United States District Court, W.D. Oklahoma
TIMOTHY D. DEGIUSTI, UNITED STATES DISTRICT JUDGE
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.
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.
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.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.
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.
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; (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
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. 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 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 Plaintiffs brief
Therefore, Ms. Vinson's testimony should be limited to
these subject areas.
THEREFORE ORDERED that Defendant's Motion to Strike
Allison Vinson as Plaintiffs Trial Witness [Doc. No. 119] is
DENIED, as set forth herein.
 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.
 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