Jacobs v. Alam

          ORDER DENYING DEFENDANTS' MOTION TO EXCLUDE EVIDENCE OF ECONOMIC DAMAGES AND DENYING DEFENDANTS' MOTION TO EXCLUDE EXPERT TESTIMONY [#179]

          DENISE PAGE HOOD CHIEF JUDGE.

         I. BACKGROUND

         Defendants Raymon Alam, David Weinman, and Damon Kimbrough (“Defendants”) have filed a Motion to exclude evidence of economic damages. [ECF No. 179]

         This case involves the events that occurred between Defendants and Plaintiff Eduardo Jacobs (“Plaintiff”) during the raid at his residence located at 5837 Christiancy Street, Detroit, MI on January 3, 2014. The parties dispute many of the events leading up to Plaintiff's injury. However, it is undisputed that Plaintiff was shot at least one time from one of Defendants' bullets.

         Plaintiff alleges that the bullet wound he sustained resulted in his permanent inability to work, which caused a series of economic losses related to his rental properties, “Mexicantown Properties, LLC.” Plaintiff further contends that his absence from work allowed employees of his company to loot his business assets. Plaintiff also alleges that his permanent disability forced several of his properties into tax foreclosure. Defendants claim Plaintiff has violated Federal Rule of Civil Procedure 37 and that Plaintiff's expert witnesses, Dr. Nitin V. Paranjpe and Mr. Guy A. Hostetler should be excluded.

         II. ANALYSIS

         A. Rule 37

         1. Legal Standard

         “If a party fails to provide information or identify a witness as required by Rule 26(a) or (e), ” Rule 37 of the Federal Rules of Civil Procedure explains that “the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at trial, unless the failure was substantially justified or is harmless.” Fed.R.Civ.P. 37(c)(1); see also Bessemer & Lake Erie R.R. Co. v. Seaway Marine Transp., 596 F.3d 357, 396 (6th Cir.2010).

         The Rule 37 sanction “is mandatory unless there is a reasonable explanation of why Rule 26 was not complied with or the mistake was harmless.' “Bessemer & Lake Erie R.R. Co. v. Seaway Marine Transport, 596 F.3d 357, 370 (6th Cir.2010) (quoting Vance ex rel Hammons v. United States, 182 F.3d 920 (6th Cir.1999)). The burden is on the potentially sanctioned party to prove the failure was harmless and avoid automatic sanctions. See Everlight Electronics, Co. v. Nichia Corp., No. 12-CV-11758, 2014 WL 3925276, at *5 (E.D.Mich. Aug.12, 2014) (citing R.C. Olmstead, Inc. v. CU Interface, LLC, 606 F.3d 262, 271 (6th Cir.2010)); see also El Camino Res., Ltd. v. Huntington Nat. Bank, No. 1:07-CV-598, 2009 WL 1228680, at *2 (W.D.Mich. Apr.30, 2009) (citing Roberts ex rel. Johnson v. Galen of Virginia, Inc., 325 F.3d 776, 782 (6th Cir.2003)).

         “[D]espite the mandatory language of the rule, ” this Court notes that “the appellate courts continue to insist that [exclusion pursuant to Rule 37(c)(1) ] falls within the sound discretion of the trial court.” El Camino Res., Ltd., 2009 WL 1228680, at *2 (citing Roberts ex rel. Johnson, 325 F.3d at 782); accord Design Strategy, Inc. v. Davis, 469 F.3d 284, 297 (2d Cir.2006) (stating that preclusion remains discretionary, even where nondisclosing party has not met its burden to show that violation was justified or harmless); see also Pride v. BIC Corp., 218 F.3d 566, 578 (6th Cir.2000) (“[Trial] courts have broad discretion to exclude untimely disclosed expert-witness testimony.”); McCarthy v. Option One Mortgage Corp., 362 F.3d 1008, 1012 (7th Cir.2004) (“[trial] courts enjoy broad discretion in controlling discovery.”); S. States Rack & Fixture, Inc. v. Sherwin- Williams Co., 318 F.3d 592, 597 (4th Cir.2003) (stating trial courts have “broad discretion to determine whether a nondisclosure of evidence is substantially justified or harmless for purposes of a Rule 37(c)(1) exclusion analysis”); Laplace-Bayard v. Batlle, 295 F.3d 157, 162 (1st Cir.2002) (“[Trial] courts have broad discretion in meting out Rule 37(c) sanctions for Rule 26 violations.”); Jacobsen v. Deseret Book Co., 287 F.3d 936, 953 (10th Cir.2002) (“The determination of whether a Rule 26(a) violation is justified or harmless is entrusted to the broad discretion of the [trial] court.”).

         In determining whether nondisclosure is harmless, courts look at several factors, but the principal factor is whether the opponent will be prejudiced or surprised. See, e.g., El Camino Res., Ltd., 2009 WL 1228680, at *2 (citing David v. Caterpillar, Inc., 324 F.3d 851, 857 (7th Cir.2003)). The Advisory Committee Comments to Rule 37 note that “[l]imiting the automatic sanction to violations without substantial justification,' coupled with the exception for violations that are ‘harmless,' is needed to avoid unduly harsh penalties in a variety of situations[.]” Fed.R.Civ.P. 37 Advisory Committee Notes, 1993 Amends. (emphasis added).

         2. Application

         Defendants argue that Plaintiff failed to respond to their discovery requests and the Court's Order compelling the disclosure of certain information. In forming their argument, Defendants allege that Plaintiff took several actions-and in some cases no action-to circumvent the discovery process. Defendants allege that Plaintiff has been receiving social security disability checks since 2011. Defendants highlight that it is unclear how Plaintiff can receive social security disability benefits, despite operating a “highly-profitable business.” [ECF No. 179, Pg.ID 5884] Plaintiff did not address this claim in his Response.

         In addition to Plaintiff's injuries stemming from the January 2014 shooting, Plaintiff also sustained injuries in two serious car accidents-one in 2009 and the other in April 2014. To determine each incident's effect on Plaintiff, Defendants asked Plaintiff to disclose which of his injuries were attributable to each event.

         Defendants allege Plaintiff failed to answer their requests, so they moved to compel Plaintiff's answers. Although Plaintiff submitted an interrogatory explaining which injuries were caused by the shooting and not attributable to either car accident, [ECF No. 183-5, Pg.ID 6161] Defendants claim the interrogatory was insufficient because Plaintiff failed to produce specific medical records as requested. Defendants argue that there is no way of knowing whether Plaintiff's injuries came from his car accidents or bullet wound. Defendants assert that if Plaintiff did not have any ...