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