United States District Court, D. New Mexico
JOHN FAURE, as Personal Representative for the Wrongful Death Estate of GLORIA QUIMBEY, Deceased, Plaintiff,
LAS CRUCES MEDICAL CENTER, LLC, doing business as Mountain View Regional Medical Center, ACCOUNTABLE HEALTHCARE STAFFING, INC., ACCOUNTABLE HEALTHCARE HOLDINGS CORPORATION, and RONALD LALONDE, Defendants, and LAS CRUCES MEDICAL CENTER, LLC, Cross Claimant,
ACCOUNTABLE HEALTHCARE HOLDINGS CORPORATION, and ACCOUNTABLE HEALTHCARE STAFFING, INC., Cross Defendants.
MEMORANDUM OPINION AND ORDER
matter comes before the Court upon two motions filed by
Plaintiff John Faure, as Personal Representative of the
Wrongful Death Estate of Gloria Quimbey ("Plaintiff).
The first is Plaintiffs Motion to Exclude Testimony of
Defendants Accountable Healthcare Staffing, Inc., Accountable
Healthcare Holdings Corporation and Ronald Lalonde's
Untimely Disclosed Witnesses ("Motion to Exclude"),
filed on May 9, 2017. (Doc. 395). Defendants Accountable
Healthcare Staffing, Inc., and Accountable Healthcare
Holdings Corporation ("Accountable Defendants")
filed a response on May 24, 2017, and Plaintiff filed a reply
on June 7, 2017. (Docs. 409, 414). Defendant Ronald Lalonde
("Defendant Lalonde") filed a response on May 26,
2017, and Plaintiff filed a reply on June 9, 2017. (Docs.
second is Plaintiffs Second Motion to Exclude Testimony of
Defendants Accountable Healthcare Staffing, Inc., and
Accountable Healthcare Holdings Corporation ("Second
Motion to Exclude"), filed on July 11, 2017. (Doc. 423).
Accountable Defendants filed a response on July 25, 2017, and
Plaintiff filed a reply on August 15, 2017. (Doc. 424, 430).
Having read the Motions to Exclude, the accompanying briefs,
and exhibits, the Court grants both Motions to Exclude.
a wrongful death lawsuit concerning the death of Gloria
Quimbey. Plaintiff moves to exclude the testimony of
Defendant Lalonde's and Accountable Defendants'
(together ("Defendants") recently disclosed
witnesses. (Docs. 395, 423).
timely filed Fed.R.Civ.P. 26(a)(1) initial disclosures on
November 3, 2015. (Doc. 81). Discovery in this case closed on
January 13, 2017. (Doc. 255). After discovery closed,
Accountable Defendants supplemented their initial disclosures
and identified seven new witnesses on April 28, 2017. (Doc.
385). Subsequently, on June 9, 2017, Accountable Defendants
filed a third supplement to its Rule 26(a)(1) disclosures and
identified another new witness. (Doc. 420). Defendant Lalonde
supplemented his initial disclosure, identifying two new
witnesses on May 1, 2017. (Doc. 386).
Standard of Review
(26)(a)(1)(A)(i) requires parties to disclose the names of
all individuals "likely to have discoverable information
. . . that the disclosing party may use to support its claims
or defenses, unless the use would be solely for
impeachment." These disclosures must be supplemented
"in a timely manner if the party learns that in some
material respect the disclosure or response is incomplete or
incorrect, " or "as ordered by the court."
FED. R. Civ. P. 26(e)(1)(A)-(B).
before the Court are Plaintiffs motions to exclude
Defendants' newly disclosed witnesses. (Docs. 395, 423).
Plaintiff contends the disclosures are untimely and not
substantially justified or harmless. (Doc. 395) at 3.
Defendant Lalonde 's Disclosure
Second Supplemental Initial Disclosures, Defendant Lalonde
identified two witnesses that may be called as rebuttal
witnesses. (Doc. 395). Defendant Lalonde argues that he
timely disclosed these rebuttal witnesses and the witnesses
are not subject to the supplementation rules. (Doc. 410) at
2. Defendant Lalonde contends that the disclosure of rebuttal
witnesses should be made pursuant to Rule (26)(a)(3).
Id. at 4. Rule 26(a)(3) governs pre-trial
disclosures and requires parties to provide the names of
witnesses a party "expects to present and those it may
call if the need arises" thirty days before trial.
Fed.R.Civ.P. 26(a)(3)(A)(i), (B). Further, Defendant Lalonde
notes that the Scheduling Order states "that no
witnesses except rebuttal witnesses whose testimony cannot be
anticipated, will be permitted to testify unless the name is
furnished to the Court and opposing counsel no later than
thirty (30) days prior to the time set for trial."
Id. at 3-4 (citing (Doc. 85) at 3).
Lalonde's arguments are unavailing. Witnesses, including
rebuttal witnesses are subject to the Rule 26(a)(1)
disclosure requirements, unless they are offered solely for
impeachment purposes. See Searles v. Van Bebber, 251
F.3d 869, 877 (10th Cir. 2001). Rule 26(a)(3) governs
disclosures "in addition to" the disclosures
required by Rule 26(a)(1). Defendant Lalonde provides no
legal authority that disclosure of rebuttal witnesses is
governed by Rule 26(a)(3) rather than 26(a)(1). D.N.M.LR-Civ.
7.3(a) (response "must cite authority in support of the
legal positions advanced."). Further, the Court's
deadlines do not permit Defendant Lalonde a five month
extension past the discovery period to identify witnesses for
the first time in contravention of Rules 26(a)(1) and (e).
Osuagwu v. Gila Reg'l Med. Ctr., No. 11CV1
MV/SMV, 2013 WL 11336860, at *1 (D.N.M.) (unpublished).
Defendant Lalonde's disclosure was not timely.
Lalonde argues in the alternative that if disclosure of the
witnesses is governed by Rule 26(a)(1), Defendant Lalonde did
not need to supplement his initial disclosures because
Plaintiff learned the names of the witnesses during
discovery. (Doc. 410) at 5. This argument similarly is
unavailing. To satisfy the supplementation requirements, a
supplemental disclosure, "must [be] in such a form and
of such specificity as to be the functional equivalent of a
supplemental discovery response; merely pointing to places in
the discovery where the information was mentioned in passing
is not sufficient." L-3 Commc 'n Corp. v. Jaxon
Eng'r & Meant, Inc., 125 F.Supp.3d 1155, 1169
(D. Colo. 2015) (citing Jama v. City & Cty. of
Denver, 304 F.RD. 289, 298-99 (D. Colo. 2014)). Indeed,
the "knowledge of the existence of a person is Plaintiff
does not object to Defendant Lalonde calling the witnesses
for impeachment purposes only. (Doc. 416) at 2. distinctly
different from the knowledge that the person will be relied
upon as a fact witness." Jama, 304 F.R.D. at
purpose of Rule 26(e) supplementation is to inform a party as
to which witnesses Defendant Lalonde believes has pertinent
information, what the information is, and how to contact the
witness. Id. Disclosure of two names during a long
and complex discovery process does not relieve Defendant
Lalonde of his ongoing disclosure duties under the Rules.
"While discovery is, by necessity, an iterative process,
" Defendant Lalonde's "interpretation of the
'otherwise made known phrase' has the potential to
convert the Rule 26(e) supplementation requirement into a
'whack-a-mole' game." Poitra v. Sch. Dist.
No. I in the Cty. of Denver,311 F.R.D. 659, 667 (D.
Colo. 2015) (citing Cohlmia, etal, v. Ardent Health
Servs., LLC, etal,254 F.R.D. 426, 433 (N.D. Okl.