Beauvais v. City of Inkster et al

Filing 61

OPINION AND ORDER DENYING PLAINTIFF'S MOTION TO STRIKE DR.HARVEY AGER AS A WITNESS 42 AND DENYING PLAINTIFF'S MOTION IN LIMINE TO PRECLUDE EVIDENCE OR REFERENCES OF A UNION DECISION 45 . Signed by District Judge Gershwin A. Drain. (TBan)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
SUSAN BEAUVAIS,

Case No. 16-cv-12814

Plaintiff,

UNITED STATES DISTRICT COURT JUDGE
GERSHWIN A. DRAIN

v.
CITY OF INKSTER and BOOKER
SNOW,

UNITED STATES MAGISTRATE JUDGE
STEPHANIE DAWKINS DAVIS

Defendant.
__________________________/
OPINION AND ORDER DENYING PLAINTIFF’S MOTION TO STRIKE DR. HARVEY
AGER AS A WITNESS [42] AND DENYING PLAINTIFF’S MOTION IN LIMINE TO
PRECLUDE EVIDENCE OR REFERENCES OF A UNION DECISION [45]
I.

Introduction
Plaintiff Susan Beauvais initiated this action on August 1, 2016, alleging that

the Defendants—the City of Inkster, Michigan and former Inkster Police Officer
Booker Snow—violated the Americans with Disabilities Act, the Family and
Medical Leave Act, the Elliot-Larsen Civil Rights Act under Michigan Law, and
Title VII of the Civil Rights Act of 1964. See Dkt. No. 1. On November 9, 2017,
the Court granted in part and denied in part Defendant City of Inkster’s Motion for
Summary Judgment. Dkt. No. 38. After the Court’s decision, only Plaintiff’s Title
VII claim of retaliation remains in the litigation. See id.

Presently before the Court are two evidentiary motions filed by the Plaintiff:
Plaintiff’s Motion to Strike Dr. Harvey Ager as a Witness [42] and Plaintiff’s Motion
in Limine regarding Evidence of the Union’s Decision Not to Arbitrate Plaintiff’s
Grievance [45]. The Motion to Strike was filed on December 27, 2017, whereas the
Motion in Limine was filed on January 12, 2018. See Dkt. Nos. 42, 45. These
motions are sufficiently briefed.1 A hearing on these motions was held on Tuesday,
February 6, 2018 at 2:00 p.m. Ruling from the bench, the Court DENIED the
Plaintiff’s Motion to Strike Ager as a Witness [42], 2 and also DENIED the Plaintiff’s
Motion to Exclude Evidence of the Union Decision [45]. The Court explains its
reasoning herein.
II.

Background3
A.

Dr. Harvey Ager and Plaintiff’s Medical Evaluation

Dr. Ager is a licensed psychiatrist, who operates a private practice in
Southfield, Michigan. Dkt. No. 43-18, pp. 2–3 (Pg. ID 2157–58). Ager evaluated

1

The motion to strike Ager is fully briefed, but the Plaintiff did not file a reply in
support of her motion to exclude evidence of the union decision.
2
Plaintiff asserts that if the Court decides to deny the motion to strike, the Court
must compel “Dr. Ager to fully comply with the Subpoena served upon him by
Plaintiff.” Dkt. No. 42, pp. 4–5 (Pg. ID 1709–10). Ager has responded to the
subpoena, however. See Dkt. No. 42-2. And Ager has stated that he does not have
responsive information. Id. Accordingly, the Court will also deny this request from
the Plaintiff.
3
For a robust recitation of the facts, please see the Court’s November 9, 2017
Opinion and Order on Defendant Inkster’s Motion for Summary Judgment. See Dkt.
No. 38.
2

Beauvais on March 24, 2015 and again on April 21, 2015 regarding her fitness to
return to work as an Inkster Police Officer. Dkt. Nos. 43-12, 43-13. Ager conducted
the evaluation on behalf of the Inkster Police Department. See Dkt. No. 42, p. 2 (Pg.
ID 1707).
Perhaps recognizing the value of his testimony, both Beauvais and Inkster
included Ager on their witness lists. See Dkt. No. 14, p. 2 (Pg. ID 70); see also Dkt.
No. 24, p. 2 (Pg. ID 183). In her witness list, Beauvais explained that Ager’s
testimony would “concern[] his examination of Plaintiff, his opinions as a result of
that investigation, his communications with the Defendants as well as his history as
a defense and insurance medical examiner.” Dkt. No. 14, p. 2 (Pg. ID 70). Inkster
described Ager in its witness list as the “[p]sychiatrist retained by City to conduct
Independent Medical Examination (“IME”).” Dkt. No. 24, p. 2 (Pg. ID 183).
B.

Union Decision

While working as an Inkster Police Officer, Beauvais belonged to a union.
See Dkt. No. 45-2, p. 2 (Pg. ID 2238). Following her suspension, and then
termination, from the Inkster Police Department, Beauvais filed a grievance through
her union. Id.; see also Dkt. No. 45, p. 2 (Pg. ID 2227). The grievance protested
disciplinary hearing findings that Beauvais was guilty of several offenses involving
her medical evaluation with Dr. Ager, including conduct unbecoming of an officer
and falsifying documents or perjury. See Dkt. No. 53-1, pp. 2–3 (Pg. ID 2629–30).
3

After proceeding through several steps of the grievance process, the grievance
was denied at a mayor’s hearing. Dkt. No. 45, p. 2 (Pg. ID 2227). The union did
not thereafter request arbitration on Beauvais’s behalf, which was the next step in
the grievance process. Id. In deciding not to pursue arbitration, the union applied
the following four-part test regarding whether the falsification charge justified
termination:
1. Was the omission deliberate[?]
2. Was the omission material[?]
3. Is it off [sic] continuing materiality[?]
4. Did the Employer Act [sic] promptly once it found out and in Good Faith[?]
Dkt. No. 53-2, p. 2 (Pg. ID 2632). The union concluded that “[i]n [Beauvais’s] case
the answers to all four (4) above is yes. Therefore, based on the evidence presented,
we do not feel we could or would prevail in an arbitration case.” Id. As a result,
Beauvais’s complaint did not proceed further.
III.

Discussion
Plaintiff requests that the Court strike Dr. Ager as a witness. Plaintiff also

asks that the Court exclude evidence of the union’s decision not to proceed to
arbitration on her grievance. The Court held on the record that Beauvais is not
entitled to the requested relief. Therefore, the Court has denied Plaintiff’s request
to strike Dr. Ager as a witness and has denied Plaintiff’s request to exclude evidence
of the union’s decision.

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A.

Motion to Strike Dr. Ager as a Witness

The Court will first address Plaintiff’s Motion to Strike Dr. Ager as a Witness.
On this issue, all agree that Dr. Ager has not filed an expert report in this case.
Rather, the conflict here is whether he was required to do so. The Court finds that
Ager need not have filed an expert report. Therefore, Inkster may present Ager as a
witness in this case.
The parties contest whether Ager was required to file an expert report, and
they do so through disputing two provisions under Rule 26 of the Federal Rules of
Civil Procedure. First, under Rule 26(a)(2)(B), an expert witness must provide a
written report “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.” 4 The Rule further requires that the report contain certain
information, including (1) “a complete statement of all opinions the witness will
express and the basis and reasons for them;” (2) “the facts or data considered by the
witness in forming them”; and (3) “a statement of the compensation to be paid for
the study and testimony in the case.” FED. R. CIV. PROD. 26(a)(2)(B)(i), (ii), (v).
Rule 26(a)(2)(C), by contrast, does not mandate that a witness submit an
expert report. Instead, it establishes that disclosure of this witness must include (1)

4

This requirement does not apply where a court orders differently or the parties
stipulate otherwise. FED. R. CIV. PROD. 26(a)(2)(B).
5

“the subject matter on which the witness is expected to present evidence under
Federal Rule of Evidence 702, 703, or 705 [i.e. expert witness testimony]”; and (2)
“a summary of the facts and opinions to which the witness is expected to testify.”
FED. R. CIV. PROD. 26(a)(2)(C)(i), (ii).
Taken together, these sections provide that:
If the treating physician’s expert opinions stay within the scope of
treatment and diagnosis, then the physician would not be considered
‘retained’ to provide expert testimony and only summary disclosures
would be needed. But if a treating physician is going to offer opinions
formed outside the course of treatment and diagnosis, then as to those
further opinions the physician is being used in a ‘retained expert’ role
and the Rule 26(a)(2)(B)’s report requirement will apply to the extent
of that further testimony.
Avendt v. Covidien Inc., 314 F.R.D. 547, 556–57 (E.D. Mich. 2016).
Beauvais maintains that the Court must strike Dr. Ager from Inkster’s witness
list because he was required to submit an expert report under Rule 26(a)(2)(B), and
did not do so. She alleges that Ager’s proposed testimony falls under this provision
because it is offered “based on his claimed knowledge, skill, experience, training
and/or education concerning his conclusions concerning Plaintiff’s fitness for duty
in the spring of 2015.” Dkt. No. 42, p. 7 (Pg. ID 1712). Inkster counters that Ager
is solely a fact witness and, therefore, he need not submit an expert report. Dkt. No.
43, p. 6 (Pg. ID 1802). According to Inkster, because Dr. Ager conducted the
medical examination of Beauvais while she was an Inkster employee and prior to

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the start of this litigation, he could not have been “retained or specially employed”
to assist with this litigation. Id. at pp. 6–7 (Pg. ID 1802–03).
The Court will not strike Ager as a witness. Ager was Beauvais’s treating
physician and his proposed testimony relates to her treatment. Consequently, his
testimony is subject to Rule 26(a)(2)(C), not Rule 26(a)(2)(B), as Plaintiff has
alleged. Thus, Ager was not required to submit an expert report.
Several cases decided by courts within the Sixth Circuit confirm this result,
for example, Harms v. United States, No. 15-cv-13215, 2017 WL 3642202 (E.D.
Mich. Aug. 24, 2017). Harms involved injuries the plaintiff allegedly suffered in a
car accident. Id. at *7. The treating doctor, Dr. Walter Klimkowski, had evaluated
the plaintiff for both these injuries and earlier, lingering harm caused by a fall. Id.
The parties disputed whether Klimkowski needed to file an expert report for his
opinion on causation regarding the car accident. Id. The court concluded that
Klimkowski’s opinion as to the cause of plaintiff’s neck and back pain arose as part
of his treatment of the plaintiff. Id. Therefore, he was a witness under Rule
26(a)(2)(C), and not required to file an expert report pursuant to Rule 26(a)(2)(B).
Id. This finding was primarily based on clinical notes reflecting that “though
Klimkowski treated [the plaintiff] for back pain for a number of years before the
accident, his treatment notes related her February 2014 flare-up directly to the car
accident rather than to her prior issues.” Id. Specifically, in clinical notes describing
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his treatment of the plaintiff right after the accident, Klimkowski observed injuries
not present only weeks prior to the incident. Id. He had also referred the plaintiff
to another doctor for the evaluation of these new injuries, which the court interpreted
as showing increased pain symptoms following the accident. Id.
Similarly, some of a treating physician’s proposed testimony did not require
production of an expert report in Avendt. 314 F.R.D. at 559–60. In particular, (1)
testimony regarding the physician’s expertise in treating and performing surgeries
for the plaintiff’s ailments; and (2) the treating physician’s view about the best way
to address the plaintiff’s injuries, given the plaintiff’s condition at the time at issue.
Id. at 560. Conversely, an expert report was necessary for testimony not covering
the doctor’s treatment of the plaintiff. Id. This testimony included the doctor’s
statements that a process used to develop a certain product caused the plaintiff’s
principal harm and related injuries—a cause not mentioned in the doctor’s clinical
notes. Id. at 549–50, 560.
In this case, Inkster describes Ager on its witness list as the “[p]sychiatrist
retained by City to conduct Independent Medical Examination.” Dkt. No. 24, p. 2
(Pg. ID 183). What is more, Plaintiff on her witness list describes Ager’s proposed
testimony as related to “his examination of Plaintiff, his opinions as a result of that
investigation, his communications with the Defendants as well as his history as a
defense and insurance medical examiner.” Dkt. No. 14, p. 2 (Pg. ID 70).
8

Ager is a treating physician and his proposed testimony involves that role, as
demonstrated by the parties’ descriptions and evidence that the independent medical
examination occurred in 2015 while Beauvais was endeavoring to return to work.
Accordingly, to the extent his testimony is confined to his evaluation of Beauvais,
this testimony is similar to the testimony that the Harms and Avendt courts permitted
without accompanying expert reports. Like Klimkowski’s testimony in Harms,
Ager’s proposed testimony would cover his view of Beauvais’s condition at the time
of his evaluation. Proper subjects of Ager’s testimony also include his knowledge
and expertise regarding Beauvais’s alleged ailments and his opinion of whether she
was fit for duty in 2015. As, indeed, those topics did not require an expert report for
the treating physician in Avendt.
Plaintiff’s argument here, at its core, is that because Ager is an expert, he must
file an expert report. See Dkt. No. 42, p. 7 (Pg. ID 1712). As outlined above,
however, this position contradicts the plain language and intent of Rule 26. In
addition, commentary on the 2010 Amendment of Rule 26—an amendment which
required summary disclosures by experts not required to provide an expert report—
establishes otherwise. The commentary explains that “[t]his amendment resolves a
tension that has sometimes prompted courts to require reports under Rule
26(a)(2)(B) even from witnesses exempted from the report requirement. An

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(a)(2)(B) report is required only from an expert described in (a)(2)(B).” FED. R. CIV.
PROD. 26(a)(2)(C)(i), Advisory Committee’s Notes on 2010 Amendments.
Beyond even the language of Rule 26 and its commentary, courts have
rejected arguments similar to those Beauvais raises here. For instance, in Wilson v.
Hill, No. 2:08–cv–552, 2012 WL 1068174 (S.D. Ohio Mar. 29, 2012), the plaintiff
unsuccessfully argued that his treating dentist was required to file an expert report
under Rule 26(a)(2)(B). Id. at *3, *5. The court reached this conclusion because
the dentist did not provide expert testimony in the ordinary course as envisioned by
Rule 26, and the dentist was not specifically retained to provide expert testimony.
Id. at 5–6.
This Court will reject Beauvais’s arguments on the same grounds. Inkster
correctly notes that Ager was hired before this litigation began, and he evaluated
Beauvais to help Inkster assess whether Beauvais was fit to return to work. Ager,
then, was not specifically retained to participate in this litigation; and as long as his
testimony pertains to his treatment of the Plaintiff, he is not required to file an expert
report. Accordingly, the Court will not strike Ager as a witness.
B.

Union Decision

Beauvais maintains that evidence of the union’s decision not to request
arbitration is inadmissible under Federal Rules of Evidence 401, 403, or both. The
Court is unmoved.
10

The Court will first turn to Plaintiff’s arguments regarding Rule 401.
1.

Rule 401

To begin, evidence must be relevant to be admissible, and “the standard for
relevance is ‘extremely liberal.’ ” V & M Star Steel v. Centimark Corp., 678 F.3d
459, 468 (6th Cir. 2012) (quoting Dortch v. Fowler, 588 F.3d 396, 400 (6th Cir.
2009)); see also Fed. R. Evid. 402. “[E]vidence is relevant if it ‘advance[s] the ball’
one inch.” United States v. Lang, No. 15-5997, 2017 WL 4924680, at *4 (6th Cir.
2017) (alteration in original) (quoting Dortch v. Fowler, 588 F.3d 396, 401 (6th Cir.
2009)). The rule defining relevance, Rule 401, establishes that evidence is relevant
where (1) “it has any tendency to make a fact more or less probable than it would be
without the evidence”; and (2) “the fact is of consequence in determining the action.”
Beauvais argues that the union decision is not relevant to her Title VII
retaliation claim because it concerns whether Inkster complied with the collective
bargaining agreement in suspending and terminating the Plaintiff—not whether
Inkster violated Title VII. Dkt. No. 45, p. 5 (Pg. ID 2230). Inkster counters that the
union’s decision was not limited to the applicability of the collective bargaining
agreement. Dkt. No. 53, p. 2 (Pg. ID 1610). Instead, according to Inkster, the union
concluded “that Beauvais had falsified records and that her actions were deliberate,
her falsification was material and that the City had acted promptly and in good faith
when it discovered the falsification.” Id.; see also Dkt. No. 53-2, p. 2 (Pg. ID 2632).
11

Beauvais is mistaken. This evidence does not solely pertain to the collective
bargaining agreement, and it is highly relevant. A critical issue in this case is
whether Inkster retaliated against the Plaintiff in violation of Title VII by terminating
her employment. The union’s decision directly addresses Inkster’s justification for
terminating Plaintiff’s employment—whether she made false statements during her
examination with Dr. Ager. Finding that Beauvais had falsified certain records, the
union stated that it did not pursue arbitration because it would not prevail. See Dkt.
No. 53-2. As this determination specifically covers the validity of Inkster’s reasons
for terminating Plaintiff’s employment, it is relevant.
Plaintiff unconvincingly relies on cases both not binding on this Court and not
instructive. For example, Arlia v. Lively, 474 F.3d 46 (2d Cir. 2007). In Arlia, the
Second Circuit concluded that a district court improperly allowed evidence about
why the plaintiff was not seeking a certain remedy. Id. at 52. The district court had
determined that the absence of evidence on this subject “would become the
proverbial ‘white elephant’ in the room, distracting and confusing the jury.” Id. at
53. The plaintiff had never sought the remedy in that case, had not referenced the
remedy in the complaint, and the remedy was not at issue in the litigation. Id. “To
open the doors of relevance so wide as to allow a plaintiff to recite facts concerning
claims he is not making or damages he is not seeking,” the Second Circuit held,
“would violate the spirit of the Federal Rules and ‘hamper rather than advance the
12

search for truth.’ ” Id. (quoting 2 Weinstein & Berger, Weinstein’s Federal Evidence
§ 402.02[3], at 402–15) (citing FED. R. EVID. 401 advisory committee’s note).
Unlike in Arlia, whether Beauvais was truthful during evaluations with Dr.
Ager directly impacts the legality of Inkster’s termination of her employment.
Accordingly, this evidence is relevant under Rule 401.
2.

Rule 403

Beauvais mounts a final stand to the introduction of the union evidence by
arguing that the Court must exclude it under Rule 403. This is a closer call than the
relevance question, but the Court will still find that Rule 403 does not require the
exclusion of this evidence.
Rule 403 provides that “[a] court may exclude relevant evidence if its
probative value is substantially outweighed by a danger of one or more of the
following: unfair prejudice, confusing the issues, misleading the jury, undue delay,
wasting time, or needlessly presenting cumulative evidence.” “ ‘Unfair prejudice
means the undue tendency to suggest a decision on improper considerations; it does
not mean the damage to a [ ] case that results from the legitimate probative force of
the evidence.’ ” Alvarado v. Oakland Cty., 809 F. Supp. 2d 680, 685 (E.D. Mich.
2011) (alteration in original) (quoting Doe v. Claiborne Cty., 103 F.3d 495, 515 (6th
Cir. 1996)). And “[w]ith respect to ‘unfair prejudice,’ ‘confusing the issues,’ and
other factors, [the Sixth Circuit] has noted that the exclusion of evidence may be
13

appropriate when the evidence suggests to the jury that it should decide the case ‘on
an improper basis[.]’ ” Journey Acquisition–II, L.P. v. EQT Prod. Co., 830 F.3d
444, 459 (6th Cir. 2016) (quoting United States v. Poulsen, 655 F.3d 492, 509 (6th
Cir. 2011)).
Beauvais alleges that evidence of the union’s decision is unfairly prejudicial
and will mislead the jury, because Inkster will use the evidence to establish that the
union believed Beauvais’s complaints lacked merit. Dkt. No. 45, p. 8 (Pg. ID 2233).
The Court disagrees.

The union determined that Beauvais made false

representations to Dr. Ager, and therefore, it would not proceed to arbitration with
her claim. The union did not opine on the validity of Beauvais’s Title VII claim.
Courts have admitted similar findings into evidence, albeit with a limiting
instruction to the jury that an agency’s conclusion must not supplant the jury’s
decision. Equal Employment Opportunity Commission (“EEOC”) investigations of
plaintiffs’ Title VII claims present analogous situations.

The Sixth Circuit

summarized this body of law, explaining that “[a] probable cause determination is
to be distinguished from an EEOC letter of violation, which is widely considered to
be presumptively inadmissible ‘because it suggests that preliminarily there is reason
to believe that a violation has taken place’ and therefore results in unfair prejudice
to defendant.’ ” Williams v. Nashville Network, 132 F.3d 1123, 1128–29 (6th Cir.
1997) (quoting EEOC v. Manville Sales Corp., 27 F.3d 1089, 1095 (5th Cir. 1994)).
14

Indeed, in Blakely v. City of Clarksville, 244 F. App’x 681, 683 (6th Cir.
2007), the Sixth Circuit affirmed a district court’s decision to admit an EEOC
determination into evidence. The Sixth Circuit acknowledged that “ ‘[a] strong
argument can be made that a jury would attach undue influence to this type of agency
determination, viewing it as a finding of discrimination . . . rather than as a mere
finding of probable cause.” Id. (quoting Williams v. Nashville Network, 132 F.3d
1123, 1129 (6th Cir. 1997)). Yet in Blakely, the determination was admissible
evidence because “the district court minimized any potential undue influence by
specifically instructing the jury that it was free to disregard any conclusions
contained in the report because the EEOC may not have had the same evidence as
the jury had.” Id.
Likewise, a court denied a motion in limine to exclude Ohio Civil Rights
Commission and EEOC findings of the lack of probable cause regarding
discrimination claims. Geiger v. Pfizer, Inc., No. 2:06-CV-636, 2009 WL 1026479,
at *12 (S.D. Ohio Apr. 15, 2009). The court reasoned that the evidence was
admissible—with a limiting instruction as in Blakely—to establish the defendant’s
motive and the chronology of the plaintiff’s protected activity and performance
evaluations and “merit increases.” Id.
The decision by Plaintiff’s union is perhaps even less prejudicial than a
finding by the EEOC, given that the union is not a federal agency with responsibility
15

for investigating Title VII claims. Therefore, as in the cases detailed above, the
Court may allow this evidence with a limiting instruction informing the jurors that
they may ignore this evidence.
IV.

Conclusion
Plaintiff has filed a Motion to Strike Dr. Harvey Ager as a Witness [42], and

has also filed a Motion in Limine to Exclude Evidence of a Union’s Decision Not to
Arbitrate Plaintiff’s Grievance [45]. At oral argument on these motions, and for the
reasons detailed above, the Court DENIED Plaintiff’s Motion to Strike [42], and
DENIED Plaintiff’s Motion in Limine to Exclude Evidence of the Union’s Decision
[45].
IT IS SO ORDERED.
Dated: February 8, 2018

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

CERTIFICATE OF SERVICE
Copies of this Order were served upon attorneys of record on
February 8, 2018, by electronic and/or ordinary mail.
/s/ Tanya Bankston
Deputy Clerk

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