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LLC v. Landmark American Insurance Co.

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

June 28, 2018

455 COMPANIES, LLC, Plaintiff,



         Motions in limine serve-at least ostensibly-to limit the issues for trial and to eliminate unnecessary interruptions. Louzon v. Ford Motor Co., 718 F.3d 556, 561 (6th Cir. 2013). But any streamlining that motions in limine may have achieved in this case is the stuff of imagination. Counsel have, in fact, filed over nineteen motions in limine in this matter, resulting in extensive briefing and significant expense. Presently before the court are six still-pending motions in limine (Dkt. ##169, 170, 171, 172, 173, 177) and one motion for leave to file a motion in limine (Dkt. #190). For the following reasons, each will be denied, save Defendant's motion to exclude draft expert reports, which is granted in part and denied in part.

         A. Motions to Prevent Witnesses From Testifying

         Plaintiff moves to preclude three witnesses from testifying: Peter McAlpine (Dkt. #169), Ray Rivard (Dkt. #170), and Paul Runde (Dkt. #171). Defendant also asks for leave to file a motion to preclude Terence Edmondson from testifying. (Dkt. #190). Because each of these witnesses may properly be called to the stand, the court will deny the motions.

         Though the parties set out their varied reasons for precluding the identified witnesses, each motion shares a common theme: the witness was not timely disclosed as either a lay witness or an expert. Federal Rule of Civil Procedure 37(c)(1) provides that, where a party fails to properly identify a witness, “the party is not allowed to use that information or witness . . . unless the failure was substantially justified or is harmless.” The court looks to five factors in assessing whether the nondisclosure was “substantially justified” or “harmless”:

(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.

Howe v. City of Akron, 801 F.3d 718, 747 (6th Cir. 2015). Whether to impose a sanction-including exclusion of the testimony or evidence-for failure to timely disclose is within the discretion of the district court. Jordan v. Cleveland, 464 F.3d 584, 600 (6th Cir. 2006).

         i. Plaintiff's Motion to Preclude Peter McAlpine from Testifying (Dkt. #169)

         Plaintiff moves to exclude Peter McAlpine, a consultant for a company that conducted heating work in the building after the loss. It claims that McAlpine was not disclosed as an expert witness, and-as a person with technical and specialized knowledge-any evidence that McAlpine could offer would be improper opinion testimony.

         Not so. This motion, like those the court has already denied, is based on a lack of foundation that has not yet occurred. Defendant avers that it intends to offer McAlpine, not as an expert on the cause of the loss, but as a witness who will attest to the observations he made while working on the building. Defendant, in other words, says it intends to offer McAlpine as a fact witness, one that it properly disclosed. The court sees no basis to preclude him from taking the stand.

         Plaintiff also argues that McAlpine should be excluded because of the danger of unfair prejudice. It claims that McAlpine could provide information only as to the observations he made of the building nearly a year after the loss occurred. This evidence, Plaintiff says, would be misleading and confusing, carrying little probative weight having occurred so long after the loss. The court evidently has greater confidence than counsel in his ability to argue to the jury the probative weight it should attach to the evidence presented. These matters are ripe for cross examination and closing argument, not a motion in limine.

         ii. Plaintiff's Motion to Preclude Ray Rivard from Testifying (Dkt. #170)

         Plaintiff moves to exclude Ray Rivard-a technician who worked on the building-from testifying because, it claims, Rivard was not timely disclosed as a potential witness. On this point, as Defendant describes it, Plaintiff attempts to eat its cake and have it too.

         In the last round of motions in limine, Plaintiff attempted to exclude a letter from the contracting company that worked on the building heating system some ten months after the loss. (See Dkt. #113.) The court denied the motion, specifically noting that foundation could be laid by a witness with knowledge of the contents of the letter. (See Dkt. #166 Pg. ID 11657-58.) According to Defendant, it added this witness to its “may call” list for that reason: to provide the proper foundation in the event that Plaintiff objects to the document. Defendant's late disclosure, then, is substantially justified. Plaintiff does not claim that it is unaware of what Rivard will say on the stand-indeed, it claims that Rivard's testimony will very likely be irrelevant, an assessment it could make in good faith only if it had ...

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