Lydell V. Muldrow v. Peter J. Brooks

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 00-3730
LYDELL V. MULDROW,
Appellant
v.
PETER J. BROOKS; CHARLES KELLAR;
JANET STITELER; CITY OF HARRISBURG
Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civil Action No. 99-cv-00721)
District Judge: Honorable Sylvia H. Rambo
Submitted Under Third Circuit LAR 34.1(a)
January 15, 2002
Before: ALITO and ROTH, Circuit Judges
SCHWARZER*, District Judge
(Opinion filed April 29, 2002)
* Honorable William W. Schwarzer, Senior District Judge for the Northern
District of California, sitting by designation.
OPINION
ROTH, Circuit Judge
Appellant Lydell V. Muldrow, formerly a corporal in the Harrisburg Bureau of
Police, appeals from a judgment entered against him in the United States District Court
for the Middle District of Pennsylvania. Muldrow filed a complaint against Peter J.
Brooks, Charles Kellar, Janet Stitelar, and the City of Harrisburg pursuant to 42 U.S.C.
1983, claiming racial mistreatment and retaliatory discharge. On October 2, 2000, just
prior to the commencement of the trial in this case, the District Court granted defendants’
motion in limine, seeking to exclude testimony by Charles Painter, a fellow officer, on the
basis of Muldrow’s failure to identify Painter as a potential witness before the close of
discovery pursuant to Fed. R. Civ. P. 26.
At trial, the jury found in favor of defendants and judgment was entered on
October 5, 2000. Muldrow appeals both the order granting the motion in limine, and the

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judgment against him.
Muldrow argues on appeal that the District Court abused its discretion in excluding
Painter’s testimony. Muldrow claims that, by mentioning Painter several times during
Muldrow’s own deposition, he put the defendants on notice that Painter was a potential
witness. Defendants respond that it was not until after discovery had closed that
Muldrow ever mentioned Painter as having direct knowledge of any of the alleged
discriminatory incidents.
During discovery a party is required to disclose the names of witnesses that may be
called to testify at trial. See Fed. R. Civ. P. 26. Failure to do so will preclude the party
use of those witnesses, unless such failure is harmless. See Fed. R. Civ. P. 37(c)(1).
Defendants claim that they were harmed by the failure to disclose Painter because his
alleged knowledge of an incident was not revealed until after defendants had filed for
summary judgment, because defendants did not have the opportunity prior to trial to
depose Painter or the other officers who he claimed were with him, and because
defendants would not have had an opportunity to locate rebuttal witnesses. From our
review of the record, we conclude that the District Court did not abuse its discretion in its
decision to exclude Painter’s testimony.
For the foregoing reasons, we will affirm the judgment of the District Court.
TO THE CLERK:
Please file the foregoing Opinion.
By the Court,
/s/ Jane R. Roth
Circuit Judge

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