Scorsone v. Wal-Mart Stores, Inc.

Filing 44

ORDER granting 37 MOTION to Preclude Plaintiff from Offering Expert Testimony, denying 38 MOTION for Summary Judgment and Cancelling Hearing. Signed by District Judge Thomas L. Ludington. (SGam)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION
SUE SCORSONE,
Plaintiff,
v

Case No. 13-cv-14418
Honorable Thomas L. Ludington

WAL-MART STORES, INC.,
Defendant.
__________________________________________/
ORDER DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT,
GRANTING DEFENDANT’S MOTION TO EXCLUDE EXPERT TESTIMONY, AND
CANCELLING HEARING
On February 26, 2014, Scorsone filed an amended complaint alleging that her former
employer, Defendant Wal-Mart, retaliated against her for taking medical leave pursuant to the
Family Medical Leave Act (“FMLA”). Specifically, Scorsone claims that Wal-Mart retaliated
by denying her request for Personal Leave, which ultimately resulted in the termination of her
employment.
Wal-Mart filed a motion for summary judgment, claiming that Scorsone had not offered
sufficient evidence to show that its legitimate reason for denying Personal Leave was pretextual.
Wal-Mart also filed a motion seeking to preclude the testimony of Scorsone’s damages expert for
failure to comply with the Federal Rules of Civil Procedure.
Because Scorsone has proffered sufficient evidence to show pretext, Wal-Mart’s motion
for summary judgment will be denied. However, because Scorsone has not shown that her
failure to disclose her expert’s report was harmless, Wal-Mart’s motion to preclude the testimony
of her expert will be granted.

I.
Wal-Mart hired Scorsone to work for its Bay Road location in Saginaw, Michigan, store
on September 11, 2008, as a part-time optician. Def.’s Mot. Summ. Ex. A at 34, 48, ECF No.
38. In May 2011, Scorsone requested a transfer to the Brockway store because it was closer to
home. Id. at 32-33. Wal-Mart granted Scorsone’s request and promoted her to Optician II in the
Vision Center at the Brockway location. Id. at 67.
While Scorsone worked in the Brockway location, her immediate supervisor was Vision
Center Manager Samantha Wirtz. In Scorsone’s July 2012 employee evaluation, Ms. Wirtz
noted that Scorsone “exceed[s] expectations” and provided favorable reviews:
Sue you do a wonderful job in both helping out the doctor and your co-workers. I
appreciate how you are always willing to help out. You have wonderful customer
service. You really do make the customers feels welcome. You are always
willing to learn something new. I do appreciate all the hard work that you do for
both the Vision Center and I. You are a real asset to the team.
Pl.’s Resp. Ex. 3, ECF No. 42. Ms. Wirtz even recommended that Scorsone become a full-time
employee. Def.’’s Mot. Summ. J. Ex. F at 7.
A.
On July 29, 2012, Scorsone fell as she was getting ready for work. Def.’s Mot. Summ. J.
Ex. A at 78. It was clear at that time that she had injured her leg; she heard a “horrendous” crack
and observed her foot dangling off the end of her leg. Id.
After calling Ms. Wirtz to inform her that she could not work, Scorsone called 911.
Scorsone was taken by ambulance to the hospital, where a surgeon repaired her fracture the next
day. Id. at 150. Two days later, Scorsone was transferred to a rehabilitation center, where she
remained for approximately two weeks. Id. at 79-81.

-2-

B.
While Scorsone was at the rehabilitation center, a social worker helped her request a
medical leave of absence under the FMLA. Def.’s Mot. Summ. Ex. A at 82. The social worker
then had Scorsone’s physician, Dr. Babu Nahata, complete the medical certification portion of
the paperwork and then faxed the papers to Ms. Wirtz on August 6, 2012. Id. at 82, 85; Pl.’s
Resp. Ex. 2 at 11. According to the certification, Dr. Nahata noted that Scorsone had a “tibia and
fibia fracture” in her right leg and that the injury would render her unable to work from
“7/29/12” to “2/1/13” (approximately 26 weeks). Pl.’s Resp. Ex 4.

Dr. Nahata opined that

Scorsone would be unable to perform “all functions” of her job during that period, and that when
she returned to work, she would need “shorter days initially”. Id. Ms. Wirtz received the faxed
papers and gave them to Maxine Sequin, the Personnel Manager. Pl.’s Resp. Ex. 2 at 11.
According to Scorsone, she did not receive a response from Wal-Mart concerning the
status of her FMLA request. Because Scorsone had not heard anything from Wal-Mart about
the status of her FMLA leave request, she contacted her supervisor, Ms. Wirtz.

According to

Scorsone, Ms. Wirtz told her not to worry about her job:
I do think I mentioned it to Samantha [Wirtz]. . . . I did say, you know, I never
heard back anything. And she said, “Well, just, you know, take it like you’re on
leave.” And I said—She said, you know, “Don’t worry about your job. You’ve
still got your job.”
Pl.’s Resp. Ex. 1 at 97.
C.
On October 8, 2012, while Scorsone was on leave, store manager Joseph Smith sent an email to Ms. Wirtz, Mr. William Mobley (the Health and Wellness Market Director), and Ms.
Sequin. The e-mail, with subject line “2644 vision staffing” is reproduced in full below because
the parties dispute its meaning:
-3-

I am going to recommend that we post a position to replace Sue on October 29th
which is when Sue’s FMLA will expire. She is not expected to return until
February so her position will need to be replaced. Maria has been scheduled FT
hours for several months. An internal temporary vision position should have been
opened some time ago to prevent a situation where Maria was on the FT/PT
exception report for extended months. You also could have rotated one of the
other vision associates to higher hours for a month so as to not allow one to be on
the FT/PT list for consecutive months. At this point we can continue scheduling
the remaining associates additional hours until Oct 29th.
If we are unable to hire a viable PT candidate to replace Sue, we then will
consider posting a FT vision req. If we post the req as a FT position, the other
vision center assocaties can interview for the job and we can give it to the most
qualified candidate.
I feel this is the best way to approach this situation to ensure that Sue does not
return in the future and have us obligated to give her hours and not have enough
to give the remaining associates. We could potentially skip posting a PT job and
go straight to FT posting, but we still would need to wait until Oct. 29th, and send
Sue the proper FMLA notification that her position is being filled.
Pl.’s Resp. Ex. 8 (emphasis added).
Wal-Mart maintains that the e-mail “was directed at Wirtz’s decision to not hire a
temporary associate, and her overall management of staff in the Vision Center, nothing more.”
Mot. Summ. J. 24. Scorsone, in contrast, asserts that the e-mail is evidence of Wal-Mart’s
intention to retaliate against her, especially when coupled with the events that occurred
afterwards, as detailed below.
D.
Although Wal-Mart’s own internal procedures provide that a Designation Notice be
given to the employee within 5 days of receipt of FMLA medical certification, Pl.’s Resp. Ex. 5,
Wal-Mart did not provide the Designation Notice to Scorsone until the end of November. The
Notice, dated November 30, 2012, was sent by Ms. Sequin (a recipient of Mr. Smith’s e-mail)
and stated that Scorsone had been approved for twelve weeks of FMLA leave, which had expired
over a month earlier on October 22. Pl.’s Resp. Ex. 9.
-4-

In addition to the Designation Notice, Ms. Sequin also provided a letter explaining that
Scorsone’s position in the Vision Center will be posted and filled unless Scorsone returns to
work at the end of her medical leave on November 15, 2011—fifteen days before Ms. Sequin
sent the letter. Id. The letter also explained that Scorsone could request Personal Leave if she
could not return to work:
If you do not wish to return to work, you may request an extension of your leave.
If you are not eligible or do not qualify for an FMLA leave, you may request
Personal Leave. However, associates on Personal Leave are not guaranteed their
previous position when they wish to return to work.
If you have any questions, please feel free to contact your Facility Manager or HR
representative immediately to discuss your plans to return to work.
Id.
When Scorsone received Ms. Sequin’s letter on December 4, 2012, she immediately
attempted to contact someone at Wal-Mart. First, she tried to call Mr. Smith twice on December
4, 2012. Then she called Human Resources, but no one answered. Def.’s Mot. Summ. J. Ex. A
at 99. Next she called the Assistant Store Manager Cindy Schott, who informed Scorsone that
she needed to talk to Ms. Olympia Gully, who was filling in for Ms. Sequin. Id. at 99-100.
Over the next seven days, Scorsone called Ms. Gully several times and left messages
requesting a return phone-call for the next seven days. Pl.’s Resp. Ex. 1 at 100-101. When she
could not reach Ms. Gully by phone, Scorsone got a ride to the store to speak to her in person,
but no one was available to speak to Scorsone. Id. at 103.
On December 11, 2012,1 Scorsone was finally able to reach Ms. Gully by phone. During
the conversation, Ms. Gully informed Scorsone that she was no longer a member of the Vision
Center and that her job had been posted. Def.’s Mot. Summ. J. Ex. A at 105. Ms. Gully

1

Ms. Gully’s notes indicate that the call occurred on December 12, 2012. Ex. 11.

-5-

explained that Scorsone could nonetheless apply for Personal Leave,2 and that she would send
Scorsone the paperwork. Id.
That same day, on December 11, 2012, Store Manager Smith approved Scorsone’s
August request for FMLA leave from “7/29/12” to “10/22/12”; in other words, Mr. Smith
approved Scorsone’s FMLA leave about 7 weeks after the leave expired. Pl.’s Resp. Ex. 4.
On December 19, 2015, Scorsone once again spoke with Ms. Gully, who informed
Scorsone that she had only fifteen days to return the Personal Leave paperwork. Scorsone
replied that she had not yet received the paperwork. Def.’s Mot. Summ. J. Ex. A at 107. She
received the Personal Leave paperwork the next day, on December 20, 2012. Id.
Scorsone filled out the paperwork and had a friend take her to Dr. Nahata’s office on
December 24, 2012. Pl.’s Resp. Ex. 1 at 109-110. At the time, Dr. Nahahta was on vacation and
was scheduled to return on January 7, 2013.3 Therefore, on January 2, 2013, Scorsone returned
her portion of the Personal Leave request form on Ms. Gully’s desk, explaining: “I brought this
paper in today, but Dr. Nahata is gone until the 7th. They will mail his paperwork as soon as he
returns.” Pl.’s Resp. Ex. 14. When Dr. Nahata returned from vacation, he completed Scorsone’s
medical certification and mailed copies to Scorsone and Wal-Mart. Pl.’s Resp. Ex. 15.
On January 24, 2013, Scorsone received a phone call from Ms. Gully. During the
conversation, Ms. Gully informed Scorsone that her employment had been terminated because
Wal-Mart had not received the doctor’s form. Def.’s Mot. Summ. J. Ex. A at 126. Scorsone
expressed confusion because she had received a copy of Dr. Nahata’s form. Id. Ms. Gully then

2

Wal-Mart’s Personal Leave policy permits an employee to request up to twelve months of leave. Ex. 13.
It is unclear when Scorsone’s 15-day clock for completing the Personal Leave paperwork began to run. Assuming
for the moment that the 15-day period began the day she received the paperwork, on December 20, 2015, the period
would expire on January 4, 2015—three days before Dr. Nahata returned from vacation.
3

-6-

informed Scorsone that she could pick up her final check the next day. Pl.’s Resp. Ex. 16 at 3536.
II.
Scorsone claims that Wal-Mart retaliated against her by denying her Personal Leave,
which ultimately resulted in the termination of her employment. Under the retaliation theory, the
relevant inquiry “is whether the employer took the adverse action because of a prohibited reason
or for a legitimate nondiscriminatory reason.” Hodgens v. Gen. Dynamics Corp., 144 F.3d 151,
160 (1st Cir. 1998); accord Edgar v. JAC Products, 443 F.3d 501, 508 (6th Cir. 2006). The
employer’s motive is “an integral part of the analysis ‘because retaliation claims impose liability
on employers that act against employees specifically because those employees invoked their
FMLA rights.’” Daugherty v. Sajar Plastics, Inc., 544 F.3d 696, 707 (6th Cir. 2008) (quoting
Edgar, 443 F.3d at 508).
A.
Scorsone first asserts that she has proffered direct evidence of FMLA retaliation in the
form of the e-mail from Mr. Smith. On October 8, 2012—during Scorsone’s FMLA leave—
Smith sent an e-mail to Ms. Wirtz, Mr. Mobley, and Ms. Sequin.

Mr. Smith begins by

recommending that Scorsone’s job be posted after her FMLA leave expires: “I am going to
recommend that we post a position to replace Sue on October 29th which is when Sue’s FMLA
will expire. She is not expected to return until February so her position will need to be
replaced.” Pl.’s Ex. 9. After suggesting strategies for hiring a new candidate, Mr. Smith states:
“I feel this is the best way to approach this situation to ensure that Sue does not return in the
future and have us obligated to give her hours and not have enough to give the remaining
associates.” Id. (emphasis added).

-7-

“Direct evidence is evidence that proves the existence of a fact without requiring any
inferences.” Minadeo v. ICI Paints, 398 F.3d 751, 763 (6th Cir. 2005) (citation and internal
quotation omitted). In contrast, “general, vague, or ambiguous comments do not constitute direct
evidence of discrimination because such remarks requires a factfinder to draw further inferences
to support a finding of discriminatory animus.” Sharp v. Aker Plant Services Group, Inc., 726
F.3d 789, 798 (6th Cir. 2013). Instead, “only the most blatant remarks, whose intent could be
nothing other than to discrimination on the basis of age, satisfy this criteria.” Id.
For example, in Daugherty, while the plaintiff was requesting FMLA leave, the
defendant’s human resource director warned the plaintiff that “if I took that FMLA for that
period of time, there would not be a job waiting for me, when I returned.” 544 F.3d at 699.
Thus, in Daugherty, there was an explicit connection between the protected conduct and the
adverse action: if the plaintiff took FMLA leave, then the defendant would terminate his
employment. The human resource director’s warning is unambiguous and does not require the
factfinder to draw any further inferences.
Here, Mr. Smith’s comment that he wants to ensure that Scorsone did not return from
FMLA is not direct evidence of retaliation. The statements in the e-mail require the fact-finder
to make the inference that Mr. Smith does not want Scorsone to return because she took FMLA.
It is certainly possible—as detailed below—for a reasonable jury to conclude that Mr. Smith
wanted to ensure that Scorsone did not return to work because she engaged in protected conduct.
But it is also possible that, as Mr. Smith explains, that he did not want her to return because it
would complicate others’ schedules. His e-mail is open to at least two reasonable interpretations,
and therefore it is too ambiguous to constitute direct evidence of retaliation.

-8-

B.
Although Scorsone has not offered direct evidence of retaliation, she can nonetheless
bring a retaliation claim based on circumstantial evidence. To establish a retaliation claim, a
plaintiff must establish that “(1) she was engaged in an activity protected by the FMLA; (2) the
employer knew that she was exercising her rights under the FMLA; (3) after learning of the
employee’s exercise of FMLA rights, the employer took an employment action adverse to her;
and (4) there was causal connection between the protected FMLA activity and the adverse
employment action.” Killian v. Yorozu Automotive Tennessee, Inc., 454 F.3d 549, 556 (citing
Arban v. West Pub. Corp., 345 F.3d 390, 404 (6th Cir. 2003)).
Here, Wal-Mart does not contest that Scorsone has established a prima facie case of
FMLA retaliation. Accordingly, for purposes of summary judgment, the Court will assume that
she has.
i.
Because Scorsone has established a prima facie case of FMLA retaliation, the burden
now shifts to Wal-Mart to show that it had a legitimate reason for denying her personal leave.
Wal-Mart is not required to meet this burden by a preponderance of the evidence, but rather “the
employee’s prima face case of discrimination will be rebutted if the employer articulates lawful
reasons for the action; that is, to satisfy this intermediate burden, the employer need only
produce admissible evidence which would allow the trier of fact rationally to conclude that the
employment decision had not been motivated by discriminatory animus.”

Texas Dep’t of

Community Affairs v. Burdine, 450 U.S. 248 (1981).
Wal-Mart claims that it denied Scorsone’s request for personal leave because Mr. Smith
believed that she had not completed and returned the required paperwork. Scorsone does not

-9-

dispute that failure to comply with the procedure for requesting personal leave is a legitimate
reason to deny personal leave.

Accordingly, Wal-Mart has presented a legitimate reason for

denying Scorsone’s request for personal leave.
ii.
Because Wal-Mart has articulated a legitimate reason for its action, the burden of
production shifts back to Scorsone to demonstrate that Wal-Mart’s reason is pretextual. A
plaintiff generally shows pretext by showing that the proffered reason: (1) had no basis in fact;
(2) was insufficient motivation for the employment action; or (3) did not actually motivate the
adverse employment action. Smith v. Chrysler Corp., 155 F.3d 799, 805-06 (6th Cir. 1998);
Manzer v. Diamond Shamrock Chem. Co., 29 F.3d 1078, 1084 (6th Cir. 1994) (overruled on
other grounds).
Here, Scorsone proffers several things in an attempt to show pretext. Most importantly,
Scorsone advances the e-mail from Mr. Smith, the store manager and person who ultimately
denied Scorsone’s request for personal leave. As noted above, he references Scorsone’s FMLA
leave before expressing his desire “to ensure that Sue [Scorsone] does not return in the future . . .
.” Pl.’s Resp. Ex. 8. A reasonable jury could conclude that the desire to prevent Scorsone from
returning was related to her FMLA, given that Mr. Smith discusses her leave before making the
statement.
Wal-Mart disputes this interpretation, explaining that Mr. Smith was concerned with the
difficulties of scheduling other part-time employees, not with Scorsone’s FMLA leave. But
whether Mr. Smith wanted to prevent Scorsone from returning because (1) she took FMLA leave
or (2) it would cause problems with scheduling is an issue of fact for the jury to decide. The jury
can evaluate Mr. Smith’s testimony at trial and determine whether it believes his explanation for

- 10 -

why he did not Scorsone to return. See Ctr. for Bio-Ethical Reform v. City of Springboro, 477
F.3d 807, 820 (6th Cir. 2007) (a “district court errs by granting summary judgment for the
defendant where issues of credibility are determinative of the case.”).
Therefore, Scorsone has presented sufficient evidence of pretext by advancing Mr.
Smith’s e-mail alone. Nonetheless, Scorsone has also presented what she claims are additional
indicia of pretext, such as the failure to provide the required FMLA notices, and the
“roadblocks” she encountered while trying to request Personal Leave. Although these two
indicia would likely be insufficient on their own to show pretext, when considered in light of Mr.
Smith’s e-mail, a reasonable jury could construe them as attempts to obstruct Scorsone from
being able to comply with the Personal Leave requirements—thereby “ensur[ing] that Sue does
not return in the future . . . .” Pl.’s Resp. Ex. 8.
For example, had Scorsone been provided the Desigantion Notice in a timely manner
(within five days of her FMLA request), she may have been able to coordinate her Personal
Leave with her FMLA leave. That is, if she had received the Designation Notice approving her
FMLA leave in August, she would have learned then that her FMLA leave was only approved
through mid-October. Then, hypothetically she would have had at least two months before her
FMLA leave ended in which she could have tried to secure Personal Leave. Instead, by waiting
until December to inform Scorsone that her FMLA had expired, she had only fifteen-days—
which fell during the holiday season—in which to try to secure the necessary paperwork for
Personal Leave. The fact that Ms. Sequin (who was copied on Mr. Smith’s e-mail) and Mr.
Smith were responsible for the delays in paperwork further supports Scorsone’s theory that the
roadblocks were intended to prevent her from returning to work at Wal-Mart.

- 11 -

C.
In summary, Scorsone has presented sufficient evidence—predominantly in the form of
Mr. Smith’s e-mail—for a reasonable fact-finder to conclude that Wal-Mart’s legitimate reason
for terminating her employment was pretextual. Accordingly, Wal-Mart’s motion for summary
judgment will be denied.
III.
Wal-Mart also filed a motion to preclude the testimony of Scorsone’s proposed damages
expert, Mr. Stafford, for failure to comply with the Federal Rules of Civil Procedure. Wal-Mart
explained that, at the time it filed its motion, it still had not received Mr. Stafford’s expert report,
despite the fact that the deadline for disclosure was three months earlier.
Federal Rule of Civil Procedure 26(a)(2)(B) provides that an individual retained to
provide expert testimony shall provide a signed written report that
must contain: (i) a complete statement of all opinions the witness will express and
the basis and reasons for them; (ii) the facts or data considered by the expert in
forming them; (iii) any exhibits that will be used to summarize or support them;
(iv) the witness’s qualifications, including a list of all publications authored in the
previous 10 years; (v) a list of all other cases in which, during the previous 4
years, the witness testified as an expert at trial or by deposition; and (vi) a
statement of the compensation to be paid for the study and testimony in the case.
Further, Rule 26(a)(2)(C) provides that “these disclosures shall be made at the time and in the
sequence directed by the court.” Fed. R. Civ. P. 26(a)(2).
The Sixth Circuit has held that “[u]nder Rule 26(a), a ‘report must be complete such that
opposing counsel is not forced to depose an expert in order to avoid an ambush at trial; and
moreover the report must be sufficiently complete so as to shorten or decrease the need for
expert depositions and thus to conserve resources.’” R.C. Olmstead, Inc. v. C.U. Interface, LLC,

- 12 -

606 F.3d 262, 271 (6th Cir. 2010) (quoting Salgado v. Gen. Motors Corp., 150 F.3d 735, 742 n.6
(7th Cir. 1998)).
Pursuant to the Case Management and Scheduling Order, Scorsone’s expert disclosure
was due November 3, 2014. Case Mgmt 1, ECF No. 27. Scorsone concedes that she did not
disclose her expert report by that deadline. Indeed, she only disclosed her expert report in her
response to Wal-Mart’s motion on February 18, 2015—more than three months late. The late
disclosure is a clear violation of Rule 26(a)(2).
A violation of Rule 26 gives rise to the application of Rule 37(c)(1), which provides that
“[i]f a party fails to provide information . . . 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.”

The Sixth Circuit has

interpreted this rule as requiring the “automatic and mandatory [exclusion of non-disclosed
evidence] unless non-disclosure was justified or harmless.” Dickenson v. Cardiax and Thoracic
Surgery of Eastern Tenn., 388 F.3d 976, 983 (6th Cir. 2004) (quoting Musser v. Gentiva Health
Servs., 365 F.3d 751, 758 (7th Cir. 2004); R.C. Olmstead, 606 F.3d at 271) “Federal Rule of
Civil Procedure 37(c)(1) requires absolute compliance with Rule 26(a), that is, it mandates that a
trial court punish a party for discovery violations in connection with Rule 26 unless the violation
was harmless or is substantially justified.” R.C. Olmstead, 606 F.3d at 271 (quoting Roberts v.
Galen of Virginia, Inc., 325 F.3d 776, 782 (6th Cir. 2003) (citations omitted)). The burden is on
the potentially sanctioned party to prove harmlessness. Id. at 271-72.
Scorsone attempts to rely on the harmless error prong. She notes that she is willing to
comply with Fed. R. Civ. P. 26 now, in that she attached the expert report as an exhibit to her
response and “is agreeable to making Dr. Stafford available for his deposition between now and

- 13 -

the time of trial . . . .” Pl.’s Resp. 5, ECF No. 40. Moreover, Scorsone “is agreeable to affording
Defendant until the July 6, 2015, deadline (a period of almost five months) to identify their
expert economist . . . .” Id. at 5-6. Lastly, Scorsone contends that striking the expert testimony
would be “an extreme measure in light of the fact that the parties have otherwise fully cooperated
during the course of the litigation.” Id. at 6.
First, despite Scorsone’s claims that she has now disclosed her expert’s report, the report
does not comply with the substantive requirements of Rule 26(a). Notably, the report does not
include a list of his qualifications, a list of his publications authored in the previous 10 years, or a
list of cases in which he has testified in or been deposed in the last four years as required by
subparts (B)(iv) and (v). Therefore, it appears that more than three months after the deadline,
Scorsone still has not complied with Rule 26’s requirements.
Second, the error is not harmless. Even if discovery was reopened so that Wal-Mart
could depose Scorsone’s expert, Wal-Mart would suffer prejudice in the form of increased costs
and attorney’s fees. Wal-Mart would also be barred from bringing a motion challenging the
expert testimony given that the motion deadline has already passed. Lastly, even if this Court
extended the deadline for Wal-Mart to file a motion to challenge the expert testimony, it would
necessarily impact the remaining deadlines in this case. The Court is responsible—along with
the parties—for ensuring that cases are addressed in a prompt and just manner.
In light of these considerations, courts have routinely concluded that a failure to disclose
an expert report is not harmless. See Nava-Perez v. Jefferson County Stone Co., 2012 WL
4098988, at *11-12 (W.D. Ky. Sept. 17, 2012) (Where the failure to comply with Rule 26
discovery obligations would necessitate additional discovery and depositions, the failure was not
harmless.); Innovation Ventures, L.L.C. v. N.V.E., Inc., 2014 WL 4979059, at *4 (E.D. Mich.

- 14 -

Oct. 5, 2014) (“Where permitting the expert report would lead to yet another round of expert
depositions, increasing the delay and the expense to [the opposing party]”, failure to disclose the
expert report is not harmless.); Marathon Petroleum Co. LP v. Midwest Marine, Inc., 906 F.
Supp. 2d 673, 706 (E.D. Mich. 2012) (“Marathon failed to produce an expert report for Caruthers
that identified the opinions he will express and the basis and reasons for them. The Court cannot
find that Marathon’s failure was harmless or substantially justified. Rather, that breach of the
rules causes the defendants substantial prejudice.”).
Although Scorsone asserts that striking her expert report would be extreme, it is the
remedy mandated by the Federal Rules and by the Sixth Circuit.4 Scorsone did not comply with
the Federal Rules or with this Court’s scheduling order, and therefore her proposed expert will
not be permitted to testify at trial.
IV.
Accordingly, it is ORDERED that Defendant Wal-Mart’s Motion for Summary
Judgment (ECF No. 37) is DENIED.
It is further ORDERED that Defendant Wal-Mart’s Motion to Preclude the Testimony of
Mr. Stafford (ECF No. 36) is GRANTED. Mr. Stafford will not be permitted to testify at trial.

s/Thomas L. Ludington
THOMAS L. LUDINGTON
United States District Judge
Dated: April 1, 2015

4

“Every violation of the Rules has consequences; the question is who will bear them. Too often the consequences
are borne only by the innocent party, who must live with the violation . . . or else pay to brief and argue a motion to
compel the offending party to do what the Rules required it to do all along.” Universal Health Group v. Allstate Ins.
Co., 703 F.3d 953, 956 (6th Cir. 2013) (quoting R.C. Olmstead, 606 F.3d at 277-78).

- 15 -

PROOF OF SERVICE
The undersigned certifies that a copy of the foregoing order was served
upon each attorney or party of record herein by electronic means or first
class U.S. mail on April 1, 2015.
s/Suzanne M. Gammon
SUZANNE M. GAMMON

- 16 -