Cruz v. Bristol Myers Squibb Co. Pr Inc.

• Citation: 777 F.Supp.2d 321
• Decision Date: 15 April 2011
• Docket Number: Civil No. 08–1424 (FAB).
• Parties: Cesar CRUZ, et al., Plaintiffs,v.BRISTOL MYERS SQUIBB COMPANY PR, INC., et al., Defendants.
• Court: U.S. District Court — District of Puerto Rico

777 F.Supp.2d 321

Cesar CRUZ, et al., Plaintiffs,

v.BRISTOL MYERS SQUIBB COMPANY PR, INC., et al., Defendants.

Civil No. 08–1424 (FAB).

United States District Court, D. Puerto Rico.

April 15, 2011.

Frank E. Laboy–Blanc, Humacao, PR, for Plaintiffs.Ana B. Rosado–Frontanes, Lourdes C. Hernandez–Venegas, Schuster & Aguilo LLP, San Juan, PR, for Defendants.

OPINION AND ORDER

BESOSA, District Judge.

On January 11, 2011, defendants Bristol Myers Squibb Company PR, Inc., Bristol Myers Squibb MFG., Inc., and BMS Severance Plan (collectively “Bristol Myers”) filed a motion for summary judgment. (Docket No. 94.) On January 23, 2011, plaintiff Cesar Cruz (“Cruz”) filed an opposition to defendants' motion. (Docket No. 110.) Defendants replied to plaintiff's opposition on February 4, 2011. (Docket No. 125.) On February 22, 2011, plaintiff filed his reply. (Docket No. 137.)

I. Defendants' Motions to Strike

On February 1, 2011, defendants Bristol Myers filed a motion to strike three of plaintiff's exhibits to his opposition to defendants' motion for summary judgment. (Docket No. 124.) Plaintiff Cruz filed a motion in opposition to defendants' motion to strike on February 22, 2011. (Docket No. 136.) Defendants Bristol Myers replied to plaintiff's motion in opposition on March 2, 2011. (Docket No. 145.)

Defendants also filed a motion to strike plaintiff's untimely announcement of witnesses and second set of interrogatories and request for production of documents on November 19, 2010. (Docket No. 73.) Plaintiff opposed the motion and requested declaratory judgment on December 13, 2010. (Docket No. 76.) Defendants filed their reply and opposition to plaintiff's motion on December 22, 2010. (Docket No. 79.) Plaintiff filed a response on January 5, 2011. (Docket No. 89.)

The Court first addresses defendants' motion to strike plaintiff's exhibits, then moves on to defendants' motion to strike the announcement of witnesses and second set of interrogatories, as well as plaintiff's motion for declaratory judgment.

Defendants request the Court either to strike or disregard completely three of plaintiff's exhibits to his opposition to defendants' motion for summary judgment. (Docket No. 124 at 2.) Specifically, defendants allege that two of the exhibits, Disparate Impact Analysis Phase A and Phase B, were not previously disclosed to defendants prior to the discovery deadline set by this Court in its scheduling order for November 9, 2010. (Docket No. 42 at 8.) Defendants further allege that plaintiff's use of a declaration by Louis Merced–Torres (“Merced”) was improper and should be stricken or disregarded by the Court because it constitutes a sham affidavit. (Docket No. 124 at 7.)

A. Motion to Strike Disparate Impact Analysis Phase A and Phase B

Defendants ask the Court to strike or disregard plaintiff's exhibits at Docket Nos. 110–6 and 110–7 because they were not properly disclosed to defendants during the discovery process in violation of Rule 26, which mandates parties to disclose, among other things, copies “of all documents ... [the party] may use to support its claims or defenses, unless the use would be solely for impeachment.” Failure to make appropriate discovery disclosures as required by Rule 26 results in the failing party's inability “to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless.” Fed.R.Civ.P. 37(c)(1). Defendants also maintain that the documents are unauthenticated and irrelevant. (Docket No. 124 at 3–4.) Plaintiff does not dispute that the documents were not sent to defendants prior to the discovery deadline, but claims that counsel for plaintiff sent a letter to defendants' counsel, prior to the discovery deadline of November 9, 2010, notifying them that there was a “predicament regarding the payment of an expert and that [they] would be using a model software until the trial.” (Docket No. 136 at 6.) Plaintiff claims that he received no response to this communication, and sent another communication, dated October 10, 2010, notifying defendants that plaintiff had uncovered information of “reduction in force data” which “casts doubt as to information given ... by [defendant] and will likely trigger another interrogatory on our part.” (Docket No. 136–3.) Defendants assert that counsel for defendants never received the initial letter, and that the letter is irrelevant, because the duty to authenticate the documents remains with the party moving to admit them as evidence, which plaintiff failed to do. (Docket No. 145 at 3.) Plaintiff maintains that the documents will be authenticated by an expert at trial (Docket No. 136 at 6); defendants claim, however, that no expert has ever been disclosed to defendant. (Docket No. 124 at 4).

Pursuant to Rule 26(a) and the Court's Scheduling Order, filed on February 10, 2010, the parties were under a continuing obligation to complete all discovery by November 9, 2010. See Docket No. 42 at 8. Rule 37(c) clearly states that “[i]f a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless.” Defendants maintain, and plaintiff does not dispute, that plaintiff did not disclose the Disparate Impact Analysis Phase A and Phase B to defendants at any time prior to the discovery deadline, or that any expert report regarding the documents has been disclosed to defendants. Thus, plaintiff's exhibits may be used to support his opposition to defendant's motion for summary judgment only if plaintiff's failure to disclose can be deemed “substantially justified” or “harmless.” Fed.R.Civ.P. 37(c).

Plaintiff's primary argument in favor of using the exhibits in support of his motion is that plaintiff asked defendants whether “using of the program used in Exhibits 4a and 4b ... was acceptable and received no objection.” (Docket No. 136 at 7.) Plaintiff further maintains that he was “forced to forego an expert's report because he could not pay for one.” Id. Rule 26(a) is unambiguous in mandating that a party must provide documents in support of its claims or defenses to other parties prior to the discovery deadline. Fed.R.Civ.P. 26(a)(1)(A)(ii). The rules also require a party to disclose the identity of expert witnesses and submit an expert report, containing, among other things, a summary of the witness's expected testimony. Id. 26(a)(2). Plaintiff delayed in providing the documents to defendants until well after the discovery deadline, which was set for November 9, 2010. (Docket No. 42.) The first time defendants claimed to have seen the documents, which plaintiff does not dispute, was when plaintiff attached them to his opposition to defendants' motion for summary judgment, on January 23, 2011. See Docket No. 124. As of this date, plaintiff still has not provided an expert report. Plaintiff's failure to disclose this information means that plaintiff is not permitted to use this evidence in support of its motion “unless the failure was substantially justified or is harmless.” Fed.R.Civ.P. 37(c)(1). The First Circuit Court of Appeals has held that Rule 37(c), though traditionally used to bar introduction of evidence or expert testimony at trial, “applies with equal force to motions for summary judgment.” Lohnes v. Level 3 Communications, Inc., 272 F.3d 49, 60 (1st Cir.2001) (granting defendant's motion to strike and excluding expert's affidavit at summary judgment stage where it was not adequately disclosed by plaintiff during the discovery process.) Plaintiff's failure to disclose the disparate impact analyses and an expert report regarding the analyses during the discovery process prevented defendants from conducting appropriate discovery regarding the analyses and deprived defendants “of the opportunity to depose the proposed expert, challenge his credentials, solicit expert opinions of its own, or conduct expert-related discovery.” Id. (holding that “[t]his is exactly the type of unfair tactical advantage that the disclosure rules were designed to eradicate.”) Plaintiff fails to provide any justifiable explanation for his failure to produce adequate discovery, and the prejudice to defendant is obvious. Accordingly, defendants' motion to strike the disparate impact analyses is GRANTED.

B. Motion to Strike Louis Merced's Affidavit

Defendants next request that the Court strike Exhibit 3 of plaintiff's motion in opposition to defendants' motion for summary judgment, alleging that the exhibit, which is a sworn declaration by Merced, is a sham affidavit. See Docket No. 110–5. Merced was deposed on October 28, 2010. (Docket No. 124–1.) He testified, among other things, (1) that he was employed as a mechanic, not a lead technician; (2) that plaintiff filed an application for continued work with defendant; and (3) that he lacked knowledge of the requirements to be a corrective maintenance mechanic. Id. The affidavit which plaintiff seeks to admit, states, in contravention to Merced's deposition testimony, (1) that Merced worked as a lead technician; (2) that plaintiff was not allowed to file an application for continued work with defendant; and (3) that certain individuals lacked the requirements to be called a mechanic. (Docket No. 110–5.) Plaintiff alleges that the affidavit should be admitted because it was created prior to Merced's deposition, it was made part of the record during Merced's deposition, and it “was the basis of defendant's deposition” of Merced. (Docket No. 136 at 1.) Defendants point out, however, that the affidavit used during Merced's deposition was a different document than the one plaintiff seeks to introduce into evidence now. (Docket No. 145.) While much of the language in the two documents is similar, defendants are correct that the...