Pfeil et al v. State Street Bank and Trust Company
Filing
155
ORDER Regarding Various Non-Dispositive Motions. Signed by District Judge Denise Page Hood. (LSau)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
RAYMOND M. PFEIL, et al.,
CASE NO. 09-CV-12229
Plaintiffs,
HON. DENISE PAGE HOOD
v.
STATE STREET BANK AND TRUST
COMPANY,
Defendant.
/
ORDER REGARDING VARIOUS NON-DISPOSITIVE MOTIONS
This matter is before the Court on various non-dispositive motions filed by the
parties. Responses and replies have been filed.
I.
MOTIONS TO STRIKE BY DEFENDANT
Defendant seeks to strike Plaintiffs’ Statement of Undisputed Facts attached to
Plaintiffs’ Motion for Summary Judgment. Defendant also seeks to strike Plaintiffs’
separate Response to Defendant’s Statement of Facts asserting it is a further response
which the rules do not so allow. Plaintiffs claim that the rules do not prohibit the
filing of such documents.
This Court’s review of Plaintiffs’ separate Statement of Undisputed Facts shows
that it appears to be a summary of all the facts Plaintiffs are relying upon in their
Motion for Summary Judgment. These “Undisputed Facts” are further summaries in
addition to facts set forth in Plaintiffs’ Motion for Summary Judgment. This separate
statement of “Undisputed Facts” and Plaintiffs’ separate “Response” to Defendant’s
statement of facts are not the usual manner in which parties in this district submit facts
they rely upon in a summary judgment motion or dispute facts submitted by the
opposing party. Plaintiffs’ two separate filings appear to circumvent the page
limitations set forth in the local rules. Plaintiffs’ two separate filings should have
been included in their briefs, with the appropriate exhibits as support.1 However, the
Court has the discretion to allow filings separate from the parties’ main brief. Since
the parties have had more than their opportunity to file briefs in this matter, the Court
will not strike Plaintiffs’ submissions, although Plaintiffs’ counsel should be more
cognizant of the spirit of the local rules.
II.
MOTIONS TO EXCLUDE EXPERT REPORTS
Each party filed various motions to exclude the opposing party’s expert reports
in support of each summary judgment motion. Rule 702 of the Rules of Evidence
provides the rule for qualification of experts:
If scientific, technical, or other specialized knowledge will
assist the trier of fact to understand the evidence or to
1
The parties are referred to E.D. Mich LR 7.1 and CM/ECF Pol. & Proc. R5 and R18
governing filing of motions, briefs and exhibits. See, www.mied.usourts.gov.
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determine a fact in issue, a witness qualified as an expert by
knowledge, skill, experience, training, or education, may
testify thereto in the form of an opinion or otherwise, if (1)
the testimony is based upon sufficient facts or data, (2) the
testimony is the product of reliable principles and methods,
and (3) the witness has applied the principles and methods
reliably to the facts of the case.
Fed. R. Evid. 702 (emphasis added). Rules 702 and 703 permit expert opinion
testimony not opinions contained in documents prepared out of court. Engebretsen
v. Fairchild Aircraft Corp., 21 F.3d 721, 728 (6th Cir. 1994). Rules 702 and 703 do
not permit the admission of materials relied on by an expert witness for the truth of
the matters they contain if the materials are otherwise inadmissible. Id. Rule 703
specifically allows an expert to rely on inadmissible facts or evidence. It is wellsettled that it is the sole province of the court to determine the applicable law and
expert testimony expressing a legal conclusion is not allowed. Berry v. City of
Detroit, 25 F.3d 1342, 1354 (6th Cir. 1994); In re Delphi Corp. Securities, Derivative
& ERISA Litigation, 602 F.Supp. 2d 810, 829 n. 10 (E.D. Mich. 2009).
The Court finds that the experts designated by the parties appear to have the
requisite education or experience in the appropriate fields. The Court will not strike
the expert reports based on lack of expertise. It is noted that the Court, not a jury, is
the one reviewing these reports. However, inasmuch as any of the expert reports
submitted by the parties opine on a legal conclusion, the Court will not consider such.
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III.
CONCLUSION
For the reasons set forth above,
IT IS ORDERED that Defendant’s Motion to Strike Plaintiffs’ Statement of
Undisputed Facts (Doc. No. 107) is DENIED.
IT IS FURTHER ORDERED that Defendant’s Motion to Exclude Expert
Reports of Alan Biller (Doc. No. 108) is DENIED, but GRANTED as to any legal
conclusions provided.
IT IS FURTHER ORDERED that Plaintiffs’ Motion in Limine to Exclude
Reports and Opinions of Stephen Hartman and Howard Kaplan (Doc. No. 115) is
DENIED, but GRANTED as to any legal conclusions provided.
IT IS FURTHER ORDERED that Plaintiffs’ Motion in Limine to Exclude
Report and Opinions of Kenneth K. Lehn (Doc. No. 116) is DENIED, but GRANTED
as to any legal conclusions provided.
IT IS FURTHER ORDERED that Plaintiffs’ Motion in Limine to Exclude
Report and Opinions of Martin B. Zimmerman (Doc. No. 117) is DENIED, but
GRANTED as to any legal conclusions provided.
IT IS FURTHER ORDERED that Defendant’s Motion to Strike the Untimely
Second Expert Report of Blain Nye (Doc. No. 126) is DENIED, the Court noting that
this report is not purported to be an expert report by Plaintiffs.
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IT IS FURTHER ORDERED that Defendant’s Motion to Strike Plaintiffs’
Response to Defendant’s Statement of Facts (Doc. No. 127) is DENIED.
IT IS FURTHER ORDERED that Defendant’s Motion for Leave to File Reply
Brief (Doc. No. 139) IS GRANTED.
s/Denise Page Hood
Denise Page Hood
UNITED STATES DISTRICT JUDGE
Dated: March 31, 2014
I hereby certify that a copy of the foregoing document was mailed to the attorneys of
record on this date, March 31, 2014, by electronic and/or ordinary mail.
s/LaShawn R. Saulsberry
Case Manager, (313) 234-5165
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