Motion to Exclude Testimony of Witnesses Denied; No Duty to Remind of Witnesses Existence

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U.S. District Court for the Western District of Washington

Defendant Auburn Technology Inc. filed a motion to exclude testimony of three witnesses who were shipmates of the plaintiff’s decedent. Several other defendants joined in on the motion. The defendants argued that the witnesses were not properly disclosed until the very end of discovery and should therefore be excluded under Fed. R. Civ. P. 37. 

By way of background, in the summer of 2019, the plaintiffs made their initial disclosures, identifying the muster rolls for the ships on which the plaintiffs’ decedent worked as an exhibit and generically identifying Mr. Wineland’s shipmates as witnesses. The muster rolls identified two of the three witnesses at issue, William Pretzman and Gregory Bullinger, as shipmates of Mr. Wineland aboard the USS Tuscaloosa but did not provide any contact information. The plaintiffs thereafter made efforts to locate all of the shipmates listed on the muster rolls, with minimal success. They were, however, able to make contact with Pretzman, Bullinger, and Siepert, each of whom confirmed his presence aboard the USS Tuscaloosa at the time Mr. Wineland was on board the vessel. In January 2020, the plaintiffs amended their initial disclosures to identify the three men as potential witnesses. The plaintiffs provided the witnesses’ contact information (phone numbers and addresses) and represented that they would testify about the work performed on the vessel.  Despite many attempts by the plaintiffs to contact the witnesses, it was unsuccessful. In May 2020, Mr. Bullinger contacted the plaintiffs indicating he was currently unavailable for a deposition but would try to schedule something after he completed his irregular schedule in that national park system.

By the time expert reports were due in June, the plaintiffs had not interviewed any of the witnesses or otherwise discovered what information or knowledge they possess. The experts therefore prepared their reports without relying on the unknown testimony of the witnesses. On July 6, 2020, Auburn asked the plaintiffs’ counsel to “confirm that you do not intend to call as witnesses to testify at the trial of this case any lay or fact witnesses who claim to have observed Mr. Wineland’s work or alleged asbestos exposure during his service in the Navy. If you plan to call such witnesses, we wish to take their depositions as soon as possible.” The plaintiff did not respond to defendant’s letter as they heard from Mr. Bullinger just a few days prior to receiving defendant’s letter, but only to learn that he was still unavailable.

On July 28, 2020, the plaintiffs were able to obtain Mr. Bullinger’s statements. Within days of receiving the declaration, the plaintiffs supplemented their initial disclosures, providing a copy of the declaration to defendants. They then supplemented their expert reports to reflect Mr. Bullinger’s statements. Two of the experts, Captain Arnold Moore and Dr. David Zhang, had already been deposed before the supplementation. The defendants, too, supplemented their expert reports to address Mr. Bullinger’s statements. Discovery closed on August 9, 2020, six days after plaintiffs disclosed Mr. Bullinger’s declaration.

After the court analyzed Auburn’s arguments and the plaintiffs’ arguments, it noted that there was no indication that the plaintiffs’ January 2020 statement that they were having trouble locating the witnesses was inaccurate. Furthermore, the court notes that the plaintiff did not make false statements regarding the witnesses’ availability thereafter or attempt to impede the defendants’ access to the witnesses in any way. Although the plaintiffs disclosed their first and only substantive interaction with Mr. Bullinger within days of its occurrence, Auburn asserted that they should have disclosed that Mr. Bullinger had been in contact in May 2020. The defendant argues that, if it had realized the plaintiffs were still attempting to locate the witnesses, it might have pursued discovery as well. The court ruled that the discovery rules do not impose a duty to repeatedly disclose a witness and moreover, the defendants made no effort to take discovery from Messrs. Pretzman, Bullinger, and Siepert cannot be blamed on the plaintiffs’ failure to remind defendants of their existence.

Therefore, the court denied defendant’s motion to exclude from trial witnesses who were disclosed approximately seven months before the discovery deadline.