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Hubbell v. Fedex Smartpost, Inc.

United States District Court, E.D. Michigan, Southern Division

January 4, 2017

SHERYL HUBBELL, Plaintiff,
v.
FEDEX SMARTPOST, INC., Defendant.

          OPINION AND ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION IN LIMINE TO EXCLUDE WITNESSES (DOC. 38).

          GEORGE CARAM STEEH UNITED STATES DISTRICT JUDGE.

         On January 3, 2017, the Court conducted a telephone conference with counsel for the parties to discuss plaintiff's motion in limine to exclude witnesses, (Doc. 28), and the parties' positions on a potential adjournment of the trial in this case. Both sides affirmed their commitment to concluding the trial by the end of the fifth day of trial on Monday, January 23, 2017, and agreed to employ a chess clock if necessary to satisfy this objective. Concluding by January 23, 2017 is critical because the undersigned will be conducting a trial in Florida and will depart from Michigan on Tuesday, January 24, 2017, for three to four weeks. Although the Court offered to consider an adjournment of the trial, the parties were unable to agree upon the same.

         Currently before the Court is plaintiff's motion in limine to exclude defendant's expert witness, Dr. Nitin Paranjpe, and lay witness, Jessica Benjamins. Defendant filed a response, to which plaintiff replied. After reviewing the briefs, the Court concludes that oral argument is unnecessary. For the reasons stated below, the Court will GRANT plaintiff's motion to exclude as it relates to Dr. Paranjpe and DENY plaintiff's motion as it relates to Benjamins.

         I. Background

         Plaintiff filed her complaint on October 8, 2014, asserting claims under Title VII. The Court's first Scheduling Order states that witness lists must be filed by August 4, 2015. (Doc. 11 at 1). “The deadline for exchange of witness lists refers to all witnesses, lay and expert.” (Doc. 11 at 2). Defendant filed their witness list on July 17, 2015. Benjamins and Paranjpe were not listed. Defendant never filed a motion to amend its witness list.

         Defendant allegedly first provided notice of Benjamins on October 6, 2015; listing her as a witness in its Fed.R.Civ.P. 26(a) Fourth Amended Initial Disclosure document. (Doc. 40-1 at 6). The Court ordered discovery deadline occurred three days later, on October 9, 2015.

         On December 28, 2015, over four months after the witness list deadline and over two months after the discovery deadline, defendant emailed plaintiff expert disclosures regarding Paranjpe. Plaintiff received hard copies of these disclosures on December 30, 2015. Defendant supplemented these disclosures on March 2, 2016.

         Plaintiff filed this motion to exclude Paranjpe and Benjamins on December 8, 2016, in anticipation of the January 17, 2017 trial date. The parties stipulated to an expedited briefing schedule and seek a ruling as soon as possible.

         II. Legal Standard

         Fed. R. Civ. P. 26(a)(2)(A) requires a party to “disclose to the other parties the identity of any witness it may use at trial to present evidence under Federal Rules of Evidence 702, 703, or 705.” Id. “A party must make these disclosures at the times and in the sequence that the court orders.” Fed.R.Civ.P. 26(a)(2)(D). “Absent a stipulation or a court order, the disclosures must be made: (i) at least 90 days before the date set for trial or for the case to be ready for trial.” Id. Fed. R. Civ. P. 37(c)(1) “requires absolute compliance with Rule 26(a), ” Roberts ex rel. v. Johnson, 325 F.3d 776, 782 (6th Cir. 2003).

If 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 exclusion of non-disclosed evidence is automatic and mandatory under Rule 37(c)(1) unless non-disclosure was justified or harmless.” Dickenson v. Cardiac and Thoracic Surgery of E. Tenn., 388 F.3d 976, 983 (6th Cir. 2004) (quoting Musser v. Gentiva Health Servs., 356 F.3d 751, 756 (7th Cir.2004)). The party that fails to disclosure under Rule 26(a) has the burden to prove the application of one of these exceptions. Roberts, 325 F.3d at 782. Harmlessness “involves an honest mistake on the part of a party coupled with sufficient knowledge of the part of the other party.” Sommer v. Davis, 317 F.3d 686, 692 (6th Cir, 2993) (quoting Vance v. United States, No. 98-5488, 1999 WL 455435, at *5 (6th Cir. June 25, 1999).

         III. Analysis

         A. Dr. ...


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