United States District Court, E.D. Michigan, Southern Division
BLOOMFIELD HILLS COUNTRY CLUB, BIRMINGHAM COUNTRY CLUB, and BYLEN GOLF COMPANY, L.L.C. d/b/a PINE TRACE GOLF CLUB, Plaintiffs,
THE TRAVELERS PROPERTY CASUALTY COMPANY OF AMERICA, PHOENIX INSURANCE COMPANY, and TRAVELERS INDEMNITY COMPANY OF AMERICA, Defendants.
OPINION AND ORDER DENYING IN PART AND GRANTING IN
PART DEFENDANTS' MOTION IN LIMINE AS TO DR. KEVIN FRANK
G. Edmunds United States District Judge.
bring this motion in limine as to Dr. Kevin Frank. (Docket
61.) Plaintiffs filed a response (dkt. 65) and Defendants
filed a reply (dkt. 68). The Court heard this matter on
October 5, 2016.
Background and Facts
a first-party property damage claim. Plaintiffs are three
golf courses in metro-Detroit: Bloomfield Hills Country Club
("Bloomfield"), Birmingham Country Club
("Birmingham") and Bylen Golf Company, LLC, d/b/a
Pine Trace Golf Club ("Pine Trace"; together
"Plaintiffs" or "Plaintiff golf
courses"). On April 1, 2013, Defendant Travelers
Property Casualty Company of America, issued a policy of
insurance to Bloomfield. On October 1, 2013, Phoenix
Insurance Company issued a policy of insurance to Birmingham.
On January 1, 2013, Travelers Indemnity Company of America
issued a policy of insurance to Pine Trace. There is no
dispute that the policies were in effect throughout the
2013-2014 winter. Each Plaintiff purchased, at an additional
cost, the Eagle 3 Miscellaneous Property Coverage
("Eagle 3 form"), which provided: "We will pay
for direct physical loss of or damage to Covered Property
caused by or resulting from Covered Cause of Loss."
(Eagle 3 Misc. Prop. Coverage § A, dkt. 53-1.) Covered
Property includes "Golf Course Greens, Tees, Fairways
and Rough, " and provides as a Covered Cause of Loss
"Weight of snow, ice or sleet." (Eagle 3 Misc.
Prop. Coverage § A.3.b(13), dkt. 53-1.)
allege that during the winter of 2013-2014, thick heavy ice
accumulated on the greens at Plaintiff golf courses,
allegedly 5 inches thick in some locations. (Photos., Ex. 2,
dkt. 53-1.) Plaintiffs allege that the weight of this ice
killed the turfgrass by prohibiting a gaseous exchange by the
turfgrass, leading to anoxia, as opined by at least one of
submitted claims to Defendants for coverage pursuant to the
Eagle 3 form for the winterkill damage to the greens.
Defendants denied coverage on the basis that the weight of
the ice did not kill the greens. Plaintiffs filed suit on
April 6, 2014. (Dkt. 1.) The Court has already denied
Defendants' motions for summary judgment and this case is
set for trial.
instant motion involves Plaintiffs' witness Dr. Kevin
Frank. Dr. Frank is an associate professor in the Plant, Soil
and Microbial Sciences department at Michigan State
University. (Defs.' Mot. In Limine as to Dr. Frank 2-3,
dkt. 61; Pls.' Resp. 6.) Following damage to the greens
from the 2013/2014 winter, Birmingham and Pine Trace retained
Dr. Frank to inspect their greens regarding the cause of
damage. Bloomfield did not retain Dr. Frank to inspect its
greens. (Frank Dep. 12:33-13:21, Defs.' Mot., Ex. 1, dkt.
61-1.) Dr. Frank wrote letters to Pine Trace and Birmingham,
dated July 15, 2014, and July 22, 2014, respectively, giving
an opinion as to the primary cause of death to the turfgrass
and what, if any, role weight of ice played in the winterkill
damage. In Plaintiffs' Rule 26 disclosures,
served on September 18, 2015, Plaintiffs identified Dr. Frank
as follows, under "witness identification":
9. Representatives, agents, employees and custodians of
records of Michigan State University, including but not
limited to Dr. Kevin Frank and Dr. Try Rogers, . . . . It is
anticipated these witnesses will testify regarding the damage
to Plaintiffs' greens and the cause of that damage being
the weight of ice and snow. These witnesses may be called to
provide expert opinion testimony regarding these issues.
(Pls.' FRCP Disclosures, Sept. 18, 2105, Pls.' Resp.
Ex. 4, dkt. 65-1.) The parties deposed Dr. Frank on March 22,
2016, at which time Dr. Frank was also asked about
Bloomfield, as set forth in further detail below.
seek to exclude or limit certain testimony of Dr. Frank.
(Defs.' Mot. 2, dkt. 61.) Despite Plaintiffs'
argument to the contrary, this is the first time Defendants
have properly moved to exclude or otherwise limit Dr.
Frank's testimony, though Defendants mentioned Dr.
Frank's testimony and letters in their motion for summary
Whether Plaintiffs Properly Disclosed Dr. Frank's Expert
Opinion Testimony Pursuant To Rule 26(a)(2)(C)
argue that Plaintiffs failed to properly disclose Dr.
Frank's testimony as a non-retained testifying expert in
accordance with Fed.R.Civ.P. 26(a)(2)(C), which provides
(a) Required Disclosures
(2) Disclosure of Expert Testimony
(A) In General. In addition to the disclosures
required by Rule 26(a)(1), a party must disclose to the other
parties the identity of any witness it may use at trial to
present evidence under ...