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Estate of Jackson v. Billingslea

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

July 1, 2019

The Estate of Michaelangelo A. Jackson, deceased, et al., Plaintiffs,
v.
Richard Billingslea, et al., Defendants.

          ORDER DENYING PLAINTIFFS' MOTION TO STRIKE DEFENDANTS' EXPERT [ECF NO. 26]

          Honorable Victoria A. Roberts, Judge

         Before the Court is Plaintiffs' motion to strike Defendants' expert, Dr. Jerome Eck (“Eck”). For the reasons explained, the Court DENIES the motion to strike.

         BACKGROUND

         This case involves claims pursuant to 42 U.S.C. § § 1983 and 1988 and the Fourth and Fourteenth Amendments of the United States Constitution for municipal liability, failure to train and supervise police officers, excessive force, state-created danger, and failure to intervene.

         Plaintiffs allege Defendants caused death and injury; their decedents were struck by a car being chased by the Detroit Police.

         On February 12, 2019, the Court held an unsuccessful settlement conference. The parties and counsel discussed the need for expert discovery. The Court set these deadlines: (1) Defendants to file an expert report of Eck by February 20, 2019; (2) Plaintiffs to disclose their expert and file expert report by March 26, 2019; and (3) expert depositions completed by May 1, 2019.

         The Court held a telephone conference to discuss discovery issues and ordered Eck to produce IRS 1099 forms issued to him, his company, and any company he rendered an expert opinion for in the last five years. Eck filed a Motion for Protective Order and Defendants filed a Motion for Reconsideration and Protective Order. Plaintiffs filed a Motion to Strike Defendants' Expert.

         MOTION TO STRIKE DEFENDANTS' EXPERT AND RESPONSE

         Plaintiffs seek to strike Eck as a sanction under Fed.R.Civ.P. 37(b). Plaintiffs argue Eck refused to comply with the Court's order and delayed answering Plaintiffs' expert discovery requests. Defendants argue Plaintiffs request a “death penalty” sanction: a “litigation-ending sanction.” The Law Funder, LLC v. Munoz, 924 F.3d 753, 758 (5th Cir. 2019).

         ANALYSIS

         I. RULE 37 SANCTION TO STRIKE ECK AS AN EXPERT IS TOO DRASTIC

         Fed. R. Civ. P. 37(b) allows courts to impose sanctions on parties for failing to comply with a court discovery order. The Sixth Circuit considers four factors before imposing Rule 37 sanctions:

(1) Whether the party's failure to cooperate in discovery is due to willfulness, bad faith, or fault; (2) whether the adversary was prejudiced by the party's failure to cooperate in discovery; (3) whether the party was warned that failure to cooperate could lead to a sanction; and (4) ...

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