Hubbell v. FEDEX Smartpost Inc.,

Filing 46

OPINION AND ORDER granting in part and denying in part 38 plaintiff's Motion in Limine to exclude witnesses. Signed by District Judge George Caram Steeh. (MBea)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
SHERYL HUBBELL,
Plaintiff,
Case No. 14-13897
HON. GEORGE CARAM STEEH

v.
FEDEX SMARTPOST, INC.,
Defendant.
_____________________________/

OPINION AND ORDER GRANTING IN PART AND DENYING IN PART
PLAINTIFF’S MOTION IN LIMINE TO EXCLUDE WITNESSES (DOC. 38).
On January 3, 2017, the Court conducted a telephone conference
with counsel for the parties to discuss plaintiff’s motion in limine to exclude
witnesses, (Doc. 28), and the parties’ positions on a potential adjournment
of the trial in this case. Both sides affirmed their commitment to concluding
the trial by the end of the fifth day of trial on Monday, January 23, 2017,
and agreed to employ a chess clock if necessary to satisfy this objective.
Concluding by January 23, 2017 is critical because the undersigned will be
conducting a trial in Florida and will depart from Michigan on Tuesday,
January 24, 2017, for three to four weeks. Although the Court offered to
consider an adjournment of the trial, the parties were unable to agree upon
the same.
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Currently before the Court is plaintiff’s motion in limine to exclude
defendant’s expert witness, Dr. Nitin Paranjpe, and lay witness, Jessica
Benjamins. Defendant filed a response, to which plaintiff replied. After
reviewing the briefs, the Court concludes that oral argument is
unnecessary. For the reasons stated below, the Court will GRANT
plaintiff’s motion to exclude as it relates to Dr. Paranjpe and DENY
plaintiff’s motion as it relates to Benjamins.
I. Background
Plaintiff filed her complaint on October 8, 2014, asserting claims
under Title VII. The Court’s first Scheduling Order states that witness lists
must be filed by August 4, 2015. (Doc. 11 at 1). “The deadline for
exchange of witness lists refers to all witnesses, lay and expert.” (Doc. 11
at 2). Defendant filed their witness list on July 17, 2015. Benjamins and
Paranjpe were not listed. Defendant never filed a motion to amend its
witness list.
Defendant allegedly first provided notice of Benjamins on October 6,
2015; listing her as a witness in its Fed. R. Civ. P. 26(a) Fourth Amended
Initial Disclosure document. (Doc. 40-1 at 6). The Court ordered discovery
deadline occurred three days later, on October 9, 2015.

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On December 28, 2015, over four months after the witness list
deadline and over two months after the discovery deadline, defendant
emailed plaintiff expert disclosures regarding Paranjpe. Plaintiff received
hard copies of these disclosures on December 30, 2015. Defendant
supplemented these disclosures on March 2, 2016.
Plaintiff filed this motion to exclude Paranjpe and Benjamins on
December 8, 2016, in anticipation of the January 17, 2017 trial date. The
parties stipulated to an expedited briefing schedule and seek a ruling as
soon as possible.
II. Legal Standard
Fed. R. Civ. P. 26(a)(2)(A) requires a party to “disclose to the other
parties the identity of any witness it may use at trial to present evidence
under Federal Rules of Evidence 702, 703, or 705.” Id. “A party must
make these disclosures at the times and in the sequence that the court
orders.” Fed. R. Civ. P. 26(a)(2)(D). “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.” Id. Fed. R. Civ. P. 37(c)(1)
“requires absolute compliance with Rule 26(a),” Roberts ex rel. v. Johnson,
325 F.3d 776, 782 (6th Cir. 2003).
If a party fails to provide information or identify a
witness as required by Rule 26(a) or (e), the party is
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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)(1). “The exclusion of non-disclosed evidence is
automatic and mandatory under Rule 37(c)(1) unless non-disclosure was
justified or harmless.” Dickenson v. Cardiac and Thoracic Surgery of E.
Tenn., 388 F.3d 976, 983 (6th Cir. 2004) (quoting Musser v. Gentiva Health
Servs., 356 F.3d 751, 756 (7th Cir.2004)). The party that fails to disclosure
under Rule 26(a) has the burden to prove the application of one of these
exceptions. Roberts, 325 F.3d at 782. Harmlessness “involves an honest
mistake on the part of a party coupled with sufficient knowledge of the part
of the other party.” Sommer v. Davis, 317 F.3d 686, 692 (6th Cir, 2993)
(quoting Vance v. United States, No. 98-5488, 1999 WL 455435, at *5 (6th
Cir. June 25, 1999).
III. Analysis
A. Dr. Nitin Paranjpe
Defendant did not name any expert witness on the witness list filed
on July 17, 2015. (Doc. 17 at 2) (“Defendant is not designating any expert
witnesses at this time. The Defendant reserves the right to call as a witness
and elicit the opinion testimony from any expert identified by the Plaintiff in
the future.”). Defendant’s first disclosure regarding Paranjpe occurred on
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December 28, 2015. This disclosure came over four months after the court
ordered witness filing deadline and over two months after the court ordered
discovery deadline.
In its papers, defendant misapplies Fed. R. Civ. P. 26(a)(2)(D)(i) to
argue that the Paranjpe disclosures are timely because they were made at
least 90 days prior to the original trial date. This argument fails because it
ignores the language in Fed. R. Civ. P. 26(a)(2)(D) that limits the Fed. R.
Civ. P. 26(a)(2)(D)(i) 90 day timeline to cases without a stipulation or court
order establishing the time and sequence of disclosures. Witness
disclosures in this case are governed by the Court’s Scheduling Order,
which clearly established that all witnesses, both lay and expert, must be
listed by August 4, 2015. (Doc. 11 at 1). Defendant’s December 28, 2015
expert disclosures exceed this date. Therefore, in accordance with Fed. R.
Civ. P. 37(c)(1), Paranjpe can only be admitted if defendant’s failure to
disclose was “substantially justified or is harmless.” Id.
Defendant has not shown that its failure to disclose the expert
witness is substantially justified. Defendant’s disclosure was untimely.
Defendant does not state why or offer any further information to meet their
burden of proof on this exception.

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Additionally, defendant’s failure is not harmless. It appears defendant
simply made a tardy, purposeful decision to call Paranjpe. Further,
defendant never filed for leave to amend its witness list. Plaintiff did not
have notice of Paranjpe until December 28, 2015; months after the Court’s
scheduled witness and discovery deadlines had passed. Plaintiff was
unable to depose Paranjpe or search for her own expert witness to provide
rebuttal testimony.
During the January 3, 2017 telephone conference, plaintiff’s counsel
insisted that if the court allows Paranjpe to testify, plaintiff would request
the opportunity to hire an expert of it’s choosing to rebut the evidence
offered by defendant. Although the testimony concerning the availability of
jobs in the Michigan marketplace is relevant to mitigation efforts of the
plaintiff, the court does not consider the expense and the inefficiency of
delaying the trial to provide for a new round of discovery to be
commensurate with the proportionality principles in the civil rules
amendments of December 2015. The value of Paranjpe’s testimony is
indirect and tangential to the question of whether plaintiff took reasonable
steps to mitigate her losses. It is far from essential to the success or failure
of the plaintiff’s claims. As such, the burden and expense of making the
testimony available to the factfinder exceeds the needs of the case.
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Therefore, the Court will GRANT plaintiff’s motion to exclude the
testimony of Dr. Nitin Paranjpe.
B. Jessica Benjamins
Defendant did not list Jessica Benjamins in its witness list filed on
July 17, 2015. Plaintiff’s first notice of Benjamins allegedly occurred on
October 6, 2015 in defendant’s Rule 26(a) Fourth Amended Initial
Disclosures. (Doc. 40-1 at 6). This disclosure occurred two months after
the Court’s witness list deadline. Therefore, in accordance with Fed. R.
Civ. P. 37(c)(1), Benjamins can only be admitted if defendant’s failure to
disclose was “substantially justified or is harmless.” Id.
Defendant has not shown that its failure to disclose is substantially
justified. Defendant asserts that it did not conclude that Benjamins should
be called until after reviewing testimony of plaintiff’s August 20, 2015
deposition. Defendant’s poor time management does not justify this failure
to disclose. Nonetheless, the failure to disclose is harmless. Benjamins
was disclosed prior to the Court ordered discovery deadline. Furthermore,
unlike Paranjpe, plaintiff will not need to research and call an expert
witness to rebut Benjamins. For these reasons, the Court will not apply
Fed. R. Civ. P. 37(c)(1) sanctions. Plaintiff’s motion to exclude is DENIED;
Benjamins will be permitted to testify. The Court will allow plaintiff to
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depose Benjamins. Although plaintiff’s counsel opined during the January
3, 2017 telephone conference that this deposition could be accomplished in
30 minutes, out of an abundance of caution, the Court will allow the
deposition for up to two hours.
IV. Conclusion
For the reasons stated above, plaintiff’s motion to exclude witnesses
is GRANTED IN PART and DENIED IN PART. The Court will exclude Dr.
Nitin Paranjpe’s expert report and testimony. The Court will permit Jessica
Benjamins to testify at trail. Discovery shall be reopened for the limited
purpose of permitting plaintiff to depose Benjamins.
IT IS SO ORDERED.
Dated: January 4, 2017
s/George Caram Steeh
GEORGE CARAM STEEH
UNITED STATES DISTRICT JUDGE

CERTIFICATE OF SERVICE
Copies of this Order were served upon attorneys of record on
January 4, 2017, by electronic and/or ordinary mail.
s/Marcia Beauchemin
Deputy Clerk

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