                                                                                  FILED
                                                                      United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                          Tenth Circuit

                             FOR THE TENTH CIRCUIT                           April 29, 2016
                         _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
MIGUEL GUERRERO; EVA
GUERRERO,

      Plaintiffs - Appellants,

v.                                                         No. 15-6114
                                                    (D.C. No. 5:14-CV-00537-C)
JACOB MEADOWS; TRANSPORT                                   (W.D. Okla.)
AMERICA, a Minnesota corporation, a/k/a
Transport Corporation of America, Inc.,

      Defendants - Appellees.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before KELLY, PORFILIO, and BALDOCK, Circuit Judges.
                  _________________________________

      Plaintiff Miguel Guerrero was involved in an automobile accident with

defendant Jacob Meadows while Mr. Meadows was driving a tractor-trailer for

defendant Transport America. Mr. Guerrero and his wife, plaintiff Eva Guerrero,

filed a complaint in state court against Mr. Meadows and Transport America,

bringing claims of negligence and loss of consortium. Defendants removed the case

      *
        After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
submitted without oral argument. This order and judgment is not binding precedent,
except under the doctrines of law of the case, res judicata, and collateral estoppel. It
may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1
and 10th Cir. R. 32.1.
to federal court. A jury returned a verdict in favor of Mr. Guerrero, finding he was

45% negligent and defendants were 55% negligent. The jury awarded damages to

Mr. Guerrero, but did not award damages to Mrs. Guerrero on her loss-of-consortium

claim. Plaintiffs now appeal. We exercise jurisdiction over this diversity case

pursuant to 28 U.S.C. § 1291, and we affirm.

      I. Discussion

      On appeal, plaintiffs challenge the district court’s decisions to: (1) exclude

one of their proposed witnesses from testifying; (2) limit the examination time of a

hostile witness; and (3) exclude some testimony from Mr. Guerrero’s treating

physician. We review the district court’s evidentiary rulings for abuse of discretion.

Ridenour v. Kaiser-Hill Co., 397 F.3d 925, 939 (10th Cir. 2005). “An abuse of

discretion occurs when the district court’s decision is arbitrary, capricious, or

whimsical, or results in a manifestly unreasonable judgment.” United States v.

Weidner, 437 F.3d 1023, 1042 (10th Cir. 2006) (internal quotation marks omitted).

      A. Excluding Jason Swihart’s testimony

      Plaintiffs argue that the district court abused its discretion in excluding

Mr. Swihart as a witness. We disagree.

      The accident at issue in this case occurred on April 27, 2012. Plaintiffs

originally filed their complaint in state court on April 21, 2014. Defendants removed

the action to federal court shortly thereafter. On August 15, 2014, plaintiffs filed

their initial disclosures and generally identified emergency responders at the scene of

the accident as potential witnesses. Pursuant to the Scheduling Order entered on

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August 22, 2014, plaintiffs were to file their final witness lists by January 10, 2015.

In their final witness list, plaintiffs again generally identified firemen/flagmen on the

highway at the time of the accident as potential witnesses, but did not identify any

specific individuals.

      Plaintiffs did not notify defendants that they intended to call Mr. Swihart as a

witness until April 16, 2015, the day after the discovery deadline. At the time of the

accident in this case, Mr. Swihart was a volunteer fireman for the Hydro Fire

Department. He was one of the firemen that had responded to an earlier accident on

the same stretch of highway. He was acting as a flagman to slow down the traffic as

it approached the scene of the earlier accident and he allegedly observed the

subsequent accident that occurred between Mr. Guerrero and Mr. Meadows.

      Defendants filed a motion in limine to exclude Mr. Swihart from testifying. In

their motion, defendants argued that plaintiffs had failed to comply with the district

court’s Scheduling Order, which required that all witnesses be disclosed prior to the

discovery deadline or they would be excluded from testifying at trial. Defendants

further argued that plaintiffs had failed to comply with their duty under Rule 26 of

the Federal Rules of Civil Procedure to supplement their disclosures and identify

Mr. Swihart as a witness prior to the close of discovery and therefore he should be




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excluded from testifying pursuant to Rule 37(c)(1) of the Federal Rules of Civil

Procedure.1

       Plaintiffs responded that there was no surprise or prejudice to defendants by

the late addition of Mr. Swihart because both parties had identified

“firemen/flagmen” on their final witness lists and therefore “Defendants were aware

that all of the firemen and flagmen at the scene were potential witnesses.” Aplt. App.

at 150-51. Plaintiffs further asserted that they had just learned of Mr. Swihart’s

identity a week before the discovery cut-off.

       The district court granted defendants’ motion in limine and subsequently

denied plaintiffs’ motion to reconsider that decision. In considering the district

court’s decision on appeal, we concluded that the original order did not include a

sufficient explanation for this court to meaningfully review the district court’s

exercise of its discretion. We therefore directed a limited remand to the district court

to supplement its order granting the motion in limine. The district court filed a




       1
         A party is obligated to provide in its initial disclosures to the opposing party
the name of each individual “likely to have discoverable information . . . that the
disclosing party may use to support its claims.” Fed. R. Civ. P. 26(a)(1)(A). A party
must “supplement or correct its disclosure . . . in a timely manner if the party learns
that in some material respect the disclosure . . . is incomplete or incorrect, and if the
additional or corrective information has not otherwise been made known to the other
parties during the discovery process.” Id. 26(e)(1)(A). If a party fails to make
appropriate disclosures under Rule 26(a) or (e), “the party is not allowed to use that
information or witness . . . at a trial, unless the failure was substantially justified or is
harmless.” Fed. R. Civ. P. 37(c)(1).


                                              4
supplemental order and we gave the parties the opportunity to file supplemental

briefs addressing the district court’s supplemental order.

      In our limited-remand order, we asked the district court to address the four

factors identified in our decision in Woodworker’s Supply, Inc. v. Principal Mutual

Life Insurance Co., 170 F.3d 985, 993 (10th Cir. 1999), which guide the district

court’s discretion in this type of situation. Those factors are: “(1) the prejudice or

surprise to the party against whom the testimony is offered; (2) the ability of the

party to cure the prejudice; (3) the extent to which introducing such testimony would

disrupt the trial; and (4) the moving party’s bad faith or wilfullness.” Id.

      In its supplemental order, the district court found that the first factor favored

Mr. Swihart’s exclusion as a witness. The court explained that defendants were

prejudiced by the late disclosure of Mr. Swihart’s identity because it occurred after

the close of discovery thereby precluding defendants from obtaining discovery

related to Mr. Swihart. The court further explained that plaintiffs’ late disclosure of

Mr. Swihart’s identity less than a month before trial further compounded the

prejudice to defendants. The court noted plaintiffs’ argument that their identification

of firemen/flagmen as potential witnesses cut against the prejudice to defendants.

The court, however, disagreed with plaintiffs, explaining that defendants are not

obligated to interview every potential witness, but instead “are entitled to rely on

Plaintiffs, who have the burden of proof, to set forth those witnesses they intend to

call to satisfy their burden and then respond accordingly.” Supp. Order at 5.



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       The district court also found that the remaining factors favored Mr. Swihart’s

exclusion. The court explained that:

       Given the limited period of time between Plaintiffs’ late disclosure of
       Mr. Swihart as a witness and the scheduled trial date, and considering the
       other actions necessary for preparation of trial, there simply was
       insufficient time for Defendants to interview/and or depose Mr. Swihart in
       time to continue the trial as originally scheduled.
Id. The court further noted that:

       Diligent efforts by Plaintiffs would have identified Mr. Swihart in time for
       his listing on the January witness list. Plaintiffs had nearly nine months
       from the date this case was filed until that witness list was due to identify
       the witnesses on whom they were going to base their claims. If, indeed,
       Mr. Swihart was as central to their proof of liability as Plaintiffs suggest
       . . . , it certainly was incumbent upon them to secure his identity and make
       him known to all parties much earlier in this litigation.
Id. at 5-6. Finally, the court concluded that “the delay in investigating demonstrates

Plaintiffs’ willful failure to properly prepare and to present their case.” Id. at 6.

       In their supplemental brief, plaintiffs argue against the district court’s

characterization of their efforts to learn Mr. Swihart’s identity, asserting, among

other things, that the district court’s opinion of counsel’s investigation is “not

supported by the record.” Aplt. Supp. Br. at 1. Plaintiffs cite to their counsel’s

efforts to identify the volunteer firemen/flagmen as outlined in the record, but we

agree with the district court’s conclusion that they could have been more diligent in

their efforts to timely identify Mr. Swihart. Plaintiffs knew that the emergency

personnel at the scene were potential witnesses as noted in their initial disclosures on

August 15, 2014, but they waited until February 2, 2015, to request the incident

reports from the date of the accident from the Hydro Fire Department. There is

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nothing in the record to explain this almost six-month delay in investigating the

identity of these potential witnesses.

       Plaintiffs continue to assert in their supplemental brief that defendants were

not surprised or prejudiced by the late disclosure because defendants could have

investigated and learned the identity of Mr. Swihart. We note that plaintiffs received

the relevant Hydro Fire Department incident report on March 16, which identified the

ten firemen who were at the scene, but plaintiffs did not disclose the report to

defendants until April 10—five days before the discovery deadline—and did not

indicate at that time that they were planning on adding any witnesses. We agree with

the district court that defendants were not obligated to interview potential witnesses

when it was plaintiffs’ burden to identify and disclose their witnesses.

       Plaintiffs also argue that any prejudice could have been cured because there

was ample time for defendants to contact Mr. Swihart before trial, which they note

was almost thirty days later. The district court found, however, that there was

insufficient time for defendants to interview/depose Mr. Swihart and adequately

prepare for trial in time for the scheduled trial date. As the Supreme Court has

explained, we should afford broad discretion to a district court’s evidentiary rulings,

“[i]n deference to a district court’s familiarity with the details of the case and its

greater experience in evidentiary matters.” Sprint/United Mgmt. Co. v. Mendelsohn,

552 U.S. 379, 384 (2008). We defer to the district court’s greater familiarity with the

case regarding the time needed to prepare for trial with the addition of this new

witness and the resulting impact on the trial date.

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      Given the circumstances in this case and the district court’s reasoning in

support of its decision, we cannot conclude that the district court’s discretionary

decision to exclude Mr. Swihart was “arbitrary, capricious, or whimsical, or results in

a manifestly unreasonable judgment,” Weidner, 437 F.3d at 1042 (internal quotation

marks omitted).

      B. Limiting the time for examining Thomas McLoughlin

      At trial, plaintiffs called Thomas McLoughlin as a witness. Mr. McLoughlin

is the Director of Claims at Transport America. Defense counsel asked for a

conference with plaintiffs’ counsel and the court to inquire as to why

Mr. McLoughlin was being called as a witness. The court asked plaintiffs’ counsel to

explain his purpose in calling Mr. McLoughlin as a witness. Plaintiffs’ counsel

indicated that he wanted Mr. McLoughlin to summarize the contents of the

company’s internal investigation file in which the company determined that the

accident was preventable.

      The district court stated:

      This witness is not—is not meant to prove or disprove any issue relevant in
      this case, as I see it.
             The investigation is in as an exhibit. The jury will have that in the
      deliberation room. They don’t need somebody who was copied on an
      e-mail to summarize that exhibit for them.
Aplt. App., Vol. II at 412. The district court ultimately determined that plaintiffs’

examination of Mr. McLoughlin should be limited to five minutes “because he

doesn’t have any more than 5 minutes’ worth of stuff that’s relevant to say.” Id. at

413. Plaintiffs’ counsel then proceeded to question Mr. McLoughlin.
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      A district court “should exercise reasonable control over the mode and order of

examining witnesses and presenting evidence so as to . . . avoid wasting time.” Fed.

R. Evid. 611(a)(2). A district court also has discretion to exclude evidence “if its

probative value is substantially outweighed by a danger of . . . undue delay, wasting

time, or needlessly presenting cumulative evidence.” Fed. R. Evid. 403.

      Plaintiffs argue on appeal that the district court arbitrarily limited their

examination of Mr. McLoughlin and therefore they were unable to question him

about how the company determined the accident was preventable. Although the

district court limited the time of the examination, the court did not limit the subject

matter of plaintiffs’ questioning. Plaintiffs’ counsel examined Mr. McLoughlin but

did not ask him any questions regarding how the company arrived at its

preventability determination even though counsel had the opportunity to do so.

Because plaintiffs’ counsel indicated that Mr. McLoughlin would be summarizing the

investigation file, which itself was admitted as an exhibit, the district court did not

abuse its discretion in limiting the time of examination to avoid the needless

presentation of irrelevant or cumulative evidence.

      C. Excluding some of Dr. Michael Aaron’s testimony

      After the accident, Mr. Guerrero was seen by Dr. Aaron, his family physician,

and Dr. Anthony Vaughn, a neurologist. Dr. Aaron treated Mr. Guerrero for hand

and arm pain and headaches. Dr. Vaughn diagnosed and treated Mr. Guerrero for

two neurological conditions: trigeminal neuralgia and ulnar neuropathy.



                                            9
       Plaintiffs planned to introduce deposition testimony from Dr. Aaron at trial,

although they did not designate him as an expert witness. Defendants moved to

exclude some of Dr. Aaron’s testimony. The district court granted the motion in part

and excluded testimony from Dr. Aaron that: striking one’s face in an accident is

sufficient trauma to cause trigeminal neuralgia; Mr. Guerrero’s trigeminal neuralgia

and ulnar neuropathy were caused by the accident; and the treatment Mr. Guerrero

was receiving for his neurological conditions was proper. Plaintiffs argue on appeal

that the district court abused its discretion in excluding Dr. Aaron’s opinion as to the

causation of Mr. Guerrero’s trigeminal neuralgia.

      A treating physician does not need to be certified as an expert witness and may

testify as a lay witness “if he or she testifies about observations based on personal

knowledge, including the treatment of the party.” Davoll v. Webb, 194 F.3d 1116,

1138 (10th Cir. 1999). This is consistent with Rule 701(a) of the Federal Rules of

Evidence, which states that: “If a witness is not testifying as an expert, testimony in

the form of an opinion is limited to one that is . . . rationally based on the witness’s

perception.”

      Dr. Aaron treated Mr. Guerrero for headaches following the accident and the

district court allowed plaintiffs to introduce Dr. Aaron’s deposition testimony

relating Mr. Guerrero’s complaints of headaches and the need for headache

medication to the accident. But Dr. Aaron did not diagnose or treat Mr. Guerrero for

his neurological conditions—trigeminal neuralgia and ulnar neuropathy. Dr. Vaughn,

the neurologist who diagnosed and treated Mr. Guerrero for these conditions, was

                                            10
unable to conclude based on his treatment of Mr. Guerrero that the accident caused

these neurological conditions. Dr. Aaron’s opinion testimony about these

neurological conditions and their cause was speculative and not based on personal

knowledge or Dr. Aaron’s treatment of Mr. Guerrero. The district court therefore did

not abuse its discretion in excluding Dr. Aaron’s opinion testimony about

Mr. Guerrero’s trigeminal neuralgia and whether it was caused by the accident.

      II. Conclusion

      For the foregoing reasons, we affirm the district court’s judgment.

                                          Entered for the Court


                                          Bobby R. Baldock
                                          Circuit Judge




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