Opinion
Case No. 2:02-CV-00010 PGC.
July 20, 2004
ORDER REGARDING MOTIONS IN LIMINE AND OTHER PRE-TRIAL MATTERS
Motions in Limine
On Monday, July 19, 2004, at a hearing on the pending motions in limine, the court resolved all of the pending motions. The following summarizes the court's conclusions. A more detailed basis for the court's holdings can be found in the transcript from that date.
The court GRANTS the motion in limine to exclude references to insurance (#195-1). The court GRANTS IN PART the motion in limine to exclude personal information regarding Sue Scheff. (#191-1). Specifically, the court will not allow evidence of her son's psychological problems unless this information has been previously published. The court GRANTS the motion to exclude personal information about Jeff Berryman (#189-1). The court DENIES the motion to exclude the lost customer information, as World Wide has proffered the foundation for these records so they will be admitted if the foundation is established (#201-1).
The court will allow the individuals listed to provide percipient and expert testimony and DENIES the motion in limine. However, by Friday, July 23, 2004, World Wide must provide a brief summary of the specific expert opinions it expects to solicit from each these witnesses.
See Gomez v. Rivera Rodriguez, 344 F.3d 103, 113 (1st Cir. 2003), Wreath v. United States, 161 F.R.D. 448 (D. Kans. 1995).
The court GRANTS the motion in limine as to Jack Williams (#197-1). The court GRANTS the motion in limine as to Dr. Goldstein. (#199-1).
The court GRANTS IN PART and DENIES IN PART World Wide's motion in limine (#188-1).
The court GRANTS the motion to exclude Dr. Hall's testimony. In addition to the reasons stated at the hearing, the court notes that Dr. Hall has conducted an inadequate investigation to reach conclusions about alleged abuse of children in World Wide programs and thus his conclusions lack an adequate foundation. He agreed that the number of children he talked to was not a representative sample. Moreover, he would simply be vouching for the credibility of the limited number of children that he talked to. The limited discussions that he had with these children and the limited investigation into their situations does not provide adequate foundation for his conclusions, at least so far as the court can determine. Dr. Hall has refused to disclose the names of the children that he talked to. Furthermore, Dr. Hall's methodology does not satisfy the Daubert requirements. He did not follow established protocols in this area. The court has an adequate record for reaching these conclusions based on the pleadings that have been filed, and need not hold a separate Daubert hearing on the matter.
See United States v. Charley, 189 F.3d 1251, 1267 (10th Cir. 1999).
The court DENIES the motion to exclude the documents withheld until April 2004. The court GRANTS the motion to exclude the evidence of other lawsuits. The court DENIES the motion to exclude media accounts related to World Wide to the extent they are relevant to Ms. Scheff's defense in this case. The court will provide a limiting instruction if requested. The court DENIES the motion to preclude Ms. Scheff from testifying to the contrary of the late-produced documents. The court GRANTS the motion to exclude the supplement to the Stephen Nicolatus' report.
The court directs the parties to provide a one-paragraph summary of their claims in this case and any suggested preliminary legal instructions they request the court provide to the jury by Friday, July 23, 2004. Exhibits
As to the exhibits, the court acknowledges that PURE and its counsel worked diligently throughout the weekend to comply with the court's request to review a complete set of exhibits at the hearing. The court once again thanks counsel for their diligent efforts, and deeply regrets that new circumstances at the hearing meant that the notebooks became less salient than originally envisioned.
As discussed at the hearing, those new circumstances were that both parties continue to send each other mixed-signals and have failed provide each other with a final, focused exhibit list, the court directs World Wide by Friday, July 23, 2004, to compile a total of 500 documents for use as exhibits in this trial. PURE will then have until Thursday, July 29, 2004 to respond with its own 500 documents for use in trial. The court urges the parties to share their respective document lists to avoid duplication. The court also encourages the parties to stipulate to the admission of the documents where objections such as authentication and foundation can be routinely addressed. As discussed at greater length in the hearing, the court finds that a limitation on the number of documents is necessary to permit the jury to fairly consider the limited issues presented in this case. The court further finds that each side can amply present its case with 500 documents and that any documents in excess of that number should be excluded under Rule 403 as their minimal probative value would be substantially outweighed by their risk of confusion of issues. Should new, unanticipated circumstances arise during the trial, the court remains willing to consider additional documents for good cause shown.
The court will address any remaining disputes as to the admissibility of any exhibits on Friday, July 30, 2004 at 4 p.m. Both parties are expected to be prepared to discuss the admissibility of all exhibits at that time. The court expects copies of the exhibit books for its review prior to this hearing. As to PURE, the court will edit the exhibit books it has already received in any manner requested. The court reminds the parties that the exhibit book and exhibit list must comply with the requirements listed in the trial order. The parties should contact Ms. Trisha Little (524-6135) with any questions on this subject. Rule 26 violations
As discussed at greater length in the hearing, World Wide objected to the addition of witnesses that PURE did not disclose until June 25, 2004. After carefully reviewing these witnesses on a witness-by-witness basis, the court agreed that, with some exceptions, the witnesses should not be permitted to testify at trial. Rule 37(c)(1) clearly sets out the requisite sanction for parties failing to disclose relevant information in initial disclosures or in supplemental disclosures. The statute states:
A party that without substantial justification fails to disclose information required by Rule 26(a) or 26(e)(1), or to amend a prior response to discovery as required by Rule 26(e)(2), is not, unless such failure is harmless, permitted to use as evidence at trial, at hearing, or on a motion any witness or information not disclosed.
While the court is not rigidly bound to exclude evidence as a failure to fulfill disclosure requirements, many reasons exist supporting this court's decision in this case. The Tenth Circuit has held that a district court may not exclude testimony as a sanction for discovery violations if the exclusion results in fundamental unfairness in the trial of the case. The court outlined four factors for the court to consider when excluding the undisclosed evidence (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 evidence would disrupt the trial; (4) the moving party's bad faith or willfulness. In the case of all the witnesses listed, World Wide claims surprise and prejudice due to their inability to depose these witnesses, the court agrees. PURE will not suffer fundamental unfairness if these witnesses are excluded, particularly in light of the fact that PURE apparently has several dozen other witnesses that will testify about the same topics.
Searles v. Van Bebber, 251 F.3d 869, 877 (10th Cir. 2001), cert. denied, 536 U.S. 904 (2002).
See Orjias v. Stevenson, 31 F.3d 995, 1005 (10th Cir. 1994), cert. denied, 513 U.S. 1000 (1994).
See Woodworker's Supply, Inc. v. Principal Mutual Life Insurance, Co., 170 F.3d 985, 993 (10th Cir. 1999) (internal citations omitted).
As to Amberly Knight, the court will allow her testimony because World Wide knew of her involvement and potential testimony in this case prior to June 25, 2004. World Wide was aware of an affidavit filed by Ms. Knight in a related case, and cannot claim unfair surprise as to her testimony.
As to Jonathan Grimes, Mr. Grimes was an employee of the Morava Academy, who was discovered shortly before the June 25, 2004 deadline. Mr. Grimes purportedly would testify to support of Ms. Scheff's statements that Morava Academy was closed by the Czech government. PURE contends this court should overlook its failure to disclose Mr. Grines in a timely fashion because World Wide did not provide the names of every employee of every school affiliated with World Wide, and thus late-discovered individuals who should be allowed to testify. This misunderstands the posture of this issue. To be clear, this court had earlier held:
WWASP has no obligation to provide the names of former employees of member schools. The court's prior orders specified (repeatedly) that WWASP was only obligated to provide information `to the extent it is in their control.' PURE's re-raising — two weeks before trial — this issue once again is at best frustrating and at worst bad faith. World Wide did not control the hiring or firing at these individual programs, to the extent they had access to employee information, they provided it. World Wide had no opportunity to depose Mr. Grimes, and indeed has no idea what the substance of his testimony might be. PURE did not disclose his name at any point in time until June 25, 2004, well beyond the opportunity for World Wide to depose him had passed. PURE has had two years to find evidence in support of Ms. Scheff's statements regarding Morava Academy's closing. This ruling is not "fundamentally unfair" to PURE, as it still has the testimony of the World Wide principals on this subject matter.
Order Regarding Outstanding Motions, p. 5, March 4, 2004; quoting, Order denying Motion for Extension of Time and Requiring Response to Preliminary Injunction by June 8, 2003, and Reply by June 23, 2003, p. 5, May 16, 2003.
Lori Dunhorst was a former employee of Dundee Academy. She would testify in support Ms. Scheff's claims about Dundee Academy. For the same reasons stated above the court excludes her testimony as well.
As to B.R., he is a child who attended a World Wide program and would likely testify in support of Ms. Scheff's claims of various problems at World Wide programs. At argument, counsel for PURE stated that Ms. Scheff "had just got wind of him." This provides no explanation for PURE's failure to provide his name to World Wide sooner. This ruling is not unfair to PURE. If B.R.'s testimony is recently discovered, it is unclear to the court how it could have provided a basis for Ms. Scheff's statements in 2001 regarding problems at World Wide schools. Moreover, his testimony appears to essentially duplicate that of several other anticipated witnesses at trial.
As to J.R., Jr., he would purportedly corroborate his father's testimony regarding his experiences at a World Wide program. J.F., Sr., was previously disclosed to World Wide in April 2004. However, PURE did not disclose that it intended to call J.F., Jr., at that time. PURE argues that J.F., Jr.'s experiences were the subject of a PURE newsletter and World Wide should have assumed he would testify. Again, World Wide cannot speculate into PURE's defensive strategies, and PURE obviously should have named both J.F., Jr. and J.F. Sr. in its April 2004 disclosures if it anticipated calling J.R., Jr. Indeed, PURE obviously knew of J.F., Jr.'s potential testimony well before June 25, 2004, based on Ms. Scheff's use of his story in her newsletters. By only listing J.F., Sr., PURE essentially told World Wide that it needed to look no further into this family when preparing its case. Finally, PURE still has the testimony of J.F., Sr. in support of its case.
As to Philip Greenbarg, there appeared to be some question as to which Philip Greenbarg was disclosed. This testimony relates to a story included in one of PURE's newsletters. The parties are directed to clarify whether or not Mr. Greenbarg was or was not disclosed. PURE will have the testimony of the disclosed family members in support of its case.
Christine Smith would testify in accordance with a newsletter created by Ms. Scheff based on her experiences at a World Wide school. During oral argument, it was unclear whether Ms. Smith had filed an affidavit in support of her potential testimony. The court has already ruled that newsletters supported by affidavits are not sufficient basis for World Wide's defamation claims. If Ms. Smith has filed an affidavit, her testimony is irrelevant to this case and therefore inadmissible.
If Ms. Smith has not filed an affidavit, her testimony is excluded because World Wide did not provide notice she would function as a witness in this case until June 2004. If Ms. Smith's story was the basis for a PURE newsletter, Ms. Scheff knew of her potential testimony — literally years before June 2004. PURE's decision not to disclose Ms. Smith in over two years of litigation unfairly lulled World Wide into believing that she would not testify and prevented an opportunity to depose her or otherwise investigate her story. PURE has presented no explanation as to why it did not list her as a witness. Her testimony is excluded.
Z.P.'s story was apparently discussed in the deposition of Elaine Davis, an employee of the South Carolina Department of Social Services. Z.P.'s story at one point apparently lead to a "founded" complaint in the Social Services data base. PURE argues that since World Wide was aware of this story, this individual should be allowed to testify. Again, PURE fails to acknowledge that by not listing Z.P., they falsely lured World Wide into believing this individual would not be part of the case. There is a significant difference between knowing that someone may have relevant testimony and that someone will be called to testify as a witness. Literally thousands of people may have stories potentially relevant to this case, but World Wide is entitled to know which of them will be a part of the trial. World Wide did not have the opportunity to depose or question this witness, and was arguably mislead by PURE's silence on the subject. Because allowing this testimony at this late date would unfairly prejudice World Wide, the court excludes this testimony. There is no unfairness to PURE, it has known of this witness for well over a year as well.
The court also notes in the summary judgment pleadings that the abuse allegations made by Z.P. were eventually "unfounded." Should the court allow this testimony despite the discovery violation, it likely would have excluded that evidence as prejudicial and likely to confuse the jury.
L.B.'s story was discussed in Ms. Scheff's deposition. As discussed above, this fact does not meet the requirements of Rule 26. This testimony will be excluded due to PURE's failure to notify World Wide of its intentions for all the reasons given in connection with Z.P.
Terry Cameron is the mother of L.B. and she would testify to her conclusions about her daughter and regarding alleged post traumatic stress disorder her daughter suffered. Though her possibly testimony was raised in the motion for summary judgment and in Ms. Scheff's deposition, World Wide was left to presume she would not testify at trial. Because of this fact, her testimony will be excluded. PURE provided no explanation as to why it did not disclose this witness earlier.
PURE conceded at argument that the testimony of R.M., A.V., S.F., and Cade Cooper would be excluded for non-disclosure under Rule 26 and 37(e). Accordingly, they will be excluded.
Further weighing against PURE on this issue is the court's prior ruling on World Wide's contact with potential defense witnesses. Because of PURE's complaints about letters sent out by World Wide to potential defense witnesses, the court imposed an extraordinary limitation on World Wide as follows:
WWASP is directed not to communicate with any persons identified by PURE as a witness for it in this case without first seeking leave of opposing counsel or (if counsel's permission is not secured) this court. This order does not apply to court-authorized proceedings and contacts, such as depositions and subpoenas.
Order Regarding Outstanding Motions, p. 13, March 4, 2004.
In light of this order — obtained at the request of PURE — PURE controlled what World Wide could and could not do with regard to many potential defense witnesses. PURE's failure to disclose these witnesses, in light of this order, only increases the unfairness to World Wide and provides additional strong support for the court's ruling excluding the witnesses.
Time Limits
With respect to potential time limits, the court notes that the parties requested a five-day trial over 18 months ago. Since that time, the case has narrowed considerably — including, most recently, the dismissal of all counter claims in the matter, dismissal of one of the two defendants, the exclusion of three retained expert witnesses, and the narrowing of the plaintiff's case in significant ways. As a result, five days now appears to be too long a period of time to devote to this matter. However, in the interests of insuring that the parties have more than sufficient time, the court will retain the matter for a five day trial. As discussed at the hearing, this means that each of the parties each have seven hours to present their case and conduct cross-examination. The court will extend time limits only for good cause shown.
SO ORDERED.