Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Rigsbee v. City and County of Honolulu

United States District Court, D. Hawaii

February 28, 2019

CLIFFORD MCARTHUR RIGSBEE, as Personal Representative of the Estate of Clifford Meredith Rigsbee, deceased, Plaintiff,
v.
CITY AND COUNTY OF HONOLULU, Defendant.

          ORDER GRANTING, IN PART, AND DENYING, IN PART, PLAINTIFF'S MOTION TO STRIKE AND PRECLUDE WITNESSES FORESTER, IBARRA, AND BROWN (ECF No. 125)

          Hellen Gillmor United States District Judge

         This is a maritime action relating to the death of Clifford Meredith Rigsbee. On June 14, 2016, the decedent was engaged in rescue watercraft training as part of his duties as a firefighter with the Honolulu Fire Department. During the ocean training, the decedent suffered blunt force injury to his head and neck. He died two days later as a result of his injuries. Plaintiff Clifford McArthur Rigsbee, as Personal Representative of the Estate of Clifford Meredith Rigsbee, filed a Motion seeking to strike three of Defendant City and County of Honolulu's witnesses listed on their Pretrial Statement. The three witnesses are Ian Forester, Ricky “Koa” Ibarra, and Kent Brown. Plaintiff also seeks to preclude the witnesses from testifying at the bench trial set for March 12, 2019. Defendant responded to Plaintiff's Motion by amending its Pretrial Statement. Defendant's First Amended Pretrial Statement removed witnesses Ibarra and Brown. Defendant did not remove Ian Forester as a witness and still seeks to call Mr. Forester as a witness at trial. Defendant concedes that Mr. Forester was not properly disclosed pursuant to Fed.R.Civ.P. 26. Defendant states that it is willing to limit Mr. Forester's testimony as a remedy to cure any prejudice incurred by the Plaintiff due to the late disclosure. Plaintiff's Motion to Strike and Preclude Witnesses Forester, Ibarra, and Brown (ECF No. 125) is GRANTED, IN PART, AND DENIED, IN PART.

         Ibarra and Brown are precluded from testifying at trial.

         Forester may testify at trial in a limited capacity as a lay witness.

         PROCEDURAL HISTORY

         On January 22, 2019, Plaintiff filed its Pretrial Statement. (ECF No. 122).

         On the same date, Defendant City and County of Honolulu filed its Pretrial Statement. (ECF No. 123).

         On January 29, 2019, the Magistrate Judge held a Final Pretrial Conference. (ECF No. 124).

         On January 30, 2019, Plaintiff filed PLAINTIFF'S MOTION TO STRIKE AND PRECLUDE WITNESSES FORESTER, IBARRA AND BROWN. (ECF No. 125).

         On February 5, 2019, the Court issued a briefing schedule setting forward the five-step test governing witnesses exclusion that it sought the Parties to address. (ECF No. 127).

         On February 11, 2019, Defendant filed DEFENDANT CITY AND COUNTY OF HONOLULU'S MEMORANDUM IN OPPOSITION TO PLAINTIFF'S MOTION TO STRIKE AND PRECLUDE WITNESSES FORESTER, IBARRA AND BROWN. (ECF No. 132).

         On February 15, 2019, Plaintiff filed his Reply. (ECF No. 135).

         On February 21, 2019, the Court held a hearing on Plaintiff's Motion to Strike and Preclude.

         STANDARD OF REVIEW

         Federal Rule of Civil Procedure 26(a)(1) requires the parties 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.” A party must make the initial disclosures at or within 14 days after the parties' Rule 26(f) conference unless a different time is set by stipulation or court order. Fed.R.Civ.P. 26(a)(1)(C).

         Parties are under a continuing duty to supplement these disclosures pursuant to Fed.R.Civ.P. 26(e).

         Failure to comply with Fed.R.Civ.P. 26's disclosure requirements may result in sanctions, including the exclusion of the witness at trial pursuant to Fed.R.Civ.P. 37(c)(1). Yeti by Molly, Ltd v. Deckers Outdoor Corp., 259 F.3d 1101, 1105-06 (9th Cir. 2001).

         ANALYSIS

         I. Defendant's Witness Ian Forester

         Defendant seeks to call Ian Forester as a witness at trial. Defendant concedes that it did not include Mr. Forester as a witness in its Rule 26 disclosures, but it argues that Mr. Forester was made known to Plaintiff during discovery. Defendant is willing to limit Mr. Forester's testimony so as to minimize any prejudice to Plaintiff. Plaintiff objects to Mr. Forester being called as a witness, even in a limited capacity.

         A. Ian Forester Was Not Disclosed In Defendant's Initial Or Supplemental Disclosures Pursuant To Fed.R.Civ.P. 26

         On October 23, 2017, Plaintiff filed its Complaint. (ECF No. 1).

         On December 21, 2017, the Magistrate Judge issued the Rule 16 Scheduling Order. (ECF No. 23). The Magistrate Judge set a deadline of June 18, 2018 for the Parties to disclose any expert reports. (Id.) The Magistrate Judge set October 19, 2018 as the discovery deadline. (Id.)

         Pursuant to the Scheduling Order, on January 19, 2018, Defendant served its Rule 26 Initial Disclosures on Plaintiff. (ECF No. 26).

         Ten days later, on January 29, 2018, Defendant served its Supplemental Disclosures on Plaintiff. (ECF No. 29).

         Ian Forester was not named as a potential witness in either the Defendant's Initial Disclosures or its Supplemental Disclosures.

         B. Mr. Forester Was Mentioned In Discovery Documents And During The Deposition Of Captain Alan Park

         On March 8, 2018, Defendant produced discovery to the Plaintiff that included information mentioning Mr. Forester. (Def.'s Motion at pp. 7-8, ECF No. 132).

         Specifically, Defendant provided Plaintiff with a June 18, 2016 statement, a June 18, 2016 transcript of an audio interview, and a June 21, 2018 statement all made by Honolulu Fire Department Captain Alan Park. (6/18/16 Statement of ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.