United States District Court, E.D. Michigan, Southern Division
R. Grand, United States Magistrate Judge
OPINION AND ORDER DENYING PLAINTIFF'S MOTION TO
EXCLUDE DEFENDANT'S EXPERT WITNESS 
Gershwin A. Drain, United States District Court Judge
March 2, 2015, Wallace Sales & Consulting, LLC
(“Plaintiff”) filed a Complaint and Demand for
Trial by Jury against Tuopu North America, Limited
(“Defendant”), alleging breach of contract and
seeking a declaratory judgment. See Dkt. No. 1. On August 7,
2015, Defendant asserted a counterclaim against Plaintiff for
Unjust Enrichment/Quantum Meruit. Dkt. No. 21, pp. 3-4 (Pg.
ID No. 506- 07). Plaintiff amended its complaint on August
28, 2015. Dkt. No. 28.
before the Court is Plaintiff's Motion to Exclude
Defendant's Expert Witness, filed on October 19, 2016.
Dkt. No. 102. Defendant responded on November 2, 2016, Dkt.
No. 111, and Plaintiff replied on November 10, 2016, Dkt. No.
reasons discussed herein, the Court will DENY Plaintiff's
Motion to Exclude Defendant's Expert Witness .
Federal Rule of Civil Procedure 37(c)(1), “[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.” Fed.R.Civ.P.
37(c)(1). The Sixth Circuit has interpreted Rule 37(c)(1) to
“require absolute compliance with Rule 26(a), that
is, it ‘mandates that a trial court punish a party for
discovery violations in connection with Rule 26 unless the
violation was harmless or is substantially justified.'
” Roberts ex rel. Johnson v. Galen of Virginia,
Inc., 325 F.3d 776, 782 (6th Cir. 2003) (quoting
Vance, by & Through Hammons v. United States,
182 F.3d 920 (6th Cir. 1999)).
exclusion of late or undisclosed evidence is the usual remedy
for noncompliance with Rule 26(a) or (e), Rule 37(c)(1)
provides the district court with the option to order
alternative sanctions ‘instead of' exclusion of the
late or undisclosed evidence ‘on motion and after
giving an opportunity to be heard.' ” Howe v.
City of Akron, 801 F.3d 718, 747 (6th Cir. 2015)
(quoting Fed.R.Civ.P. 37(c)(1)). “Harmless” has
been interpreted to mean “an honest mistake on the part
of a party coupled with sufficient knowledge on the part of
the other party.” Id. (quoting Vance,
182 F.3d 920, at *5).
assess whether a party's omitted or late disclosure is
“substantially justified” or “harmless,
” the Sixth Circuit has adopted a five-factor test:
“(1) the surprise to the party against whom the
evidence would be offered; (2) the ability of that party to
cure the surprise; (3) the extent to which allowing the
evidence would disrupt the trial; (4) the importance of the
evidence; and (5) the nondisclosing party's explanation
for its failure to disclose the evidence.” Id.
at 747-48 (citing Russell v. Absolute Collection Servs.,
Inc., 763 F.3d 385, 396-97 (4th Cir. 2014)).
Challenge to Defendant's Expert Witness Under Rule
Plaintiff's motion seeking to exclude Defendant's
expert, Plaintiff seeks an order striking Defendant's
proposed expert witness, Mr. Thomas Frazee, because
Defendant's disclosures regarding Mr. Frazee were
untimely and incomplete. Dkt. No. 102, p. 1 (Pg. ID No.
case is scheduled to begin trial on the morning of Tuesday,
December 13, 2016. Pursuant to Federal Rule of Civil
Procedure 26, parties were to exchange expert witness
disclosures “at least 90 days before the date set for
trial or for the case to be ready for trial.”
Fed.R.Civ.P. 26(a)(2)(D)(i). In this case, that date was
September 14, 2016. Disclosures “intended solely to
contradict or rebut evidence on the same subject matter
identified by another party under Rule 26(a)(2)(B) or
(C)” are due within 30 days after the other party's
disclosure. Fed.R.Civ.P. ...