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Sanford v. Russel

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

May 9, 2019




         The scheduling order in this case required the defendants to serve their pretrial disclosures of expert witnesses by August 11, 2018. The plaintiff has filed several motions, now before the Court, challenging the use at trial of testimony by numerous witnesses listed in the defendants' pretrial witness lists on the grounds that the witnesses are experts and the defendants' disclosures are late, inadequate, or, in some instances, nonexistent. The defendants respond that no disclosures are required for some of the witnesses because the witnesses were not specially retained by them, many of the witnesses are not experts or they are hybrid fact-and-expert witnesses, and if disclosures were required, the failure to furnish them was harmless and substantially justified. The defendants, whose attorney acknowledged at a hearing that he did not retain experts until the day before the disclosure deadline, have not complied with their disclosure obligation, and they have not shown that their noncompliance was harmless or substantially justified. Therefore, the Court will grant the plaintiff's motions to exclude the witnesses and will not permit the defendants to offer testimony at trial about opinions based on special knowledge or expertise.


         The case was filed by plaintiff Davontae Sanford, who was accused of murdering four people when he was fourteen years old. After Sanford confessed, entered a midtrial guilty plea in 2008, was sentenced, and spent over eight years in prison, another person confessed to the crimes and confirmed that Sanford was not involved. A state police investigation uncovered evidence that Sanford's confession and ensuing guilty plea were the product of misconduct by Detroit police officers, including the defendants here. His conviction was set aside and all charges against him were dismissed in 2016.

         The case is scheduled for trial in August of this year. The plaintiff has filed three motions concerning the defendants' listed experts. One is to preclude the testimony of “unretained experts, ” including (1) 28 persons with sundry professional designations listed as “Michigan Department of Corrections medical or psychological providers”; (2) 20 persons identified as “MDOC medical and correctional staff”; (3) Scott Herzog and Michael Reizen, who apparently are Detroit police officers with some level of expertise on street gangs; (4) police officer Christopher Salsbury, who was a tracking dog handler; and (5) William Steiner, a laboratory chemist who purportedly performed a test to detect gunshot residue. In the second motion, the plaintiff seeks to exclude any opinion testimony by Dr. Lynne Schwarz on the question of whether the plaintiff was coerced to confess to the quadruple murders. The third motion is directed to the anticipated testimony of Dr. Michael Welner, a psychologist, and Mark St. Peter, an expert in “phone forensics.”


         The common theme of the three motions is that the defendants have utterly disregarded the requirements of the pretrial disclosure rule that applies to witnesses who intend to offer opinion testimony. The discovery and disclosure rules apply to each of these motions, and it is useful to review them here.

         Under Federal Rule of Civil Procedure 26(a)(2)(A), “a party must disclose to the other parties the identity of any witness it may use at trial to present evidence under Federal Rule of Evidence 702, 703, or 705.” In addition, “[u]nless otherwise stipulated or ordered by the court, this disclosure must be accompanied by a written report - prepared and signed by the witness - if the witness is one retained or specially employed to provide expert testimony in the case or one whose duties as the party's employee regularly involve giving expert testimony.” Fed.R.Civ.P. 26(a)(2)(B).

         An expert witness is not required to prepare and sign a written report of his or her investigation and opinion where the expert was not “retained or specially employed to provide expert testimony in the case” and the witness's “duties as the [defendants'] employee [do not] regularly involve giving expert testimony.” Fed.R.Civ.P. 26(a)(2)(B). Where a witness's “opinion testimony arises not from his enlistment as an expert but, rather, from his ground-level involvement in the events giving rise to the litigation . . . he falls outside the compass of Rule 26(a)(2)(B).” Downey v. Bob's Discount Furniture Holdings, Inc., 633 F.3d 1, 6 (1st Cir. 2011) (citing Fielden v. CSX Transportation, Inc., 482 F.3d 866, 869 (6th Cir. 2007)).

         But the disclosure obligations of Rule 26(a)(2)(B)(i)-(vi) apply to witnesses who will “present evidence under Federal Rule of Evidence 702, 203, or 705” and who were “retained or specially employed to provide expert testimony in the case.” Fed.R.Civ.P. 26(a)(2)(B). Treating physicians, for example, typically do not trigger that requirement. Fielden, 482 F.3d at 871 (holding that “a report is not required when a treating physician testifies within a permissive core on issues pertaining to treatment, based on what he or she learned through actual treatment and from the plaintiff's records up to and including that treatment”).

         In 2010, the Supreme Court amended Rule 26(a)(2) to address the disclosure requirements for witnesses who would offer expert opinions but who do not fit the description of those who are required to draft full reports. Rule 26(a)(2)(C) was added in 2010 to “resolve[] a tension that has sometimes prompted courts to require reports under Rule 26(a)(2)(B) even from witnesses exempted from the report requirement.” Deere & Co. v. FIMCO Inc., 239 F.Supp.3d 964, 979 (W.D. Ky. 2017) (citing Fed.R.Civ.P. 26, Adv. Comm. Note). “[A] report is not required of witnesses who are not retained or employed for the purpose of providing expert testimony in a particular case or . . . employees whose regular job duties do not regularly require such testimony.” Ibid. For those witnesses, a party must disclose to the other party “the subject matter on which the witness is expected to present evidence under Federal Rule of Evidence 702, 703, or 705” and “a summary of the facts and opinions to which the witness is expected to testify.” Fed.R.Civ.P. 26(a)(2)(C). The disclosure may be made by counsel - not the expert himself - and generally may be “considerably less extensive than the report required by Rule 26(a)(2)(B).” Fed.R.Civ.P. 26(a)(2), Adv. Comm. Notes to 2010 amends. But it must be “made at the time and in the sequence directed by the court.” Fed.R.Civ.P. 26(a)(2)(D).

         When a party does not comply with the disclosure requirements, the party “‘is not allowed to use' the information or person that was not disclosed ‘on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless.'” Baker Hughes Inc. v. S&S Chemical, LLC, 836 F.3d 554, 567 (6th Cir. 2016) (quoting Fed.R.Civ.P. 37(c)(1)). According to the Sixth Circuit, “Rule 37(c)(1) mandates that a trial court sanction a party for discovery violations in connection with Rule 26(a) unless the violations were harmless or were substantially justified.” Sexton v. Uniroyal Chemical Co., 62 Fed.Appx. 615, 616 n.1 (6th Cir. 2003). “‘Rule 37 is written in mandatory terms, and is designed to provide a strong inducement for disclosure of Rule 26(a) material.'” Ibid. (quoting Ames v. Van Dyne, 100 F.3d 956, 1996 WL 662899, at *4 (6th Cir. Nov. 13, 1996) (Table)).

         The Sixth Circuit has identified five factors to consider when assessing whether a party's omitted or late disclosure is “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, 747-48 (6th Cir. 2015) (quoting Russell v. Abs. Collection Servs., Inc., 763 F.3d 385, 396-97 (4th Cir. 2014)). “‘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 & Thoracic Surgery of Eastern Tennessee, 388 F.3d 976, 983 (6th Cir. 2004) (quoting Musser v. Gentiva Health Services, 356 F.3d 751, 758 (7th Cir. 2004)). “The party requesting exclusion under Rule 37(c)(1) need not show prejudice, rather the non-moving party must show that the exclusion was ‘harmless' or ‘substantially justified.'” Saint Gobain Autover USA, Inc. v. Xinyi Glass North America, Inc., 666 F.Supp.2d 820, 826 (N.D. Ohio 2009); see also Roberts ex rel. Johnson v. Galen of Virginia, Inc., 325 F.3d 776, 782 (6th Cir. 2003) (quoting Vance v. United States, No. 98-5488, 1999 WL 455435, at *3 (6th Cir. June 25, 1999)).

         With these principles in mind, we turn to the plaintiff's three motions.

         A. Motion to Strike the Testimony of Defendants' “Unretained Experts”

         1. MDOC Medical Staff Witnesses

         The plaintiff argues that the MDOC witnesses, police officers Herzog, Reizen, Salsbury, and Steiner should not be allowed to offer opinion testimony because (1) for the 48 witnesses disclosed as undifferentiated aggregates, the “summary” of opinions does not associate any opinion with any particular expert, nor does it recite even a modest factual basis for any of the supposed opinions; (2) the disclosures do not give any indication whether the scope of the proposed testimony may include opinions solicited for the purpose of this litigation, or whether any of the witnesses regularly are called upon to give expert testimony in the course of their work, either of which would subject them to the much more demanding requirements of 26(a)(2)(B) rather than the looser summary disclosure requirements of 26(a)(2)(C); and (3) none of the feeble attempts at disclosure are excused by the mere identification of witnesses by name accompanied by a massive document dump of medical and prison records with a “see generally” citation, which effectively left the plaintiff either to comb thousands of pages of documents for some hint as to what the proffered opinions might be, or to depose 48 witnesses to learn the extent of their testimony.

         In several sections of their response ironically headed “Summary, ” the defendants belatedly (on December 14, 2018) attempt to identify the specific opinions by certain named witnesses that they propose to offer at trial, out of the laundry list of 48 individuals serially named in their bulk disclosures. They now argue that (1) none of the witnesses listed were retained by either of the remaining defendants (Russell and Tolbert), nor are they employed by either of the defendants, and, thus, it does not matter whether they regularly may be called upon to testify on behalf of any non-party (i.e., the City of Detroit, which was dismissed from the case); (2) all of the witnesses are “hybrid fact/expert witnesses” who will testify about their observations in the course of either investigating the criminal case or treating and interacting with the plaintiff after he was convicted, while he was in prison; and (3) none of the medical testimony should come as any “surprise” to the plaintiff, since all of the experts named were the plaintiff's medical treaters while he was in prison, and their conclusions were memorialized in the plaintiff's own medical records.

         The attempted bulk disclosure of 28 “medical and psychological providers, ” devoid of any coherent summary of any opinions proposed to be espoused by any one of them, and with no indication of the qualifications of any of those persons, or any basis for those opinions, was insufficient to fulfill the defendants' obligations under Rule 26(a)(2), regardless of whether any of the witnesses qualify for the more forgiving treatment under section 26(a)(2)(C). As the district court explained in Ogle v. Koorsen Fire & Sec., Inc., 336 F.Supp.3d 874 (S.D. Ohio 2018), confronting nearly identical circumstances:

[For] experts not retained or specially employed to provide expert testimony in a case, e.g., treating doctors, the mere disclosure of the expert's identity is insufficient. See Fed. R. Civ. P. 26(a)(2)(C). Instead, the disclosure of a non-retained expert's identity must be accompanied by a statement regarding: “(i) the subject matter on which the witness is expected to present evidence under Federal Rule of Evidence 702, 703, or 705; and (ii) a summary of the facts and opinions to which the witness is expected to testify.” While the disclosures required by Rule 26(a)(2)(C) are considerably less extensive than the report required by Rule 26(a)(2)(B), the Rule does not permit a Plaintiff to “dump” medical records on the defendant, nor [does it] eliminate the requirement of providing summary disclosures. [I]dentifying physicians in response to interrogatories and the production of medical records in discovery does not satisfy Rule 26(a)(2)(C) and does not constitute harmlessness under Rule 37(c)(1). [Moreover, the term “summary”] is defined as a brief account that states the main points of a larger body of information, not a prodigious volume of material; it does not suffice to reference large bodies of material as sources of facts.

Ogle, 336 F.Supp.3d at 877 (citations and quotations omitted; collecting cases).

         The production of thousands of pages of medical and correctional records cannot sensibly be regarded as fulfilling the requirements Rule 26(a)(2)(B) or (C), because that does not comprise the required “summary” of the proposed opinions and their bases. Moreover, the aggregated, undifferentiated disclosures made it impossible for the plaintiff to discern - except by pure speculation - which expert would be called to give any particular opinion, which made it impossible for the plaintiff to evaluate either the qualifications or the reliability of the analyses that would be provided by any of them. As the Ogle court further noted:

Plaintiff . . . identifie[d] [as experts] an entire medical clinic . . . and unidentified medical records custodians. Nowhere on the disclosure does Plaintiff's counsel indicate whether or not the experts identified were retained or specially employed. In other words, Defendants (and the Court) are left to speculate as to whether Rule 26(a)(2)(B) or Rule 26(a)(2)(C) applies to each expert . . . .
[W]ithout dispute, the document filed by Plaintiff's counsel was unaccompanied by any report authored by any of the experts identified. Thus, insofar as any of the experts identified were retained or specially employed to provide expert testimony at trial, the disclosure, on its face, fails to comply with Rule 26(a)(2)(B).
To the extent any of the identified experts were not retained or specially employed by Plaintiff, the disclosure also fails to meet even the less extensive requirements of Rule 26(a)(2)(C), i.e., there is no statement regarding the subject matter upon which [each] expert is expected to testify or present evidence. Nor does the disclosure set forth a summary of the facts and opinions of any expert. As note[d] above, the mere identification of each expert's name and contact information fails to satisfy the disclosure requirements of Rule 26(a)(2)(C), because Rule 26(a)(1)(i) already requires parties to provide the name and contact information of each individual likely to have discoverable information - along with the subjects of that information, and, therefore, providing such information alone fails to satisfy the requirements of Rule 26(a)(2)(C).

Ogle, 336 F.Supp.3d at 879 (footnotes, citations, and quotations omitted); id. at 881 (“The records submitted in camera related to Dr. Matrka are just that - medical records - not, inter alia, a report or summary of opinions as required by either Rule 26(a)(2)(B) or (C).”). And “the mere fact that witnesses may be available for deposition is insufficient to excuse noncompliance with Rule 26(a)(2) because ‘obviat[ing] the need to provide Rule 26(a)(2) disclosures and reports by simply making . . . experts available to be deposed would ...

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