12-2483-cv
Matheson v. Kitchen et al.


                              UNITED STATES COURT OF APPEALS
                                  FOR THE SECOND CIRCUIT

                                       SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN
CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
“SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY
PARTY NOT REPRESENTED BY COUNSEL.

       At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York,
on the 21st day of March, two thousand thirteen.

PRESENT: JOHN M. WALKER, JR.,
           ROBERT D. SACK,
           GERARD E. LYNCH,
                      Circuit Judges.
–––––––––––––––––––––––––––––––––––––––––––––

ROGER LEE MATHESON, III,
                  Plaintiff-Appellant,

                             v.                                 No. 12-2483-cv

DAMON KITCHEN, KITCHEN’S POWER
TONG SERVICES, INCORPORATED,
                    Defendants-Appellees.

–––––––––––––––––––––––––––––––––––––––––––––

FOR APPELLANT:                    Keith Richard Young, Stanley Law Offices, Syracuse, N.Y.

FOR APPELLEES:                    Lisa M. Robinson, Goldberg Segalla LLP, Syracuse, N.Y.


           Appeal from the United States District Court for the Northern District of New

York (Glenn T. Suddaby, J.).
       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment of the district court is VACATED, and the case is

REMANDED for further proceedings consistent with this order.

       Plaintiff-appellant Roger Lee Matheson, III was injured while working on an oil

drilling rig platform when a power tong crushed his hand. He filed suit against

defendants-appellees Damon Kitchen and Kitchen’s Power Tong Services, Inc., alleging

that Kitchen’s negligent operation of the tong caused his injury. Matheson now appeals

from an order of the district court granting summary judgment to defendants. We review

the grant of summary judgment de novo, resolving all ambiguities and drawing all

reasonable inferences in Matheson’s favor. See Townsend v. Benjamin Enters., Inc., 679

F.3d 41, 47 (2d Cir. 2012). An award of summary judgment is proper only if “there is no

genuine dispute as to any material fact” and movants are “entitled to judgment as a matter

of law.” Fed. R. Civ. P. 56(a); see Miller v. Wolpoff & Abramson, L.L.P., 321 F.3d 292,

300 (2d Cir. 2003). We assume the parties’ familiarity with the underlying facts and

procedural history.

       We conclude that the district court erred when it disregarded the testimony of

Matheson’s key fact witness, Jeffrey Beard, in evaluating defendants’ summary judgment

motion. The district court offered two rationales for disregarding Beard’s testimony.

First, although Matheson disclosed Beard’s name in his responses to defendants’

interrogatories, he failed to update those responses to provide Beard’s address and



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telephone number. The district court therefore precluded Beard’s testimony pursuant to

Federal Rules of Civil Procedure 26(e)(1)(A) and 37(c)(1).

       Under Rule 37(c)(1), a party who “fails to provide information or identify a

witness as required by Rule 26(a) or (e) . . . is not allowed to use that information or

witness to supply evidence on a motion . . . unless the failure was substantially justified or

is harmless.” We review the district court’s exclusion of testimony under Rule 37(c)(1)

for abuse of discretion. See Patterson v. Balsamico, 440 F.3d 104, 117 (2d Cir. 2006).

              In determining whether the district court acted within its
              discretion, this Court considers (1) the party’s explanation for
              the failure to comply with the disclosure requirement; (2) the
              importance of the testimony of the precluded witnesses; (3)
              the prejudice suffered by the opposing party as a result of
              having to prepare to meet the new testimony; and (4) the
              possibility of a continuance.

Id. (internal quotation marks and brackets omitted).

       In this case, defendants knew from Matheson’s interrogatory responses, submitted

more than eighteen months before they filed for summary judgment on September 8,

2011, that Beard had witnessed the accident; they learned from Matheson at his

deposition on May 6, 2010 that, according to plaintiff, Beard “saw the power tongs fall”;

and they knew that Matheson was in contact with Beard as early as September 1, 2010, a

full year before the motion was filed. Yet defendants apparently made no effort to locate

or contact Beard. Furthermore, after defendants complained of Matheson’s reliance on an

affidavit by Beard in opposition to their motion for summary judgment, the district court

allowed defendants to take Beard’s deposition at plaintiff’s expense and to supplement

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their motion to account for his testimony. In light of these events, defendants suffered no

prejudice as a result of Matheson’s failure to update his interrogatory responses with

Beard’s contact information. Defendants did not argue, following Beard’s deposition,

that further discovery was required based on his testimony, and they did not request an

additional continuance. Moreover, as Beard is an eyewitness to the accident, his

testimony is of prime importance. Accordingly, regardless of the adequacy of

Matheson’s explanation for failing to provide Beard’s contact information, the district

court exceeded its discretion when it precluded Beard’s testimony pursuant to Rule 37.

       Second, the district court relied on Jeffreys v. City of New York, 426 F.3d 549 (2d

Cir. 2005), to exclude Beard’s testimony on the ground that it was inherently unreliable.

We held in Jeffreys that a district court may disregard a plaintiff’s testimony at the

summary judgment stage where it is “so replete with inconsistencies and improbabilities

that no reasonable juror would undertake the suspension of disbelief necessary to credit

the allegations made in his complaint.” Id. at 555 (internal quotation marks omitted).

The facts in Jeffreys, however, were extreme. The Jeffreys plaintiff offered, for the first

time in litigation, a version of events that directly contradicted the account he had

previously and consistently provided, and that was inconsistent with all other evidence in

the record. In those circumstances – “where (1) the District Court found nothing in the

record to support plaintiff’s allegations other than plaintiff’s own contradictory and

incomplete testimony, and (2) the District Court, even after drawing all inferences in the

light most favorable to the plaintiff, determined that no reasonable person could believe



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Jeffreys’s testimony” – we held that the District Court did not err by awarding summary

judgment in defendants’ favor. Id. (internal quotation marks, brackets, and citation

omitted).

       The facts of this case are nothing like those in Jeffreys. In rejecting Beard’s

testimony, the district court relied on a number of relatively minor inconsistencies. For

example, Beard submitted an affidavit stating that he was perhaps 20 feet above the

platform at the time of the accident, and he later testified that he was about 25 to 30 feet

above it; he also testified both that the elevator was approximately five feet below him at

the time of the accident and that he did not know the exact distance between himself and

the elevator. Similarly, Beard gave differently worded descriptions, in response to

differently worded questions, of precisely what he saw when, according to him, the power

tong struck Matheson’s hand. Despite these variations in the details of his account, the

substance of Beard’s testimony cannot fairly be characterized as fundamentally

inconsistent or incoherent. Jeffreys does not authorize district courts to “engage in

searching, skeptical analyses of parties’ testimony in opposition to summary judgment.”

Rojas v. Roman Catholic Diocese of Rochester, 660 F.3d 98, 106 (2d Cir. 2011). While

some of the inconsistencies identified by the court below might well lead a jury to reject

the credibility of Beard’s testimony, they do not place this case among the “extraordinary

cases, where the facts alleged are so contradictory that doubt is cast upon their

plausibility,” id. (internal quotation marks omitted). The district court therefore erred

when it relied on Jeffreys to disregard Beard’s testimony.



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       Taking Beard’s testimony into account and construing all evidence in Matheson’s

favor, we conclude that genuine issues of material fact preclude a grant of summary

judgment. According to Kitchen, the tong crushed Matheson’s hand, not because of its

negligent operation, but because it was struck from above by the elevator. For purposes

of defendants’ summary judgment motion, we must disregard that testimony and instead

credit Beard’s assertion that the elevator was nowhere near the tong at the time of the

accident. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 151 (2000) (a

court adjudicating a summary judgment motion “must disregard all evidence favorable to

the moving party that the jury is not required to believe” and “give credence to the

evidence favoring the nonmovant”). A jury would be entitled to disbelieve Kitchen and

to credit Beard’s testimony that he observed Kitchen drop the tong onto Matheson’s hand

while “messing” with the levers that operate it. Therefore, defendants’ motion for

summary judgment should have been denied.

       Because we conclude that Beard’s testimony alone was sufficient to defeat the

motion for summary judgment, we need not address Matheson’s remaining claims, which

concern the admission of expert witness testimony pursuant to Federal Rule of Evidence

702. In any event, “[t]he admission and qualification of experts pursuant to Federal Rule

of Evidence 702 is in the broad discretion of the district court.” Stagl v. Delta Air Lines,

Inc., 117 F.3d 76, 81 (2d Cir. 1997).




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      For the foregoing reasons, the judgment of the district court is VACATED, and the

case is REMANDED for further proceedings consistent with this order.

                                       FOR THE COURT:
                                       Catherine O’Hagan Wolfe, Clerk of Court




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