McLaughlin v. BioLife Plasma Services, L.P. et al

Filing 146

OPINION and ORDER Denying Defendants' 115 Daubert Motion and 124 , 129 Motion for Leave to File Second Motion for Summary Judgment. Signed by District Judge Thomas L. Ludington. (KWin)

Case 1:18-cv-11260-TLL-PTM ECF No. 146, PageID.11147 Filed 01/19/22 Page 1 of 13

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION
TENLEY McLAUGHLIN GOOD,
Plaintiff,

Case No. 1:18-cv-11260

v.

Honorable Thomas L. Ludington
United States District Judge

BIOLIFE PLASMA SERVICES, L.P. and
SHIRE US, INC.,
Defendants.
_________________________________________/
OPINION AND ORDER DENYING DEFENDANTS’ DAUBERT MOTION AND
MOTION FOR LEAVE TO FILE SECOND MOTION FOR SUMMARY JUDGMENT
This matter is before this Court upon Defendants’ Motion to Exclude the Testimony of
Sean T. Stanley and Nancy Erickson,1 ECF No. 115, and Defendants’ Motion for Leave to File
Second Motion for Summary Judgment, ECF Nos. 124, 129.2 For the reasons stated hereafter,
both motions will be denied.
I.
This is a negligence action arising from a donor’s injury at a plasma-donation center. In
October 2015, Plaintiff Tenley McLaughlin Good visited a plasma-donation center operated by
Defendant BioLife Plasma Services, L.P. (“BioLife”). See Good v. Biolife Plasma Servs., L.P.,
No. 18-11260, 2020 WL 736005, at *3 (E.D. Mich. Feb. 13, 2020). During the donor-screening
process, a BioLife employee pricked Plaintiff’s finger to collect a small amount of blood known

1

Ms. Erickson recently married and changed her surname to Glasgow-Roberts. ECF No. 134 at
PageID.10378 n.1. For ease of reference and continuity, she is referred to as “Ms. Erickson” herein.
2
Defendants neglected to state in their motion for leave whether they sought concurrence from
Plaintiff, so they filed an otherwise identical amended motion for leave clarifying that they sought
but did not obtain concurrence. Compare ECF No. 124 with ECF No. 129. Because the motions
are materially identical, they are not analyzed separately.

Case 1:18-cv-11260-TLL-PTM ECF No. 146, PageID.11148 Filed 01/19/22 Page 2 of 13

as a capillary sample. Id. Plaintiff and the employee collecting her sample, Sylvia Roberts, were
seated across from each other at a small counter. Id. at *4. Seconds after being pricked, Plaintiff
fainted. Id. From across the counter, Roberts attempted to hold Plaintiff upright, but Plaintiff
swiveled out of her chair and fell to the ground. Id. She spent a week in the hospital with postconcussive symptoms and now complains of hearing loss and personality changes. Id.
On March 23, 2018, Plaintiff filed a complaint against BioLife and its parent company,
Shire Pharmaceuticals a/k/a Shire US, Inc., presenting two theories of liability3: First, she claims
that Defendants negligently failed to take her medical history before collecting the capillary sample
(the “negligent-history theory”). See Good, 2020 WL 736005, at *4. Had they done so, she argues,
they would have learned that she had a history of fainting at the sight of blood and prevented her
from donating. See Pl.’s Mot. for Partial Summ. J., ECF No. 37 at PageID.2527–28. Second, she
claims that Defendants negligently positioned her for the capillary sample, because they sat her in
a relatively high swiveling chair, and did not place Roberts close enough to prevent the fall (the
“negligent-positioning theory”). See Good, 2020 WL 736005, at *4, *7.
In August 2019, the parties filed cross-motions for summary judgment. After reviewing
the record, this Court found that Plaintiff’s evidence was insufficient and therefore entered
summary judgment for Defendants. First, this Court disregarded Plaintiff’s affidavit stating that
she was never asked about her medical history, because the affidavit seemed to contradict her
earlier deposition testimony that she could not remember the “vein check.”4 Id. at *6. Second,

3

Plaintiff also brought a claim for medical malpractice but later stipulated to its dismissal. See
ECF Nos. 1 at PageID.11; 28.
4
“Vein check” refers to a process in which a BioLife employee examines a potential donor’s
veins. See Good v. Biolife Plasma Servs., L.P., No. 18-11260, 2020 WL 736005, at *2 (E.D. Mich.
Feb. 13, 2020). Plaintiff’s vein check was performed by Julida Reeves, who testified that it was
her regular practice to ask the donor during the vein check about prior adverse reactions. Id.
- 2 -

Case 1:18-cv-11260-TLL-PTM ECF No. 146, PageID.11149 Filed 01/19/22 Page 3 of 13

after reviewing the parties’ expert reports, this Court found that the probability of Plaintiff fainting
was “so unlikely that failing to anticipate it was [not] a breach of the standard of care.” Id. at *8.
On appeal, the Sixth Circuit Court of Appeals had a different view of the evidence.
Regarding Plaintiff’s negligent-intake theory, the Sixth Circuit found no “direct contradiction”
between Plaintiff’s deposition testimony and affidavit and therefore held that it was erroneous to
disregard the affidavit. See Good v. BioLife Plasma Servs., L.P., 834 F. App’x 188, 196 (6th Cir.
2020). As for Plaintiff’s negligent-positioning theory, the Sixth Circuit concluded that the risk of
fainting during capillary-sample collection was “small” but “foreseeable.” Id. at 196–97.
Therefore, according to the Sixth Circuit, a reasonable jury could have found that BioLife was
negligent for not providing Plaintiff with a different chair. Id. at 198.
The Sixth Circuit also addressed the issue of causation because Defendants raised it as an
alternative basis for affirming summary judgment. Id. at 198. Based on the expert reports and
Roberts’ testimony of the swiveling chair, the Sixth Circuit concluded that there was enough
evidence for the jury to find that Defendants’ conduct was the but-for and legal cause of Plaintiff’s
injury. Id. at 198–99. Accordingly, the Sixth Circuit reversed summary judgment for Defendants
and remanded the case to this Court for further proceedings. Id. at 200.
In May 2021, Defendants filed a motion to exclude the testimony of Plaintiff’s two expert
witnesses, Sean T. Stanley and Nancy Erickson.5 ECF No. 115. Relying on the seminal Daubert
v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), Defendants argue that Plaintiff’s
experts cannot offer scientifically reliable testimony because they lack experience with plasma
donation. See id. at PageID.9178–85. Defendants also filed a motion for leave to file a second

5

The parties also filed several motions in limine. See ECF Nos. 111–114; 116. Those motions
remain pending and will be decided at a later date.
- 3 -

Case 1:18-cv-11260-TLL-PTM ECF No. 146, PageID.11150 Filed 01/19/22 Page 4 of 13

motion for summary judgment, arguing that this Court should resolve the causation issue as a
matter of law after excluding Plaintiff’s experts. ECF No. 124 at PageID.10106–08.
Despite the parties lengthy briefing, two lingering issues prevented this Court from
resolving Defendants’ Daubert Motion. The first was whether Mr. Stanley’s and Ms. Erickson’s
training and experience could provide a reliable basis for their testimony despite their lack of
expertise in plasma donation. See ECF No. 137 at PageID.10434 (noting that “the collection of
blood and its constituent parts necessarily involves the application of a minimum level of
specialized knowledge” and “like the typical medical patient at a diagnostic facility, the typical
plasma donor must rely on the expertise of the donation facility in designing and administering a
safe collection procedure”). The second was whether Mr. Stanley’s and Ms. Erickson’s testimony
would help the jury understand a disputed issue of fact or would simply spoon-feed it conclusions
that it could reach on its own. Id. at PageID.10435 (noting that the Sixth Circuit had already “held
that the lay testimony of Sylvia Roberts, who testified that Plaintiff swiveled in her chair and then
fell, would allow a reasonable jury ‘to conclude that the chair’s swivel caused [Plaintiff] to fall’”
(quoting BioLife, 834 F. App’x at 199)).
On October 13, 2021, this Court conducted a three-hour Daubert hearing to answer its
lingering questions. During the hearing, counsel and this Court extensively examined Mr. Stanley
and Ms. Erickson regarding their credentials, expertise, and the bases for their opinions. Having
carefully considered their responses, this Court is ready to decide Defendants’ pending motions.
II.
The first issue is whether the testimony of Plaintiff’s experts is admissible.
A.
Federal Rule of Evidence 702 governs the admissibility of expert testimony. It provides:

- 4 -

Case 1:18-cv-11260-TLL-PTM ECF No. 146, PageID.11151 Filed 01/19/22 Page 5 of 13

A witness who is qualified as an expert by knowledge, skill, experience, training,
or education may testify in the form of an opinion or otherwise if:
(a) the expert’s scientific, technical, or other specialized knowledge will help
the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the
case.
FED. R. EVID. 702.
In essence, Rule 702 assigns the district court “the task of ensuring that an expert’s
testimony both rests on a reliable foundation and is relevant to the task at hand”—a kind of
“gatekeeping role.” Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 597 (1993). In
performing this role, district courts often consider several factors that the Daubert Court identified,
including whether the expert’s methods are testable and subject to peer review. Id. at 593–94; see
also United States v. Bonds, 12 F.3d 540, 558 (6th Cir. 1993) (identifying and discussing the socalled “Daubert factors”). But importantly, the Daubert factors “do not constitute ‘a definitive
checklist or test’” and do not apply in every case. See Kumho Tire Co. v. Carmichael, 526 U.S.
137, 150 (1999) (quoting Daubert, 509 U.S. at 593). “Rather, the law grants a district court the
same broad latitude when it decides how to determine reliability as it enjoys in respect to its
ultimate reliability determination.” Id. at 142. Stated differently, “[t]he gatekeeping inquiry is
context-specific and ‘must be tied to the facts of a particular case.’” Surles ex rel. Johnson v.
Greyhound Lines, Inc., 474 F.3d 288, 295 (6th Cir. 2007) (quoting Kumho Tire, 526 U.S. at 142).
In this case, Plaintiff’s experts propose to testify based on their specialized experience and
training rather than on some empirical testing. This is not unusual, given that, “[i]n certain fields,
experience is the predominant, if not sole, basis for a great deal of reliable expert testimony.” See
Thomas v. City of Chattanooga, 398 F.3d 426, 432 (6th Cir. 2005) (quoting FED. R. EVID. 702
advisory committee’s note to 2000 amendment). But the reliance on experience rather than
- 5 -

Case 1:18-cv-11260-TLL-PTM ECF No. 146, PageID.11152 Filed 01/19/22 Page 6 of 13

empirical testing does require a slightly different analysis. See First Tenn. Bank Nat’l Ass’n v.
Barreto, 268 F.3d 319, 335 (6th Cir. 2001) (finding Daubert factors “unhelpful” where expert’s
testimony was based on his “own practical experiences throughout forty years in the banking
industry”). Rather than asking whether their testimony is “falsifiable,” see Daubert, 509 U.S. at
593, this Court must determine whether Plaintiff’s experts have adequately explained “how [their]
experience leads to the conclusion[s] reached . . . and how that experience is reliably applied to
the facts.” See Thomas v. City of Chattanooga, 398 F.3d 426, 432 (6th Cir. 2005) (quoting FED. R.
EVID. 702 advisory committee’s note to 2000 amendment).
B.
Plaintiff’s only remaining claim is for negligence. See ECF No. 1 at PageID.12–13. In
Michigan, a negligence claim has four elements: “(1) a duty owed by the defendant to the plaintiff,
(2) a breach of that duty, (3) causation, and (4) damages.” Case v. Consumers Power Co., 615
N.W.2d 17, 20 (Mich. 2000) (footnote omitted). The Sixth Circuit has already held that BioLife
owed Plaintiff “a duty to use ‘reasonable care’ while operating [its plasma donation] center.” Good
v. BioLife Plasma Servs., L.P., 834 F. App’x 188, 194 (6th Cir. 2020). So, the question here is
whether Mr. Stanley and Ms. Erickson can offer reliable and relevant testimony as to the other
three elements: breach, causation, and damages.
i.
Mr. Stanley and Ms. Erickson both intend to testify regarding breach and causation and to
offer similar opinions. As to breach, both experts would opine that (1) BioLife should have asked
Plaintiff about prior adverse reactions before collecting the capillary sample, and that (2) BioLife
should have collected the capillary sample with Plaintiff seated in a low, three-armed, nonswiveling chair and with the collecting employee positioned directly adjacent to Plaintiff. See

- 6 -

Case 1:18-cv-11260-TLL-PTM ECF No. 146, PageID.11153 Filed 01/19/22 Page 7 of 13

Stanley Report, ECF No. 125-2 at PageID.10140; Erickson Report, ECF No. 125-3 at
PageID.10150. As to causation, both experts would opine that (1) Plaintiff’s adverse reaction was
foreseeable, and that (2) Plaintiff’s injury likely would have been avoided but for BioLife’s failure
to collect Plaintiff’s medical history and seat her in a safe position. Id.
Defendants argue that neither expert would offer scientifically reliable testimony because
neither has any experience in the plasma-donation setting. See ECF No. 115 at PageID.9178–79,
9183–84. Defendants also argue that neither expert has adequately explained how his or her
experience led them to their opinions. See id. at PaeID.9181, 9183. Further, Defendants contend
that Plaintiff’s experts have not conducted any empirical testing or otherwise verified their
opinions. See id. at PageID.9180, 9184.
ii.
Having carefully considered the experts’ responses at the Daubert hearing, this Court finds
Defendants’ arguments unpersuasive.
First, insofar as Defendants’ arguments constitute a “backdoor attack on the experts’
qualifications,”6 see Pl.’s Resp. to Defs.’ Daubert Mot., ECF No. 125 at PageID.10126, both Mr.
Stanley and Ms. Erickson are highly qualified medical professionals. Mr. Stanley is a regional
manager for an industry-leading commercial laboratory, Quest Diagnostics, and is therefore
responsible for overseeing and training hundreds of phlebotomists. See Oct. 13, 2021 Hr’g Tr. at
4–7; 7 ECF No. 125-2 at PageID.10136. He is also a certified phlebotomist himself and has
6

Although this Opinion largely addresses the reliability and relevancy of the anticipated
testimony, Rule 702 also requires that experts be “qualified as an expert by knowledge, skill,
experience, training, or education.” FED. R. EVID. 702; see also United States v. LaVictor, 848 F.3d
428, 441 (6th Cir. 2017) (“For expert testimony to be admissible, the court must find the expert to
be: (1) qualified; (2) her testimony to be relevant; and (3) her testimony to be reliable.”).
7
Upon this Court’s request, the Court Reporter prepared a preliminary transcript of the Daubert
hearing. She has not completed or docketed a full transcript because the parties have not ordered
one.
- 7 -

Case 1:18-cv-11260-TLL-PTM ECF No. 146, PageID.11154 Filed 01/19/22 Page 8 of 13

personally collected between 50 and 100 capillary samples. See Oct. 13, 2021 Hr’g Tr. at 6.
Similarly, Ms. Erickson is a certified phlebotomist with 28 years of experience. Id. at 77. Ms.
Erickson also teaches blood-collection procedures to phlebotomy students and previously served
as chairperson of the Clinical & Laboratory Standards Institute (CLSI) Standards Document
Development Committee for Capillary Blood Specimen Collections. 8 ECF No. 125-3 at
PageID.10145. In sum, both experts are highly credentialed and qualified to testify about the
collection of capillary samples and the procedures that ordinarily accompany it.
Second, despite their lack of experience with plasma donation, both experts possess
decades of specialized training and experience in phlebotomy, including the collection of capillary
samples. It is well-settled that an expert may opine on a subject despite a lack of experience with
it so long as her opinion is based on generally accepted principles. See Redmond v. United States,
194 F. Supp. 3d 606, 616 (E.D. Mich. 2016) (noting that expert’s testimony may be admitted on
subjects with which the expert has no experience provided that testimony “is based on the
application of generally accepted principles of [the expert’s] discipline and flow from his
investigation of the facts of the case”); Hixon v. TVA Bd. of Dirs., No. 1:19-CV-120, 2021 WL
4077902, at *4 n.5 (E.D. Tenn. Sept. 7, 2021) (“Where a witness has general expertise in a broad
area but is not a specialist in the particular aspect of the field involved in the case, most courts find
that the lack of specialization goes to the weight of the testimony, not its admissibility.”).
During the Daubert hearing, Plaintiff’s experts stated that their training is generally
applicable to the collection of capillary samples, regardless of where the sample is collected. See
Oct. 13, 2021 Hr’g Tr. at 8–9, 80–81. Defendants dispute that assertion, arguing that Plaintiff’s

8

According to Ms. Erickson’s declaration, CLSI is an organization that provides industry
guidance and training within the field of phlebotomy. ECF No. 125-3 at PageID.10145.
- 8 -

Case 1:18-cv-11260-TLL-PTM ECF No. 146, PageID.11155 Filed 01/19/22 Page 9 of 13

experts have failed to consider important differences between patients visiting medical centers and
donors visiting plasma-donation centers. See Defs.’ Reply, ECF No. 134 at PageID.10382–83.
But the failure to consider those differences does not mean that their testimony is
unreliable. Rather, it means that their testimony might be less credible than the testimony of other
experts.9 At bottom, Defendants’ argument is that plasma-donation centers should be subject to a
different standard of care than medical centers due to differences between their operations. That
Plaintiff’s experts disagree is not a reason to exclude them. Ultimately, it is up to the jury to decide
whether Defendants fulfilled their duty of care or breached it.10 See Case v. Consumers Power
Co., 615 N.W.2d 17, 21 (Mich. 2000) (“It is [the jury’s] province to note the special circumstances
and surroundings of each particular case, and then say whether the conduct of the parties in that
case was such as would be expected of reasonable, prudent men, under a similar state of affairs.”
(quoting Grand Trunk R.R. Co. of Can. v. Ives, 144 U.S. 408, 417 (1892))).
Third, as to Defendant’s claim that the experts have not substantiated their opinions, it must
be remembered that the reliability inquiry is “tied to the facts of a particular case.” Surles ex rel.
Johnson v. Greyhound Lines, Inc., 474 F.3d 288, 295 (6th Cir. 2007). Naturally, it is more difficult
9

The same point applies to Plaintiff’s experts’ (apparent) decision not to consider certain medical
literature. As acknowledged by the Sixth Circuit on appeal, one of Defendant’s experts, Dr.
Rosemarie Figueroa, “pegged the risk [of fainting from a capillary sample] at somewhere below
0.1 percent.” Good v. BioLife Plasma Servs., L.P., 834 F. App’x 188, 197 (6th Cir. 2020). That
testimony remains uncontradicted. Although Plaintiff’s experts need not consider that testimony
in formulating their opinions, the jury is free to consider it when weighing Plaintiff’s experts’
testimony and deciding whether Plaintiff’s injury was reasonably foreseeable.
10
To the extent Defendants argue that Plaintiff’s experts cannot testify because their specific
standard of care would conflict with the industry standard for plasma-donation centers, Defendants
are mistaken. In Michigan, it is well-settled that “compliance with governmental and industrial
standards does not preclude a trier of fact from finding certain conduct to be negligent.” Owens v.
Allis-Chalmers Corp., 326 N.W.2d 372, 375 (Mich. 1982); Hill v. Husky Briquetting, Inc., 223
N.W.2d 290, 291 (Mich. 1974) (en banc); Elsasser v. Am. Motors Corp., 265 N.W.2d 339, 342
(Mich. Ct. App. 1978). Rather, compliance with an industry standard is evidence of reasonableness
that a jury may consider in deciding whether the defendant breached its duty of care. See Elsasser,
265 N.W.2d at 342.
- 9 -

Case 1:18-cv-11260-TLL-PTM ECF No. 146, PageID.11156 Filed 01/19/22 Page 10 of 13

to explain why a person’s exposure to polychlorinated biphenyls caused her lung cancer than it is
to explain why a certain furniture arrangement would have prevented her from falling. Cf. Gen.
Elec. Co. v. Joiner, 522 U.S. 136, 147 (1997) (affirming exclusion of expert testimony as to cause
of small-cell lung cancer where testimony was not adequately supported by proffered studies).
Here, Mr. Stanley stated during the Daubert hearing that he believed a three-armed, nonswiveling chair would have prevented Plaintiff’s injury because he had previously dealt with
patients fainting during blood collection. See Oct. 13, 2021 Hr’g Tr. at 70–71; see also id. at 87
(Ms. Erickson recounting similar experience). His first-hand experience of how the arrangement
of a chair and phlebotomist prevented a patient from falling would seem both sufficiently reliable
and helpful for the jury, even if he lacks expertise in biomechanics.
Importantly, however, Plaintiff’s experts cannot be allowed to spoon-feed conclusions to
the jury that it can reach on its own. As this Court previously noted, “testimony that does no more
than ‘tell the jury what result to reach . . . hardly can be viewed as being helpful to the jury.’” ECF
No. 137 at PageID.10435 (quoting Jesa Enters. v. Thermoflex Corp., 268 F. Supp. 3d 968, 973
(E.D. Mich. 2017)).
Here, the risk of spoon-feeding the jury is highest with the issue of but-for causation, as
the average person is likely to understand that a non-swiveling chair is safer than a swiveling chair.
See Good, 834 F. App’x at 199 (relying on lay testimony of Sylvia Roberts to find genuine issue
of material fact with respect to causation). Even so, both of Plaintiff’s experts have specific
experience with patients fainting during blood collection, and that specialized experience would
likely help the jury understand how a different arrangement might have prevented Plaintiff’s
injury. At trial, this Court will ensure that Plaintiff’s experts do not stray from the limits of their
expertise and will carefully instruct the jury as to the proper consideration of their testimony.

- 10 -

Case 1:18-cv-11260-TLL-PTM ECF No. 146, PageID.11157 Filed 01/19/22 Page 11 of 13

Having established that Plaintiff’s experts have a reliable basis for their testimony,
Defendants’ remaining concerns (e.g., the lack of empirical testing) are relevant only to the weight
of the testimony and should be raised, if at all, on cross-examination. See In re E. I. Du Pont De
Nemours & Co. C-8 Pers. Inj. Litig., 337 F. Supp. 3d 728, 738 (S.D. Ohio 2015) (noting that the
Daubert inquiry is “not intended to supplant the adversary system or the role of the jury,” and that
“[a]rguments regarding the weight to be given any testimony or opinions of an expert witness are
properly left to the jury” (citing In re Scrap Metal Antitrust Litig., 527 F.3d 517, 531–32 (6th Cir.
2008))).
For these reasons, Defendant’s Daubert Motion will be denied, and consistent with this
Opinion and subject to further order of this Court, Mr. Stanley and Ms. Erickson will be permitted
to testify regarding BioLife’s procedures and the cause of Plaintiff’s injury.
III.
The next issue is whether Defendants should be permitted to file a second motion for
summary judgment. “A party must obtain leave of court to file more than one motion for summary
judgment.” E.D. Mich. LR 7.1(b)(2). The decision of whether to grant leave is committed to the
sound discretion of the district court. See Lexicon, Inc. v. Safeco Ins. Co. of Am., 436 F.3d 662,
670 n.6 (6th Cir. 2006).
Defendants state that their second motion for summary judgment would be limited to two
arguments: “1. That Plaintiff cannot present admissible evidence of causation-in-fact to survive
summary judgment; and 2. That Plaintiff’s alleged injuries were not the natural and probable
consequence of Defendants’ conduct.” ECF No. 124 at PageID.10101. Their basic assumption is
that once Plaintiff’s experts are excluded, this Court can resolve the elements of but-for and
proximate cause as a matter of law. See id. at PageID.10106–07.

- 11 -

Case 1:18-cv-11260-TLL-PTM ECF No. 146, PageID.11158 Filed 01/19/22 Page 12 of 13

Immediately, Defendants hit a roadblock. As explained, Plaintiff’s experts will not be
excluded. See supra Section II.B. So, insofar as their Motion is premised on the exclusion of
Plaintiff’s experts, it must be denied.
But even if Plaintiff’s experts were excluded, Defendants have not shown that another
round of summary judgment would prove fruitful. First, the Sixth Circuit has already suggested
that Sylvia Robert’s lay testimony about the swiveling chair could be enough to establish but-for
cause, see Good, 834 F. App’x at 199, and Michigan does not require plaintiffs to introduce expert
testimony in a simple negligence action, Lince v. Monson, 108 N.W.2d 845, 847 (Mich. 1961)
(noting that juries are usually capable of resolving ordinary negligence claims without expert
testimony).
Second, despite Defendants’ repeated assertion to the contrary, proximate cause is not a
question of law. See ECF No. 124 at PageID.10107. Indeed, unlike duty, which courts “must”
decide as a matter of law, Hill v. Sears, Roebuck & Co., 822 N.W.2d 190, 195 (Mich. 2012),
“[p]roximate cause is usually a factual issue to be decided by the trier of fact,” Dawe v. Bar-Levav
& Assoc. (On Remand), 808 N.W.2d 240, 249 (Mich. Ct. App. 2010). A court may only decide
proximate cause when “the facts bearing on proximate cause are not disputed” and “reasonable
minds could not differ” as to the result. Id.; see also Hunley v. DuPont Auto., 341 F.3d 491, 500
(6th Cir. 2003) (deciding proximate cause under Michigan law because “reasonable minds could
not disagree with respect to the resolution of [the] issue”).
In short, even without the testimony of Plaintiff’s experts, it seems relatively unlikely that
Defendants could meet their burden at the summary-judgment stage. Accordingly, there is little
reason to waste additional resources with more summary-judgment briefing.
For these reasons, Defendants’ Motion for Leave will be denied.

- 12 -

Case 1:18-cv-11260-TLL-PTM ECF No. 146, PageID.11159 Filed 01/19/22 Page 13 of 13

IV.
Accordingly, it is ORDERED that Defendants’ Motion to Exclude the Testimony of
Sean T. Stanley and Nancy Erickson, ECF No. 115, is DENIED.
Further, it is ORDERED that Defendant’s Motion for Leave to File Second Motion for
Summary Judgment, ECF Nos. 124, 129, is DENIED.
Dated: January 19, 2022

s/Thomas L. Ludington
THOMAS L. LUDINGTON
United States District Judge

- 13 -