The opinion of the court was delivered by: B. Lynn Winmill Chief Judge United States District Court
DECISION AND ORDER AMENDED MEMORANDUM
Before the Court is one motion in limine filed by Plaintiff Eric Strickholm (Dkt. 27) and three motions in limine filed by Defendant The Evangelical Lutheran Good Samaritan Society d/b/a Good Samaritan Society -- Idaho Falls Village (Dkts. 21, 34 & Dkt. 39). For the reasons set forth below, the Court will allow Good Samaritan's late-disclosed witnesses to testify, but Strickholm must be given an opportunity to depose them. Good Samaritan's three motions in limine will be granted in part and denied in part as detailed below.
1.Plaintiff's Motions in Limine
Plaintiff Eric Strickholm moves to exclude the testimony of defense witnesses, Michelle Neubauer, a CNA employed by Good Samaritan, Sue Campbell, an RN and the acting Director of Nursing Services for Good Samaritan, and Tasha Campbell, a CNA and the current starting director and unit clerk at Good Samaritan. Strickholm argues that the witnesses should be excluded because they were not disclosed until after the close of discovery -- the witnesses were not identified until January 24, 2013 in Defendant's Second Supplemental Answers to Plaintiff's First Set of Interrogatories to Defendant.
Federal Rule of Civil Procedure 26(a)(1)(A)(i) requires a party to disclose the name, and if known, the address and telephone number of each individual likely to have discoverable information-along with the subjects of that information-that the disclosing party may use to support its claims or defenses, unless the use would be solely for impeachment."
Rule 37(c) further provides, "[i]f a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence . . . at trial, unless the failure was substantially justified or is harmless. In addition to or instead of this sanction, the court on motion or after giving an opportunity to be heard: (A) may order payment of the reasonable expenses, including attorney's fees, caused by the failure; (B) may inform the jury of the party's failure; and (C) may impose other appropriate sanctions including any of the orders listed in Rule 37(b)(2)(A)(i)-(vi)."
Good Samaritan explains that Ms. Neubauer provided care to the decedent, Alma Strickholm, but her signature could only be found in two places in Good Samaritan's chart, and her signature was difficult to read. In its Initial Disclosures, Good Samaritan generally disclosed that all employees who provided care to Mrs. Strickholm had knowledge of the care provided, and it provided Strickholm with a copy of Mrs. Strickholm's chart. Good Samaritan, however, did not specifically list Ms. Neubauer given the inadvertent oversight of identifying her signature.
Based on these facts, the Court will allow Ms. Neubauer to testify but Strickholm will be given the opportunity to depose Ms. Neubauer if he chooses to do so. Strickholm had equal access to Mrs. Strickholm's chart and Ms. Neubauer's name. It does not appear that the omission of Ms. Neubauer 's name from the witness list was intentional. To ameliorate any potential prejudice to Strickholm, however, he must be given the opportunity to depose her before trial.
The Court will also allow Tasha Campbell to testify but with the same caveat -- Strickholm must be given another opportunity to depose Ms. Campbell if he so elects Apparently the only deposition Strickholm elected to take was a 30(b)(6) Deposition of Good Samaritan that took place on January 21, 2013 -- long after the close of discovery. Good Samaritan identified four individuals to address the issues identified in the Rule 30(b)(6) request, including Tasha Campbell. Their 30(b)(6) designation indicated "Ms. Campbell is a CNA at the facility who is currently acting as a staffing coordinator and unit clerk. She is prepared to testify regarding the medical records and the care provided to Alma Strickholm during her stay in June and July 2008, and specifically with regard to care provided by CNA's and records related to instructing CNAs what cares need to be provided." Email sent to Plaintiff's counsel on January 21, 2013, Ex. D to Duke Aff. Thus, Strickholm was given an opportunity to depose Ms. Campbell, although he was only notified the day of the deposition that she would be one of the four individuals made available to testify. Under these circumstances, the Court will allow Strickholm another opportunity to depose Ms. Campbell.
Good Samaritan says that they do not intend to call Sue Campbell, so her late disclosure is not at issue.
2.Defendant's Motions in Limine
A.DHW Surveys, Citations, and Monitoring Lists
Good Samaritan asks the Court for an order precluding Strickholm, his witnesses, and his attorney from offering any evidence, making any comment, or asking any question relating to (1) any Department of Health and Welfare surveys, complaint investigations or citations relating to Good Samaritan; and (2) any nursing home monitoring lists or websites. Good Samaritan maintains that the documents are irrelevant to the extent they do not involve care actually provided to Ms. Strickholm, constitute impermissible character evidence, are prejudicial and contain inadmissible hearsay. Good Samaritan also argues that they should be excluded because they were not disclosed in discovery.
Strickholm responds that he does not intend to introduce the surveys, citations, and monitoring lists and websites in his case in chief, but argues that he should not be absolutely precluded from using such documents for impeachment purposes. Given that Strickholm does not introduce such documents in his case in chief, the Court agrees that ruling on their admissibility should be reserved for trial. "[I]n some instances it is best to defer rulings until trial, [when] decisions can be better informed by the context, foundation, and relevance of the contested evidence within the framework of the trial as a whole." Casares v. Bernal, 790 F.Supp.2d 769, 775 (N.D.Ill.2011) (citation omitted). Given that the Court does not have copies of these documents and does not know in what context they may be introduced if they are introduced at all, the Court will better positioned during trial to evaluate the document's relevance or prejudicial effect.
If Strickholm does attempt to introduce the documents as exhibits at trial, he will have to lay an adequate foundation to establish that the documents fall within the business records exception to the hearsay rule. Fed.R.Evid. 803(6). "The records introduced can be records of an entity not a party to the proceedings, and the foundation for their receipt can be made by a witness who is not an employee of the preparer." Ortho Pharmaceutical Corp. v. Cosprophar, Inc., 828 F.Supp. 1114, 1119 (S.D.N.Y. 1993) (citing Saks Int'l, Inc. v. M/V "Export Champion", 817 F.2d 1011, 1013 (2d Cir.1987)). But the "with knowledge" requirement of Rule 803(6) nonetheless dictates that "the court must be able to determine from some appropriate source -- from the document itself, ...