Fakhoury et al v. O'Reilly et al

Filing 263

OPINION and ORDER Regarding 185 MOTION in Limine TO EXCLUDE DEFENDANTS' DAMAGES EXPERTS AND EXPERT REPORT, 186 MOTION in Limine , 193 MOTION in Limine to Bar Testimony about Alleged Mayoral Ultimatum and Preclude Lay Opinion Medical Causation Testimony, 195 MOTION in Limine to Bar Certain Testimony from Tom Tafelski, Keith Woodcock and the Fakhourys, 190 MOTION in Limine to Allow Testimony of Walling, 191 MOTION in Limine to Bar Evidence relating to Haidar-Hakhoury Phone Call, 192 MOTION in Limine TO EXCLUDE REFERENCES TO 1) ALLEGED PRE-2013 JUDGMENTS, LIENS, RECEIVERSHIPS, OR FORECLOSURES RELATING TO PLAINTIFF HAKIM, 2) ALLEGED INVESTIGATIONS RELATING TO PLAINTIFFS, 3) DEFENDANTS', O'REILLY'S AND WALLING', 187 MOTION in Limine to Preclude SEV, 189 MOTION in Limine to Preclude Evidence Contradicting Global Settlement, 194 MOTION in Limine to Bar Cert ain Testimony from Hakim Fakhoury, 196 MOTION IN LIMINE TO PRECLUDE 1) THE USE AND/OR MENTION OF POLYGRAPH EVIDENCE AND/OR 2) EVIDENCE RELATED TO APRIL FAKHOURY BEING AN ALLEGED ALTER EGO OF HAKIM FAKHOURY FOR THE PROPERTIES AT ISSUE< /i>, 188 MOTION in Limine TO EXCLUDE ALL POLICE REPORTS, 197 MOTION IN LIMINE IN LIMINE TO PRECLUDE DEFENDANTS WITNESSES WHOSE ANTICIPATED TESTIMONY WAS NOT DISCLOSED FROM TESTIFYING AT TRIAL and Setting Final Pretrial Or der, Final Pretrial Conference and Trial Dates ( Revised Final Pretrial Order due 5/10/2022 Final Pretrial Conference reset for 5/17/2022 at 2:00 PM before District Judge Gershwin A. Drain, Jury Trial reset for 5/31/2022 at 9:00 AM before District Judge Gershwin A. Drain) Signed by District Judge Gershwin A. Drain. (TMcg)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
APRIL LYNN FAKHOURY, et al.,
Plaintiffs,

Case No. 16-13323
Hon. Gershwin A. Drain

vs.
JOHN B. O’REILLY JR., et al.,
Defendants.
____________________________/
OPINION AND ORDER REGARDING MOTIONS IN LIMINE AND
SETTING FINAL PRETRIAL ORDER, FINAL PRETRIAL CONFERENCE
AND TRIAL DATES
I. INTRODUCTION AND PROCEDURAL BACKGROUND
Presently before the Court are the following pretrial motions, filed by the
Plaintiffs: (1) Daubert Motion to Exclude Defendants’ Damages Experts and
Expert Report, (2) Motion in Limine to Exclude All Police Reports, (3) Motion in
Limine to Exclude References to A) Alleged Pre-2013 Judgments, Liens,
Receiverships, or Foreclosures Relating to Plaintiff Hakim, B) Alleged
Investigations (Including the DOJ Investigation) Relating to Plaintiffs, C)
Defendants John B. O’Reilly’s and Debra Walling’s Personal Finances or Health
Issues, and D) Taxpayer Dollars or Costs, (4) Motion in Limine to Preclude
Defendants’ Witnesses Whose Anticipated Testimony Was Not Disclosed from
Testifying at Trial, and (5) Motion in Limine to Preclude A) the Use and/or

Mention of Polygraph Evidence and/or B) Evidence Related to April Fakhoury
Being an Alleged Alter Ego of Hakim Fakhoury for the Properties at Issue.
Also, before the Court are the following pretrial motions, filed by
Defendants: (1) Motion in Limine to Preclude Admission of Kenneth H.
Johnson’s Expert Reports and Testimony Relating to the Reports, (2) Motion in
Limine to Exclude Admission of State Equalization Values as Evidence of Market
Value, (3) Motion in Limine to Preclude Plaintiffs from Admitting Evidence
Contradicting their Global Settlement with the Hamames Based on Judicial
Estoppel, (4) Motion in Limine to Allow Certain Testimony of Defendant Walling,
(5) Motion in Limine to Bar Evidence Relating to Haidar-Fakhoury Phone Call,
(6) Motion in Limine to Bar Testimony about Alleged Mayoral Ultimatum and to
Preclude Lay Opinion Medical Causation Testimony, (7) Motion in Limine to Bar
Certain Testimony from Hakim Fakhoury, and (8) Motion in Limine to Bar Certain
Testimony from Tom Tafelski, Keith Woodcock, and the Fakhourys.
The Court conducted oral argument on the parties’ pending pre-trial motions
on August 25, 2021, September 1, 2021 and September 15, 2021.
II. LAW & ANALYSIS
A. Standard of Review
The purpose of a motion in limine is to ensure the evenhanded and
expeditious management of trials by eliminating evidence that is clearly
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inadmissible. Ind. Ins. Co. v. General Elec. Co., 326 F. Supp.2d 844, 846 (N.D.
Ohio 2004) (citing Johasson v. Lutheran Child & Family Servs., 115 F.3d 436,
440 (7th Cir. 1997)). A court should exclude evidence on a motion in limine only
when that evidence is determined to be clearly inadmissible on all potential
grounds. Id. When a court is unable to determine whether or not certain evidence
is clearly inadmissible, evidentiary rulings should be deferred until trial so that
questions of foundation, relevancy and potential prejudice can be resolved in the
proper context. Id. Whether or not to grant a motion in limine falls within the
sound discretion of the trial court. Branham v. Thomas Cooley Law Sch., 689 F.3d
558, 560 (6th Cir. 2012).
Rules 401 and 402 of the Federal Rules of Evidence permit the admission of
only relevant evidence. Evidence that is irrelevant is inadmissible. See Fed. R.
Evid. 402. Evidence is relevant if it has any tendency to make the existence of a
material fact more or less probable than it would be without the evidence. See Fed.
R. Evid. 401. Under Rule 403, relevant evidence may be excluded “if its probative
value is substantially outweighed by a danger of . . . unfair prejudice, confusing the
issues, misleading the jury, undue delay, wasting time, or needlessly presenting
cumulative evidence.” Fed. R. Evid. 403.
Rule 701 of the Federal Rules of Evidence provides:
If a witness is not testifying as an expert, testimony in the form of an
opinion is limited to one that is:
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(a) rationally based on the witness’s perception;
(b) helpful to clearly understanding the witness’s testimony or to
determining a fact in issue;
(c) not based on scientific, technical, or other specialized knowledge
within the scope of Rule 702.
Fed. R. Evid. 701.
Federal Rule of Evidence 702 governs the admissibility of expert testimony.
A party offering an expert’s opinion bears the burden of establishing the
admissibility of such opinion by a preponderance of the evidence. Nelson v.
Tennessee Gas Pipeline Co., 243 F.3d 344, 251 (6th Cir. 2001). Expert testimony
is admissible only if it satisfies the requirements of Rule 702 of the Federal Rules
of Evidence, which states:
A witness who is 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 on 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.
Fed. R. Evid. 702. The district court must determine whether the expert’s
testimony meets three requirements: (1) the expert witness must be qualified by
“knowledge, skill, experience, training or education,” (2) the proffered testimony is
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relevant and “will assist the trier of fact to understand the evidence or to determine
a fact in issue,” and (3) the testimony is reliable in that it is based on scientific,
technical or other specialized knowledge. Fed. R. Evid. 702; In re Scrap Metal
Antitrust Litigation, 527 F.3d 517, 529 (6th Cir. 2008).
B. Plaintiffs’ Daubert Motion to Exclude Defendants’ Damages Experts
and Expert Report [#185]
On September 12, 2019, Defendants’ experts, Bradford Southern and Paul
Schapira, submitted their expert report concluding the Plaintiffs are not entitled to
any damages in this matter.
Schapira is qualified as an expert on all of the grounds listed in Rule 702.
He has an undergraduate degree from the University of Michigan and an MBA
from Carnegie Mellon. ECF 185-4, PageID.17325. He has worked for a number
of financial institutions including NBD Bank and other alternative investment
firms. Id. He has historically done reviews of property valuations. Id. at
PageID.17326. As part of his experience, he has analyzed appraisals to determine
whether they are compliant with the Uniform Standards of Professional Appraisal
Practice (“USPAP”). Id. at PageID.17352.
During his experience in the banking industry, Schapira reviewed “hundreds
and hundreds and hundreds” of appraisals. ECF 185-4, PageID.17354. Schapira’s
relevant experience includes “almost 9 years working for 2 publicly traded
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financial banking institutions” involving “oversight for a $2.0 billion commercial
real estate portfolio consisting of real properties nationally with some individual
loans up to $50 million in exposure.” Id. Schapira’s work experience afforded
him “the opportunity to review several thousand appraisals” and he “regularly
interfaced (at times on a daily basis) with federal banking regulators such as the
Office of the Thrift Supervision (“OTS”), the Office of the Comptroller of the
Currency (“OCC”), the Securities and Exchange Commission (“SEC”), the
Financial Regulatory Authority (“FINRA”), and the Federal Deposit Insurance
Company.” Id. at PageID.17148.
“When offering expert testimony, the defendant has ‘no burden to produce
models or methods of their own; they need only attack those of the plaintiffs’
experts.’” Scott v. Chipotle Mexican Grill, Inc., 315 F.R.D. 33, 44 (S.D.N.Y.
2016) (quoting In re Zyprexa Prods. Liab. Litig., 489 F. Supp.2d 230, 285
(E.D.N.Y. 2007)). That is precisely what Schapira did in this case. Johnson used
standard appraisal methodology in his approach, evaluating methods of valuation
including the sales approach, cost approach, and income approach, generally
employing all three. See ECF 185-2, PageID.17147. Schapira used this same
methodology, basing his analysis on the income approach, and explaining why the
income approach is the best method to use when evaluating commercial real estate
used to generate income. See id. at PageID.17148-49. Thus, Schapira did in this
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case what he spent a decade in commercial banking doing – reviewing an appraisal
and critiquing it.
Mr. Schapira is therefore qualified by his education, knowledge, skill, and
experience to critique an appraisal of real property utilizing the same methodology
as the appraiser. His testimony is presumptively admissible, and Plaintiffs have
identified no authority excluding testimony like his.
Plaintiffs argue the Defendants’ expert report contains no analysis relating to
the events that occurred in and after February of 2013. Section V of the report
involves a valuation of the properties on which Plaintiffs currently base their
damages case. Plaintiff’s remaining arguments are without merit and can be
addressed during cross examination. Plaintiffs’ objections go to the weight to
accord Mr. Schapira’s testimony. Plaintiffs’ motion will be denied without
prejudice.
C. Defendants’ Motion in Limine to Preclude Admission of Kenneth H.
Johnson’s Expert Reports and Testimony Relating to the Reports [#186]
Plaintiffs retained Kenneth H. Johnson and have proffered him as an expert
real estate appraiser. Mr. Johnson prepared a 368-page report (“First Report”)
rendering his opinion of the real estate values of the 23 properties at issue in this
case. Mr. Johnson obtained a value of each property through a Market Approach,
Sales Comparison Approach, and Income Analysis Approach. The First Report’s
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preliminary valuations are computed as of September 1, 2018. For properties
where improvements were ongoing as of that date, Johnson calculated the value as
of the future date at which the improvements would be completed. The
Fakhourys’ share of the three portfolios purports to have a 2018 market value
totaling $36,951,000. In Plaintiffs’ 6th Amended Rule 26a Disclosures, Plaintiffs
claim to be seeking the value of these properties, less the $2.2 million that they
received from their global settlement agreement with the Hamame family, which
would represent $34,751,000 in alleged damages. The economic damages figure
listed in Plaintiffs’ 6th Amended Rule 26e Disclosures is $34,789,500; it is not
clear why there is a $38,500 difference between those two numbers.
On January 5, 2021, Mr. Johnson produced a letter (“Second Report”)
identifying the 2014 SEVs for the 23 properties. Johnson testified that Plaintiffs’
counsel instructed him to pull the SEV figures for June 2014 because that is when
the loss was incurred. The Second Report purports to show a “Total Assessed
Value” of $11,423,300 and a purported “estimated Total Market Value of
$22,846,600” for all of the listed properties. However, after realizing a calculation
error, Mr. Johnson produced another letter (“Third Report”) correcting the
calculation error. The error amounts to $850,000 in SEV, which translates into a
$1.7 million error in alleged “Total Market Value.” Johnson cited “[b]ad

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arithmetic” as “the only reason for my sloppiness.” Johnson considers the Third
Report to be merely a corrected version of the Second Report.
Johnson testified that SEV “is something entirely different” from appraisals
and valuation summaries. He admitted that SEVs are used for taxation purposes
only; tax assessors do not give opinions of value for commerce reasons. In fact,
according to Johnson, “[i]f an appraiser relied solely on state equalized value to
determine the value of property, I respectfully submit that appraiser would stand in
risk of losing his license.” The figures listed in the Third Report assume that the
Fakhourys owned 100% of the interest in those properties. But, in the addendum
to Johnson’s First Report, Plaintiffs concede that they owned a 50% interest in
what they call the Fakhoury Oasis Portfolio (see Ex. 1, at BATES 4247 n.1), and a
50% interest in what they call the Fakhoury JV Portfolio (see Ex. 1, at BATES
4246 n.1), except for the Village Plaza property at 23400 Michigan Avenue, in
which the Fakhourys had only an alleged 20% interest. Accounting for these selfreported ownership shares means that the “Total Market Value of $21,146,600” in
the Third Report (see Ex. 3, at BATES 5327) is overstated by $9,425,540, resulting
in an alleged market value figure – calculated under Plaintiffs’ own version of their
unproven allegations – of $11,721,060. That number, of course, would also need
to be reduced by the $2.2 million the Fakhourys obtained from transferring their

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alleged ownership in the properties as part of the Hamame settlement, resulting in
Plaintiffs’ actual demand of $9,521,060 in economic damages.
Plaintiffs’ current theory for economic damages is that the Defendants
worked with the Hamames to divest Plaintiffs of their alleged interests in certain
properties by forcing them to sell their interests to the Hamames at a below-market
price. Under that theory, Plaintiffs’ damages would be a variant of “market
damages,” representing the difference between what the property interests were
worth and what the Fakhourys managed to obtain for them.
In this case, the alleged harm occurred in June 2014, when the global
settlement was executed and the Fakhourys allegedly lost control of their property
interests. In the context of a statute of limitations analysis, this Court has opined
under the summary judgment standard that “the Plaintiffs’ injury” was the “loss of
their commercial properties to the Hamame family in June 2014.” ECF 166.
Johnson also testified that Plaintiffs’ counsel had reported to him their
understanding that the relevant loss was in June 2014. The law therefore requires
that the Fakhourys measure their alleged damages by computing market value as of
June 2014.
However, Johnson’s First Report does not do that. Rather, Johnson
computes his preliminary valuations as of September 1, 2018. Where
improvements to the properties were ongoing as of that date, Johnson calculated
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the value based on his opinion of what the properties would be worth once the
improvements were completed. Johnson’s estimate of the value of properties more
than four years after the Fakhourys held any ownership interest in them – where
the estimates include the value of improvements that subsequent owners made to
those properties – bears no relation at all to what the properties were worth in June
2014, when they might have been used to calculate Plaintiffs’ alleged damages.
The First Report and any testimony relating to it are subject to exclusion under
Rule 702.
Johnson’s Second Report contains an error that overstates the alleged “Total
Market Value” by $1.7 million. See Ex. 4, at 48. Johnson admitted his
“sloppiness” for the error, which he blamed on “[b]ad arithmetic.” The Second
Report relies solely upon SEV as a basis for computing market value. It is
therefore also excludable for the reasons explained below regarding the Third
Report, which are incorporated herein by reference. The admitted $1.7 million
error is alone sufficient to render the Second Report irrelevant under Federal Rule
of Evidence 402 and misleading to the jury under Federal Rule of Evidence 403.
The Second Report and any testimony relating to it are also excluded from trial.
As to Mr. Johnson’s Third Report, the touchstone of proper analysis under
Daubert is that, to be admissible, the expert must appropriately apply the teachings
of his field to the issues confronting the jury. A testifying expert must “employ[]
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in the courtroom the same level of intellectual rigor that characterizes the practice
of an expert in the relevant field.” Kumho Tire, 526 U.S. at 152. When the
testimony of a proffered expert is challenged for insufficient rigor, “the trial judge
must determine whether the testimony has a ‘reliable basis in the knowledge and
experience of the discipline.’” Id. at 149 (quoting Daubert, 509 U.S. at 592). The
Sixth Circuit has similarly instructed that “[e]xperts are permitted wide latitude in
their opinions, including those not based on firsthand knowledge, so long as ‘the
expert’s opinion [has] a reliable basis in the knowledge and experience of the
discipline.’” Jahn v. Equine Servs., PSC, 233 F.3d 382, 388 (6th Cir. 2000)
(quoting Daubert, 509 U.S. at 592).
Thus, under Daubert, Johnson may testify to the use of SEV as a proxy for
market value only if doing so has a reliable basis in the knowledge and experience
of real estate appraisal – the field in which he was proffered as an expert. But
Johnson testified that the exact opposite is true:
Q. And relying upon state equalized value as a means of valuing a
property is not a generally accepted practice in the appraisal
community, is it?
A. Absolutely correct.
Ex. 4, at 64. As Johnson put it, “[i]f an appraiser relied solely on state equalized
value to determine the value of property, I respectfully submit that appraiser would
stand in risk of losing his license.” Id. That testimony definitively establishes that
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use of SEV to estimate market value does not have a reliable basis in the field of
real estate appraisal. See Valuation for Taxation Purposes As Admissible to Show
Value for Other Purposes, 39 A.L.R.2d 209 (1955 & Supp. 2010) (“It is the
overwhelming weight of authority that assessed value is not competent direct
evidence of value for purposes other than taxation.”). Id., ' 4a; Bowie Lumber Co.
v. United States, 155 F.2d 225, 228 (5th Cir. 1946) (explaining “[t]he great weight
of authority holds that, except as declarations against interest, assessments are not
admissible as evidence of value in condemnation proceedings.”); United States v.
Certain Parcels of Land, 261 F.2d 287, 290 (4th Cir. 1958) (noting that, “‘[i]t is
the overwhelming weight of authority that assessed value is not competent direct
evidence of value for purposes other than taxation.’”). Id. at 290 (quoting 39
A.L.R.2d at 214); Johnson & Wimsatt, Inc. v. Reichelderfer, 50 F.2d 336, 337
(D.C. Cir. 1931)(concluding “[i]t is widely recognized that appraisements of
property by tax assessors for purposes of taxation are not reliable guides of market
value, and consequently not admissible in condemnation proceedings.”); Tarrify
Properties, LLC v. Cuyahoga County, 2020 WL 7490096, *3 (N.D. Ohio Dec. 21,
2020)( “nationwide precedent holds that property tax valuations cannot be used,
and are inadmissible, to establish land value for non-tax purposes.”). The
overwhelming weight of authority provides that tax assessment valuations cannot
be admitted as evidence of market value.
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Moreover, the Fakourys have admitted that they did not own a 100% interest
in all of the properties as of June 2014. Applying the alleged ownership figures
used by the Fakhourys at the end of the First Report to the SEV figures in the Third
Report yields an alleged Total Market Value of the Fakhoury holdings of
$11,721,060. In other words, Plaintiffs wish to place before the jury a damages
figure that is inflated by $9,425,540 representing the ownership interests of others.
Under these circumstances, admission of the Third Report would be unduly
prejudicial and misleading to the jury.
For all of these reasons, Defendants’ Motion to Exclude Admission of
Kenneth Johnson’s expert reports and testimony will be granted.
D. Defendants’ Motion in Limine to Preclude Admission of State
Equalization Values as Evidence of Market Value [#187]
Defendants also move to exclude SEV evidence to show market value.
Based on this Court’s reasoning excluding the testimony of Mr. Johnson, the SEVs
must also be excluded because they are not an appropriate measure of market value
and thus their admission will not aid the jury in resolving the damages issue. See
Valuation for Taxation Purposes As Admissible to Show Value for Other Purposes,
39 A.L.R.2d 209 (1955 & Supp. 2010) (“It is the overwhelming weight of
authority that assessed value is not competent direct evidence of value for purposes
other than taxation.”). Id., ' 4a; Bowie Lumber Co. v. United States, 155 F.2d 225,
228 (5th Cir. 1946) (explaining “[t]he great weight of authority holds that, except
14

as declarations against interest, assessments are not admissible as evidence of
value in condemnation proceedings.”); United States v. Certain Parcels of Land,
261 F.2d 287, 290 (4th Cir. 1958) (noting that, “‘[i]t is the overwhelming weight of
authority that assessed value is not competent direct evidence of value for purposes
other than taxation.’”). Id. at 290 (quoting 39 A.L.R.2d at 214); Johnson &
Wimsatt, Inc. v. Reichelderfer, 50 F.2d 336, 337 (D.C. Cir. 1931)(concluding “[i]t
is widely recognized that appraisements of property by tax assessors for purposes
of taxation are not reliable guides of market value, and consequently not
admissible in condemnation proceedings.”); Tarrify Properties, LLC v. Cuyahoga
County, 2020 WL 7490096, *3 (N.D. Ohio Dec. 21, 2020)( “nationwide precedent
holds that property tax valuations cannot be used, and are inadmissible, to establish
land value for non-tax purposes.”).
This motion will likewise be granted.
E. Plaintiff’s Motion in Limine to Exclude All Police Reports [#188]
Next, Plaintiffs move to exclude all police reports. This motion will be
denied without prejudice. Plaintiffs’ broad approach to seeking exclusion of all
police reports prevents both defendants and this Court from properly addressing
their objections. A party moving in limine “should identify the particular evidence
at issue and articulate with specificity the arguments supporting the position that
the particular evidence is inadmissible on any relevant ground.” United States v.
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Cline, 188 F. Supp. 2d 1287, 1292 (D. Kan. 2002) (emphasis added). “A court is
well within its discretion to deny a motion in limine that fails to identify the
evidence with particularity or to present arguments with specificity.” Id. (citing
Nation Union v. L.E. Myers Co. Group, 937 F. Supp. 276, 287 (S.D.N.Y. 1996)).
Plaintiffs in one fell swoop seek to exclude from trial more than 1,000 pages
of police reports submitted at the summary-judgment phase. Brief, pg. 1. They
divide their request into reports “involving events that occurred prior to February
of 2013 and after June of 2014,” Id. at 3-8, and then “all police reports, including
those allegedly created in February of 2013 to June of 2014.” Id., pp. 8-15. But
beyond those two general groupings, they offer only generalized objections
referring to unspecified mass groupings of reports. See, e.g., Brief, pg. 4 (“[m]ost
of the reports” either do not involve plaintiffs, predate February 2013, or involve
people unrelated to plaintiffs’ family”); pg. 5 (“[m]ost of the police reports”
contain or are supported by inadmissible statements); pg. 6 (“most, if not all”
reports were first learned of during this litigation); pg. 7 (“a vast majority of the
alleged police reports were not even know to the individual Defendants in this case
until after this suit was filed”); pg. 8 (“[m]ost, if not all, of those police reports”
contain hearsay, are irrelevant, improperly offer character evidence and/or should
be excluded under FRE 403).

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Where a motion in limine simply asserts objections without tying them to
specific evidentiary items, the Court properly may deny it as overbroad and
insufficiently specific. See United States v. Cervantes, 170 F. Supp. 3d 1226, 1236
fn. 6 (N.D. Cal. 2016) (where movant sought to exclude “on relevance and Rule
403 grounds,” court denied motion as “overbroad, insufficiently specific, and
premature”); Kirk v. Schaeffler Grp. USA, Inc., 2016 U.S. Dist. LEXIS 17315;
2016 WL 593910, at *2 (W.D. Mo. Feb. 12, 2016) (denying without prejudice
motion in limine seeking to exclude “any documents, opinions, or other evidence
that Plaintiff has not disclosed” because the request was “insufficiently specific”)
(citation omitted); Hankins v. Ford Motor Co., 2012 U.S. Dist. LEXIS 6646; 2012
WL 174793, at *5 (S.D. Miss. Jan. 20, 2012) (rejecting Ford’s request to bar
plaintiff from presenting “evidence of recalls, technical bulletins, or defects in
other vehicles,” since the motion “is insufficiently specific”) (citation omitted);
Evans v. Port Auth. of New York & New Jersey, 2005 U.S. Dist. LEXIS 19796, at
*6-*7 (S.D.N.Y. Sept. 13, 2005) (while it “seems likely” that much of plaintiff’s
evidence should be excluded, “the motion papers now before the Court are
insufficiently specific to permit detailed determinations,” and parties ordered to
meet and confer to narrow the issues).
Here, Plaintiffs assert sweeping objections to a group of more than 1,000
documents but do not tie specific legal objections to any specific documents. The
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Court will therefore deny this motion without prejudice. Cline, 188 F. Supp. 2d at
1292; see also Starr v. QuikTrip Corp., 2016 U.S. Dist. LEXIS 182040; 2016 WL
7665589, at *2 (N.D. Okla. Nov. 21, 2016) (quoting Walsh v. United States, 2009
U.S. Dist. LEXIS 27238; 2009 Westlaw 3755553, at *1 (N.D. Okla. March 31,
2009)) (“A court is within its discretion to deny a motion in limine that fails to
identify the evidence with particularity or present arguments with specificity”).
This motion is denied without prejudice.
F. Defendants’ Motion in Limine to Preclude Plaintiffs from Admitting
Evidence Contradicting their Global Settlement with the Hamames Based on
Judicial Estoppel [#189]
Defendants next argue that Plaintiffs should be judicially estopped from
seeking the fair market value of the 23 properties at issue in this case. Defendants
maintain that Plaintiffs’ theory of damages is directly contrary to their
representations before the Wayne County Circuit Court as part of a settlement
agreement between the Plaintiffs and the Hamames. Defendants assert Plaintiffs
represented to the state court judge that they were receiving fair market value for
the properties at issue, therefore they should be precluded from offering evidence
of property values contradicting their representations made as part of the Hamame
settlement agreement.
“Judicial estoppel is an equitable doctrine that preserves the integrity of the
courts by preventing a party from abusing the judicial process through cynical
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gamesmanship, achieving success on one position, then arguing the opposite to suit
an exigency of the moment.” Teledyne Indus., Inc. v. N.L.R.B., 911 F.2d 1214,
1217-18 (6th Cir. 1990). While “there is no set formula for assessing when
judicial estoppel should apply, at a minimum, a party’s later position must be
clearly inconsistent with its earlier position.” Lorillard Tobacco Co. v. Chester,
Willcox & Saxbe, LLP, 546 F.3d 752, 757 (6th Cir. 2008)(internal quotation marks
and citation omitted).
The settlement agreement with the Hamames involved over 50 different
individuals and entities, in 13 civil actions containing various claims, cross-claims,
counter claims, third party claims and intervening claims. Defendants were not a
party to the lawsuits or the settlement agreement. Paragraph 11.5 states that the
terms of the Agreement, “shall not constitute or be construed to be an admission on
the part of any of the Parties hereto . . .” The parties further agreed in paragraph
11.9 that their settlement was “not on the record.” Paragraph 11.19 further states
that:
Adequacy of consideration. Each and all of the individuals and
entities making up the Parties hereto acknowledge and agree that the
consideration received by each of the set forth herein is fair, adequate,
and sufficient in exchange for the consideration given by such parties.
Defendants argue the Settlement Agreement’s reference to the exchange of
consideration being “fair, adequate, and sufficient” conclusively establishes that
the Plaintiffs were paid fair market value for their properties. However, the
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Agreement specifically states that “it is the intent and express purpose of each of
the Parties hereto that this Settlement Agreement . . . fully and finally resolve” any
and all disputes “between or among the Parties . . . .” As such, the Plaintiffs
agreement that the consideration exchanged was fair in the context of the disputes
at issue in the state court is not clearly inconsistent with their later position
regarding the fair market value of the subject properties. Because the Plaintiffs’
position is not clearly inconsistent with their Settlement Agreement’s
representations, judicial estoppel is not appropriate. The Court will therefore deny
Defendants’ Motion in Limine to Preclude Evidence Contradicting their Global
Settlement with the Hamame Family.
G. Defendants’ Motion in Limine to Allow Certain Testimony of
Defendant/Corporation Counsel Walling [#190]
Defendants next assert that the attorney-client privilege should not preclude
Defendant Walling from testifying about conversations she had with non-party
Tom Tafelski, a former member of the City Council. Defendants argue Mr.
Tafelski’s anticipated testimony concerning conversations he had with Defendant
Walling will not be accurately portrayed by Mr. Tafelski and she seeks a ruling
that the attorney client privilege does not bar her from rebutting Mr. Tafelski’s
purported false testimony.

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This motion will be denied. Mr. Tafelski was deposed nearly seven months
prior to Ms. Walling. Now, three and a half years after Mr. Tafelski was deposed
and two and a half years since Ms. Walling sat for her deposition, Defendants ask
the Court to permit Ms. Walling to offer new evidence well beyond the discovery
cutoff in this matter. Moreover, Defendants fail to provide sufficient specificity.
They do not identify the particular conversations between Ms. Walling and Mr.
Tafelski at issue and do not explain why Ms. Walling could not correct the record
during her deposition. It is well settled that “litigants cannot hide behind . . . [t]he
attorney-client privilege . . . as a shield” and then subsequently use it as “a sword.”
In re Lott, 424 F.3d 446, 454 (6th Cir. 2005).
This motion is denied.
H. Defendants’ Motion in Limine to Bar Evidence Relating to HaidarFakhoury Phone Call [#191]
Defendants also seek to exclude all evidence relating to the recording of the
phone call between non-party Marwan Haidar and Plaintiff Hakim Fakhoury. At
Mr. Haidar’s deposition, Plaintiffs for the first time produced an audio of part of a
phone call purportedly between Mr. Haidar and Mr. Fakhoury. On the call, Mr.
Haidar tells Mr. Fakhoury “[t]he mayor fucked you” and “want[s] to destroy you,”
and “will hunt you down.” Mr. Haidar describes a vendetta by the Mayor against
Mr. Fakhoury, claiming that the Mayor warned the Hamames that “it’s either this
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or this way, pick it. What do you want? You want to do business? [The
Fakhourys] can’t be your partner.” Mr. Haidar further says that he is being truthful
and “swears on his mother’s grave.”
However, Mr. Haidar recanted his statements during his deposition testifying
to being pressured to take part in the staged call by Hakim Fakhoury, who had his
son follow Haidar and engage him in several physical fights, to the point where
Mr. Haidar was scared. Mr. Haider testified that Mr. Fakhoury told him what to
say on the call.
Here, the audio recording and evidence related thereto is classic hearsay.
Hearsay is an out of court statement “that a party offers in evidence to prove the
truth of the matter asserted in the statement.” Fed. R. Evid. 801(c). Hearsay is
inadmissible unless a statutory or court-rule exception applies. Fed. R. Evid. 802.
Plaintiffs respond by arguing they do not intend to introduce evidence of the
phone call for the truth of the matters asserted therein, but to show its effect on Mr.
Fakhoury. However, this argument is without merit. There is record evidence from
Mr. Haidar suggesting that Mr. Fakhoury asked Mr. Haidar to make the call and
statements about the Mayor’s animus. Even if the phone call evidence was
admissible under an applicable exception, it still would be subject to exclusion
under Rule 403 because its probative value is substantially outweighed by the
danger of unfair prejudice. The record before the Court is that Mr. Haidar recanted
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his statements concerning the Mayor’s purported ill will towards Mr. Fakhoury.
The phone call lacks any indicia of trustworthiness, and therefore, any small
probative value is substantially outweighed by the danger of unfair prejudice.
This motion will be granted.
I. Plaintiffs’ Motion in Limine to Exclude References to 1) Alleged Pre2013 Judgments, Liens, Receiverships, or Foreclosures Relating to Plaintiff
Hakim, 2) Alleged Investigations (Including the DOJ Investigation) Relating
to Plaintiffs, 3) Defendants O’Reilly’s and Walling’s Personal Finances or
Health Issues, and 4) Taxpayer Dollars or Costs [#192]
Next, Plaintiffs seek to bar Defendants from 1) making any reference to
alleged investigations of Plaintiffs, including the one involving the DOJ and postal
service, 2) making any reference to any previous judgments, liens, receiverships,
or settlements involving Hakim Fakhoury pre-2013 –including the six million
dollar Marathon judgment regarding Mr. Fakhoury’s gas stations and a Comerica
judgment related to his gasoline operations, 3) making any reference to the fact
Defendants will be retiring soon and should not be subject to a personal judgment
and 4) making any reference to taxpayer dollars being used to satisfy a judgment
in this matter.
Plaintiffs claim this Court should prohibit Defendants from referencing pre2013 judgments, liens, receiverships, or foreclosures relating to Plaintiff Hakim
because these events (1) “have no relevance to the issues that occurred in 2013 and

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2014”; (2) “will confuse the jury”; and (3) “any relevance is substantially more
prejudicial than probative.”
First, the events are undeniably relevant to the case at bar. “Relevance under
the Federal Rules of Evidence is a low threshold, easily satisfied.” United States v.
Gramins, 939 F.3d 429, 450 (2nd Cir. 2019). Evidence is relevant so long as it “(a)
has any tendency to make a fact more or less probable than it would be without the
evidence and (b) the fact is of consequence in determining the action.” FRE 401.
The evidence Plaintiffs seek to exclude is relevant because it is a potential source
of emotional stress that could be an alternative cause of Plaintiffs’ alleged
emotional damages. The jury is entitled to weigh these other potential causes of
Plaintiffs’ alleged damages.
Plaintiffs further claim that introduction of past judgments would confuse
the jury and cause substantial prejudice to the Plaintiffs. Even if these judgments
did cause some confusion or prejudice to the Plaintiffs, relevant evidence may only
be “excluded if the evidence’s probative value is substantially outweighed by the
danger of unfair prejudice, confusion of the issues, or misleading the jury” Fed. R.
Evid. 403. “The exclusion of evidence under Rule 403 is an extraordinary remedy
and should be used sparingly.” United States v. Henthorn, 864 F.3d 1241, 1255
(10th Cir. 2017). Apart from merely stating that this evidence would cause undue

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prejudice and confusion, Plaintiffs do not actually explain how or why this would
be the case, or why a curative instruction would be inadequate.
As to the 2015 DOJ investigation, the DOJ obtained a warrant, raided and
seized personal items belonging to Plaintiffs, including jewelry and cash from their
home, gas station, and bank accounts." Here, Defendants cannot argue the 2015
DOJ investigation and raid could be the causation of Plaintiffs’ mental and
emotional distress as this investigation occurred after the Fakhourys were divested
of their properties. As such, this evidence is not relevant to a potential cause of
Plaintiff’s mental anguish. Moreover, the DOJ investigation led to no charges
being filed. This evidence will be unfairly prejudicial under Rule 403 because it
will suggest to the jury that Fakhourys are engaged in illegitimate activities. The
DOJ investigation is inadmissible.
As to the finances of the Defendants and references to taxpayer dollars
satisfying the judgment, this category of evidence will also be excluded pursuant to
Rule 403 as this evidence may result in the jury reaching its verdict on an improper
basis. This evidence is also inadmissible.
As such, Plaintiffs’ present motion will be granted in part and denied in part.
The 2013 judgments, liens, receiverships, or foreclosures relating to Plaintiff
Hakim are admissible because they are relevant to the issue of causation relating to
emotional distress damages.
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J. Defendants’ Motion in Limine to Bar Testimony About Alleged Mayoral
Ultimatum and to Preclude Lay Opinion Medical Causation Testimony [#193]
Defendants next argue that there is no admissible evidence concerning
Defendant O’Reilly’s purported “ultimatum” to the Hamames that if they wished
to continue doing business in Dearborn, they had to oust the Fakhourys from their
joint business arrangement. Plaintiffs have claimed from the inception of this
lawsuit that a meeting between the Mayor, Defendant Walling, Sam Hamame,
Mike Hamame and local businessman, Rick Marra, occurred at Habib’s Restaurant
on February 15, 2013. Defendants maintain any evidence of this alleged
ultimatum is inadmissible because there are no witnesses with personal knowledge
who can testify that Mayor O’Reilly issued an ultimatum to the Hamame family.
Neither Plaintiff attended the meeting, and Mr. Haidar, who purportedly overheard
the conversation at the restaurant, disavowed under oath during his deposition that
he overheard this conversation or that he had ever been a patron of Habib’s
restaurant.
In response, Plaintiffs fail to address Defendants’ argument that there is an
absence of admissible evidence demonstrating the Mayor made a threatening
ultimatum to the Hamames. Plaintiffs incorrectly suggest the Court has already
made a ruling on the admissibility of the Mayor’s purported ultimatum; however
the Court’s decision did not rely on the purported ultimatum in denying summary
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judgment. As such, the Court has never determined whether a proper foundation
for the ultimatum has been made. On this record, the Court cannot hold as a matter
of law that a proper foundation has been made as to the admission of the ultimatum
evidence. There are no witnesses with personal knowledge who can lay the proper
foundation. Mr. Haidar has recanted his earlier statement that he overhead the
Mayor threaten the Hamames. This aspect of the Defendants’ motion will be
granted.
Next, Defendants seek an order precluding Plaintiffs from testifying that Mr.
Fakhoury’s stroke in 2013 was caused by the Defendants. In response, Plaintiffs
appear to mischaracterize Defendants’ request as improperly seeking to exclude
broad categories of evidence relating to mental and emotional damages. However,
Defendants only seek to preclude lay testimony that Defendants caused Mr.
Fakhoury’s stroke because such testimony must come from a qualified expert. The
Court agrees.
Lay witnesses may testify to their personal observations of injuries or
symptoms that are within the common realm of knowledge. See Kovacic v.
Ponstingle, No. 1:05CV2746, 2014 U.S. Dist. LEXIS 133600, *10-11 (N.D. Ohio
Sep. 22, 2014). In cases where “there is no single, concrete incident from which
plaintiffs can trace their alleged injuries[,]” but rather “multiple causes of
plaintiffs’ injuries, including events that took place both well before and after” the
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unconstitutional acts, expert testimony as to causation is required. Id. Similar to
the plaintiffs in Kovacic, there is no way for the lay juror to determine whether Mr.
Fakhoury’s stroke was caused by the discrete events that gave rise to this action
without expert testimony. As such, Plaintiffs may testify to “their own
observations about their conditions and other matters that are within their personal
experience.” Kovacic, 2014 U.S. Dist. LEXIS 133600, at *6. However, they may
not testify concerning causation of Mr. Fakhoury’s diagnosis. This aspect of
Defendants’ motion will also be granted.
K. Defendants’ Motion in Limine to Bar Certain Testimony from Hakim
Fakhoury [#194]
Defendants also move to exclude statements consistent with Mr. Fakoury’s
January 22, 2019 Corrected Affidavit. Defendants argue the statements should be
excluded because they are not based on personal knowledge or a proper
foundation, they are irrelevant and likely to confuse the jury.
First, Defendants maintain several statements are inadmissible hearsay. The
Court has already determined the Haidar-Fakhoury phone call statements are
inadmissible. Accordingly, all statements related to this conversation will be
excluded, including Exhibit X.
As to Mr. Fakhoury’s statements concerning information he learned from
Cynthia J. Grimwade and John Tanner, III, the Court will deny this aspect of
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Defendants’ motion without prejudice. Plaintiff may be able to establish the
admissibility of this evidence during the time of trial when the Court can properly
evaluate whether an exception applies.
Defendants also argue several of Mr. Fakhoury’s statements lack personal
knowledge or they are improperly conclusory and should be excluded. As to
paragraph 6 in Mr. Fakhoury’s corrected affidavit regarding defense counsel’s
purported relationship with Mr. Haidar and his girlfriend, the Court has already
ruled this paragraph is inadmissible in a prior decision. See ECF No. 166,
PageID.16760.
As to the remaining paragraphs that Defendants seek to exclude, the Court
finds Defendants’ arguments are premature. Mr. Fakhoury may be able to
establish personal knowledge for his statements. Thus, the Court will deny without
prejudice Defendants’ request to strike paragraphs 8, 14, 17, 21, 28, 29, 37, 40, 41,
42, 43, and 45 of Mr. Fakhoury’s Corrected Affidavit. Accordingly, Defendants’
Motion to Bar Certain Testimony of Hakim Fakhoury will be granted in part and
denied without prejudice in part.

L. Defendants’ Motion in Limine to Bar Certain Testimony from Tom
Tafelski, Keith Woodcock and the Fakhourys [#195]
Defendants seek to preclude certain testimony from Tom Tafelski, former
City Council President. Mr. Tafelski worked on the council when Mayor O’Reilly
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took office in 2008 and continued working alongside Defendant O’Reilly in that
capacity for the following sixteen years. Defendants argue Mr. Tafalski’s
anticipated statements lack the requisite personal knowledge required by Fed. R.
Evid. 602. Specifically, Defendants seek to preclude Mr. Tafelski from testifying
that Mayor O’Reilly is a bully and vindictive or that Department heads were
expected to serve at the pleasure of the Mayor. Defendants further assert Mr.
Tafelski should be precluded from testifying that he believed Mayor O’Reilly
disliked the Fakhourys and that the Mayor implied Mr. Fakhoury’s financing came
from illegitimate sources.
Here, Mr. Tafelski has worked as a member of the City Council alongside
Mayor O’Reilly during the operative events giving rise to this action. His
impressions formed from day-to-day interactions and experiences gained from
working alongside the Mayor are relevant to the Mayor’s treatment and ill will
towards the Plaintiffs.
Defendants also seek to exclude any evidence related to collection of rent,
including Mr. Tafelski’s and Mr. Woodcock’s testimony that the Mayor informed
the City Council to instruct tenants to pay the Hamames or the bank, and not to pay
the Fakhourys. Because there is admissible evidence in the record from the
Fakhourys, Tafelski and Woodcock, this aspect of Defendants’ motion will also be

30

denied. However, to the extent any of these witnesses’ testimony relies on
hearsay, such testimony is inadmissible. This motion will be denied.
M. Plaintiffs’ Motion in Limine to Preclude 1) the Use and/or Mention of
Polygraph Evidence and/or 2) Evidence Related to April Fakhoury Being an
Alleged Alter Ego of Hakim Fakhoury for the Properties at Issue [#196]
Plaintiffs move to exclude any evidence of April Fakhoury refusing to take a
polygraph test, as well as exclude any evidence that April Fakhoury is the alter ego
of Hakim Fakhoury.
1. Polygraph Evidence
“Whether to admit a party’s refusal to submit to a polygraph examination is
within the trial court’s discretion.” United States v. Harris, 9 F.3d 493, 501 (6th
Cir.1993) (trial court has discretion in determining whether evidence of a party’s
willingness to submit to a polygraph is admissible). “The trial court must first
determine whether the proffered evidence is relevant. If the court finds that the
evidence is relevant, it must then balance the probative value of the evidence
against the hazard of unfair prejudice and jury confusion.” Id.; see also United
States v. Neuhard, 770 F. App’x 251, 255 (6th Cir.), cert. denied, 140 S. Ct. 570,
205 L. Ed. 2d 365 (2019). In short, “[t]he district court’s inquiry consists of
whether the evidence is relevant and whether its probative value outweighs its
prejudicial effect.” United States v. Blakeney, 942 F.2d 1001, 1014 (6th Cir.

31

1991); citing Wolfel v. Holbrook, 823 F.2d 970 (6th Cir. 1987), cert. denied, 484
U.S. 1069, 108 S.Ct. 1035, 98 L.Ed.2d 999 (1988).
Here, the relevance of evidence that Mr. Hamame took a polygraph test, and
Mrs. Fakhoury did not, is dubious at best. Defendants argue the different conduct
between Mr. Hamame and Mrs. Fakhoury played a role in the different treatment
between the two families. However, the record before the Court is devoid of
evidence showing any of the remaining Defendants had knowledge of Mrs.
Fakhoury’s unwillingness to sit for a polygraph examination and that Mr. Hamame
took a polygraph examination. Even if Defendants can establish they knew the
two business owners responded differently when asked to sit for a polygraph
examination and this knowledge impacted Defendants’ responses to, and treatment
of the Hamames versus the Fakhourys, the probative value of this polygraph
evidence is outweighed by the risk of prejudice.
The Sixth Circuit Court of Appeals has held admission of a defendant’s
refusal to submit to a polygraph examination was error because the “marginal
relevance of [the defendant’s] refusal to submit to polygraph testing was
outweighed by its prejudicial effect.” Wolfel v. Holbrook, 823 F.2d 970, 974-75
(6th Cir. 1987). “[S]ince an individual’s refusal to volunteer for polygraph testing
is likely to create a high prejudicial inference that the results of the test would have
been unfavorable, such evidence must be excluded.” Id. Consistent with Wolfel,
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the Court finds any marginal relevance provided by the polygraph evidence is
outweighed by its prejudicial effect.
2. Alter Ego
Next, Plaintiffs argue any reference to April Fakhoury as the “alter ego” of
Hakim Fakhoury is irrelevant, will confuse the jury and is highly prejudicial
because it will suggest the Fakhourys are engaged in illegal dealings to evade
creditors. Plaintiffs explain that Defendants have included a partner at Plaintiff’s
law firm on their Witness List suggesting counsel’s partner was involved in
assisting Mrs. Fakhoury with creating the alter ego entities.
Defendants respond that Mr. Fakhoury’s business background is highly
relevant to the damages issues in this case. The Court agrees that Mr. Fakhoury’s
business background is relevant to the damages issue. Plaintiffs cannot rely on the
doctrine of collateral estoppel where there is no privity between the Defendants
and the Hamames. The Court will deny this aspect of Plaintiff’s motion without
prejudice.
N. Plaintiffs’ Motion in Limine to Preclude Defendants’ Witnesses Whose
Anticipated Testimony Was Not Disclosed [#197]
Plaintiffs also complain that Defendants failed to provide the anticipated
testimony of 194 of their witnesses, including 82 witnesses disclosed for the first
time on the last day of discovery.
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On November 28, 2017, this Court entered a Scheduling Order in this
matter. ECF No. 36. The Court set discovery cutoff for August 31, 2018. Id.,
PageID.938. The Court’s Scheduling Order states in relevant part: “Discovery
shall be completed on or before the date set forth in the scheduling order. The
court will not order discovery to take place subsequent to the discovery cutoff
date.” Id. at PageID.939 (emphasis in original). Discovery was subsequently
extended 60 days until October 31, 2018. On May 29, 2018, Defendants served
their Responses to Plaintiffs’ First Interrogatories. Interrogatory number 2 seeks
the following: “For each non-expert witness Defendants may call at trial, please
state their name, last known address, telephone number, and a complete summary
of their anticipated testimony.” ECF No. 197, PageID.18354. Defendants
responded that the request was overly broad, and they did not provide any details
about their anticipated witnesses.
Under Rule 26, “[a] party who has made a disclosure under Rule 26(a)--or
who has responded to an interrogatory . . . must supplement or correct its
disclosure or response . . . in a timely manner if the party learns that in some
material respect the disclosure or response is incomplete or incorrect[.]” Fed. R.
Civ. P. 26(e)(1)(A). “This duty to supplement continues throughout the trial
proceedings, and it does not terminate at the end of the formal discovery period.”

34

Hubbell v. FedEx SmartPost, Inc., 2016 WL 3197492, at *8 (E.D. Mich. June 9,
2016) (collecting cases).
Rule 37 holds that if a party fails to identify a witness or supplement its
disclosures as is required under Rule 26(a) or (e), the witness is barred from
testifying at trial. Fed. R. Civ. P. 37(c)(1). The Sixth Circuit holds that the
“‘Federal Rule of Civil Procedure 37(c)(1) requires absolute compliance with Rule
26(a), that is, it ‘mandates that a trial court punish a party for discovery violations
in connection with Rule 26 unless the violation was harmless or is substantially
justified.’” U.S. ex rel. Tennessee Valley Auth. v. 1.72 Acres of Land In Tennessee,
821 F.3d 742, 752 (6th Cir. 2016).
Indeed, “exclusion of late or undisclosed evidence is the usual remedy for
noncompliance with Rule 26(a) or (e)[.]” Howe v. City of Akron, 801 F.3d 718,
747 (6th Cir. 2015). “In fact, the language of Rule 37 suggests that exclusion is
mandatory in these circumstances, and the Sixth Circuit has cited with approval a
Seventh Circuit decision to that effect.” SPX Corp. v. Bartec USA, LLC, 574 F.
Supp. 2d 748, 755 (E.D. Mich. 2008). The reason why is that “[t]he purpose of
Rule 37 is not only to punish discovery abusers, but also to protect litigants who
legitimately seek information to prepare for trial.” Id.
Here, Defendants may call only witnesses who were deposed or witnesses
whose anticipated testimonies were disclosed during discovery, but not witnesses
35

whose anticipated testimonies were never disclosed or supplemented when
requested in Plaintiffs’ interrogatories.
The Sixth Circuit adopted a five-part test “[i]n order to assess whether a
party’s omitted or late disclosure is ‘substantially justified’ or ‘harmless[.]’”
Howe, 801 F.3d at 747-48. Those factors are:
(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.
Id. at 748. Here, Plaintiffs were surprised to learn Defendants added 80
witnesses to their Rule 26 Disclosures and 79 witnesses to their Witness List
on the last day of discovery. By the time Defendants disclosed these witnesses
on the last day of discovery, the case had been ongoing for over two years.
Further, to this day – almost five years after the start of this case – Defendants
have yet to disclose the anticipated testimony of the 194 witnesses as they are
required to do under Rule 26(e).
The second factor – ability to cure – also weighs heavily against
Defendants. There is no way to cure Defendants’ failure that will not
substantially prejudice Plaintiffs or further delay trial. By not disclosing the
anticipated testimony of 194 witnesses that they may rely on at trial, as
requested in Plaintiffs’ First Interrogatories to Defendants, Plaintiffs have lost
36

the opportunity to use the discovery process to explore these witnesses and
the subject matter of their testimony “to prepare for trial.” SPX Corp, supra.
The third and fourth factors – the extent of the disruption to trial and
the importance of the evidence – weigh heavily against Defendants, as well.
Allowing the 194 witnesses to testify now would delay and disrupt trial
because not only have Plaintiff had no prior opportunity to conduct discovery
on these witnesses, but they would also be required to call additional
witnesses or introduce additional evidence in an attempt to remedy the
prejudice sustained as a result of the unfair surprise of the 194 witnesses.
Finally, the fifth factor – Defendants’ explanation for its failure to
disclose the evidence – certainly weighs against Defendants. There is no
legitimate justification for why Defendants have gone years without
supplementing their interrogatory responses regarding the anticipated
testimony at trial for the Tiers Three and Four Witnesses. Accordingly, every
factor weighs against Defendants and they cannot show harmlessness or a
substantial justification to overcome the mandatory Rule 37 sanctions.
This motion is granted.
III.

CONCLUSION

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Accordingly, for the reasons articulated above, Plaintiffs’ Daubert Motion to
Exclude Defendants’ Damages Experts and Expert Report [#185] is DENIED
WITHOUT PREJUDICE.
Defendants’ Motion in Limine to Preclude Admission of Kenneth H.
Johnson’s Expert Reports and Testimony Relating to the Reports [#186] is
GRANTED.
Defendants’ Motion in Limine to Preclude Admission of State Equalization
Values as Evidence of Market Value [#187] is GRANTED.
Plaintiffs’ Motion in Limine to Exclude All Police Reports [#188] is
DENIED WITHOUT PREJUDICE.
Defendants’ Motion in Limine to Preclude Plaintiffs from Admitting
Evidence Contradicting their Global Settlement with the Hamames Based on
Judicial Estoppel [#189] is DENIED.
Defendants’ Motion in Limine to Allow Certain Testimony of
Defendant/Corporation Counsel Walling [#190] is DENIED.
Defendants’ Motion in Limine to Bar Evidence Relating to Haidar-Fakhoury
Phone Call [#191] is GRANTED.
Plaintiffs’ Motion in Limine to Exclude References to 1) Alleged Pre-2013
Judgments, Liens, Receiverships, or Foreclosures Relating to Plaintiff Hakim, 2)
Alleged Investigations (Including the DOJ Investigation) Relating to Plaintiffs, 3)
38

Defendants O’Reilly’s and Walling’s Personal Finances or Health Issues, and 4)
Taxpayer Dollars or Costs [#192] is GRANTED IN PART AND DENIED IN
PART.
Defendants’ Motion in Limine to Bar Testimony About Alleged Mayoral
Ultimatum and to Preclude Lay Opinion Medical Causation Testimony [#193] is
GRANTED.
Defendants’ Motion in Limine to Bar Certain Testimony from Hakim
Fakhoury [#194] is GRANTED IN PART AND DENIED IN PART.
Defendants’ Motion in Limine to Bar Certain Testimony from Tom Tafelski,
Keith Woodcock and the Fakhourys [#195] is DENIED IN PART AND
GRANTED IN PART.
Plaintiffs’ Motion in Limine to Preclude 1) the Use and/or Mention of
Polygraph Evidence and/or 2) Evidence Related to April Fakhoury Being an
Alleged Alter Ego of Hakim Fakhoury for the Properties at Issue [#196] is
GRANTED IN PART and DENIED WITHOUT PREJUDICE IN PART.
Plaintiffs’ Motion in Limine to Preclude Defendants’ Witnesses Whose
Anticipated Testimony Was Not Disclosed from Testifying at Trial [#197] is
GRANTED.
The parties shall submit a revised, proposed Final Pretrial Order consistent
with the instant Order no later than May 10, 2022.
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A final pretrial conference will be held on May 17, 2022 at 2:00 p.m.
Jury trial shall commence on May 31, 2022 at 9:00 a.m.
SO ORDERED.
Dated: March 28, 2022

/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 March 28, 2022, by
electronic and/or ordinary mail.
/s/ Teresa McGovern
Deputy Clerk

40