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Mullin v. Temco MacHinery, Inc.

United States District Court, S.D. Indiana, Indianapolis Division

September 24, 2014

JOHN W. MULLIN, II, Plaintiff,



This matter was before the Court for a final pretrial conference on September 24, 2014, at the Indianapolis Courthouse. Plaintiff appeared by counsel Jeffrey A. Macey and Quincy Erica Sauer. Defendant appeared by counsel Daniel Joseph Layden and Michelle L. Findley. David Moxley was the Court Reporter. This four-day jury trial is scheduled to commence on October 20, 2014 at 9:00 a.m., at the Birch Bayh Federal Courthouse Room 344. The doors to the courtroom will be unlocked at 7:30 a.m., and the lawyers are to arrive no later than 8:00 a.m. Voir dire will begin at 9:00 a.m. At the final pretrial conference, the trial of this case was discussed and the following rulings were made and directions given pursuant to Trial Rule 16.

1. The Court reviewed the parties' witness lists to determine who will testify and the subjects of their testimony.

a. Defendant objected to Plaintiff's witnesses Mike Ausbrooks, Mark Sale, Keith Oberlin, Ken Gilliam, Roger Kerr, and Mike Blackwell. The Court SUSTAINED Defendant's objections as to Mike Ausbrooks and Mark Sale and they are STRICKEN from Plaintiff's witness list. The Court OVERRULED Defendant's objections as to Keith Oberlin, Ken Gilliam, Roger Kerr, and Mike Blackwell.
b. Plaintiff objected to Defendant's witnesses Mike DuFrane and Dale Henson.
i. Mike DuFrane was first disclosed as a witness on September 9, 2014, and he is a vice president of Pierce Manufacturing. DuFrane is expected to testify that sometime in the winter of 2009-2010, Mr. Mullin was expected to conduct a factory visit with potential customers at the Pierce Manufacturing plant in Appleton, Wisconsin; that Mr. Mullin called DuFrane because Mr. Mullin was sick and could not conduct the tour; that DuFrane called Mike Mikoola to inform him that Mr. Mullin cancelled; and that Mikoola was upset.
ii. Plaintiff argues that the late disclosure is a violation under Federal Rule of Civil Procedure 37(c)(1) and is prejudicial, which cannot be cured. Whether such a discovery violation results in the striking of a witness is left to the broad discretion of the trial court and depends on whether the failure to disclose is substantially justified or harmless. See Dynegy Mktg. & Trade v. Multiut Corp., 648 F.3d 506, 515 (7th Cir. 2011). The Court is guided by four factors: "(1) the prejudice or surprise to the party against whom the evidence is offered; (2) the ability of the party to cure the prejudice; (3) the likelihood of disruption to the trial; and (4) the bad faith or willfulness involved in not disclosing the evidence at an earlier date." Tribble v. Evangelides, 670 F.3d 753, 760 (7th Cir. 2012); Westefer v. Snyder, 422 F.3d 570, 584 n.21 (7th Cir. 2005).
iii. First, the Court finds Plaintiff is prejudiced by the late disclosure of this witness. The alleged event occurred in the winter of 2009-2010. There has been ample time for discovery and extensive litigation on summary judgment and before the Seventh Circuit in this case. Defendant's theory or position that have that the Westfield Fire Department was likely not the client involved in the contested factory tour should have become evident at the latest upon summary judgment and after Plaintiff's appeal. If Defendant wished to rebut Mr. Mullin's and the Westfield Fire Department representatives' testimony, then it was incumbent upon it to seek and disclose such evidence and witnesses prior to the close of the discovery deadline. This it failed to do. On September 8, 2014, Temco employee Greg Hinkens asked around at Pierce Manufacturing if anyone had communicated with Mikoola about Mr. Mullin missing a factory visit. Defendant's failure to ask these questions during the discovery periods and subsequent failure to timely disclose the witness has prejudiced Plaintiff.
iv. Second, Defendant argues that any such prejudice can be cured with a deposition at Defendant's expense. However, the Court finds that the issue is more complex. Not only would a deposition of DuFrane be required, but also of Tom Keiser, former Temco CFO, who contacted and spoke with DuFrane in 2012. Additionally, these depositions could likely open a Pandora's Box of discovery. Defendant asserts that DuFrane cannot remember who the client involved in this incident was, and it seems likely that it was not the Westfield Fire Department as originally testified to by Mikoola. The Court could anticipate the parties', or at least Plaintiff's, desire and need to conduct further discovery to determine which clients Mr. Mullin took on factory tours during the relevant time period to corroborate or refute DuFrane's testimony. In short, a simple and limited deposition is not a cure.
v. Third, given the need for additional discovery, the Court finds that allowing DuFrane as a witness would cause a disruption to the trial and proceeding. This action commenced in July 2011; the trial is scheduled to begin in 26 days, the parties and Court are prepared for trial, and a continuance would cause delay and hardship.
vi. Fourth, the Court does not find that Defendant's counsel acted in bad faith or willfully withheld DuFrane's identity. The Court does find that Defendant's conduct in failing to previously identify DuFrane, especially because of Keiser's 2012 contact with DuFrane and Keiser's role in depositions in 2012, lacks due diligence or care.
vii. In conclusion, the Court finds that it cannot in fairness allow DuFrane to testify as a witness at trial. The totality of the circumstances weighs in Plaintiff's favor. Defendant asked the Court to consider the prejudice it faces without DuFrane's testimony. The Court has considered this in its discretion, but finds that it is outweighed by Defendant's own conduct of failing to discover and timely disclose DuFrane. Plaintiff's objection is therefore SUSTAINED.
viii. As for Dale Henson, Plaintiff's objection is OVERRULED. Henson may testify about relevant events occurring in 2009.
c. The parties have stipulated that witnesses Ronald Baylog and Roger Johnson are unavailable. The video depositions of Baylog and Johnson may be ...

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