Boone v. Heyns et al
Opinion and Order Granting Defendant's 442 Motion to Strike Expert Report and Defendants' 426 , 429 Motions for Summary Judgment, and Dismissing Case With Prejudice. (Terminating 441 Motion to Strike.). Signed by District Judge Thomas L. Ludington. (KWin)
Case 1:12-cv-14098-TLL-MKM ECF No. 451, PageID.6936 Filed 11/21/22 Page 1 of 14
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
RICHARD BOONE II,
Case No. 1:12-cv-14098
Honorable Thomas L. Ludington
United States District Judge
JEFFERY STIEVE, et al.,
OPINION AND ORDER GRANTING DEFENDANT’S MOTION TO STRIKE EXPERT
REPORT AND DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT, AND
DISMISSING CASE WITH PREJUDICE
Plaintiff alleges Defendants were deliberately indifferent to his sleep apnea and need for
an air mattress in violation of the Eighth Amendment. Pending since September 14, 2012, the case
was reassigned to the undersigned on February 16, 2022.
Meanwhile, the Sixth Circuit decided Phillips v. Tangilag, 14 F.4th 524 (6th Cir. 2021),
holding that prisoners who received extensive care for a serious medical need must provide expert
testimony of inadequate care to prove the objective element of their deliberate-indifference claim.
Although Plaintiff received extensive care for his medical needs, he did not provide expert
testimony to meet his obligation to establish grossly inadequate care. So Defendants filed motions
for summary judgment. In response, Plaintiff sought to retain a new expert witness, who
Defendants contest as untimely.
At issue here are Defendants’ motions for summary judgment and motion to strike.
Case 1:12-cv-14098-TLL-MKM ECF No. 451, PageID.6937 Filed 11/21/22 Page 2 of 14
In relevant part, this Court adopts the following background facts from the late Judge
Arthur J. Tarnow’s order resolving the first round of summary-judgment motions:
Plaintiff was initially incarcerated within the custody of the MDOC in May
2003 and released on parole in 2008. On October 21, 2009, Plaintiff attempted to
rob a store and while fleeing the scene of the crime, he fell in a ditch and fractured
his left tibial plateau, among other things. Plaintiff was arrested and treated for his
injuries at Botsford Hospital and then confined in the Wayne County Jail until
March 16, 2011, when he was returned to the custody of the MDOC.
The events giving rise to the Fourth Amended Complaint allegedly occurred
between March 2011 and September 2012, while he was incarcerated at the Charles
Egeler Reception and Guidance Center (RGC) and the G. Robert Cotton
Correctional Facility (JCF), both of which are located in Jackson, Michigan.
Generally, Plaintiff alleges that Defendants were deliberately indifferent to his
serious medical needs in violation of the Eighth Amendment by denying him
adequate medical care for sleep apnea, kidney stones, right foot drop, residual left
knee problems following surgery on his left tibia, and the complications and
residual effects of a total right hip replacement.
Boone v. Heyns, No. 12-14098, 2020 WL 2832251, at *1 (E.D. Mich. May 31, 2020) (cleaned up).
Numerous defendants and claims have since been dismissed. See generally id.
Plaintiff’s Fifth Amended Complaint advances two Eighth Amendment claims: (1) that
Richard Miles,1 Jeffery Stieve, and Harriet Squier were deliberately indifferent to his medical need
for a CPAP machine (Count I), and (2) that Stieve and Miles were deliberately indifferent to his
medical need for an air mattress (Count II). ECF No. 447 at PageID.6912–13.
The facts relevant to those claims, as provided by Judge Tarnow, read as follows:
1. Sleep Apnea
Plaintiff experienced episodes of obstructive sleep apnea while being
treated at Botsford Hospital in October 2009. He received a continuous positive
Defendant Richard A. Miles has since passed away and been replaced by Richard Walker
McHugh as personal representative of the Estate of Richard Miles. Boone v. Stieve, No. 1:12-CV14098, 2022 WL 4465156, at *3 (E.D. Mich. Sept. 23, 2022); see also In re Est. of Miles, No.
2022-405662-DE (Mich. Oakland Cnty. Probate Ct. filed Mar. 11, 2022).
Case 1:12-cv-14098-TLL-MKM ECF No. 451, PageID.6938 Filed 11/21/22 Page 3 of 14
airway pressure (CPAP) machine from his mother to use for the sleep apnea while
at the hospital, and he was discharged to the Wayne County Jail with instructions
to continue using the CPAP machine at night. Medical staff at the Wayne County
Jail allowed Plaintiff to continue using the CPAP machine.
Plaintiff was transferred to JCF on April 27, 2011. He sent a medical kite
regarding sleep apnea, an inability to sleep, tiredness, and irritability on June 8,
2011. He was seen in response to this kite on June 9, 2011, and the medical provider
sent an email to the nursing supervisor and Housing Unit Manager (HUM) to
address the issue of Plaintiff’s CPAP machine. On August 8, 2011, Plaintiff had an
appointment with Defendant Miles, and he told Miles that he had not received the
CPAP machine because there is no sleep study on file. Plaintiff had another
appointment with Miles on September 26, 2011, at which Miles noted that Plaintiff
had previously used the CPAP machine with good response, that he was awakening
with shortness of breath and had difficulty staying asleep. Miles gave Plaintiff an
Epworth Sleepiness Scale (“ESS”) test; and Plaintiff scored a 12. Miles assessed
Plaintiff’s sleep apnea as good and ordered a sleep study for October 10, 2011.
Plaintiff had another visit with Miles on October 21, 2011, who noted that
Plaintiff’s sleep apnea was a chronic problem, but there was no notation regarding
scheduling a sleep study. Miles conducted a chart review on October 25, 2011,
noted that there was no documented indication or prescription for a CPAP machine,
and he terminated Plaintiff’s SA therefore. Miles requested a Respiratory Therapy
Evaluation for Sleep Apnea on October 28, 2011. Squier denied Miles’s request on
November 3, 2011, citing no evidence of hypertension and recommended that
Plaintiff initiate weight loss, decrease his upper body development, increase his
aerobic activity, and continue to be monitored.
. . . . On July 24, 2012, Plaintiff kited that he awakes gasping for air. On
July 27, 2012, Dr. Michael Szymanski indicated that he would request use of a
CPAP machine or formal testing for sleep apnea if the CPAP was deferred, and he
made that request on July 31, 2012. Defendant Stieve deferred Dr. Szymanski’s
request with instructions to confirm that Plaintiff's CPAP machine was still in
storage, get external records but if not available consider sleep study, and encourage
Plaintiff initiated this lawsuit on September 9, 2012. . . .
On October 11, 2012, Defendant Squier approved Plaintiff for a sleep study,
which was performed on November 14, 2012. The sleep-study report, dictated on
January 15, 2013, indicated diagnoses of obstructive sleep apnea, significant
nocturnal hypoxemia, and possible associated central apnea, and it recommended
clinical correlation and implementation of an auto set CPAP machine.
The CPAP machine was approved on February 4, 2013, and on February 6,
2013, a Special Accommodation for the CPAP was issued with no stop date and
the CPAP was provided to Plaintiff.
Id. at *2–3 (cleaned up).
6. Air Mattress
Case 1:12-cv-14098-TLL-MKM ECF No. 451, PageID.6939 Filed 11/21/22 Page 4 of 14
In March 2008, Plaintiff underwent a total right-hip replacement at the
University of Michigan and was discharged back into MDOC custody with orders
to sleep on an air mattress. He later received a special accommodation for an air
mattress and continued to use it until he was paroled in 2008. Upon his return to
the MDOC on March 17, 2011, Boomershine issued a special accommodation to
Plaintiff for an air mattress. When Plaintiff was transferred to JCF, an air mattress
was ordered for him on April 27, 2011 with a stop date of May 27, 2011. On May
23, 2011, Plaintiff submitted a kite requesting a new air mattress because his current
one was leaking and was informed that he would be called out to exchange his old
mattress for a new one. The exchange happened on May 25, 2011. Plaintiff
exchanged his air mattress again on November 29, 2011.
Plaintiff requested a new air mattress on March 5, 2012, and Licensed
Practical Nurse Karina Beals told Plaintiff that it was being discontinued because
according to Stieve and the standard criteria, Plaintiff did not meet the
qualifications for an air mattress. On March 13, 2012, Miles informed Plaintiff that
he did not meet the criteria for an air mattress. Plaintiff asserts that he began to
experience severe back and hip pain after his air mattress was discontinued and sent
multiple kites regarding the pain that he was experiencing. He was given an extra
pillow for his hip on October 9, 2012. Plaintiff treated with Dr. Shanthi Gopal on
November 1, 2012, at which appointment he was upset about his air mattress not
being restored. Gopal advised Plaintiff to try the stretching exercises and weight
loss recommended by the RMO; he also requested RMO approval for the
nonformulary pain medication, Norco, for Plaintiff’s chronic hip pain. This request
was deferred in favor of trying rotating NSAIDs; Ultram 50 mg was approved. On
December 11, 2012, Plaintiff reported to health care complaining of chronic pain,
stating that the Ultram was being given too early to help and that his mattress was
too hard. He was informed that he was not eligible for an air mattress.
On March 7, 2013, Stieve approved an air mattress for Plaintiff for six
months; Plaintiff received the air mattress on March 13, 2013. A proposed
extension of Plaintiff’s special accommodation for an air mattress was deferred on
December 5, 2013 by Dr. Borgerding, who reasoned that “air mattresses are
considered in cases of decubiti.” The air mattress was removed from Plaintiff’s
property on December 9, 2013, but it subsequently returned to Plaintiff pursuant to
the court’s December 19, 2013 order and instructions from Stieve to MDOC staff
in furtherance of that order.
There is no indication that the named Defendants had any further
involvement in Plaintiff’s healthcare as it relates to his air mattress. Nevertheless,
Plaintiff and the MDOC continued to disagree about Plaintiff’s need for an air
mattress. On February 6, 2015, the court granted Plaintiff’s Motion for Preliminary
Injunction and ordered Defendants to provide Plaintiff with an air mattress, which
order was subsequently reversed by the Sixth Circuit on March 21, 2016, for an
evidentiary hearing. On November 22, 2017, the court determined that an
evidentiary hearing was no longer necessary and ordered Defendants to provide
Plaintiff with an air mattress until his parole.
Case 1:12-cv-14098-TLL-MKM ECF No. 451, PageID.6940 Filed 11/21/22 Page 5 of 14
Id. at *7–8 (cleaned up).
On September 17, 2021, the Sixth Circuit decided Phillips v. Tangilag, 14 F.4th 524 (6th
Cir. 2021). There, Donald Phillips, a Kentucky inmate, sought medical care for a painful,
softball-size mass on his calf, which a CT scan revealed was a hematoma, internal bleeding for
which surgery is generally not recommended because it “typically goes away on its own.” Phillips
v. Tangilag, 14 F.4th 524, 529 (6th Cir. 2021). Phillips alleged the hematoma did not go away and
sued his doctors under the Eighth Amendment’s ban on “cruel and unusual punishments” for not
surgically removing it. Id. Reasoning that deliberate-indifference claims should not have a lower
burden of proof than state-law medical-negligence cases, the Sixth Circuit held that Phillips’s
deliberate-indifferent claim failed for lack of “expert evidence suggesting that his doctors were
grossly incompetent.” Id.
Based on Phillips, Defendants requested leave to file second motions for summary
judgment. ECF Nos. 421; 424. Leave was granted. Boone v. Stieve, No. 1:12-CV-14098, 2022 WL
2312368 (E.D. Mich. June 27, 2022); Boone v. Stieve, No. 1:12-CV-14098, 2022 WL 2294042
(E.D. Mich. June 24, 2022). Then Defendants filed second motions for summary judgment. ECF
Nos. 426 (Harriet Squier); 429 (Jeffery Stieve). In essence, Defendants contend that Plaintiff’s
remaining claims fail because he has not retained an expert witness to testify about the adequacy
of the care that he received, as Phillips now requires. The parties twice stipulated to extend
Plaintiff’s response deadline. ECF Nos. 433; 434. Then Plaintiff filed a motion to adjourn it a third
time, ECF No. 439, which was granted, see ECF No. 440. Confusingly, Plaintiff responded to only
Defendant Squier’s summary-judgment motion. See generally ECF No. 440.
Case 1:12-cv-14098-TLL-MKM ECF No. 451, PageID.6941 Filed 11/21/22 Page 6 of 14
On October 17, 2022, Plaintiff also filed an amended witness list, newly identifying Dr.
Oktai Mamedov, a purported expert in sleep apnea. See ECF No. 438 at PageID.6797. Dr.
Mamedov’s curriculum vitae and expert report are attached to Plaintiff’s Response to Defendants’
Motions for Summary Judgment. See ECF Nos. 440-1; 440-2; 440-3.
Arguing Plaintiff’s witness disclosure is untimely, Defendant Stieve has filed a motion to
strike the witness disclosure, see ECF Nos. 441; 442, which has been fully briefed, ECF No. 448.
As explained hereafter, Defendant Stieve’s Motion to Strike Expert Report will be granted,
infra Part II, and Defendants’ Motions for Summary Judgment will be granted and the case will
be dismissed, infra Part III.
Defendant Stieve has filed a motion to strike the expert report of Dr. Oktai Mamedov under
Federal Rules of Civil Procedure 26 and 37(c)(1). ECF No. 442. Stieve argues Dr. Mamedov’s
expert report should be stricken because Plaintiff’s disclosure was filed late and without the court’s
Plaintiff responds that he should be permitted to file Dr. Mamedov’s expert report because
the scheduling order’s expert-witness-disclosure deadline did not apply to the disclosure of expert
reports. See ECF No. 448 6915–16.
The Sixth Circuit has held that district courts have broad discretion to exclude untimely
disclosed expert-witness testimony. Pride v. BIC Corp., 218 F.3d 566, 578–79 (6th Cir. 2000)
(upholding the exclusion of untimely expert-witness reports and affidavits); Moore, Owen, Thomas
& Co. v. Coffey, 992 F.2d 1439, 1446 (6th Cir. 1993) (noting that the district court “has the
discretion to refuse the filing of untimely affidavits”).
Case 1:12-cv-14098-TLL-MKM ECF No. 451, PageID.6942 Filed 11/21/22 Page 7 of 14
The source of the district court’s discretion in this matter is Rule 16 of the Federal Rules
of Civil Procedure, which grants district courts wide latitude to impose sanctions for failure to
comply with the scheduling orders intended to govern the parties’ preparation of their cases.
Clarksville–Montgomery Cnty. Sch. Sys. v. U.S. Gypsum Co., 925 F.2d 993, 998 (6th Cir. 1991);
accord Estes v. King’s Daughters Med. Ctr., 59 F. App’x 749, 752 (6th Cir. 2003) (unpublished)
(“Rule 16 grants district courts broad discretion to enforce their scheduling orders.”). District
courts may impose whatever sanction is appropriate, under the circumstances. FED. R. CIV. P. 16
advisory committee’s note to 1983 amendment.
Plaintiff did not timely disclose Dr. Mamedov or his expert report until after the discovery
deadline ended. In October 2018, the parties stipulated to set a discovery deadline of December
27, 2018. ECF No. 340. As Plaintiff acknowledges, he disclosed Dr. Mamedov 1,390 days after
the discovery deadline ended. See ECF No. 448 at PageID.6916 (stating Plaintiff disclosed Dr.
Mamedov on October 17, 2022). And that late disclosure occurred after six adjournments of the
scheduling order, the first of which was 2,324 days before the final discovery deadline. See ECF
Nos. 210; 243; 248; 237; 287; 304. Neither party has requested an adjournment of the discovery
deadline since. However, Plaintiff not only responded to Defendants’ requests for leave to file
second motions for summary judgment, ECF No. 422, but also stipulated to adjourn his response
deadline to the motions for summary judgment—twice, see ECF Nos. 433; 434. Then he filed a
motion to extend his response deadline a third time, which was granted. See ECF No. 439. Yet
after six years and nine extensions, Plaintiff has still never asked Defendants or this Court for
permission to disclose an expert witness after the discovery deadline.
Case 1:12-cv-14098-TLL-MKM ECF No. 451, PageID.6943 Filed 11/21/22 Page 8 of 14
Instead, Plaintiff has sought to debate the language of the scheduling orders—as if setting
a deadline to identify the “names of all witnesses, lay and expert” creates “no requirement . . . to
exchange reports of the experts” before the discovery deadline. See ECF No. 448 at PageID.6915.
Moreover, there were no expert deadlines adjourned after discovery ended that might have given
the parties the sense that such contextomy could be parsed from the court’s orders. Absent express
permission from the court, parties should assume that the discovery deadline is the end of
discovery. Appalachian Reg’l Healthcare, Inc. v. U.S. Nursing Corp., No. 714CV00122KKCEBA,
2017 WL 9690401, at *6 (E.D. Ky. Sept. 1, 2017) (“Generally, the discovery deadline specifies
the date on which all discovery must be completed, therefore, any document requests must be
served at least 30 days prior to the discovery deadline.” (first quoting United States v. Carell, No.
3:09-0445, 2011 WL 2078023, at *8 (M.D. Tenn. May 26, 2011); and then citing United
Consumers Club, Inc. v. Prime Time Mktg. Mgmt., 271 F.R.D. 487, 495 (N.D. Ind. 2010))).
On top of all that, the docketed version of Dr. Mamedov’s expert report is a photocopy that
appears as if someone covered part of the original with a blank sheet of paper to hide the report’s
date. See ECF No. 440-3 at PageID.6822. And the final page of the report appears to be a newly
added signature page. See id. at PageID.6823. Screenshots of both pages have been attached to the
end of this Order. See infra Figures 1, 2. Whatever it is, Plaintiff has not explained it. Courts should
not permit parties to submit “doctored-up ‘empirical’ evidence.” See Matthew N. Preston II, The
Tweet Test: Attributing Presidential Intent to Agency Action, 10 BELMONT L. REV. 1, 43 (citations
omitted). “Yet this Court will give Plaintiff the benefit of the doubt” on this issue. Cf. LeVay v.
Morken, 590 F. Supp. 3d 1037, 1049 (E.D. Mich. 2022) (citing Novak v. Federspiel, No. 1:21-CV12008, 2021 WL 5198521, at *8 (E.D. Mich. Nov. 9, 2021)).
Case 1:12-cv-14098-TLL-MKM ECF No. 451, PageID.6944 Filed 11/21/22 Page 9 of 14
District courts have been affirmed for striking expert disclosures in substantially similar
circumstances. Estes v. King’s Daughters Med. Ctr., 59 F. App’x 749, 753 (6th Cir. 2003)
(unpublished) (affirming district court’s exclusion of expert affidavit as untimely because it
“granted repeated extensions at plaintiffs’ request, allowed discovery to proceed for more than
eighteen months, and explicitly reminded plaintiffs, by issuing two show-cause orders, of the
necessity of expert testimony”).
Defendant Stieve’s motion to strike the expert witness will be granted because Plaintiff has
untimely disclosed an expert witness and his report, has not requested leave to do so during
thousands of possible days, and has made, at most, a curious and unconvincing argument about it.
FED. R. CIV. P. 16(f)(1)(C) (“On motion or on its own, the court may issue any just orders . . . if a
party or its attorney . . . fails to obey a scheduling or other pretrial order.”).
Part III addresses Defendants’ Motions for Summary Judgment.
A motion for summary judgment should be granted if the “movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
FED. R. CIV. P. 56(a). The movant has the initial burden of “identifying” the record evidence “it
believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett,
477 U.S. 317, 323 (1986). The burden then shifts to the opposing party who must set out specific
facts showing “a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986)
(citation omitted). A genuine issue of fact requires more than “a mere scintilla of evidence,” id. at
251, more than “some metaphysical doubt,” Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 586 (1986).
Case 1:12-cv-14098-TLL-MKM ECF No. 451, PageID.6945 Filed 11/21/22 Page 10 of 14
The court must draw all reasonable inferences in favor of the nonmovant to determine
“whether the evidence presents a sufficient disagreement to require submission to a jury or whether
it is so one-sided that one party must prevail as a matter of law.” Anderson, 477 U.S. at 251–52.
Summary judgment will be granted if the nonmovant fails to establish a genuine issue of
material fact on the elements of its case that the moving party has challenged. See Celotex Corp.,
477 U.S. at 322. But summary judgment will be denied if the challenged elements have “genuine
factual issues that . . . may reasonably be resolved in favor of either party.” Hancock v. Dodson,
958 F.2d 1367, 1374 (6th Cir. 1992) (citation omitted).
Plaintiff’s sole remaining Eighth Amendment claims allege (1) that Miles, Stieve, and
Squier were deliberately indifferent to his medical need for a CPAP machine (Count I), and (2)
that Stieve and Miles were deliberately indifferent to his medical need for an air mattress (Count
II). ECF No. 447 at PageID.6912–13.
Defendants filed motions for summary judgment, relying on Phillips v. Tangilag, 14 F. 4th
524 (6th Cir. 2021), arguing that Plaintiff’s claims should be dismissed because he “has not
retained a medical expert to testify regarding what care a competent doctor would provide, and
why care provided by [Defendants] was grossly incompetent.” ECF Nos. 426 at PageID.6666; 429
at PageID.6740. Confusingly, Plaintiff has only responded to Squier’s summary-judgment motion.
See generally ECF No. 440. Plaintiff’s arguments hinge on the expert testimony of Dr. Oktai
Mamedov, see generally ECF No. 440, which this Court has stricken as untimely, see discussion
supra Part II.
In Phillips v. Tangilag, 14 F. 4th 524 (6th Cir. 2021), the Sixth Circuit held that proving a
deliberate-indifference claim based on an allegation of inadequate care or delay of care requires
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Case 1:12-cv-14098-TLL-MKM ECF No. 451, PageID.6946 Filed 11/21/22 Page 11 of 14
expert medical testimony. Specifically, the Phillips court held that, because the plaintiff received
care and merely challenged the adequacy of that care, “[he] needed to present expert medical
evidence describing what a competent doctor would have done and why the chosen course was not
just incompetent but grossly so.” Id. at 536.
There is no question of fact that Plaintiff received treatment from Defendants for his serious
medical needs: a CPAP for sleep apnea and an air mattress for a musculoskeletal condition. See
ECF No. 440 at PageID.6811; discussion supra Section I.A.
But Plaintiff did not timely retain a medical expert to testify about whether Defendants’
care to Plaintiff was grossly incompetent or what care a competent doctor would have provided—
regarding both counts.
Even if Dr. Mamedov’s expert testimony was considered, Plaintiff’s claims would not
survive. For one thing, Dr. Mamedov does not address Plaintiff’s need for an air mattress for a
musculoskeletal condition. See generally ECF Nos. 440-1; 440-2; 440-3. And with respect to sleep
apnea, Dr. Mamedov’s expert report, at best, argues Defendants were negligent. See, e.g., ECF No.
440-3 at PageID.6819 (“In my opinion, ordering sleep study was reasonable . . . .); id. (“I think,
the above denial for sleep study was unreasonable.”); id at PageID.6820 (“I think it was
unreasonable not to have sleep study because it was denied before.”); id. at PageID.681 (“There is
enough evidence and information for me to conclude that both Miles and Squire were subjectively
aware of Plaintiff’s serious condition and were indifferent to it for two years until it became too
severe to ignore.”). Simply put, the report does not argue that the medical care that Defendants
provided was “so grossly incompetent, inadequate, or excessive as to shock the conscience or to
be intolerable to fundamental fairness.” Miller v. Calhoun Cnty., 408 F.3d 803, 819 (6th Cir. 2005)
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Case 1:12-cv-14098-TLL-MKM ECF No. 451, PageID.6947 Filed 11/21/22 Page 12 of 14
For these reasons, both of Plaintiff’s deliberate-indifference claims fail as a matter of law,
entitling Defendants to summary judgment. See Phillips, 14 F.4th at 535–38 (6th Cir. 2021).
Because Plaintiff has no remaining claims, his Fifth Amended Complaint will be dismissed with
Accordingly, it is ORDERED that Defendant Stieve’s Amended Motion to Strike Expert
Report, ECF No. 442, is GRANTED.
Further, it is ORDERED that Defendant Stieve’s Motion to Strike Expert Report, ECF
No. 441, is DENIED AS MOOT.
Further, it is ORDERED that Plaintiff’s Expert Report, ECF Nos. 440-1; 440-2; 440-3,
and Plaintiff’s Amended Witness List, ECF No. 438, are STRICKEN.
Further, it is ORDERED that Defendants’ Motions for Summary Judgment, ECF Nos.
426; 429, are GRANTED.
Further, it is ORDERED that Plaintiff’s Fifth Amended Complaint, ECF No. 447, is
DISMISSED WITH PREJUDICE.
This is a final order and closes the above-captioned case.
Dated: November 21, 2022
s/Thomas L. Ludington
THOMAS L. LUDINGTON
United States District Judge
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