United States District Court, E.D. Michigan, Southern Division
ORDER DENYING DEFENDANTS' MOTION TO EXCLUDE
EVIDENCE OF ECONOMIC DAMAGES AND DENYING DEFENDANTS'
MOTION TO EXCLUDE EXPERT TESTIMONY [#179]
PAGE HOOD CHIEF JUDGE.
Raymon Alam, David Weinman, and Damon Kimbrough
(“Defendants”) have filed a Motion to exclude
evidence of economic damages. [ECF No. 179]
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.
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.
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
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
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]
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).
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.
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.
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 ...