United States District Court, D. Hawaii
CLIFFORD MCARTHUR RIGSBEE, as Personal Representative of the Estate of Clifford Meredith Rigsbee, deceased, Plaintiff,
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)
Gillmor United States District Judge
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
and Brown are precluded from testifying at trial.
may testify at trial in a limited capacity as a lay witness.
January 22, 2019, Plaintiff filed its Pretrial Statement.
(ECF No. 122).
same date, Defendant City and County of Honolulu filed its
Pretrial Statement. (ECF No. 123).
January 29, 2019, the Magistrate Judge held a Final Pretrial
Conference. (ECF No. 124).
January 30, 2019, Plaintiff filed PLAINTIFF'S MOTION TO
STRIKE AND PRECLUDE WITNESSES FORESTER, IBARRA AND BROWN.
(ECF No. 125).
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.
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).
February 15, 2019, Plaintiff filed his Reply. (ECF No. 135).
February 21, 2019, the Court held a hearing on
Plaintiff's Motion to Strike and Preclude.
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).
are under a continuing duty to supplement these disclosures
pursuant to Fed.R.Civ.P. 26(e).
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).
Defendant's Witness Ian Forester
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
Ian Forester Was Not Disclosed In Defendant's Initial Or
Supplemental Disclosures Pursuant To Fed.R.Civ.P. 26
October 23, 2017, Plaintiff filed its Complaint. (ECF No. 1).
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.)
to the Scheduling Order, on January 19, 2018, Defendant
served its Rule 26 Initial Disclosures on Plaintiff. (ECF No.
days later, on January 29, 2018, Defendant served its
Supplemental Disclosures on Plaintiff. (ECF No. 29).
Forester was not named as a potential witness in either the
Defendant's Initial Disclosures or its Supplemental
Mr. Forester Was Mentioned In Discovery Documents And During
The Deposition Of Captain Alan Park
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).
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 ...