United States District Court, W.D. Missouri, Western Division
ORDER GRANTING IN PART PLAINTIFF'S MOTION TO
PRECLUDE DEFENDANT FROM USING CERTAIN WITNESSES ON
DEFENDANT'S WITNESS LIST TO SUPPLY EVIDENCE AT
KAYS, CHIEF JUDGE.
case arises out of an insurance coverage dispute. Plaintiff
Sunflower Redevelopment, LLC (“Sunflower”)
undertook a project to remediate the former Sunflower Army
Ammunition Plant (“Plant”) in order to develop it
for commercial purposes. After insurer Defendant Illinois
Union Insurance Co. (“ILU”) refused to indemnify
Sunflower for certain expenses, Sunflower sued for
declaratory judgment and breach of contract.
before the Court is Sunflower's motion to preclude ILU
from calling seven witnesses at trial (Doc. 190). For the
following reasons, Sunflower's motion is granted in part.
seeks to exclude testimony of seven witnesses, five witnesses
whom are employees of the Kansas Department of Health and
Environment-Ashley Allen, Leo G. Henning, Jorge Jacobs, Bob
Jurgens and Margaret Townsend (“KDHE
employees”)-and two of whom are employees of the U.S.
Army-Tony Spaar and Dan Hearnen (“Army
employees”). Sunflower seeks to exclude testimony from
these witnesses under Rule 37(c)(1), on the ground that they
were not disclosed in accordance with Rule 26.
requires disclosure of “each individual likely to have
discoverable information . . . that the disclosing party may
use to support its claims or defenses.” Subsection (e)
requires supplementation if information the party later
acquires would have been subject to the disclosure
requirement. Rule 26(e) (explaining in the 2000 Amendment
Advisory Committee Comments “[a]s case preparation
continues, a party must supplement its disclosures when it
determines that it may use a witness . . . that it did not
previously intend to use.”). Subsection (e) limits
supplementation to only information that “has not been
made known to the other parties during the discovery
37(c) permits a court to sanction a party who fails to
identify a witness as required by Rule 26(a) or (e) by not
allowing that witness to supply evidence at trial unless that
failure was substantially justified or is harmless. To
determine whether sanctions under Rule 37 are appropriate,
the court may consider several factors including the reason
for noncompliance, the surprise and prejudice to the opposing
party, the extent to which allowing the testimony would
disrupt the order and efficiency of the trial, and the
importance of the testimony. Wegener v. Johnson, 527
F.3d 687, 692 (8th Cir. 2008).
determine whether the Court should exclude the testimony of
the KDHE employees at the trial, first the Court must decide
if ILU was required to disclose the names of these witnesses
under Rule 26(a) or (e) and if so, whether failing to
disclose these names was substantially justified or harmless.
does not address Sunflower's motion as to the two Army
employees and thus, Sunflower's motion is granted as to
these two witnesses.
explains that the general nature of the expected testimony of
the KDHE employees is whether two letters KDHE sent to
Sunflower, that Sunflower alleges was a “claim”
as to trigger coverage under the insurance policy, was not
intended to be a claim and was sent in the ordinary course of
the project to remediate the Plant.
first argues it complied with Rule 26, and that under that
rule, disclosure of the KDHE employees was not required
because these witnesses were already known to Sunflower. ILU
states that during discovery, Sunflower interviewed these
witnesses and chose not to depose them. ILU also points to
its initial disclosure where it stated it would not disclose
the identity of individuals Plaintiff was already aware of.
ILU argues, because these individuals had been identified by
Sunflower and that Sunflower was aware of them, it complied
with Rule 26.
next argues that it would be unfair to prevent the KDHE
employees from testifying. ILU states that Sunflower plans to
introduce into evidence letters between KDHE and Sunflower
that were authored by, or sent to, the KDHE employees. ILU
argues that it would be unfair to allow Sunflower to rely on
letters sent by KDHE but not allow ILU to present testimony
from the individual who authored the letters.
ILU argues, Sunflower cannot claim surprise because it was
aware of these witnesses and their involvement in the case
and thus, sanctions under Rule 37 are not required.
not violate Rule 26's disclosure requirements. ILU was
not required to supplement its initial disclosures with the
names of the KDHE employees because Sunflower already knew
the names of these individuals and their involvement in this
case. Sunflower interviewed these individuals and they are