CNA Insurance Company Limited v. Expeditors International of Washington Inc et al

Filing 79

ORDER granting Defendant's 71 Motion to Exclude Witnesses. Plaintiff's witnesses Pham Duc Hong and Thuy Thi Truong are barred from testifying at trial. No fees have been requested and none shall be awarded. The parties are to focus on resolving any remaining issues and to prepare for trial. The Court DIRECTS the Clerk to set a new trial date in this matter and to issue a revised scheduling order. Signed by Judge Ricardo S. Martinez. (SB)

1
2
3
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

4
5
6
7
8
9
10
11
12
13
14

CNA INSURANCE COMPANY
LIMITED,
Plaintiff,

Case No. C18-932-RSM
ORDER GRANTING MOTION TO
EXCLUDE WITNESSES

v.
EXPEDITORS INTERNATIONAL OF
WASHINGTON, INC. d/b/a EXPEDITORS
INTERNATIONAL OCEAN, PAPPAS
TRUCKING LLC, and DOE I,
Defendants.

15
16

This matter comes before the Court on Defendant Expeditors International of

17

Washington, Inc. (“Expeditors”)’s Motion, pursuant to Rule 37(c) and the Court’s Order dated

18

October 6, 2021, to bar Pham Duc Hong (“Hong”) and Thuy Thi Truong (“Truong”), from

19
20
21

testifying at trial. Dkt. #71. Plaintiff CNA Insurance Company opposes. Dkt. #73.
This case has been marred by prior procedural errors from Plaintiff’s counsel, see Dkt.

22

#44, as well as delays from the parties and the Court (in ruling on the instant Motion). The

23

Court will not summarize the entire procedural record but notes that attorney’s fees have been

24
25
26

awarded to Defendants on more than one occasion. See Dkts. #29 and #51.
The following facts are generally agreed to by the parties. Discovery in this matter

27

closed on August 5, 2019. Plaintiff CNA’s Initial Disclosures, dated January 14, 2019, and

28

Plaintiff’s Answers and Responses to Expeditors’s First Interrogatories and Requests for

ORDER GRANTING MOTION TO EXCLUDE WITNESSES - 1

1

Production, dated May 20, 2019, identified, inter alia, the following “persons” with relevant

2

knowledge who might be called to testify at trial: “Personnel at Golden Star Co., Ltd., a shipper

3

apparently involved” and “Representatives of Golden Star Co., Ltd.” Dkts. #72-1 and #72-2.

4

At no time during discovery did CNA identify any specific individuals from Golden Star.

5
6
7

CNA’s February 3, 2020, pretrial statement and September 30, 2021, proposed pretrial
order named Hong and Truong for the first time. See Dkts. #72-3 and #69. These individuals

8

were personnel or representatives at Golden Star. CNA has subsequently indicated that it does

9

not plan to call Truong as a witness.

10
11
12

Expeditors moves to bar these witnesses under Rule 37(c), which states in part that “[i]f
a party fails to… identify a witness as required by Rule 26(a) or (e), the party is not allowed to

13

use that… witness to supply evidence… at trial, unless the failure was substantially justified or

14

is harmless.” The Court can consider other sanctions listed in that Rule. Expeditors credibly

15

argues that it was prejudiced by the failure to disclose these witnesses prior to the close of

16

discovery. See Dkt. #71 at 4. Expeditors reasonably believed that no witnesses from Golden

17
18

Star would be called given CNA’s failure to supplement.

19

The Court has reviewed the response briefing from CNA and finds that this failure to

20

disclose was not substantially justified. This failure has harmed Expeditors’s ability to prepare

21

for trial without needless additional expense. Both parties have been prejudiced by the delay.

22
23
24
25
26
27

Given the Court’s prior monetary sanctions of CNA, the Court finds that excluding these
witnesses is the appropriate sanction here. The Court is not convinced that exclusion of these
witnesses is equivalent to a dismissal.
Having considered the briefing and the remainder of the record, the Court hereby finds
and ORDERS that Expeditors’s Motion to Exclude Witnesses, Dkt. #71, is GRANTED.

28

ORDER GRANTING MOTION TO EXCLUDE WITNESSES - 2

1

Plaintiff’s witnesses Pham Duc Hong and Thuy Thi Truong are barred from testifying at trial.

2

No fees have been requested and none shall be awarded. The parties are to focus on resolving

3

any remaining issues and to prepare for trial. The Court DIRECTS the Clerk to set a new trial

4

date in this matter and to issue a revised scheduling order.

5
6
7
8
9

DATED this 20th day of January, 2023.

A

RICARDO S. MARTINEZ
UNITED STATES DISTRICT JUDGE

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

ORDER GRANTING MOTION TO EXCLUDE WITNESSES - 3