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Mullins v. Mayor and City Council of Baltimore

United States District Court, D. Maryland

March 1, 2017

JIMMY MULLINS, Plaintiff,
v.
MAYOR AND CITY COUNCIL OF BALTIMORE, Defendant.

          MEMORANDUM

          TIMOTHY J. SULLIVAN UNITED STATES MAGISTRATE JUDGE

         Plaintiff Jimmy Mullins (“Mullins”) has sued the Mayor and City Council of Baltimore (“the City”) for violations of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq. Mullins claims that the City wrongfully excluded him from overtime work because of his disability and failed to provide a reasonable accommodation for his disability. On August 11, 2016, the Court denied in large part the cross-motions for summary judgment. (ECF Nos. 51 & 52.) A jury trial is scheduled to begin on March 7, 2017. Now pending before the Court are the parties' motions in limine. I find that a hearing is unnecessary. Loc. R. 105.6. The motions are discussed in sequence below.

         I. Mullins' Motion in Limine to Exclude Experts Not Previously Identified

         Mullins moves to exclude four witnesses (“impeachment witnesses”) identified by the City in the parties' proposed pretrial order. (ECF No. 60.) The impeachment witnesses are physicians who “examined Plaintiff and had discussions with him regarding his medical condition and job functions.” (ECF No. 73 at 3.) Mullins first argues that the City was required to identify the witnesses under Rule 26(a), but he does not specify which subsection required this. Because the City does not intend to offer any of the witnesses as experts (see Id. at 1), only the disclosure provisions of Rule 26(a)(1) and 26(a)(3) are relevant. Although most of the parties' arguments are directed toward the requirements of Rule 26(a)(1), the scheduling order in this case provided that “[t]his is an action in which Fed.R.Civ.P. 26(a)(1) disclosures need not be made.” (ECF No. 20.) Accordingly, the City's witnesses cannot be excluded for noncompliance with Rule 26(a)(1). Similarly, Rule 26(a)(3) cannot serve as a basis to exclude the City's witnesses. By identifying its witnesses in the proposed pretrial order, the City complied with the requirements of the rule. (See ECF Nos. 55 & 65); see also Fed. R. Civ. P. 26(a)(3)(B) (“Unless the court orders otherwise, these disclosures must be made at least 30 days before trial.”). There are no grounds under Rule 26(a) to exclude the City's impeachment witnesses.[1]

         In his reply, Mullins argues for the first time that the witnesses must also be excluded under Rule 26(b)(1). During discovery, Mullins propounded an interrogatory that asked the City to “[i]dentify each person who has knowledge of any material facts relating to this action and state the subject matter of the information possessed by each person identified.” (ECF No. 74 at 2.) Mullins states that the City should have identified the impeachment witnesses in response to this interrogatory. (Id.) Presumably because this argument was raised for the first time in Mullins' reply, the City does not explain why it failed to identify the impeachment witnesses in its discovery responses.

         The Court will construe Mullins' motion as a motion for sanctions under Rule 37(c). In pertinent part, this rule provides that if a party fails to identify a witness as required by Rule 26(e), [2] the party may not call that witness at trial unless their failure was substantially justified or harmless. Having determined that the City failed to identify the impeachment witnesses, I must determine whether any sanction under Rule 37(c)(1) would be appropriate. See Southern States Rack and Fixture, Inc. v. Sherwin-Williams, Co., 318 F.3d 592, 595 (4th Cir. 2003). To determine whether the City's untimely disclosures were substantially justified or harmless, I turn to the factors set forth in Southern States.

[I]n exercising its broad discretion to determine whether a nondisclosure of evidence is substantially justified or harmless for purposes of a Rule 37(c)(1) exclusion analysis, a district court should be guided by the following factors: (1) the surprise to the party against whom the evidence would be offered; (2) the ability of that party to cure the surprise; (3) the extent to which allowing the evidence would disrupt the trial; (4) the importance of the evidence; and (5) the nondisclosing party's explanation for its failure to disclose the evidence.

318 F.3d at 597.

         The first factor weighs against Mullins because he cannot be surprised by the existence of the impeachment witnesses. The only personal knowledge the witnesses have relating to this case is derived from their physical examinations of Mullins. Unlike cases where a party is surprised to learn of surveillance footage or a private investigator, Mullins cannot be surprised that these witnesses exist because he was examined by them. The second and third factors also weigh against Mullins. Because the Court will direct the City to produce to Mullins any reports prepared by the impeachment witnesses-if any such reports exist-any surprise that Mullins might suffer will be cured and there will be no disruption at trial. The fourth factor does not favor either party because if the impeachment witnesses are used, they will only be used for impeachment. It is impossible to determine the importance of impeachment evidence in the abstract. The last factor weighs against the City because it did not explain why it failed to identify the impeachment witnesses in connection with Mullins' interrogatory. But, as noted above, Mullins made this argument for the first time in his reply, so the City's opportunity to respond was somewhat curtailed. Having considered all of these factors, I find that the City's failure to timely identify the impeachment witnesses is harmless. However, in order to ensure that Mullins is not prejudiced, the City will be required to disclose any reports prepared by the impeachment witnesses in connection with their examination of Plaintiff by the close of business on March 3, 2017. Mullins' motion (ECF No. 60) is DENIED.

         II. Mullins' Second Motion in Limine (Corrected)

         Mullins moves to preclude the City “from asserting the affirmative defense that Plaintiff posed a direct threat and significant risk to self and others.” (ECF No. 63.) A defendant charged with discrimination under the ADA may raise an affirmative defense that the individual with a disability failed to meet the “qualification standards” for the position. 42 U.S.C. § 12113. “Qualification standards” under the ADA “may include a requirement that an individual shall not pose a direct threat to the health or safety of other individuals in the workplace.” Id.; see also Chevron U.S.A. Inc. v. Echazabal, 536 U.S. 73, 78 (2002) (noting that the ADA “creates an affirmative defense for action under a qualification standard”). A “direct threat” is a “significant risk to the health or safety of others than cannot be eliminated by reasonable accommodation.” 42 U.S.C. § 12113(3).

         Rule 8(c) requires a party to plead any affirmative defense in their answer. However, “even if a party fails to plead an affirmative defense, the opposing party still must show ‘prejudice or unfair surprise' before waiver will be enforced.” Crump v. TCoombs & Assocs., LLC, No. 13-707, 2016 WL 6948670, at *2 (E.D. Va. Feb. 12, 2016) (quoting RCSH Operations, L.L.C. v. Third Crystal Park Assocs. L.P., 115 Fed.Appx. 621, 630 (4th Cir. 2004)); see also Patten Grading & Paving, Inc. v. Skanska USA Bldg., Inc., 380 F.3d 200, 205 n.3 (4th Cir. 2004)(“[I]t is well established that an affirmative defense is not waived absent unfair surprise or prejudice.”).

         Mullins argues that allowing the City to assert this defense at such a late stage would put him at a disadvantage. Had he known that the City was asserting such a defense, Mullins argues, he would have “explored Defendant's claim during the discovery process.” (ECF No. 74 at 3-4.) Mullins claims that the “prejudice is self-evident.” (Id.) I am not persuaded that there is any prejudice to Mullins. In fact, this very issue was discussed in the Court's opinion on the parties' cross-motions for summary judgment. In pertinent part, that opinion stated:

The City argues that no reasonable accommodation could eliminate the direct threat that Mullins poses to the health and safety of himself and others during overtime work. (ECF No. 34-1 at 17.) The City never endeavors to explain this point. An individual who “poses a direct threat to the health or safety of others because of his disability that reasonable accommodation cannot eliminate” may not be a “qualified individual.” Champ v. Baltimore Cty., 884 F.Supp. 991, 998 (D. Md. 1995); see also A Helping Hand, LLC v. Baltimore County, MD, No. CCB-02-2568, 2006 WL 2067942, at *1 (D. Md. July 14, 2006). A direct threat is “significant risk to the health or safety of others that cannot be eliminated by reasonable accommodation.” 42 U.S.C. § 12111(3). The EEOC's regulations provide that an employer must consider several factors in determining whether an individual poses a direct threat:
(1) The duration of the risk;
(2) The nature and severity of the ...

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