United States District Court, E.D. Michigan, Southern Division
MEGAN PEARCE, individually and as NEXT FRIEND of BABY B, her infant child, Plaintiffs,
Hazel Park Police Officer, MICHAEL EMMI, in his individual capacity, Defendant.
OPINION AND ORDER REGARDING MOTIONS IN LIMINE (ECF
NOS. 112, 113, 114, 123)
CARAM STEEH, UNITED STATES DISTRICT JUDGE
court heard argument on the parties' motions in limine on
October 29, 2019, and ruled from the bench. The court expands
upon the basis for its rulings below.
Motion to Exclude Undisclosed Witnesses
seeks to exclude the following witnesses, who were identified
by Plaintiff for the first time in the Joint Final Pretrial
Order: Lori Pearce, Stephen Pearce, Tabitha Carter, Henry
Pearce, Karen Fuhrman, Gere Green, Undersheriff Mike McCabe,
and Sgt. Douglas Stewart. Plaintiff states that she does not
plan to call Gere Green or Sgt. Stewart.
who fails to disclose evidence as required by Fed.R.Civ.P. 26
may be precluded from introducing that evidence at trial.
Fed.R.Civ.P. 37(c)(1) (“If a party fails to provide
information or identify a witness as required by Rule 26(a)
or (e), the party is not allowed to use that information or
witness to supply evidence on a motion, at a hearing, or at a
trial, unless the failure was substantially justified or is
harmless.”); see also LR 16.2(8)
(“Except as permitted by the Court for good cause a
party may not list a witness unless the witness has been
included on a witness list submitted under a prior order or
has been deposed.”).
noncompliant party may avoid sanction if ‘there is a
reasonable explanation of why Rule 26 was not complied with
or the mistake was harmless.'” Howe v. City of
Akron, 801 F.3d 718, 747 (6th Cir. 2015). The Sixth
Circuit considers five factors when determining whether a
nondisclosure was “substantially justified” or
(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, 801 F.3d at 747-48.
contends that there is no surprise to Defendant regarding
Stephen Pearce and Lori Pearce (Plaintiff's mother), who
were listed on Defendant's witness list. (ECF No. 69.) In
light of Defendant's listing of these witnesses, there is
no surprise to Defendant. The court finds that the failure of
Plaintiff to previously list Lori Pearce or Stephen Pearce is
contends that Undersheriff Michael McCabe was encompassed by
categories of witnesses included on Defendant's witness
list: “any and all representatives, agents, current or
former employees of Oakland County” and the
“Oakland County Sheriff's Department.”
Plaintiff also argues that Tabitha Carter (Plaintiff's
best friend) and Henry Pearce (Plaintiff's father), are
included in the category “each and every family member,
neighbor, friend, acquaintance, and/or co-worker of
Plaintiff.” (ECF No. 35) As for Karen Fuhrman,
Plaintiff asserts that she was mentioned in deposition
categories of witnesses do not provide sufficient notice to
Defendant, nor does the mere mention of a potential witness
in deposition testimony. At this late date, an attempt to
cure the surprise to Defendant by allowing depositions would
be disruptive to the trial and the parties' trial
preparation. Plaintiff offers no justification for failing to
specifically name these witnesses prior to the Joint Final
Pretrial Order. Accordingly, the court finds that the failure
to identify these witnesses prior to the Joint Final Pretrial
Order is neither substantially justified nor harmless. The
court excludes the testimony of Tabitha Carter, Henry Pearce,
Karen Fuhrman, and Undersheriff McCabe.
Defendant's Motion to Exclude Evidence Related to the
Criminal Investigation of Fuhrman
seeks to exclude several broad categories of evidence as
irrelevant and/or ...