Lefebvre v. Citizens Insurance Company of Midwest

Filing 74

OPINION AND ORDER DENYING PLAINTIFF'S MOTIONS TO PRECLUDE TESTIMONY [49,55]. Signed by District Judge Gershwin A. Drain. (TBan)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

LATONYA LEFEBVRE,
Case No. 14-cv-13312

Plaintiff,

UNITED STATES DISTRICT COURT JUDGE
GERSHWIN A. DRAIN

v.
CITIZENS INSURANCE CO. OF THE MIDWEST,

UNITED STATES MAGISTRATE JUDGE
MICHAEL J. HLUCHANIUK

Defendant.
/

OPINION AND ORDER DENYING PLAINTIFF’S MOTIONS TO PRECLUDE TESTIMONY [49, 55]
I. INTRODUCTION
LaTonya Lefebvre (“Plaintiff”) commenced this action in state court against Citizens
Insurance Company of the Midwest (“Defendant”) on May 8, 2014. See Dkt. No. 1 (Exhibit 1,
Pg. ID No. 13). The action was removed to federal court on August 26, 2014. See Dkt. No. 1. In
the Complaint, the Plaintiff alleges that Defendant failed to cover medical expenses, lost
earnings and other obligations due under the terms of the insurance agreement. See id. (Exhibit 1
at 8, Pg. ID No. 12).
Currently before the Court are the Plaintiff’s Motions in Limine to preclude the testimony
of Jerome Eck, Ferris Finerty [49] and Dr. Mark Delano [55]. For the reasons discussed herein,
both Motions are DENIED.
II. LEGAL STANDARD
A motion in limine refers to “any motion, whether made before or during trial, to exclude
anticipated prejudicial evidence before the evidence is actually offered.” Luce v. United States,
469 U.S. 38, 40 n.2 (1984). The purpose of a motion in limine is to eliminate “evidence that is

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clearly inadmissible for any purpose” before trial. Ind. Ins. Co. v. GE, 326 F. Supp. 2d 844, 846
(N.D. Ohio 2004). A district court rules on evidentiary motions in limine “to narrow the issues
remaining for trial and to minimize disruptions at trial.” United States v. Brawner, 173 F.3d 966,
970 (6th Cir. 1999). The guiding principle is to “ensure evenhanded and expeditious
management of trials.” Ind. Ins. Co., 326 F. Supp. 2d at 846.
Although neither the Federal Rules of Evidence, nor the Federal Rules of Civil Procedure
explicitly authorize a court to rule on an evidentiary motion in limine, the Supreme Court has
allowed district courts to rule on motions in limine “pursuant to the district court's inherent
authority to manage the course of trials.” See Luce, 469 U.S. at 41 n.4.
A district court should grant a motion to exclude evidence in limine “only when [that]
evidence is clearly inadmissible on all potential grounds.” Ind. Ins. Co., 326 F. Supp. 2d at 846.
In cases where that high standard is not met, “evidentiary rulings should be deferred until trial so
that questions of foundation, relevancy, and potential prejudice may be resolved in proper
context.” Id. Denial of a motion to exclude evidence in limine does not necessarily mean that the
court will admit the evidence at trial. See Luce, 469 U.S. at 41. “[E]ven if nothing unexpected
happens at trial, the district judge is free, in the exercise of sound judicial discretion, to alter a
previous in limine ruling.” Id. at 41–42.
III. DISCUSSION
Both of Plaintiff’s Motions assert the same argument. Plaintiff asserts that because
Defendant did not provide all of the required disclosures for expert witnesses by the close of
discovery under Rule 26 of the Federal Rules of Civil Procedure, that the testimony should be
precluded from trial. See Dkt. No. 49 and 55.
Federal Rule of Civil Procedure 26, in relevant part, states:

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(2) Disclosure of Expert Testimony.
(A) In General. In addition to the disclosures required by Rule 26(a)(1), a
party must disclose to the other parties the identity of any witness it may
use at trial to present evidence under Federal Rule of Evidence 702, 703,
or 705.
(B) Witnesses Who Must Provide a Written Report. Unless otherwise
stipulated or ordered by the court, this disclosure must be accompanied by
a written report--prepared and signed by the witness--if the witness is one
retained or specially employed to provide expert testimony in the case or
one whose duties as the party's employee regularly involve giving expert
testimony. The report 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 witness 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.
…
(D) Time to Disclose Expert Testimony. A party must make these
disclosures at the times and in the sequence that the court orders. Absent a
stipulation or a court order, the disclosures must be made:
(i) at least 90 days before the date set for trial or for the
case to be ready for trial; or
(ii) if the evidence is intended solely to contradict or rebut
evidence on the same subject matter identified by another
party under Rule 26(a)(2)(B) or (C), within 30 days after
the other party's disclosure.
Fed. R. Civ. P. 26
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The Court set the close of discovery at July 27, 2015. See Dkt. No. 20 at 3 (Pg. ID No.
149). However, Plaintiff did not receive certain expert reports from Defendant until July 30,
2015. Dkt. No. 49 at 2 (Pg. ID No. 430). Some disclosures, such as the witnesses’ compensation
information, qualifications and prior publications, have yet to be provided. Id. Defendant does
not dispute this, but argues that the expert disclosures are not due until 90 days before trial under
Rule 26(a)(2)(D)(i). See Dkt. No. 54 at 3 (Pg. ID No. 501).
Plaintiff correctly states that Rule 26(a)(2)(D)(i) only applies “[a]bsent a stipulation or a
court order.” Fed. R. Civ. P. 26(a)(2)(D). Plaintiff argues that because the Court’s scheduling
order set a “discovery cut off” date, that Rule 26(a)(2)(D)(i) does not apply. See Dkt. No. 56 at 2
(Pg. ID No. 595). Plaintiff points to Chavez v. Waterford Sch. Dist., No. 09-12336, 2010 WL
3675314 (E.D. Mich. 2010) to support her argument.
In Chavez, the Court’s Scheduling Order was very explicit, providing that “[a]ll witnesses
to be called at trial shall be listed” by the close of discovery. Chavez, 2010 WL 3675314 at *1.
Here, the Scheduling Order is not as explicit. As Defendant points out, there is no specific Court
Order when it comes to expert witnesses. The Scheduling Order merely states the discovery cut
off is July 27, 2015. See Dkt. No. 20 at 3. The Court did not specify a date for expert witness
disclosures. Thus, this case is distinguishable from other cases, such as Chavez and Vance v.
U.S., 182 F.3d 920, 1999 WL 455435, at *2 (6th Cir. 1999).
Therefore, seeing that there is no Court Order with regard to expert witnesses, the Court
holds that Rule 26(a)(2)(D)(i) will govern, and Defendant will have until 90 days before trial to
provide the information.
IV. CONCLUSION
For the reasons discussed herein, both of Plaintiff’s Motions are DENIED.

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IT IS SO ORDERED.
Dated: November 3, 2015
Detroit, MI

/s/Gershwin A Drain
HON. GERSHWIN A. DRAIN
United States District Court Judge

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