MEMORANDUM DECISION AND ORDER INTRODUCTION
B. LYNN WINMILL, Chief District Judge.
Pending before the Court are three motions in limine related to plaintiff's proposed damages evidence. See Dkts. 143, 156, 167. Additionally, defendant has moved to exclude several witnesses plaintiff intends to call at trial based on alleged Rule 26 violations. See Dkt. 211.
After the summary judgment rulings in this case, plaintiff Dr. Habib Sadid has one remaining claim against one defendant - defamation against Graham Garner. After ISU terminated Dr. Sadid, Mr. Garner told a reporter at the ISU student newspaper that, among other things, Dr. Sadid "presented a lot of safety issues." ISU Bengal Article, Dkt. 88-15, at 2. Dr. Sadid's defamation suit is based on these comments. At trial, Dr. Sadid's intends to present the following testimony:
(1) Dr. Sadid plans to testify that he has been unsuccessful in finding work after Garner's comments;
(2) Dr. Sadid plans to have some of his former co-workers - including professors who have served on faculty recruitment committees for ISU - testify about ISU's vetting procedures for faculty candidates;
(3) Dr. Sadid plans to have other ISU professors testify that he will not able to find a job because of Garner's comments; and
(4) Dr. Sadid will call witnesses to testify that Garner's comments caused him to suffer physically and emotionally.
Mr. Garner contend that the Court should exclude all this evidence. Additionally, as noted, Mr. Garner contends that several of plaintiff's witnesses were not disclosed during pretrial discovery and should therefore be excluded at trial.
1. Defendants' Motion to Exclude Witnesses Not Disclosed During Pretrial Discovery (Dkt. 211).
The Court will first address the alleged Rule 26 violations. Defendants contend that Dr. Sadid failed to disclose the majority of his listed trial witnesses during pretrial discovery. See Objections to Plaintiff's Witness List, Dkt. 178-1 (objecting to 15 of the plaintiff's 21 listed witnesses). The Court has already ruled that three witnesses defendants have objected to (Dr. Beaver, Dr. Bowles, and Mr. Zang) will not be permitted to testify at trial. This decision will address the remaining disputed witnesses.
Of these remaining witnesses, it is unclear whether plaintiff listed them in his initial Rule 26 disclosures. However, in March 2012, plaintiff identified some of the disputed witnesses in interrogatory responses (identifying Marco Schoen, Brian Williams, David Delehanty, and Mary Hofle). A couple of months after this interrogatory response was served, the following disputed witnesses were deposed: Ronda Mahl; Priscilla Goldbeck; Ann Marie Averitt; Marco Schoen; Brian Williams; and Mary Hofle. Additionally, three of the disputed witnesses - David Delehanty, Mikle Ellis, and Richard Wabrek - have provided affidavits (all in 2011) for Dr. Sadid. Typically, Dr. Sadid's trial witness list indicates that, if a witness was deposed or provided an affidavit, the witness will testify "in accordance with" his or her deposition or affidavit testimony. See Dkt. 169.
As defendants correctly point out, Rule 26(e)(1)(A) requires a party to supplement a discovery response "in a timely manner if the party learns that in some material respect the disclosure or response is incomplete or incorrect." Fed.R.Civ.P. 26(e)(1)(A). However, a party need not supplement a response "if the additional or corrective information has.... otherwise been made known to the other parties during the discovery process or in writing." Fed.R.Civ.P. 26(e)(1)(A).
Rule 37(c) provides that if a party fails to provide information as required by Rule 26(a) or (e), the party will not be allowed to use that information at trial unless the failure is "substantially justified or harmless." Whether a Rule Rule 26(a) violation is "justified" or "harmless" is entrusted to the court's discretion based on such factors as: (1) the importance of the evidence; (2) whether the party against whom it is offered is prejudiced or surprised; (3) that party's ability to discover the ...