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Faure v. Las Cruces Medical Center, LLC

United States District Court, D. New Mexico

September 15, 2017

JOHN FAURE, as Personal Representative for the Wrongful Death Estate of GLORIA QUIMBEY, Deceased, Plaintiff,
v.
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,
v.
ACCOUNTABLE HEALTHCARE HOLDINGS CORPORATION, and ACCOUNTABLE HEALTHCARE STAFFING, INC., Cross Defendants.

          MEMORANDUM OPINION AND ORDER

         This 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.[1] (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. 410, 416).

         The 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.

         I. Background

         This is 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).

         Defendants 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).

         II. Standard of Review

         Rule (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).

         III. Discussion

         Now 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.

         A. Defendant Lalonde 's Disclosure

         In his 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).

         Defendant 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.

         Defendant 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 294.

         The 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. ...


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