel et al v. NOVO Development Corporation
Filing
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ORDER denying 98 Motion in Limine Signed by Honorable David C Norton on July 1, 2019.(cban, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
CHARLESTON DIVISION
BISHARA BRAZIEL and LAMONT
)
GEORGE, as Co-Personal Representatives )
of the Estate of Daimere S. George,
)
)
Plaintiffs,
)
)
vs.
)
)
NOVO Development Corporation, d/b/a
)
NOVO Properties,
)
)
Defendant.
)
____________________________________)
No. 2:17-cv-03244-DCN
ORDER
This matter is before the court on defendant NOVO Development Corporation’s
(“NOVO”) motion in limine to bar Bishara Braziel (“Braziel”) and Lamont George
(“George”) (together, “plaintiffs”) from asserting new theories of liability and from
naming Luke Abel (“Abel”) as an expert. ECF No. 98. For the reasons set forth below,
the court denies the motion.
I. BACKGROUND
This case arises out of the accidental drowning of three-year-old Daimere S.
George (“Daimere”) in the swimming pool of South Pointe Apartments (“South Pointe”)
at 6220 North Murray Avenue in Hanahan, South Carolina. At the time of the incident,
NOVO was the owner and operator of South Pointe. Plaintiffs, Daimere’s parents, allege
that on May 18, 2016, NOVO was preparing for the pool opening in June and left gates
and access points to the pool unlocked, unsecured, opened, and/or left the pool in such a
condition that enabled decedent to gain entry to the pool. That day, Daimere was found
face down in the pool; he died on May 25, 2016. Plaintiffs filed suit on December 1,
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2017, bringing causes of action for wrongful death pursuant to S.C. Code § 15-51-10 and
survival action pursuant to § 15-5-90. Plaintiffs allege that Daimere’s death was
proximately caused by NOVO’s negligent, negligent per se, grossly negligent, careless,
willful, wanton, and reckless conduct. On June 27, 2019, NOVO filed the instant motion
in limine. ECF No. 98. On June 28, 2019, plaintiffs filed a response. ECF No. 99.
II. STANDARD
The purpose of a motion in limine is to obtain a preliminary ruling on the
admissibility of a particular evidentiary matter. Luce v. United States, 469 U.S. 38, 40
n.2 (1984). A court will exclude evidence on a motion in limine only if the evidence is
“clearly inadmissible for any purpose.” Hall v. Sterling Park Dist., 2012 WL 1050302, at
*2 (N.D. Ill. Mar. 28, 2012).
III. DISCUSSION
This matter arises on NOVO’s motion to preclude plaintiffs from calling one of
NOVO’s expert witnesses during plaintiffs’ case-in-chief. On September 28, 2018,
NOVO designated Abel as a non-retained expert. ECF No. 29. Abel is the Recreational
Waters Compliance Coordinator for the South Carolina Department of Health and
Environmental Control (“SC DHEC”). As a non-retained expert witness, Abel was not
required to provide a report. Rather, in its designation, NOVO indicated that at trial Abel
would testify about his knowledge of SC DHEC’s role in creating and enforcing rules and
regulations for the safe operation of public swimming pools in South Carolina. NOVO
anticipated that he would testify specifically about the regulations regarding fencing and
gates for public swimming pools in this state, as well as about SC DHEC Regulation 6151 and South Carolina Code § 44-55-2310, which purportedly govern the standards and
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procedures for pools like the one at South Pointe. On August 10, 2018, plaintiffs filed
their designation of experts which included the assertion that “plaintiffs reserve the right
to elicit expert testimony, where necessary, from any expert witness identified by
Defendant in this action . . . .” ECF No. 27. NOVO’s expert designation contains
similar language. NOVO contends that it was unaware that plaintiffs intended to call
Abel as an expert witness until a hearing before this court on June 19, 2019.
Rule 26(a)(2)(D) states that parties must make discovery disclosures “at the times
and in the sequence that the court orders.” Fed. R. Civ. P. 26(a)(2)(D), see Wilkins v.
Montgomery, 751 F.3d 214, 221 (4th Cir. 2014) (“A party that fails to provide these
disclosures unfairly inhibits its opponent’s ability to properly prepare, unnecessarily
prolongs litigation, and undermines the district court’s management of the case.”). Rule
37(c)(1) provides that “[i]f a party fails to provide information or identify a witness as
required by Rule 26(a),[ ] 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 is harmless.” Fed. R. Civ. P. 37(c)(1). In determining whether nondisclosure
of evidence is substantially justified or harmless, the court looks to:
(1) the surprise to the party against whom the witness was to have testified;
(2) the ability of the party to cure that surprise; (3) the extent to which
allowing the testimony would disrupt the trial; (4) the explanation for the
party’s failure to name the witness before trial; and (5) the importance of
the testimony.
S. States Rack and Fixture, Inc. v. Sherwin-Williams Co., 318 F.3d 592, 595–96 (4th Cir.
2003) (internal citations omitted).
NOVO asks the court to prevent plaintiffs from calling Abel as a witness, arguing
that plaintiffs did not make a timely disclosure under Rule 26(a) and that this untimely
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disclosure was not substantially justified or harmless. Specifically, NOVO take issue
with plaintiffs’ intention to have Abel testify about whether NOVO violated Regulation
61-51 by failing to cover the pool while it was closed over the winter or have a certified
pool operator. NOVO characterizes this potential line of questioning as a “new theory of
the case,” and argues that it would be prejudicial to allow plaintiffs to engage in this line
of questioning with Abel. NOVO claims it to be a new theory because, according to
NOVO, plaintiffs have led NOVO to believe that their theories of liability turn solely on
whether the pool gate was locked and/or whether there was adequate fencing around the
pool. Thus, NOVO contends that it is inappropriate for plaintiffs to assert a “new theory”
in reliance on an undisclosed witness only several weeks before trial. NOVO claims that
“in order to explore these theories and properly try this case, discovery would have to be
reopened—depositions would have to be retaken, additional written discovery would
need to be exchanged”—in sum, the case would need to be delayed beyond its scheduled
date of July 8, 2019. ECF No. 98 at 6. The court disagrees.
First the court finds that “[n]either the parties’ briefs nor the court’s own research
reveals any per se rule forbidding a party from calling an adversary’s expert during his
case-in-chief.” Kerns v. Pro-Foam of South Alabama, Inc., 572 F. Supp. 2d 1303, 1309
(2007) (quoting House v. Combined Ins. Co. of America, 168 F.R.D. 236, 245 (N.D.
Iowa 1996) (“[O]nce an expert is designated, the expert is recognized as presenting part
of the common body of discoverable, and generally admissible, information and
testimony available to all parties.”); Doe v. Eli Lilly & Co., 99 F.R.D. 126, 128 (D.D.C.
S.D. Al. 1983) (finding that “no party to litigation has anything resembling a proprietary
right to any witness’s evidence”)). Next, the court observes that NOVO was notified that
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plaintiffs served Abel with a trial subpoena on June 7, 2019, which the court finds
sufficient to have put NOVO on notice that plaintiffs intended to question Abel as their
own witness. ECF No. 99-4. Thus, NOVO was on notice about plaintiffs’ intent to use
Abel during their case about a month before trial, although this is still beyond the
deadline for designating experts. Neither party has given the court any case law
regarding whether a party using the opposing party’s non-retained expert has a duty to
disclose its own use of that expert in accordance with the normal deadlines for expert
disclosure, nor have the parties offered law to support or deny whether “reserv[ing] the
rights to elicit expert testimony, where necessary, from any expert witness identified by”
the opposing party substitutes the requirement for timely disclosure.
However, the court need not decide these matters because, even presuming that
plaintiffs’ identification of Abel as its own witness was untimely, it is harmless under the
Southern States factors. First, Abel’s testimony should present no surprise to NOVO,
considering it designated him in the first place and informed the court that he would be
testifying about Regulation 61-51. Plaintiffs have indicated that they intend to have Abel
testify about the requirements set forth in Regulation 61-51 regarding the necessity for
pool covers and certified pool operators. NOVO argues that it is unfairly surprised by
plaintiffs’ use of Abel in this manner because the issue of the pool cover and certification
of the pool operator have never been part of plaintiffs’ theories of liability. Rather,
NOVO contends, plaintiffs have focused on the sufficiency of the gate and the brick wall.
NOVO argues that “Regulation 61-51 is a comprehensive text of nearly fifty (50) total
pages with literally scores of individual regulations” and that it “cannot realistically be
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expected to anticipate and defend claims brought on possible violations contained within
50 pages of technical regulations.” ECF No. 98 at 7. The court disagrees.
Plaintiffs have always maintained as part of their negligence per se claim that
NOVO failed to “properly inspect and maintain the subject pool,” Compl. ¶ 21, and
Regulation 61-51 has always been before the parties as a regulation at issue in this case.
This is not a situation in which plaintiffs are designating a wholly unknown expert on the
eve of trial to testify about a brand-new regulation which has heretofore been unknown to
NOVO. Rather, plaintiffs merely intend to call defendants’ non-retained expert witness
to testify about his knowledge of Regulation 61-51, the very regulation about which
NOVO has always planned on having Abel offer testimony. NOVO’s failure to
anticipate other sub-sections of Regulation 61-51 upon which plaintiffs’ negligence per
se claim might be based does not constitute the type of bad-faith surprise that might
warrant exclusion of Abel’s testimony on this matter. In fact, NOVO itself questioned
Abel at his deposition about the applicability of subsection (J)—the subsection upon
which plaintiffs’ “new theories” are based and with which NOVO now takes issue.
Furthermore, NOVO has conceded that plaintiffs questioned NOVO’s pool operator
about whether his pool operator certificate had expired, which is an issue addressed by
subsection (J). ECF No. 98 at 7. In considering this very scenario—of a plaintiff seeking
to use a defendants’ expert witness in its case in chief, the District Court for the Southern
District of Alabama found “wholly unpersuasive” the defendants’ attempts to bar the
plaintiffs from calling defendants’ expert just because the plaintiffs never designated him
as an expert witness in their Rule 26 disclosures. Kerns, 572 F. Supp. 2d at 1309.
Because the defendant’s attorneys had long known the expert’s identity and his opinions,
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the court found that there was “exactly nil” unfair surprise to the defendant. Id. at 1310.
This court agrees with the reasoning in Kerns.
Regarding the remaining Southern States factors, allowing plaintiffs to elicit this
testimony from Abel during their case in chief will not disrupt the trial, because he will
not address any significant new facts or regulations that the parties have not previously
questioned him about before. Finally, regarding the importance of the testimony, the
court finds that Abel’s testimony about Regulation 61-51 that plaintiffs seek to elicit is
very important because it forms, at least in part, the basis for plaintiffs’ negligence per se
claim, as plaintiffs indicated at the June 19 hearing. Thus, the court finds that any
lateness in plaintiffs’ designation of Abel as a witness during their case is harmless.
IV. CONCLUSION
For the foregoing reasons the court DENIES NOVO’s motion in limine.
AND IT IS SO ORDERED.
DAVID C. NORTON
UNITED STATES DISTRICT JUDGE
July 1, 2019
Charleston, South Carolina
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