United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER GRANTING IN PART AND DENYING IN
PART PLAINTIFF'S MOTION IN LIMINE TO EXCLUDE WITNESSES
CARAM STEEH UNITED STATES DISTRICT JUDGE.
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.
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
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.
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.
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.
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.
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).