Contract Design Group, Incorporated et al v. Wayne State University et al

Filing 177

ORDER DENYING DEFENDANTS ORAL MOTION TO STRIKE PORTIONS OF OPENING STATEMENTS AND TO EXCLUDE EVIDENCE OF EMOTIONAL DAMAGES. Signed by District Judge Gershwin A. Drain. (Bankston, T)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
CONTRACT DESIGN GROUP, INC., et al.,
Plaintiffs,

Case No. 10-cv-14702
Honorable Gershwin A. Drain

v.
WAYNE STATE UNIVERSITY, et al.,
Defendants.
___________________________________/
ORDER DENYING DEFENDANTS’ ORAL MOTION TO STRIKE PORTIONS OF
OPENING STATEMENTS AND TO EXCLUDE EVIDENCE OF EMOTIONAL
DAMAGES
I. INTRODUCTION
Presently before the Court in this 42 U.S.C. § 1983 denial of procedural due process action1
is the Defendants’ oral motion2 to strike portions of Plaintiffs’ statements during opening statements
which referenced Plaintiff Robert Murray’s non-economic damages attributable to his divorce and
the deterioration of his relationship with his children. Defendants also seek to strike Murray’s
request for emotional damages altogether. For the reasons that follow, the Court denies Defendants’
oral motion to strike opening statements and to preclude evidence of emotional damages.
II. DISCUSSION
Defendants argue that they received no notice that Plaintiffs sought non-economic, emotional

1

Plaintiffs also raise state law claims that have survived Defendants’ Motion for
Summary Judgment (Counts IV through VII). See Dkt. No. 126.
2

The request was made during an early morning status conference on April 2, 2014,
prior to the arrival of the jury. At the conference, the Court ordered further briefing and both
parties submitted briefing on April 4, 2014. See Dkt. Nos. 174 and 175.
-1-

damages pointing to the First Amended Complaint (“FAC”) and Plaintiffs’ Initial Disclosures.
Contrary to Defendants’ argument, Plaintiffs alleged in the FAC that they sought “damages
consistent with 42 U.S.C. §1983.” Am. Compl., ¶54. Defendants do not dispute that Murray is
entitled to emotional distress damages based on the violation of his procedural due process rights
and his state law claims. See Carey v. Piphus, 435 U.S. 247, 264 (1978) (holding that “mental and
emotional distress caused by the denial of procedural due process itself is compensable under §
1983.”); see also Veselenak v. Smith, 414 Mich. 567, 574, 327 N.W.2d 261, 264 (1982).
However, Defendants are correct that the Plaintiffs’ Initial Disclosures are silent as to
whether they sought non-economic damages. Plaintiffs’ Initial Disclosures stated: “No final
damages numbers have been computed. Contract Design Group has initially calculated direct and
consequential damages in excess of $10 million.” If a party does not disclose information that must
be disclosed under 26(a), “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.” Fed. R. Civ. P. 37(c); Dickenson v. Cardiac & Thoracic Surgery of E. Tenn., 388 F.3d
976, 983 (6th Cir. 2004). Notwithstanding, Defendants fail to note that courts in this district faced
with the same issue and a similar fact pattern have concluded the concerns in Dickenson, the only
case cited by Defendants, are not present under circumstances like those present here because: “Rule
26(a)(1)(A)(iii) does not mean that plaintiff’s must identify a specific sum to compensate them for
injuries that are difficult to categorize, like anxiety or mental distress. The amount of compensation
that should be awarded for such an injury may appropriately be left to the jury.” Wolgast v.
Richards, No. 05-10278-BC, 2011 U.S.Dist.LEXIS 86548, *11-12 (E.D. Mich. Aug. 5, 2011).
In Wolgast, the district court rejected the defendant’s argument that the plaintiff’s request
for non-economic damages for “public humiliation, anxiety, and mental distress”should be dismissed
-2-

because $3,041.74 was the only amount identified in the plaintiff’s amended disclosures. Id. The
court noted that the plaintiff also indicated he sought non-economic damages in his disclosures in
addition to identifying the $3,041.74 in economic damages. Id. The court opined that:
[A]lthough a specific amount was not included in the initial disclosures, Defendant
did receive notice that Plaintiff intended to seek such damages and the notice was
supplemented by an April 18, 2011 settlement demand, which did list specific
amounts. Thus, any error in Plaintiff’s initial disclosures is harmless and
Defendant’s first motion in limine will be denied.
2011 U.S.Dist.LEXIS 86548, at *12; see also Goodell v. CitiMortgage, No. 12-12979, 2013 WL
3466969, *10 (E.D. Mich. Jul. 10, 2013) (rejecting the defendant’s argument that plaintiffs should
be prevented from presenting non-economic damages evidence of “emotional distress, mental
anguish, disruption of lifestyle” because the plaintiffs “appropriately indicated in their Rule 26
disclosures that they would rely on the jury to compute the appropriate award.”); Santos v. Farmers
Ins. Exch., No. 07-11229, 2008 WL 2937778, *2 (E.D. Mich. Jul. 24, 2008) (holding that
“damages based on pain and suffering . . . are generally not amenable to the type of disclosure
contemplated by Rule 26(a)(1)(A)(iii).”). As such, Wolgast and similar decisions stand for the
proposition that failure to disclose emotional distress damages does not require automatic dismissal
of such claims under Rule 37(c) of the Federal Rules of Civil Procedure.
Defendants complain that they continuously sought damages calculations, and Plaintiffs were
not forthcoming with this evidence. Plaintiffs maintain they cannot be faulted for failing to give
damages information with respect to Murray because Defendants only sought damages information
concerning Contract Design, a separate entity. Plaintiffs’ argument is disingenuous considering their
Initial Disclosures did not indicate that they sought non-economic damages related to Murray’s
emotional distress. Nor did any of Plaintiffs’ supplemental disclosures put Defendants on notice of
their intent to recover such damages. While Plaintiffs could have been more forthcoming about the
-3-

divorce and the other emotional damages evidence by, at the very least, identifying in their
supplemental disclosures their intent to recover Murray’s non-economic emotional distress damages,
Defendants were put on notice that Plaintiffs sought damages based on emotional distress by at least
June of 2013, roughly ten months ago, when the parties submitted the Joint Final Pretrial Order
(“JFPTO”) and their proposed jury instructions.
Paragraph 16 of the JFPTO requests damages for emotional distress in the amount of
$200,000.00 and Plaintiffs explicitly indicated that Defendants purported “false allegations” and
“fraudulent behavior damaged Plaintiffs’ reputations, caused Contract Design to lose a significant
amount of its business, and caused Murray significant emotional distress.” See Dkt. No. 172 at 3-4,
16 (emphasis added). Additionally, the parties submitted proposed jury instructions along with the
JFPTO which included two instructions on emotional distress damages under § 1983. See Martin
A. Schwartz et al., Sec. 1983 Litig. Jury Instruc. 18.01.5 & 18.01.8 (2d ed. 2012).
This was at the same time the parties were engaged in extensive motion in limine practice.
While Defendants filed numerous motions in limine, none of those motions raised any arguments
that Defendants had not received evidence to support Plaintiffs’ $200,000.00 non-economic,
emotional damages calculation. Nor did Defendants raise this issue during two pre-trial conferences
held before the Honorable Victoria Roberts when she presided over the instant matter. Defendants
had ample time to move to re-depose Murray and to depose his ex-wife3 and obtain evidence
pertinent to this aspect of his claims.

3

The Court declines to address Plaintiffs’ arguments regarding the marital privilege as
premature. The Court has no way of knowing whether the deposition questions will implicate
the marital communications privilege, and whether Murray can establish the communications at
issue were made in confidence. See Bila v. Radioshack Corp., No. 03-10177-BC, 2004 U.S.
Dist. LEXIS 24649, *44-47 (E.D. Mich. Nov. 23, 2004) (citing Pereira v. United States, 347
U.S. 1, 6 (1954)).
-4-

Moreover, it is also noteworthy that the Court conducted a status conference with the parties
just prior to jury selection on March 31, 2014. At the status conference, the Court provided both
parties an opportunity to raise outstanding issues that had not been resolved by Judge Roberts prior
to the reassignment of this matter. Defendants likewise did not raise any concerns about the
$200,000.00 emotional distress damages request set forth in the JFPTO, nor the two proposed jury
instructions regarding emotional distress damages in §1983 civil rights actions.
Defendants also rely on Magistrate Judge Hluchaniuk’s March 27, 2012 decision
concerning several discovery related disputes between the parties. See Dkt. No. 54. However, the
issues before the Magistrate Judge did not relate to Murray’s claim for emotional distress damages.
Rather, the Magistrate Judge was tasked with determining whether Murray should produce his 2007
through 2010 tax returns based on his objection that the tax returns were not relevant to Contract
Design’s loss of business.
In addition to having sufficient notice of Plaintiffs intent to recover for Murray’s emotional
distress damages, the Court concludes that Plaintiffs failure to disclose their intent to seek noneconomic damages earlier was harmless. Wolgast, 2011 U.S.Dist.LEXIS 86548, at *11-12. The
Court will permit Defendants an opportunity to obtain information relevant to emotional damages
from Murray and his ex-wife prior to the end of trial.
Trial is in its infancy, the parties anticipate that it will take several more days. The Court
conducts trial for 3 to 3 and ½ hours each day, leaving a generous estimate of twenty to thirty hours
until the anticipated end of trial to conduct depositions at Plaintiffs’ expense. Lastly, the Court will
permit the parties to recall Murray for further testimony after his deposition is retaken. Thus, any
failure with respect to Plaintiffs’ emotional distress damages disclosures was harmless.
III. CONCLUSION
-5-

In light of the request for non-economic damages in the FAC, the June 2013 notice of
Plaintiffs’ emotional damages claim, and lack of harm from Plaintiffs failure to disclose same
earlier, the Court concludes that the dismissal of Plaintiff’s non-economic damages claim is
unwarranted under the circumstances.
Therefore, IT IS ORDERED that Defendants’ oral motion to strike portions of opening
statements and to preclude evidence of emotional damages is DENIED. IT IS FURTHER
ORDERED that Defendants may re-depose Murray, not to exceed four hours, as well as may take
the deposition of Murray’s ex-wife, which shall not exceed seven hours in length.4 Murray shall not
testify to his emotional distress damages until Defendants have an opportunity to take his continued
deposition. The parties may recall Murray to testify concerning his emotional distress damages.

SO ORDERED.

Dated: April 8, 2014

/s/Gershwin A Drain
GERSHWIN A. DRAIN
UNITED STATES DISTRICT JUDGE

4

The Court notes that Defendants are not sufficiently detailed with respect to the
information they believe they have been precluded from discovering from these witnesses and
Murray’s emotional damages claim. Without more information, the Court finds there is no
reason to conclude that the deposition of Murray’s ex-wife will take longer than 7 hours nor that
Murray’s deposition will take longer than 4 hours because he has already been deposed.
-6-