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BRUNE v. TIME WARNER ENTERTAINMENT COMPANY

United States District Court, S.D. New York


December 13, 2004.

JOHN R. BRUNE, Plaintiff,
v.
TIME WARNER ENTERTAINMENT COMPANY, L.P., Defendant.

The opinion of the court was delivered by: KIMBA WOOD, District Judge

OPINION & ORDER

On December 9, 2004, the fourth day of trial, Plaintiff's counsel announced his intention to call Rick Hullinger as a rebuttal witness. Hullinger's name does not appear on the witness list that Plaintiff submitted as Exhibit A of the Pretrial Order.

On December 10, 2004, this Court issued an Order permitting Plaintiff to call Hullinger as a witness, if defense counsel is given a reasonable opportunity to depose him before he testifies at trial.

  The Court acknowledges defense counsel's concern that in his opening statement, defense counsel told the jury that only one witness would testify for Plaintiff, and that defense counsel, in doing so, was relying on the list of witnesses provided by Plaintiff as part of the Pretrial Order. Defense counsel's concern can be met by an instruction to the jury (or stipulation) to the effect that at the time defense counsel made his opening statement, everyone expected only one fact witness to be called by Plaintiff, and that Plaintiff changed his mind in regards to this, during the trial.

  The Court's instruction on preparing a Pretrial Order should, but does not currently, call for each party to provide one list of witnesses whom each side intends to call, and another list of witnesses who may be called. Such an order would likely have obviated the present dispute.

  Courts should decide equitably any issue within their discretion. The Court finds persuasive Plaintiff's argument that acceptance of Defendant's position would likely result in overly inclusive lists of "witnesses" in Pretrial Orders. The Court also finds that Plaintiff did not anticipate defense counsel's argument that Plaintiff's credibility was severely undermined by Plaintiff's failure to call Hullinger, his "good friend of 30 years," to support Plaintiff's testimony that he attended numerous boxing events and passed out promotional materials at those events. Although it is a very close question whether Plaintiff could reasonably have anticipated that argument, the Court finds that Plaintiff could not have anticipated the stress given to the argument by defense counsel. 12/8/04 Daily Trial Tr., p. 282, ln. 13-14; p. 257, lns. 6-24; p. 314, lns. 10-25; see 75 Am. Jur. 2d Trial § 371 (2004). Furthermore, Plaintiff had "no duty to anticipate or to negate a defense theory" in his case-in-chief. Martin v. Weaver, 666 F.2d 1013, 1020 (6th Cir. 1981); see also Weiss v. Chrysler Motors Corp., 515 F.2d 449, 459 (2d. Cir. 1975).

  Pursuant to Rule 403, the probative value of permitting Hullinger to appear as a rebuttal witness for Plaintiff outweighs the likelihood of prejudice to Defendant. Without Hullinger's testimony, defense counsel's strong implication that Plaintiff's "old, old friend" cannot corroborate Plaintiff's testimony will remain unrebutted. 12/8/04 Daily Trial Tr., p. 257, ln. 15; see Martin v. Weaver, 666 F.2d at 1022. The Court's discretion to exclude rebuttal evidence "should be tempered greatly where the probative value of proffered evidence is potentially high and where such evidence, though admissible on the case in chief, was unnecessary for the plaintiff to establish in its prima facie case." Weiss v. Chrysler Motors Corp., 515 F.2d at 458.

  For the foregoing reasons, Plaintiff is permitted to call Hullinger as a rebuttal witness. However, as a previously undisclosed witness, Hullinger "may offer testimony only about that which tends to counteract new matter offered by the adverse party" — i.e., defense counsel's statements pertaining to the implications of Hullinger not appearing as a witness. 75 Am. Jur. 2d Trial § 371; see also Broussard v. Olin Corp., 546 So. 2d 1301, 1303-04 (3d Cir. 1989) ("Rebuttal evidence is confined to new matters adduced by the defense and not to repetition of the plaintiff's theory of the case.").

  SO ORDERED

20041213

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