Gaines et al v. Moore City of et al

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
BRYAN GAINES, in his individual,
capacity as Personal Representative of
the Estate of Emily Gaines, et al.,
Plaintiff,
v.
CITY OF MOORE, et al.,
Defendants.
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Case No. CIV-20-851-D
ORDER
Before the Court is Defendant City of Moore’s (the “City” or “Moore”) Motion to
Strike Affidavit of David Roberts and/or Motion for Sanctions [Doc. No. 106]. Plaintiffs
filed a response [Doc. No. 110], and the City replied [Doc. No. 111]. The matter is fully
briefed and at issue.
BACKGROUND
This case stems from a tragic car accident. On the morning of December 14, 2019,
Kyle Lloyd, a Moore police officer, was at home when he received a phone call from
another officer who had locked his keys in his police car. That officer told Mr. Lloyd to
bring a spare key to a Chick-Fil-A in Moore and that he needed to hurry. Mr. Lloyd left his
home in his personal vehicle. While driving to Chick-Fil-A, Mr. Lloyd exceeded the posted
speed limit of 50 miles per hour. As Mr. Lloyd approached the intersection of South Sooner
Road and SE 134th St., he was traveling 94 miles per hour. Before Mr. Lloyd reached the
intersection, he applied his brakes. Unfortunately, Mr. Lloyd collided with a vehicle driven
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by Emily Gaines, who was on her way to take the ACT college admission exam. At the
moment of the collision, Mr. Lloyd was travelling 77 miles per hour. Ms. Gaines died at
the scene of the accident.
Plaintiffs filed this suit against the City, Todd Strickland, Jerry Stillings, Todd
Gibson, and Mr. Lloyd. Plaintiffs seek to hold the City liable pursuant to 42 U.S.C. § 1983
on a theory of municipal liability. On June 3, 2022, the Court dismissed Plaintiffs’ claims
against Mr. Strickland, Mr. Stillings, and Mr. Gibson. See 6/3/2022 Order [Doc. No. 41].
In the same order, the Court held that Plaintiffs failed to “state a plausible municipal
liability claim on the basis of formal policies or widespread customs” and failed to “state a
plausible municipal liability claim on the basis of a deliberately indifferent failure to train.”
Id. at 6-7; 9-10. The Court also dismissed Plaintiffs’ claim against the City for negligent
hiring, training, supervision, and retention. Id. at 11. However, the Court held that
Plaintiffs’ claim “based on the City’s deliberately indifferent failure to supervise . . . is the
only plausible basis for Plaintiffs’ municipal liability claim.” Id.
On August 11, 2023, the City filed a motion for summary judgment [Doc. No. 96].
Plaintiffs responded on September 14, 2023 [Doc. No. 103].1 Plaintiffs attached to their
response an affidavit from Officer David Roberts, an Oklahoma City police officer, the
substance of which is set forth in full below:
1 Mr. Lloyd also filed a response to the City’s motion for summary judgment, but his
response is not relevant for purposes of the instant Motion.
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Pls.’ Resp. to Mot. Summ. J., Ex. 11 [Doc. No. 103-11]. The affidavit lends support to
Plaintiffs’ allegation that Mr. Lloyd had previously been pulled over in a personal vehicle
travelling 127 mph—an allegation that, until Officer Roberts’ affidavit, had been largely
unsubstantiated.
On September 21, 2023, the City filed the instant Motion, in which it seeks an order
striking Officer Roberts’ affidavit and/or sanctioning Plaintiffs for their failure to disclose
Officer Roberts as a witness.
DISCUSSION
The City’s primary issue with Officer Roberts’ affidavit is Plaintiffs’ alleged failure,
over the duration of this lawsuit, to disclose Officer Roberts as a potential witness or
disclose the specific details included in his affidavit. The City argues that at the heart of
I David Ro herts} having been duly sworn upon rny oath, do hc.t-cby depose and state upon my oatb
under penalty of perjury as follows:
1. 	I 	David Roberts, am a police officer with the City of Oklaholrul C" 	Po)ice
D epatttnent.
2 	I :routin y pat:ro the streets of Oklahoma Gey, including Sooner Road, as part of my
duties as a. police offi.cet.
3. 	Fart of my duties as a police officer is the enforcement traffic faws.
4. 	That several years before December 14~ 2019, I did pull! over a City of Moote Police
Officer driving what appea.ted to be a persorutl vehicle. The traffic stop was initiated because !the patrol.
:rada1: • clicat d a vehicle speed well over 100 Jv[PH on Sootlet; Roi\d. TI1e po.s ed spe-od. 'mit is 50
MPH in this area of S. Sooner Road. Thfa occut:te 	h1 Clevdand County., in Oklahoma City.
5. 	1 is.s ed a verb ru. warning. As a courtesy, I did. not is.sue him a citation.
6. 	At Kyi1e Llo,yd's criminal proceeding; well after 	, e ,vreck with Emily Gaines, I
n.:oogoizcd Kyle Uoyd , the .ti. 001ce Police Officer l had stopped tha t dai on S. Soonc.dload, for
ex:ceedit g l O l\.fPH.
7.. 	I did notify the lead investigating offk.et. Mark Sexto ) of this fact.
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Plaintiffs’ claims is an allegation that Mr. Lloyd was previously pulled over in his personal
vehicle travelling 127 mph. Despite that being at the heart of Plaintiffs’ claims, and despite
Plaintiffs’ counsel stating that they had the “officer that pulled [Mr. Lloyd] over who states
it was 127 miles per hour,” Plaintiffs never disclosed Officer Roberts or his expected
testimony in discovery responses or in their final witness list. It appears the City’s
argument, at its essence, is that Plaintiffs intentionally withheld known information, only
to spring that information on the City after discovery has closed and the City’s summary
judgment motion has been finalized and filed.
In response, Plaintiffs argue that, although the City might not have known the exact
identity of Officer Roberts or the precise scope of his testimony, it knew the important
pieces. Indeed, Plaintiffs argue that the only pieces of information in Officer Roberts’
affidavit unknown to the City before Plaintiffs’ response brief was filed were Officer
Roberts’ exact identity—as opposed to a “police officer”—and that Mr. Lloyd was
allegedly pulled over while driving over 100 mph—as opposed to merely being pulled over
for speeding. Plaintiffs further argue that, despite knowing that Plaintiffs had the police
officer who pulled Mr. Lloyd over while allegedly driving 127 mph, the City took no action
to ascertain Officer Roberts’ identity or the totality of his testimony. In any event, Plaintiffs
argue that their failure to disclose Officer Roberts was unintentional and any prejudice to
the City can be cured. Plaintiffs also ask the Court for leave to file an amended final witness
list that includes Officer Roberts.
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I. 	The Court will not strike Officer Roberts’ affidavit.
FED . R. CIV . P. 26(a) requires a party to, “without awaiting a discovery request,
provide to the other parties: (i) the name and, if known, the address and telephone number
of each individual likely to have discoverable information—along with the subjects of that
information—that the disclosing party may use to support its claims or defenses, unless the
use would be solely for impeachment.” And F ED . R. CIV . P. 26(e) states that a “party who
has made a disclosure under Rule 26(a)—or who has responded to an interrogatory, request
for production, or request for admission—must supplement or correct its disclosure or
response: (A) in a timely manner if the party learns that in some material respect the
disclosure or response 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 or in writing.”
The Rules provide for a party’s failure to comply with the above-quoted sections of
Rule 26. FED . R. CIV . P. 37(c)(1) 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.” Rule 37(c)(1) goes on to state that, in
addition to or instead of precluding a party from using evidence, the Court may, among
other things, “order payment of the reasonable expenses, including attorney's fees, caused
by the failure.”
Relying on F ED . R. CIV . P. 37(c)(1), the City argues that the “prejudicial effect of
allowing Plaintiffs to submit Officer Roberts’ affidavit cannot be understated.” Mot. to
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Strike at 7.2 The City claims that, had it known about Officer Roberts’ expected testimony,
it would have “issued additional discovery requests, subpoenaed additional third-parties,
asked different questions at (presumably) every deposition, taken additional persons’
depositions, and included additional information in its Motion for Summary Judgment.”
Id. The City further claims that the prejudice it has suffered is uncurable, largely due to the
fact that it has divulged its defense strategy via its motion for summary judgment. Id. at 7-
8. The City, thus, asks the Court to strike Officer Roberts’ affidavit from the record or,
alternatively, to sanction Plaintiffs. Id. at 9.
In response, Plaintiffs offer a different story. Plaintiffs admit that they failed to
disclose Officer Roberts in discovery, but they argue that their failure was not in bad faith
and any resulting prejudice to the City can be cured. Further, Plaintiffs argue that their
“position and independent facts underlying Roberts’ testimony has been known to [the
City] since the early stages of this litigation.” Pls.’ Resp. to Mot. to Strike at 	4. Indeed,
Plaintiffs argue that the only new information revealed by Officer Roberts’ affidavit is: (1)
his identity, as opposed to an unknown police officer; and (2) that Mr. Lloyd was travelling
over 100 mph, as opposed to simply speeding. Id. at 3-5. With that in mind, Plaintiffs
contend that the City “was aware that Plaintiff[s] knew of and intended to call the officer
who previously pulled Lloyd over,” but did nothing to further discover information relevant
to that traffic stop. Id. at 7.
2 All citations to pages in pleadings are to the ECF file-stamped page number at the top of
each page.
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After careful consideration of the parties’ positions, the Court declines to strike
Officer Roberts’ affidavit, despite Plaintiffs’ clear failure to disclose Officer Roberts at
numerous points during this case. In considering whether Plaintiffs’ failure to disclose
Officer Roberts is substantially justified or harmless, the Court looks to four factors: “(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 willfulness.” Woodworker’s Supply,
Inc. v. Principal Mut. Life Ins. Co., 170 F.3d 985, 993 (10th Cir. 1999).
First, the Court finds that the surprise to the City does not weigh heavily one way
or the other. On the one hand, Plaintiffs unquestionably did not include Officer Roberts in
pertinent discovery responses or in their witness lists. On the other, it appears that the City
had enough information to raise the deficiency with Plaintiffs before the filing of its motion
for summary judgment. The Court is not suggesting that the burden to discover Officer
Roberts’ identity fell on the City; indeed, Plaintiffs’ failure to disclose Officer Roberts—at
multiple stages of the litigation—is difficult to justify. However, it seems unlikely that
Officer Roberts’ affidavit could have taken the City totally by surprise. The Court similarly
is not persuaded by the City’s assertion that it would have conducted significantly more
discovery had it known the substance of Officer Roberts’ testimony, given that the City has
apparently only conducted one deposition in this case. See Pls.’ Resp. to Mot. to Strike at
5. Nevertheless, the Court finds that the City has been prejudiced, due to Plaintiffs’ late-in-
the-game disclosure of a seemingly key witness. The critical question, as addressed below,
is whether that prejudice can be cured.
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Second, the Court finds that the prejudice to the City can be cured. Although less
than ideal, the Court, in exercising its broad discretion, can tailor a remedy to allow the
City to conduct additional discovery and re-file pending motions. This sort of remedy will
certainly impact future events, including a potential trial date, but the Court is not inclined
to punish Plaintiffs for the failings of their lawyers. The Court will set forth this remedy in
greater detail in the Conclusion section below.
Third, allowing Officer Roberts to submit his affidavit will not disrupt trial, as the
trial date in this case was suspended pending the Court’s ruling on the City’s motion for
summary judgment. As explained in detail below, the trial date is now further suspended
because of the need to reopen discovery to account for Plaintiffs’ failure to disclose Officer
Roberts.
Fourth, although Plaintiffs’ failure to disclose Officer Roberts was at least careless,
the Court declines to find that Plaintiffs acted willfully or in bad faith.
II. 	The Court will allow Plaintiffs to file an amended witness list.
Plaintiffs ask that the Court allow them to file an amended final witness list, which
would include Officer Roberts. See Pls.’ Resp. to Mot. to Strike at 14. As set forth more
fully in the Conclusion section below, the Court will allow Plaintiffs to file an amended
final witness list.
III. 	Plaintiffs’ counsel shall pay the City’s costs and attorney fees incurred in filing
the instant Motion and associated reply brief, along with the costs associated
with Officer Roberts’ deposition.
The City argues that, if the Court declines to strike Officer Roberts’ affidavit,
Plaintiff should be required to pay the City’s costs and attorney fees “associated with the
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significant amount of additional discovery and motion-practice that will necessarily ensue,
as well as the filing of this motion.” Mot. to Strike at 9. Pursuant to FED . R. CIV . P. 37(c)(1),
and its inherent authority, the Court orders Plaintiffs’ counsel to pay the City’s costs and
attorney fees incurred in filing the instant Motion and associated reply brief. Additionally,
the Court orders Plaintiffs’ counsel to pay all costs (as opposed to attorney fees) associated
with Officer Roberts’ deposition, should the City elect to depose him.
CONCLUSION
For these reasons, the City’s Motion to Strike Affidavit of David Roberts and/or
Motion for Sanctions [Doc. No. 106] is GRANTED IN PART and DENIED IN PART,
as more fully set forth below.
IT IS THEREFORE ORDERED as follows:
• 	The Court will not strike Officer Roberts’ affidavit. However, all pending
motions [Doc. Nos. 94, 95, 96, 97] are DENIED without prejudice to
resubmission after the 60-day discovery period discussed below.
• 	Pursuant to FED . R. CIV . P. 37(c)(1) and the Court’s inherent authority,
Plaintiffs’ counsel—not Plaintiffs—shall pay the attorney fees and costs
incurred by the City in filing this Motion and its reply. Plaintiffs’ counsel
shall also pay the costs associated with Officer Roberts’ deposition, should
the City elect to depose him. The City shall file an application for costs and
attorney fees within fourteen (14) days of Officer Roberts’ deposition.
• 	The Court will reopen the discovery period for sixty (60) days from the
issuance of this Order. During that time, the City may serve additional
discovery requests and take additional depositions, as it deems appropriate.
• 	At the conclusion of the 60-day discovery period, the parties shall file a joint
proposed 	schedule 	governing 	resubmission 	of 	motions 	for 	summary
judgment and Daubert motions.
• 	Plaintiffs’ Final List of Witnesses [Doc. No. 81] is STRICKEN. The Court
will allow Plaintiffs to file an amended final witness list. The amended final
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witness list shall be identical to Plaintiffs’ prior list, aside from the addition
of Officer Roberts and his expected testimony. Plaintiffs shall file their
amended final witness list within seven (7) days of this Order. Should the
City feel the need in the future to amend its Final Witness and Exhibit List
[Doc. No. 88], the Court will view favorably a motion seeking leave to do
so.
IT IS SO ORDERED this 15 th day of December, 2023.
. DeGIUSTI
Chief United States District Judge
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