Barrett v. ASARCO Inc., 87-303

• Decision Date: 11 October 1988
• Docket Number: No. 87-303,87-303
• Citation: 234 Mont. 229,763 P.2d 27,45 St.Rep. 1865
• Parties: Robert P. BARRETT, Plaintiff and Respondent, v. ASARCO INCORPORATED, a New Jersey corporation, and Robert D. Hearst, Defendants and Appellants.
• Court: Montana Supreme Court

Page 27

763 P.2d 27

234 Mont. 229

Robert P. BARRETT, Plaintiff and Respondent, v. ASARCO INCORPORATED, a New Jersey corporation, and Robert D Hearst, Defendants and Appellants.

No. 87-303.

Supreme Court of Montana.

Submitted June 21, 1988.

Decided Oct. 11, 1988.

Holland & Hart, James A. Ragain and Kyle A. Gray, argued, Billings, for defendants and appellants.

Gene A. Picotte and Robert M. Kampfer, argued, Clancy, for plaintiff and respondent.

GULBRANDSON, Justice.

ASARCO appeals a Lewis and Clark County District Court order denying ASARCO's motion for a new trial. We reverse and remand for a new trial.

Robert P. Barrett (Barrett) was employed by ASARCO for fifteen years and five months. He held a managerial position as a shift foreman since 1973. On November 26, 1983, Barrett injured his back in a work related accident at ASARCO's East Helena plant. ASARCO paid Barrett his full salary and reimbursed Barrett for medical expenses from the date of the injury until May 8, 1984, when Barrett's employment was terminated.

ASARCO met with Barrett on May 8, 1984. At that meeting, the plant superintendent, Robert Hearst, confronted Barrett with information received from another ASARCO employee, namely, that Barrett had been observed unloading hay bales at the Helena Fairgrounds while he continued to receive full salary from ASARCO for his earlier back injury. Barrett denied any involvement in unloading hay bales, and he was subsequently fired for lying to ASARCO about his physical activities.

Barrett filed this action on May 7, 1985, alleging that ASARCO had breached the implied covenant of good faith and fair dealing in the context of an employment relationship. The District Court set October 31, 1986 as the deadline for answers to interrogatories, with all discovery to be completed by November 3, 1986. On December 16, 1986, ASARCO learned the names of six witnesses who allegedly had information about various incidents of dishonesty by Barrett during his employment and within three years of his termination date. These incidents allegedly included lying to superiors about sleeping on shift and about taking sick leave, stealing several hundred dollars worth of tools and equipment from ASARCO, and requesting one of his crew members to also steal for him. Consequently, twenty-four days prior to trial, on January 8, 1987, ASARCO supplemented its interrogatories and witness list to include the names of these six witnesses.

On January 13, 1987, Barrett moved in limine to exclude this evidence on the grounds that the testimony was irrelevant and disclosed after the discovery deadline. Thereafter, ASARCO offered to let Barrett depose each of the new witnesses and to order expedited transcripts, both at ASARCO's expense. Barrett's attorney initially accepted this offer but then cancelled the depositions, moving instead to exclude this new evidence. On January 28, 1987, the District Court ruled that Barrett was not prejudiced by ASARCO's late disclosure of additional witnesses and service of supplemental interrogatory answers, ruling that:

1. ASARCO was not aware of the identity of the witnesses before the discovery deadline;

2. the supplemental answers were served twenty-four days before trial;

3. Barrett had an opportunity to depose the witnesses at ASARCO's expense but declined to do so;

4. Barrett did not move for a continuance. (Emphasis theirs.)

Consequently, the District Court denied Barrett's motion in limine without prejudice.

Barrett renewed its motion in limine on February 1, 1987, the day before trial, asserting that ASARCO knew of the witness testimony over five months before the discovery deadline. On February 3, 1987, two days into the trial, the District Court granted this motion in limine, barring the alleged evidence of employee misconduct.

The jury trial commenced on February 2, 1987. On February 10, 1987, the jury returned a verdict in favor of the plaintiff in the amount of $338,500 in compensatory damages and $75,000 in punitive damages.

On February 17, 1987, Cheryl Lynn Uphaus (Uphaus), a person omitted from Barrett's interrogatory answers as a person with knowledge relevant to the case, contacted ASARCO claiming knowledge allegedly illustrating that the jury verdict clearly was erroneous. ASARCO subsequently met with Uphaus and she signed a sworn statement concerning a conversation she overheard and activities she observed Barrett engage in during his disability leave from ASARCO. These alleged activities appeared inconsistent with a severe back injury. She alleged that she had overheard Mike Barrett, a fellow foreman at ASARCO, tell his brother Robert Barrett not to haul or unload hay anymore. In response, Barrett allegedly told his brother that he could continue to haul hay if he concealed his activities from ASARCO.

On February 25, 1987, ASARCO moved for a new trial alleging that it was deprived of a fair trial because of the District Court's exclusion of witness testimony about previous alleged incidents of Barrett's dishonest dealings with ASARCO. Additionally, ASARCO asserted that the newly discovered information from Uphaus merited a new trial.

The District Court denied ASARCO's motion for a new trial and this appeal followed. ASARCO raises the following two issues:

1. Did the District Court err and abuse its discretion by excluding testimony concerning incidents of respondent Barrett's alleged dishonesty with ASARCO?

2. Did the District Court abuse its discretion by refusing to grant appellant ASARCO a new trial based on:

(a) Barrett's failure to disclose the name of Cheryl Lynn Uphaus in response to ASARCO's discovery requests; and

(b) the newly discovered evidence from Uphaus?

I. ISSUE ONE

The District Court barred the evidence of Barrett's alleged employment dishonesty on the following five grounds:

(a) ASARCO may well have had knowledge of some of the matters prior to the discovery cut-off date.

(b) the instances of conduct which are the subject of the testimony are too remote in time to be of any probative value;

(c) the instances of conduct had nothing to do with the termination of Barrett's employment;

(d) the relevancy of the instances of conduct is remote and the prejudicial effect of the evidence outweighs its probative value; and

(e) allowing the testimony would lead to "mini trials" concerning the merits of the allegations made by the witnesses.

This opinion will address each of the District Court's five grounds for excluding the evidence of Barrett's alleged employee misconduct.

A. LATE DISCLOSURE

The District Court's first reason for excluding ASARCO's offered evidence was that ASARCO made a late disclosure of the witnesses who would testify as to Barrett's alleged employee misconduct. Rulings on the admissibility of evidence are within the discretion of the district court. Rule 104, M.R.Evid.; Cooper v. Rosston (Mont.1988), 756 P.2d 1125, 1127, 45 St.Rep. 978, 981. We will not reverse a district court's ruling on the admissibility of evidence unless we determine that the district court abused its discretion. Cooper, 756 P.2d at 1127, 45 St.Rep. at 981.

This Court has noted that the district court has the discretion to control discovery activities. State of Oregon ex rel. Worden v. Drinkwalter (Mont.1985), 700 P.2d 150, 152, 42 St.Rep. 599, 601. It is also within the district court's discretion to decide what sanctions are to be imposed on a party who fails to comply with discovery rules. Sikorski v. Olin (1977), 174 Mont. 107, 111, 568 P.2d 571, 573.

In Sikorski, the trial court allowed Sikorski to amend one answer to an interrogatory on the day of trial. On appeal, Olin contended that he was surprised and prejudiced by the trial court's decision to allow Sikorsky to amend his interrogatories on the day of trial. This Court found it noteworthy that Olin did not request a continuance on the ground of surprise or undue advantage and opined that the failure to request a continuance constituted a waiver by Olin to claim any error on appeal. Sikorsky, 568 P.2d at 573.

Barrett asserts that, had the District Court allowed the evidence, he would have been prejudiced because the necessary preparation to defend the accusations of employee dishonesty "would require more work than the main case." No facts exist, however, which support Barrett's contention that he would have been prejudiced. ASARCO gave notice of the new witnesses and the content of their testimony nearly a month before trial. ASARCO also offered to promptly have the new witnesses deposed at its expense. Yet, Barrett refused ASARCO's offer to bear the expenses of depositions and expedited transcripts and also failed to request a continuance. Barrett may not claim prejudice given these facts.

Barrett's claim that ASARCO knew five months before the discovery deadline of the existence of witnesses who might testify to Barrett's alleged employee misconduct similarly fails to merit an exclusion of the evidence. The exclusion of evidence for noncompliance with discovery rules is a harsh remedy. Wolfe v. Northern Pacific Railway Co. (1966), 147 Mont. 29, 40-41, 409 P.2d 528, 534. Wolfe sets forth the following relevant language with regard to this issue:

Rule 33, M.R.Civ.P., authorizing the use of interrogatories for purposes of pre-trial discovery from any "adverse party," although liberally construed to make all relevant facts available to parties in advance of trial and to reduce the possibilities of surprise and unfair advantage [citation omitted], cannot become a weapon for punishment or forfeiture in the hands of a party, or an instrument for avoidance of trial on the merits. The rule, in conjunction with other discovery and pre-trial procedures, has been designed to secure a just, speedy and inexpensive determination of actions, and to assure that a judgment be given on the facts as they actually exist. [Citation omitted.] Even though under Rule 37, sanctions may be imposed upon a party...