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Bridgewater v. City of Indianapolis

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

September 26, 2016

Anthony Bridgewater, Plaintiff,
v.
City of Indianapolis and Detective Chad Osborne, Defendants.

          ORDER

          Jane Magnus-Stinson, Judge

         This Order addresses several evidentiary issues related to the upcoming trial in this case, scheduled for October 3, 2016. Specifically, the Court addresses the parties' filings since the Court's September 9, 2016 Entry, and issues that remained outstanding after the September 8, 2016 final pre-trial conference.

         I. Plaintiff's Witnesses

         As background, the Court notes that a point of contention at the final pre-trial conference was Plaintiff's failure to disclose several witnesses until August 25, 2016 - long after the deadline for witness disclosures had passed. At the final pre-trial conference, the Court took under advisement Defendants' objections to several of those witnesses (including Plaintiff's medical care providers). In order to analyze whether Plaintiff's medical care providers should be permitted to testify, the Court ordered Plaintiff to “submit any medical records reflecting [their] treatment of Mr. Bridgewater that he intends to introduce at trial to the Court and to Defendants' counsel” by September 12, 2016. [Filing No. 102 at 3.][1] Plaintiff submitted twelve pages of records. [See Filing No. 104-3.][2] As to Hannah Slack, a non-medical provider, the Court ordered Plaintiff to “make Ms. Slack available for Defendants' counsel to interview as soon as possible, ” so that Defendants could report to the Court by September 12, 2016 any specific objections they have to Ms. Slack's anticipated testimony. [Filing No. 102 at 3.] The Court has reviewed the parties' submissions, and is prepared to rule on the outstanding evidentiary issues.

         A. Plaintiff's Medical Providers

         Defendants have moved to preclude Plaintiff from calling several of his medical providers at trial, namely Kareema Boykin, Matthew Kuchinski, Jeanne Vrabel, and Timothy Salmons. [See Filing No. 88.] At the outset, the Court notes that the Case Management Plan entered in this case explicitly states that the trial witness list “may not include any witnesses not on a party's final witness list filed pursuant to section III.F.” which, in this case, was due on January 5, 2016 (for ex p ert wit n es ses) . [Filing No. 17 at 3; Filing No. 17 at 6.] The deadline for providing a final witness list for non-expert witnesses was March 5, 2016. [Filing No. 17 at 3.] The Court's Case Management Plan is designed so that the parties must identify their universe of witnesses well ahead of trial, opposing parties may depose those individuals if they desire, and the parties can whittle their witness lists down to the individuals they intend to call at trial shortly before trial takes place. The Case Management Plan does not allow parties to identify witnesses for the first time in the trial witness list, yet that is what Plaintiff did in this case. Plaintiff disclosed his medical providers for the first time in an August 25, 2016 witness list, well after the March 5, 2016 deadline for doing so. [Filing No. 80.]

         If a party fails to disclose a witness as required, that “party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless.” Fed. R. Civ. P. 37(c)(1); see also Novak v. Board of Trustees of Southern Illinois University, 777 F.3d 966, 973 (7th Cir. 2015) (“Failure to comply with the disclosure requirements of Rule 26(a) results in automatic and mandatory exclusion of the proferred witness ‘unless the failure was substantially justified or is harmless'”).

         The Court finds that Plaintiff's failure to identify Kareema Boykin, Matthew Kuchinski, Jeanne Vrabel, and Timothy Salmons - all individuals who purportedly provided medical care to Plaintiff - as witnesses was neither substantially justified nor harmless. Plaintiff has not set forth any valid reason why those witnesses were not timely disclosed, and Defendants would be prejudiced if they were allowed to testify because Defendants have worked under the assumption that they would not be called and so did not depose them.[3] Trial is now less than two weeks away, and it is far too late for depositions to occur. See Novak, 777 F.3d at 973 (excluding expert witness testimony where experts were disclosed after deadline for doing so and “[t]he disclosures were…so late that defendants had no opportunity to depose [them]”).

         At the final pre-trial conference, the Court gave Plaintiff a chance to attempt to cure any prejudice Defendants might suffer if the medical providers were allowed to testify as to the contents of Plaintiff's medical records, ordering Plaintiff (as discussed above) to submit any medical records he intends to introduce at trial to the Court and to Defendant's counsel by September 12, 2016. Plaintiff only submitted records from Dr. Kuchinski, [Filing No. 104-3 at 1; Filing No. 104-3 at 11-12], Dr. Benjamin Rase and Dr. Amy Rhodes, [Filing No. 104-3 at 2], Dr. Donald Hill-house, [Filing No. 104-3 at 3-6], and Dr. Salmons, [Filing No. 104-3 at 7-10].[4] Because Plaintiff did not submit records for Kareema Boykin or Jeanne Vrabel, those individuals cannot testify even as to medical records reflecting their treatment. As to Dr. Kuchinski, the Court cannot discern from the three pages of records reflecting his name whether he actually treated Mr. Bridgewater. [Filing No. 104-3 at 1; Filing No. 104-3 at 11-12.] He is not permitted to testify as to those records. Records relating to Dr. Salmons' treatment of Mr. Bridgewater reflect extensive statements from Mr. Bridgewater's mother, and the Court finds that Defendants would be prejudiced if Dr. Salmons were permitted to testify as to those records given that Defendants did not have adequate notice that he would testify.

         In sum, because Pla intiff's failure to disclose Kareema Boykin, Matthew Kuchinski, Jeanne Vrabel, and Timothy Salmons as witnesses was neither substantially justified nor harmless, and since Plaintiff either did not submit medical records to alleviate the Court's concerns regarding prejudice, or the medical records Plaintiff submitted did not alleviate those concerns, those individuals are not permitted to testify at trial. Defendants' objections as to Kareem Boykin, Matthew Kuchinski, Jeanne Vrabel, and Timothy Salmons, [Filing No. 88], are SUSTAINED.

         B. Hannah Slack

         At the final pre-trial conference, the Court took under advisement Defendants' objection to Hannah Slack, and ordered Plaintiff “to make Ms. Slack available for Defendants' counsel to interview as soon as possible” so that Defendants could address any specific objections to her anticipated testimony by September 15, 2016. [Filing No. 102 at 3.] Defendants report that “Plaintiff has not identified [Ms.] Slack's availability for an interview or a deposition and Defendants are unable to reach [her] at the number Plaintiff provided the Court.” [Filing No. 104 at 5.] Plain-tiff responds that he “has made this witness available and invited counsel to feel free to contact her directly and interview or set up a deposition if they wish.” [Filing No. 107 at 1.]

         Again, Plaintiff disclosed Ms. Slack as a witness well after the deadline for doing so. The Court finds that this failure was not substantially justified and was not harmless. Like Plaintiff's medical providers, Plaintiff has not offered any justification for not timely identifying Ms. Slack as a witness, and Defendants would be prejudiced by allowing her to testify because it is now too late to depose her. See Novak, 777 F.3d at 973.

         At the final pre-trial conference, the Court gave Plaintiff an opportunity to cure any prejudice Defendants might suffer by ordering Plaintiff to make Ms. Slack available for Defendants' counsel to interview as soon as possible. [Filing No. 102 at 3.] The record indicates that Plaintiff's only effort to make Ms. Slack available to Defendants was to provide a telephone number, and that Defendants have not been able to reach Ms. Slack at that telephone number. Simply providing Ms. Slack's telephone number was not what the Court had in mind when it ordered Plaintiff to “make Ms. Slack available for Defendants' counsel to interview.” [See Filing No. 102 at 3.] Because Plaintiff has not made Ms. Slack available for Defendants' counsel to interview, and since she was not timely identified as a witness, she is precluded from testifying at trial. Defendants' objection to Ms. Slack testifying at trial, [Filing No. 88], is SUSTAINED.

         II. Plaintiff's ...


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