Pearce v. Emmi

Filing 127

OPINION AND ORDER granting in part and denying in part 112 Motion in Limine; denying without prejudice 113 Motion in Limine; denying 114 Motion in Limine; denying 123 Motion in Limine. Signed by District Judge George Caram Steeh. (MBea)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
MEGAN PEARCE, individually and as
NEXT FRIEND of BABY B, her infant child,
Plaintiffs,
Case No. 16-11499
v.
Hon. George Caram Steeh
Hazel Park Police Officer,
MICHAEL EMMI, in his individual capacity,
Defendant.
___________________________________/
OPINION AND ORDER REGARDING
MOTIONS IN LIMINE (ECF Nos. 112, 113, 114, 123)
The court heard argument on the parties’ motions in limine on
October 29, 2019, and ruled from the bench. The court expands upon the
basis for its rulings below.
I.

Motion to Exclude Undisclosed Witnesses
Defendant seeks to exclude the following witnesses, who were

identified by Plaintiff for the first time in the Joint Final Pretrial Order: Lori
Pearce, Stephen Pearce, Tabitha Carter, Henry Pearce, Karen Fuhrman,
Gere Green, Undersheriff Mike McCabe, and Sgt. Douglas Stewart.
Plaintiff states that she does not plan to call Gere Green or Sgt. Stewart.

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A party who fails to disclose evidence as required by Fed. R. Civ. P.
26 may be precluded from introducing that evidence at trial. Fed. R. Civ. P.
37(c)(1) (“If a party fails to provide information or identify a witness as
required by Rule 26(a) or (e), 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.”); see also
LR 16.2(8) (“Except as permitted by the Court for good cause a party may
not list a witness unless the witness has been included on a witness list
submitted under a prior order or has been deposed.”).
“A noncompliant party may avoid sanction if ‘there is a reasonable
explanation of why Rule 26 was not complied with or the mistake was
harmless.’” Howe v. City of Akron, 801 F.3d 718, 747 (6th Cir. 2015). The
Sixth Circuit considers five factors when determining whether a
nondisclosure was “substantially justified” or “harmless”:
(1) the surprise to the party against whom the evidence
would be offered; (2) the ability of that party to cure the
surprise; (3) the extent to which allowing the evidence
would disrupt the trial; (4) the importance of the evidence;
and (5) the nondisclosing party’s explanation for its failure
to disclose the evidence.
Howe, 801 F.3d at 747-48.
Plaintiff contends that there is no surprise to Defendant regarding
Stephen Pearce and Lori Pearce (Plaintiff’s mother), who were listed on
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Defendant’s witness list. (ECF No. 69.) In light of Defendant’s listing of
these witnesses, there is no surprise to Defendant. The court finds that the
failure of Plaintiff to previously list Lori Pearce or Stephen Pearce is
harmless.
Plaintiff contends that Undersheriff Michael McCabe was
encompassed by categories of witnesses included on Defendant’s witness
list: “any and all representatives, agents, current or former employees of
Oakland County” and the “Oakland County Sheriff’s Department.” Plaintiff
also argues that Tabitha Carter (Plaintiff’s best friend) and Henry Pearce
(Plaintiff’s father), are included in the category “each and every family
member, neighbor, friend, acquaintance, and/or co-worker of Plaintiff.”
(ECF No. 35) As for Karen Fuhrman, Plaintiff asserts that she was
mentioned in deposition testimony.
General categories of witnesses do not provide sufficient notice to
Defendant, nor does the mere mention of a potential witness in deposition
testimony. At this late date, an attempt to cure the surprise to Defendant
by allowing depositions would be disruptive to the trial and the parties’ trial
preparation. Plaintiff offers no justification for failing to specifically name
these witnesses prior to the Joint Final Pretrial Order. Accordingly, the
court finds that the failure to identify these witnesses prior to the Joint Final
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Pretrial Order is neither substantially justified nor harmless. The court
excludes the testimony of Tabitha Carter, Henry Pearce, Karen Fuhrman,
and Undersheriff McCabe.
II.

Defendant’s Motion to Exclude Evidence Related to the Criminal
Investigation of Fuhrman
Defendant seeks to exclude several broad categories of evidence as

irrelevant and/or unfairly prejudicial. These include:
1. Any evidence regarding the underlying criminal investigation of
Plaintiff’s fiancé;
2. Any evidence challenging the affidavits in support of the search
warrant requests or challenging the validity of the search warrants
themselves;
3. Any evidence or allegations regarding the alleged “investigation” of
Emmi by the Oakland County Sheriff’s Office;
4. Any evidence regarding the asserted violation of OCSO policies
and procedures;
5. Any evidence regarding Defendant Emmi removing himself from
the criminal prosecution of Fuhrman; and
6. Any and all other similar evidence relating to the criminal
investigation, application for search warrants, execution of search
warrants, arrests, post arrest investigation, handling of evidence,
and alleged violation of policies.
Defendant contends that Plaintiff’s claims – violations of the Fourth
Amendment, Federal Wiretapping Act, invasion of privacy, and state law
eavesdropping – turn on whether Emmi accessed the Nest Cam app on
Fuhrman’s phone to spy on her. Defendant argues that the above
categories of evidence are irrelevant to Plaintiff’s claim and do not make
the facts at issue “more probable or less probable.” Fed. R. Evid. 401.
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Defendant also argues that the probative value of such evidence is
outweighed by the danger of unfair prejudice. See Fed. R. Evid. 403.
Plaintiff responds that the evidence is relevant to Emmi’s motive,
credibility, and the reprehensibility of his conduct (related to punitive
damages). According to Plaintiff:
Emmi seeks to preclude: 1) that he made false statements
in a search warrant affidavit; 2) that he obtained Fuhrman’s
phone during the execution of the warrant on Fuhrman’s
workshop; 3) that prior to taking Fuhrman’s [phone] home
the first night Emmi entered Plaintiff’s home, questioned
her and searched her house; 4) that he secretly removed
the phone from the OCSO that first night and took it home;
5) that the next day he made false entries in the
computerized evidence log so he could take the phone
home a second night; 6) that he then drafted an untruthful
chain of custody document to conceal the fact that he took
the phone home on two different nights; that he then
directed Sgt. Jennings to request search warrants seeking
information about his activities with the phone under the
guise of criminal investigation of Fuhrman.
Plaintiff’s Br. at 5-6 (ECF No. 122).
Defendant has sought to exclude extremely broad categories of
evidence. Certainly some of this evidence, as articulated by Plaintiff, is
relevant to Emmi’s credibility, his intent, and the reprehensibility of his
conduct. The relevance, probative value, and prejudicial nature of this
evidence is more appropriately assessed as it is specifically introduced in
the context of the evidence presented at trial. Accordingly, the court denies
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Defendant’s motion without prejudice to his ability to raise specific
objections at trial.
III.

Defendant’s Motion to Exclude Plaintiff’s Expert
Defendant seeks to exclude or limit the testimony of Plaintiff’s expert,

Mark St. Peter. St. Peter is a certified computer examiner, with experience
working with electronic discovery and computer forensics. He prepared a
report that concluded that “the evidence supports The Phone accessed the
Nest camera during the time periods that The Phone was in Detective
Emmi’s possession.” ECF No. 114-2.
The admission of expert testimony is governed by Federal Rule of
Evidence 702:
A witness 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 upon 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.
Id. A qualified expert may testify if his opinion is relevant and reliable. See
id.; U.S. v. Cunningham, 679 F.3d 355, 379-80 (6th Cir. 2012).

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Defendant does not challenge St. Peter’s qualifications to testify as a
computer forensics expert. Rather, Defendant contends that St. Peter’s
opinion is not based upon sufficient facts because he did not do any testing
like that completed by Defendant’s expert. St. Peter based his opinion on
an electronic copy of the phone, AT&T records for the phone, Nest Camera
records, depositions, and other evidence in the case. Although Defendant
argues that St. Peter did not conduct the “necessary analysis,” he does not
establish that a different analysis or testing was required. As Plaintiff points
out, St. Peter relied upon the same records as Defendant’s expert.
Although Defendant’s expert also conducted some tests, it does not follow
that St. Peter’s testimony is inadmissible because he did not do the same
testing. To the extent Defendant believes that St. Peter’s opinion is flawed
or that he did not take into account necessary information, he can explore
these issues on cross examination. “Vigorous cross-examination,
presentation of contrary evidence, and careful instruction on the burden of
proof are the traditional and appropriate means of attacking shaky but
admissible evidence.” Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579,
596 (1993).
Defendant also argues that St. Peter’s testimony should be excluded
because “he cannot connect the dots to opine that Fuhrman’s phone was
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the device that connected to the Nest cam, just that there was use by both
devices during the relevant time period.” Def.’s Br. at 9 (ECF No. 114).
However, St. Peter’s testimony can assist the trier of fact even if it does not
embrace this ultimate issue. “Daubert and Rule 702 require only that the
expert testimony be derived from inferences based on a scientific method
and that those inferences be derived from the facts of the case at hand, not
that they know answers to all the questions a case presents – even to the
most fundamental questions.” Jahn v. Equine Servs., PSC, 233 F.3d 382,
390 (6th Cir. 2000) (emphasis in original).
Defendant further argues that St. Peter’s opinion relies upon
inadmissible hearsay.
An expert may base an opinion on facts or data in the case
that the expert has been made aware of or personally
observed. If experts in the particular field would
reasonably rely on those kinds of facts or data in forming
an opinion on the subject, they need not be admissible for
the opinion to be admitted. But if the facts or data would
otherwise be inadmissible, the proponent of the opinion
may disclose them to the jury only if their probative value in
helping the jury evaluate the opinion substantially
outweighs their prejudicial effect.

Fed. R. Evid. 703.
St. Peter called technical support at Nest to ask questions about the
product. He testified that Nest said that access to the camera would not be
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logged on the cell phone. Defendant contends that this is not reliable
information because, according to his expert’s testing, information
regarding the use of the Nest app is recorded on the phone itself. Plaintiff
maintains that experts may rely upon hearsay (see Fed. R. Evid. 403) and
that computer experts frequently call technical support as part of their
investigation.
St. Peter’s reliance upon some hearsay information does not make
his testimony inadmissible, particularly when Defendant has not articulated
how the hearsay information is more prejudicial than probative. Rather, it
goes to the credibility of his opinion and may be explored through cross
examination.
Defendant also contends that St. Peter’s testimony regarding what
happens when a phone is placed in “lost mode” is speculation. Plaintiff
asserts that his testimony is based upon his training and experience as a
computer programmer and forensic computer examiner. Again, to the
extent Defendant believes that St. Peter’s analysis was flawed, he can
explore that issue on cross examination. The weight and credibility to be
accorded to St. Peter’s opinion is a matter for the jury.
At the hearing, Defendant raised several facts upon which St. Peter
may testify that Defendant contends were not in his initial report, such as
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that the phone was locked out for 44 years, there was a download through
iTunes on March 3, 2015, at 8:37 p.m., iTunes is the video platform for the
phone, the Cellebrite report contains a crash log, the Nest app crashed at
8:37 p.m. on March 3, 2015, and placing the phone into “lost mode” affects
the logging of information. Plaintiff contends that this information has been
in Defendant’s possession since 2018 and no supplemental opinion was
necessary because St. Peter’s opinion has not changed. Based upon the
record before it, the court finds that Defendant’s objections are without
merit. Defendant has not demonstrated that supplementation was required
or that it was unfairly surprised or prejudiced by this information. The court
denies Defendant’s motion.
IV.

Plaintiff’s Motion to Exclude Sorini and Young
Plaintiff seeks to exclude Defendant’s experts Brian Young and Adam

Sorini because they were disclosed after the deadline, which was
December 12, 2016. Brian Young was disclosed on an amended witness
list on September 19, 2017, and Adam Sorini was disclosed on January 19,
2018. Defendant did not seek leave of court to name these expert
witnesses.
Given that Plaintiff has known about these witnesses for two years,
however, her claim of surprise is not well taken. Moreover, there is no
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prejudice to Plaintiff, as it appears that both witnesses have been deposed
well in advance of trial. To the extent Defendant’s identification of these
witnesses could be characterized as late, the court finds that it is harmless.
Plaintiff also seeks to have Sorini’s supplemental report stricken.
Sorini’s initial report was provided on June 29, 2018. On January 17, 2019,
the court denied Defendant’s motion for summary disposition and issued a
new scheduling order setting trial for July 22, 2019. On June 14, 2019,
Sorini provided a supplemental report which contained a new opinion
developed in response to St. Peter’s declaration. Trial was subsequently
adjourned until November 5, 2019.
The court concludes that Plaintiff is not unfairly prejudiced by any
new opinion by Sorini, which arguably falls into the category of rebuttal and
which Plaintiff has had for several months without previous objection. The
court denies Plaintiff’s motion to exclude or limit the testimony of Young
and Sorini.
CONCLUSION
IT IS HEREBY ORDERED that Defendant’s motion to exclude
undisclosed witnesses (ECF No. 112) is DENIED IN PART as to Lori
Pearce and Stephen Pearce, GRANTED IN PART as to Tabitha Carter,

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Henry Pearce, Karen Fuhrman, and Undersheriff McCabe, and DENIED
AS MOOT as to Gere Green and Sgt. Douglas Stewart.
IT IS FURTHER ORDERED that Defendant’s motion to exclude
evidence related to the underlying criminal prosecution (ECF No. 113) is
DENIED WITHOUT PREJUDICE; Defendant’s motion to exclude Mark St.
Peter (ECF No. 114) is DENIED; and Plaintiff’s motion to exclude Young
and Sorini (ECF No. 123) is DENIED.
Dated: October 30, 2019
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
October 30, 2019, by electronic and/or ordinary mail.
s/Marcia Beauchemin
Deputy Clerk

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