United States District Court, E.D. Michigan, Southern Division
ORDER ON PENDING MOTIONS IN LIMINE
H. CLELAND UNITED STATES DISTRICT JUDGE
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.
Motions to Prevent Witnesses From Testifying
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.
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).
Plaintiff's Motion to Preclude Peter McAlpine from
Testifying (Dkt. #169)
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.
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
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.
Plaintiff's Motion to Preclude Ray Rivard from Testifying
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.
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 ...