United States District Court, E.D. Michigan, Southern Division
ORDER DENYING DEFENDANTS' OBJECTIONS TO THE
MAGISTRATE JUDGE'S DECISION [DOC. 107] AND DENYING
PLAINTIFF'S OBJECTIONS TO THE MAGISTRATE JUDGE'S
DECISION [DOC. 120]
CARAM STEEH UNITED STATES DISTRICT JUDGE.
matter comes before the court on objections by both parties
to the magistrate judge's decision granting in part and
denying in part defendants' motion to strike
plaintiff's untimely expert opinions. On June 13, 2017
defendants American and Liberty Steamship Companies filed a
motion in limine to strike as untimely the expert opinions of
plaintiff's occupational therapist Maureen Ziegler and
plaintiff's neuropsychologist Dr. Paul Macellari, Ph.D.
The motion was referred to the magistrate judge who issued an
opinion and order granting the motion in part and denied it
in part. The magistrate struck the report of Ms. Ziegler as
untimely and held that she could not testify at trial. He
explained that the holding did not preclude the testimony of
plaintiff's other experts who may have relied on
Ziegler's evaluations in formulating their own
conclusions. Regarding Dr. Macellari's second report, the
magistrate judge concluded that it was akin to a supplemental
report and ruled Dr. Macellari could testify as to the
opinions contained in that report. Defendants filed a motion
for clarification of the magistrate judge's opinion
seeking additional discovery regarding Dr. Macellari's
report and proposed testimony. The magistrate judge extended
the discovery period 70 days to cure any prejudice defendants
might have suffered as a result of his denial of their motion
to strike Dr. Macellari's testimony.
matter is presently before the court on issues stemming from
the magistrate judge's opinion and order and subsequent
extension of discovery. Defendants' objections to the
magistrate judge's opinion and order ask this court to
strike entirely both Dr. Macellari's second report and
any accompanying testimony, as well as to strike any
reference by any witness to Ms. Ziegler's untimely
disclosed opinions. Plaintiff's objections ask this court
to overrule the additional discovery ordered by the
magistrate judge, or alternatively to allow the expert
opinion of Maureen Ziegler and permit both sides to use the
extension of the discovery period to conduct further
may file objections to a magistrate judge's ruling on a
nondispositive pretrial matter within 14 days. Fed.R.Civ.P.
72(a). “A party may not assign as error a defect in the
order not timely objected to.” Id. The
district court reviews a magistrate judge's decision for
abuse of discretion and must modify or set aside any part of
the order that “is based on an erroneous conclusion of
law, the findings are clearly erroneous, or the decision is
clearly unreasonable or arbitrary.” Soto v. ABX
Air, Inc., E.D. Mich. No. 07-CV-11035, 2010 WL 4539454,
*2 (Nov. 3, 2010) (citing Youn v. Track, Inc., 324
F.3d 409 (6th Cir. 2003)).
The evidence shows that plaintiff met with Dr. Macellari on
May 31, 2016, October 26, 2016, and December 29, 2016. There
was a lengthy delay between Dr. Kristl's referral in May
2016 and the evaluation and testing by Dr. Macellari due to
defendants' refusal to authorize evaluation and
treatment. Nevertheless, plaintiff was eventually evaluated
by Dr. Macellari, who produced two reports with his findings.
The first report, dated October 27, 2016, was provided to
defendants on November 1, 2016 and has been characterized as
a timely rebuttal expert report. Following testing and
further examination of plaintiff, Dr. Macellari produced his
second report on December 29, 2016. This second report was
provided to defendants on March 20, 2017 and is one of the
subjects of defendants' objections.
purported reasons that the report was untimely are many.
Defendants initially refused to authorize the referral
without further explanation from Dr. Kristl. That explanation
took a long time to obtain but was eventually provided. Then
there was a delay in plaintiff being scheduled for
examination by Dr. Macellari in December 2016. Finally, Dr.
Macellari did not author his report until March 20, 2017.
points out that defendants were in possession of Dr.
Macellari's report prior to taking the depositions of the
defense experts and could have had those experts respond. At
the time of defendants' motion in limine to strike Dr.
Macellari's report as untimely, the original date for
trial in this matter was adjourned for over six months. In
the interim, defendants sought no further discovery regarding
the information contained in Dr. Macellari's reports. Dr.
Macellari's second report includes his opinion that
plaintiff has experienced some form of traumatic brain
injury. The court finds that the additional discovery allowed
by the magistrate judge cures any error or prejudice that may
otherwise result from allowing testimony from plaintiff's
expert whose report was provided after the deadline set by
second objection relates to the portion of the magistrate
judge's order striking Ms. Ziegler's expert opinion
but allowing other experts who relied on her evaluation to
provide testimony in the case. A functional capacities
evaluation (“FCE”) is the type of information
regularly relied upon by experts in the fields represented in
this case. Contrary to defendants' argument, in relying
on Ms. Ziegler's FCE, it has not been demonstrated that
the other experts have parroted or incorporated her opinion
as to subjects outside their area of expertise. To the extent
this occurs at trial, the court of course will be able to
address any objections at that time.
court overrules defendants' objections to the magistrate
filed objections to the magistrate judge's order granting
70 additional days of discovery to defendants regarding Dr.
Macellari's report and proposed testimony.
Plaintiff's reason for objecting is that the delay in
filing Dr. Macellari's report was entirely due to the
actions of defendants. The court finds that the additional
discovery is necessary to level the playing field and cure
any prejudice that would result from permitting plaintiff to
utilize the expert report and testimony filed after the
discovery deadline. Anticipating the court's decision,
plaintiff makes the alternative argument that because
discovery has been extended, Ms. Ziegler's expert opinion
should not be excluded as ruled by the magistrate judge. This
objection is untimely, as it was not filed within 14 days of
the magistrate judge's opinion and order. Plaintiff's
final argument is that he should also be permitted to conduct
discovery during the extension of the discovery cutoff.
However, plaintiff does not specify what discovery he seeks
to conduct, so his request is denied.
court overrules plaintiff's objections to the magistrate
judge's order. Now, therefore, IT IS HEREBY ORDERED that
defendants' objections ...