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UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

SHERYL HUBBELL, 

 

 Plaintiff, 

 Case No. 14-13897 

v. HON. GEORGE CARAM STEEH 

 

FEDEX SMARTPOST, INC., 

 Defendant. 

_____________________________/ 

OPINION AND ORDER GRANTING IN PART AND DENYING IN PART 

PLAINTIFF’S MOTION IN LIMINE TO EXCLUDE WITNESSES (DOC. 38). 

On January 3, 2017, the Court conducted a telephone conference 

with counsel for the parties to discuss plaintiff’s motion in limine to exclude 

witnesses, (Doc. 28), and the parties’ positions on a potential adjournment 

of the trial in this case. Both sides affirmed their commitment to concluding 

the trial by the end of the fifth day of trial on Monday, January 23, 2017, 

and agreed to employ a chess clock if necessary to satisfy this objective. 

Concluding by January 23, 2017 is critical because the undersigned will be 

conducting a trial in Florida and will depart from Michigan on Tuesday, 

January 24, 2017, for three to four weeks. Although the Court offered to 

consider an adjournment of the trial, the parties were unable to agree upon 

the same. 

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Currently before the Court is plaintiff’s motion in limine to exclude 

defendant’s expert witness, Dr. Nitin Paranjpe, and lay witness, Jessica 

Benjamins. Defendant filed a response, to which plaintiff replied. After 

reviewing the briefs, the Court concludes that oral argument is 

unnecessary. For the reasons stated below, the Court will GRANT 

plaintiff’s motion to exclude as it relates to Dr. Paranjpe and DENY 

plaintiff’s motion as it relates to Benjamins. 

I. Background 

Plaintiff filed her complaint on October 8, 2014, asserting claims 

under Title VII. The Court’s first Scheduling Order states that witness lists 

must be filed by August 4, 2015. (Doc. 11 at 1). “The deadline for 

exchange of witness lists refers to all witnesses, lay and expert.” (Doc. 11 

at 2). Defendant filed their witness list on July 17, 2015. Benjamins and 

Paranjpe were not listed. Defendant never filed a motion to amend its 

witness list. 

 Defendant allegedly first provided notice of Benjamins on October 6, 

2015; listing her as a witness in its Fed. R. Civ. P. 26(a) Fourth Amended 

Initial Disclosure document. (Doc. 40-1 at 6). The Court ordered discovery 

deadline occurred three days later, on October 9, 2015. 

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 On December 28, 2015, over four months after the witness list 

deadline and over two months after the discovery deadline, defendant 

emailed plaintiff expert disclosures regarding Paranjpe. Plaintiff received 

hard copies of these disclosures on December 30, 2015. Defendant 

supplemented these disclosures on March 2, 2016. 

 Plaintiff filed this motion to exclude Paranjpe and Benjamins on 

December 8, 2016, in anticipation of the January 17, 2017 trial date. The 

parties stipulated to an expedited briefing schedule and seek a ruling as 

soon as possible. 

II. Legal Standard 

Fed. R. Civ. P. 26(a)(2)(A) requires a party to “disclose to the other 

parties the identity of any witness it may use at trial to present evidence 

under Federal Rules of Evidence 702, 703, or 705.” Id. “A party must 

make these disclosures at the times and in the sequence that the court 

orders.” Fed. R. Civ. P. 26(a)(2)(D). “Absent a stipulation or a court order, 

the disclosures must be made: (i) at least 90 days before the date set for 

trial or for the case to be ready for trial.” Id. Fed. R. Civ. P. 37(c)(1) 

“requires absolute compliance with Rule 26(a),” Roberts ex rel. v. Johnson, 

325 F.3d 776, 782 (6th Cir. 2003). 

If a party fails to provide information or identify a 

witness as required by Rule 26(a) or (e), the party is 

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not allowed to use that information or witness to 

supply evidence on a motion, at a hearing, or at a 

trial, unless the failure was substantially justified or 

is harmless. 

Fed. R. Civ. P. 37(c)(1). “The exclusion of non-disclosed evidence is 

automatic and mandatory under Rule 37(c)(1) unless non-disclosure was 

justified or harmless.” Dickenson v. Cardiac and Thoracic Surgery of E. 

Tenn., 388 F.3d 976, 983 (6th Cir. 2004) (quoting Musser v. Gentiva Health 

Servs., 356 F.3d 751, 756 (7th Cir.2004)). The party that fails to disclosure 

under Rule 26(a) has the burden to prove the application of one of these 

exceptions. Roberts, 325 F.3d at 782. Harmlessness “involves an honest 

mistake on the part of a party coupled with sufficient knowledge of the part 

of the other party.” Sommer v. Davis, 317 F.3d 686, 692 (6th Cir, 2993) 

(quoting Vance v. United States, No. 98-5488, 1999 WL 455435, at *5 (6th 

Cir. June 25, 1999). 

III. Analysis 

A. Dr. Nitin Paranjpe 

Defendant did not name any expert witness on the witness list filed 

on July 17, 2015. (Doc. 17 at 2) (“Defendant is not designating any expert 

witnesses at this time. The Defendant reserves the right to call as a witness 

and elicit the opinion testimony from any expert identified by the Plaintiff in 

the future.”). Defendant’s first disclosure regarding Paranjpe occurred on 

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December 28, 2015. This disclosure came over four months after the court 

ordered witness filing deadline and over two months after the court ordered 

discovery deadline. 

In its papers, defendant misapplies Fed. R. Civ. P. 26(a)(2)(D)(i) to 

argue that the Paranjpe disclosures are timely because they were made at 

least 90 days prior to the original trial date. This argument fails because it 

ignores the language in Fed. R. Civ. P. 26(a)(2)(D) that limits the Fed. R. 

Civ. P. 26(a)(2)(D)(i) 90 day timeline to cases without a stipulation or court 

order establishing the time and sequence of disclosures. Witness 

disclosures in this case are governed by the Court’s Scheduling Order, 

which clearly established that all witnesses, both lay and expert, must be 

listed by August 4, 2015. (Doc. 11 at 1). Defendant’s December 28, 2015 

expert disclosures exceed this date. Therefore, in accordance with Fed. R. 

Civ. P. 37(c)(1), Paranjpe can only be admitted if defendant’s failure to 

disclose was “substantially justified or is harmless.” Id. 

 Defendant has not shown that its failure to disclose the expert 

witness is substantially justified. Defendant’s disclosure was untimely. 

Defendant does not state why or offer any further information to meet their 

burden of proof on this exception. 

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 Additionally, defendant’s failure is not harmless. It appears defendant 

simply made a tardy, purposeful decision to call Paranjpe. Further, 

defendant never filed for leave to amend its witness list. Plaintiff did not 

have notice of Paranjpe until December 28, 2015; months after the Court’s 

scheduled witness and discovery deadlines had passed. Plaintiff was 

unable to depose Paranjpe or search for her own expert witness to provide 

rebuttal testimony. 

 During the January 3, 2017 telephone conference, plaintiff’s counsel 

insisted that if the court allows Paranjpe to testify, plaintiff would request 

the opportunity to hire an expert of it’s choosing to rebut the evidence 

offered by defendant. Although the testimony concerning the availability of 

jobs in the Michigan marketplace is relevant to mitigation efforts of the 

plaintiff, the court does not consider the expense and the inefficiency of 

delaying the trial to provide for a new round of discovery to be 

commensurate with the proportionality principles in the civil rules 

amendments of December 2015. The value of Paranjpe’s testimony is 

indirect and tangential to the question of whether plaintiff took reasonable 

steps to mitigate her losses. It is far from essential to the success or failure 

of the plaintiff’s claims. As such, the burden and expense of making the 

testimony available to the factfinder exceeds the needs of the case. 

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Therefore, the Court will GRANT plaintiff’s motion to exclude the 

testimony of Dr. Nitin Paranjpe. 

B. Jessica Benjamins 

 Defendant did not list Jessica Benjamins in its witness list filed on 

July 17, 2015. Plaintiff’s first notice of Benjamins allegedly occurred on 

October 6, 2015 in defendant’s Rule 26(a) Fourth Amended Initial 

Disclosures. (Doc. 40-1 at 6). This disclosure occurred two months after 

the Court’s witness list deadline. Therefore, in accordance with Fed. R. 

Civ. P. 37(c)(1), Benjamins can only be admitted if defendant’s failure to 

disclose was “substantially justified or is harmless.” Id. 

 Defendant has not shown that its failure to disclose is substantially 

justified. Defendant asserts that it did not conclude that Benjamins should 

be called until after reviewing testimony of plaintiff’s August 20, 2015 

deposition. Defendant’s poor time management does not justify this failure 

to disclose. Nonetheless, the failure to disclose is harmless. Benjamins 

was disclosed prior to the Court ordered discovery deadline. Furthermore, 

unlike Paranjpe, plaintiff will not need to research and call an expert 

witness to rebut Benjamins. For these reasons, the Court will not apply 

Fed. R. Civ. P. 37(c)(1) sanctions. Plaintiff’s motion to exclude is DENIED; 

Benjamins will be permitted to testify. The Court will allow plaintiff to 

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depose Benjamins. Although plaintiff’s counsel opined during the January 

3, 2017 telephone conference that this deposition could be accomplished in 

30 minutes, out of an abundance of caution, the Court will allow the 

deposition for up to two hours. 

IV. Conclusion 

For the reasons stated above, plaintiff’s motion to exclude witnesses 

is GRANTED IN PART and DENIED IN PART. The Court will exclude Dr. 

Nitin Paranjpe’s expert report and testimony. The Court will permit Jessica 

Benjamins to testify at trail. Discovery shall be reopened for the limited 

purpose of permitting plaintiff to depose Benjamins. 

IT IS SO ORDERED. 

Dated: January 4, 2017 

 s/George Caram Steeh 

 GEORGE CARAM STEEH 

 UNITED STATES DISTRICT JUDGE 

CERTIFICATE OF SERVICE 

Copies of this Order were served upon attorneys of record on 

January 4, 2017, by electronic and/or ordinary mail. 

s/Marcia Beauchemin 

Deputy Clerk

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