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James Fowler v. United States of America

March 18, 2011


The opinion of the court was delivered by: Judge Robert M. Dow, Jr.


Before the Court are three motions: (1) Defendant's motion to bar testimony from Frank Broccolo [24], (2) Plaintiff's motion to bar testimony of Tyler Kress, Ph.D. [33], and (3) Defendant's motion to strike the statement of and bar testimony by R. Kevin Smith [42]. For the reasons stated below, Defendant's motion to bar testimony from Mr. Broccolo [24] is granted in part and denied in part; Plaintiff's motion to bar testimony of Dr. Kress [33] is denied; Defendant's motion to strike the statement of and bar testimony by Mr. Smith [42] is denied.

I. Background

Plaintiff James Fowler, a truck driver who worked for an entity called Eagle Express, has brought an action under the Federal Tort Claims Act ("FTCA") seeking to recover damages for injuries that he allegedly sustained while making a delivery to the Libertyville Post Office early on the morning of November 16, 2005. Specifically, Plaintiff contends that while he was in the process of unloading pallets from his truck, he "was caused to trip on the dock plate on the left side of the trailer as he was exiting it." According to Plaintiff, the dock plate was raised to leave a gap of two to three inches from the bed of the trailer, and the gap caused Plaintiff to trip and fall, which resulted in an injury to Plaintiff's knee. Plaintiff further submits that the dock light was inoperable at the time of his fall. Because the incident occurred at a federal post office facility, the United States of America is the Defendant.

Fact discovery in this case closed in May 2009, and expert discovery closed at the end of March 2010. After the close of discovery, the parties filed and submitted briefs on the three pending motions, all of which pertain to the scope of the evidence that may be presented at the forthcoming bench trial of this matter. The Court will address each of the motions in turn below, providing additional relevant background information in the course of its analysis of the legal principles on which the disposition of each motion turns.

II. Analysis

A. Motion to bar testimony from Frank Broccolo

While fact discovery was open, Plaintiff disclosed as possible witnesses at least seven Eagle Express drivers who had knowledge of the Libertyville Post Office and its loading dock area. Several of those drivers were deposed and provided testimony regarding their impressions of the loading dock area and the specific dock plate at issue in this case. Defendant's motion concerns another Eagle Express driver, Frank Broccolo, who was not listed on Plaintiff's Rule 26(a) disclosures despite having been identified on documents produced by Eagle Express. Plaintiff acknowledges that Broccolo was not disclosed "to avoid the issue of unnecessary cumulative testimony."

However, almost eleven months after the close of fact discovery, Plaintiff tendered to Defendant his third supplemental Rule 26(a) disclosures, listing Broccolo for the first time as a fact witness. Plaintiff contends that Broccolo's testimony should be permitted because Broccolo was present during a portion of the December 11, 2009 inspection at the post office by Defendant's retained expert, Tyler Kress. Plaintiff states that "the bulk of the anticipated testimony from Mr. Broccolo applies to his observations and conversations with Tyler Kress and Jerry Hoglund, the Libertyville postmaster, during the December 11, 2009 inspection." That testimony, Plaintiff insists, "potentially challenges the credibility of Tyler Kress and Jerry Hoglund" and thus is "critical to the issue of providing a full and fair recitation of the facts in this case."

Defendant seeks to bar Broccolo's testimony on several grounds. First, Defendant notes that the disclosure is untimely. Second, Defendant contends that the anticipated testimony from Broccolo is unnecessarily cumulative. Third, Defendant asserts that allowing Broccolo to testify to conversations involving Kress and Hoglund could force counsel for Defendant, who also were present, to become witnesses "in order to rebut the characterization of the interactions between Broccolo and Kress, which would unnecessarily complicate this action and the trial."

Defendants' first two points are persuasive in regard to any testimony from Broccolo other than any conversations in which he participated or overheard during the December 2009 inspection. Broccolo was one of many Eagle Express drivers known to Plaintiff on the basis of disclosures from Eagle Express that were made well before the close of fact discovery. Plaintiff chose to disclose other drivers, but not Broccolo, recognizing that the testimony of the drivers concerning the loading dock and loading plate would become cumulative at some point. Plaintiff cannot now add Broccolo to testify to the same matters as to which other, timely identified and already deposed witnesses will offer testimony. For example, to the extent that Plaintiff seeks to argue that Kress has "essentially ignored all of the fact testimony in this case from the various truck drivers of Eagle Express," Plaintiff must rely on the testimony of the timely identified fact witnesses and may not supplement their testimony with additional fact testimony from Broccolo. Even if Broccolo is, as Plaintiff insists, "an unbiased fact witness," to the extent that he has fact testimony to offer on "the problems he experienced with the subject dock plate at issue," he should have been disclosed as a fact witness long before the close of fact discovery. Given the numerous other drivers who were disclosed in a timely fashion and already have been deposed, there is no basis for adding another fact witness on the subject of the dock plate at this late date. For all of these reasons, Defendant's motion is granted in part, and Broccolo is barred from testifying as a fact witness about his experiences at the Libertyville Post Office and with the dock plate at issue.*fn1

The remaining issue is whether Broccolo may testify concerning what he claims to have heard on December 11, 2009, when Defendant's expert was performing an inspection at the post office. As to that issue -- and that issue alone -- the late disclosure is excused. Plaintiff's counsel states that he did not become aware of Broccolo's presence at the scene of the inspection until Defendant produced Kress's notes in mid-March 2010, just prior to Kress's deposition. Less than a month later, Plaintiff's counsel was able to speak with Broccolo, and on that same date counsel issued Plaintiff's third supplemental Rule 26(a) disclosure. In these circumstances, the Court concludes that Plaintiff identified Broccolo as a potential fact witness in regard to the December 2009 inspection as promptly as could be expected in the circumstances, and thus Broccolo will not be excluded on timeliness grounds from testifying on that subject.

With the timing objection overruled, the question is whether there is any conceivable basis for the admissibility of testimony from Broccolo as impeachment. To the extent that Broccolo is being offered in support of the contention that Kress has ignored the drivers' testimony regarding the extent of the defect at issue (see Pl. Resp. [27] at ¶ 13), such testimony is not relevant, for the Court will be in position to evaluate the extent to which Kress's opinions take into account all pertinent considerations on the basis of the fact and opinion testimony as a whole, without any prompting from Broccolo. In addition, as noted above, Broccolo may not offer either lay or expert opinion testimony on the general subject of the dock plate, because he was not timely disclosed as to that matter, which has been at issue since the outset of the case.

In view of those limitations, the Court can conceive only of a narrow range of impeachment testimony that may be admissible through Broccolo -- testimony about conversations in which Broccolo either participated with Kress and/or Hoglund or that Broccolo overheard involving Kress and/or Hoglund. And any such testimony must bear on an issue of relevance to the case; it cannot simply constitute impeachment for the sake of contradiction. See, e.g. United States v. Bitterman, 320 F.3d 723, 727 (7th Cir. 2003). Whether Broccolo's proposed testimony will ...

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