UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

TIMOTHY HENNIGAN, AARON MCHENRY,

and CHRISTOPHER COCKS,

individually and on behalf of 

all others similarly situated,

Hon. Victoria A. Roberts

Plaintiffs,

Case No. 09-11912

v.

GENERAL ELECTRIC COMPANY,

Defendant.

_____________________________________/

ORDER ADOPTING MAGISTRATE JUDGE’S ORDER (DOC. # 185) and

TERMINATING PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION (DOC. # 157)

I. INTRODUCTION

On January 17, 2014, Plaintiffs filed a “Motion for Leave to Allow Rebuttal Expert

Witness.” (“Motion for Leave”; Doc. # 153). That same day, Defendant filed a “Motion

to Strike Plaintiffs’ Third Amended Initial Expert Disclosure and Preclude Testimony of

Plaintiffs’ New Expert Abraham J. Wyner.” (“Motion to Strike”; Doc. # 154). The Court

referred the motions to Magistrate Judge Michael Hluchaniuk. 

On March 25, 2014, Magistrate Hluchaniuk entered an Order Denying Plaintiffs’

Motion for Leave and Granting Defendant’s Motion to Strike. (“Order”; Doc. # 185). 

Plaintiff filed objections to the Magistrate’s Order on April 8, 2014. (Doc. # 186). The

objections are fully briefed; the Court waives oral argument under L.R. 7.1(f)(2).

Plaintiffs’ objections are REJECTED; the Magistrate Judge’s Order was not

clearly erroneous or contrary to law. The Court ADOPTS the Magistrate Judge’s Order

Denying Plaintiffs’ Motion for Leave and Granting Defendant’s Motion to Strike.

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Pursuant to the parties’ stipulated order (Doc. # 192), Plaintiffs’ Motion for Class

Certification (Doc. # 157) is TERMINATED; the motion will be refiled and briefed in

accordance with the stipulated order.

II. BACKGROUND

Plaintiffs brought this action – a proposed class action – in May 2009 alleging

that Defendant manufactured defective microwaves which caused them and others

similarly situated, injuries.

Plaintiffs and Defendant exchanged initial expert witness disclosures on

September 28, 2012 and November 2, 2012, respectively. Among others, Defendant

said it expected to call M. Laurentius Marais, Ph.D. (“Dr. Marais”), as an expert witness

to testify regarding: 

[A]nalysis of GE and other data relevant to Plaintiffs’ allegations, class

certification and the merits of the case; statistical analysis; . . . assessment

of Plaintiffs’ alleged damages and class certification[;] . . . [and] certain

opinions and testimony to be offered by Plaintiffs’ experts. 

(Defendant’s Initial Expert Disclosure at p. 4). Defendant timely served Plaintiffs with

Dr. Marais’ expert report on November 5, 2013; among other things, his report

contained a statistical analysis. Because they did not have a statistical expert of their

own, Plaintiffs consulted with Abraham J. Wyner, Ph.D. (“Dr. Wyner”) to analyze Dr.

Marais’ statistical analysis. Plaintiffs deposed Dr. Marais on December 17 and 18,

2013.

On December 20, 2013, Plaintiffs’ counsel – during a telephone conversation

with Defendant’s counsel – raised for the first time the possibility of adding a rebuttal

expert to counter Dr. Marais’ statistical analysis. In a follow-up letter dated December

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26, 2013, Plaintiffs’ counsel asked Defendant to “consent to a stipulation of time for

Plaintiffs to designate a rebuttal statistical expert, for that expert to submit a report, and

for Defendants to depose said expert.” In that same letter, Plaintiffs’ counsel said they

feared that this may delay the class certification briefing schedule, but that they would

address the timing issues once they “identif[ied] and retain[ed] an expert.” Defendant

declined Plaintiffs’ request by letter on December 31, 2013; defense counsel’s reason

for declining the request was that “Plaintiffs have known about GE’s designation of an

expert on statistics for 14 months; Plaintiffs have known about the contents of Dr.

Marais’ report for almost two months; and Plaintiffs did not raise their new request until

after deposing Dr. Marais just two weeks ago....”

On January 9, 2014, Plaintiffs filed a Third Amended Initial Expert Disclosure that

listed Dr. Wyner as an expert who would offer testimony to rebut the opinions of Dr.

Marais. Defendant asked Plaintiffs to withdraw the “untimely filing”; Plaintiffs refused. 

On January 30, 2014, Plaintiffs served Defendant with Dr. Wyner’s expert report.

The parties submitted cross-motions regarding the admissibility of Dr. Wyner’s

report: (1) Plaintiffs’ Motion for Leave; and (2) Defendant’s Motion to Strike. The Court

referred the motions to Magistrate Judge Michael Hluchaniuk pursuant to 28 U.S.C. §

636(b)(1)(A). 

On March 25, 2014, Magistrate Judge Hluchaniuk entered an order granting

Defendant’s motion, denying Plaintiffs’ motion, and excluding the report and testimony

of Dr. Wyner. 

Plaintiffs filed objections to the Order on April 8, 2014. (Doc. # 186). Defendant

responded to the objections, and Plaintiffs replied to the response. (Docs. # 190, 191). 

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In addition, on May 12, 2014, Plaintiffs filed a “Notice of Additional Evidence in Further

Support of Plaintiffs’ Motion for Leave to Allow Rebuttal Expert Witness.” (Doc. # 193). 

Defendant responded to the notice. (Doc. # 194). 

III. STANDARD OF REVIEW

When reviewing a magistrate judge’s order on a preliminary, non-dispositive

matter, a district court must modify or set aside any part of the order that is “clearly

erroneous or contrary to law.” 28 U.S.C. § 636(b)(1)(A); Fed. R. Civ. P. 72(a); United

States v. Curtis, 237 F.3d 598, 602-03 (6th Cir. 2001). “The ‘clearly erroneous’

standard applies only to the magistrate judge’s factual findings; his legal conclusions

are reviewed under the plenary ‘contrary to law’ standard.” Visteon Global Techs. v.

Garmin Int’l, Inc., 903 F. Supp. 2d 521, 524-25 (E.D. Mich. 2012) (citations omitted). “A

finding is ‘clearly erroneous’ when although there is evidence to support it, the reviewing

court on the entire evidence is left with the definite and firm conviction that a mistake

has been committed.” United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948);

see Hagaman v. Comm’r of Internal Revenue, 958 F.2d 684, 690 (6th Cir. 1992). If two

or more permissible views of the evidence exists, a magistrate judge’s decision cannot

be “clearly erroneous.” See Anderson v. City of Bessemer City, N., 470 U.S. 564, 573-

74 (1985). “A legal conclusion is contrary to law when it fails to apply or misapplies

relevant statutes, case law, or rules of procedure.” Robinson v. Allstate Ins. Co., 2011

WL 3111947, at *2 (E.D. Mich. July 26, 2011) (citation omitted). “The ‘contrary to law’

standard requires the Court to use independent judgment when reviewing legal

conclusions.” Id. (citation omitted).

IV. APPLICABLE LAW

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Under Fed. R. Civ. P. 26(a)(2)(A), a party must disclose the identity of any expert

witness it may have testify at trial. See Fed. R. Civ. P. 26(a)(2)(A); see also Fed. R.

Evid. 702. Along with the disclosure, a party must serve the opposing party with a

written report for each expert. See Fed. R. Civ. P. 26(a)(2)(B). The timing of the

disclosures and written reports must be made in accordance with Rule 26(a)(2)(D). For

example, “if ... evidence is intended solely to contradict or rebut evidence on the same

subject matter identified by another party under Rule 26(a)(2)(B) or (C), [disclosure of

that evidence must be made] within 30 days after the other party’s disclosure.” See

Fed. R. Civ. P. 26(a)(2)(D)(ii). 

Because Dr. Wyner was retained solely to rebut the opinions of Dr. Marais,

Plaintiffs were required to disclose him as an expert witness and serve Defendant with

his written report within 30 days after they were served with Dr. Marais’ report. See

Fed. R. Civ. P. 26(a)(2)(D)(ii); see also Fed. R. Civ. P. 26(a)(2)(B) (“disclosure must be

accompanied by a written report”). Defendant served Plaintiffs with Dr. Marais’ report

on November 5, 2013. Thus, Plaintiffs were required to disclose Dr. Wyner and serve

Defendant with his report on or before December 5, 2013. However, Plaintiffs did not

disclose Dr. Wyner until January 10, 2014 – over one month after the deadline; and,

they did not serve Defendant with Dr. Wyner’s report until January 30, 2014 –

approximately two months after the deadline. 

To ensure compliance with expert witness disclosure requirements, Rule 37(c)

provides sanctions for violation of Rule 26(a):

If a party fails to provide information or identify a witness as required by

Rule 26(a) or (e), the party is not allowed to use that information or

witness to supply evidence on a motion, at a hearing, or at a trial, unless

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the failure was substantially justified or is harmless. In addition to or

instead of this sanction, the court ... may [impose other sanctions]....

Fed. R. Civ. P. 37(c)(1) (emphasis added). “[T]he potentially sanctioned party has the

burden to prove the application of one of the[] exceptions [in Rule 37(c)(1)].” Vaughn v.

HomeGoods, Inc., 2008 WL 4239505, at * 3 (E.D. Mich. Sept 11, 2008) (citing Roberts

ex rel. Johnson v. Galen of Virginia, Inc., 325 F.3d 776, 782 (6th Cir. 2003)). “District

Courts have broad discretion to exclude untimely disclosed expert-witness testimony.” 

Pride v. BIC Corp., 218 F.3d 566, 578 (6th Cir. 2000). 

V. ANALYSIS

In the Order granting Defendant’s Motion to Strike and denying Plaintiffs’ Motion

for Leave, Magistrate Judge Hluchaniuk made the following factual findings: (1)

Defendant “disclosed as early as November 2012 that Dr. Marais may testify about

statistical matters”; (2) “plaintiffs were clearly on notice that Dr. Marais was providing a

statistical analysis [on November 5, 2013] when they received his report”; and (3)

despite this knowledge, “plaintiffs served the amended expert witness disclosure over a

month after the 30 day deadline [under Fed. R. Civ. P. 26(a)(2)(D)(ii)] expired and did

not serve an expert report for their rebuttal expert witness until nearly two months after

the deadline expired.” (See Order at pp. 4-5). Plaintiffs do not object to any of the

Magistrate’s factual findings. 

Based on those factual findings, Magistrate Judge Hluchaniuk held that Plaintiffs’

untimely expert disclosure was not harmless or substantially justified under Rule

37(c)(1). Upon finding neither exception applicable, the Magistrate Judge excluded Dr.

Wyner’s report and testimony. Plaintiffs object to the Magistrate Judge’s legal

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conclusions on three grounds.

A. Objection 1

First, Plaintiffs say the Magistrate Judge “incorrectly determined as a matter of

law that [their] failure to submit their rebuttal expert disclosure and expert report within

30 days after receipt of Dr. Marais’ expert report was not substantially justified.” 

Plaintiffs attempt to show their untimely disclosure was substantially justified by

using different multi-factor tests from other jurisdictions. Plaintiffs say their failure to

abide by the deadline in Rule 26 was substantially justified, because: (1) Defendant was

not prejudiced, minimal disruption will result from their late disclosure, and Dr. Wyner’s

report was not used in support of any motion; (2) the late disclosure was not done in

bad faith, they began conferring with Dr. Wyner after receiving Dr. Marais’ report, and

they were not aware a statistical expert was necessary until after they deposed Dr.

Marais; and (3) exclusion of Dr. Wyner’s report and testimony could potentially be

prejudicial to Plaintiffs. 

Magistrate Judge Hluchaniuk rejected these arguments and held that: (1)

Plaintiffs “failed to show good cause or demonstrate that they could not anticipate the

need for expert testimony to rebut the testimony of Dr. Marais”; (2) Plaintiffs did “not

adequately explain why a timely disclosure of their rebuttal expert after Dr. Marais’

report issued was not made”; and (3) Plaintiffs’ “delay was not substantially justified.” 

(See Order at pp. 4-5). 

The Court agrees with the Magistrate Judge: Plaintiffs’ failure to timely disclose

Dr. Wyner and serve Defendant with his expert report was not substantially justified. 

The majority of Plaintiffs’ arguments do not shed light on whether their untimely

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disclosure was substantially justified. For example, whether the late disclosure

prejudiced Defendant, caused disruption, and/or was used in support or defense of a

motion do not concern whether or not Plaintiffs had substantial justification for their late

disclosure; similarly whether exclusion of Dr. Wyner’s report and testimony will prejudice

Plaintiff does not concern whether Plaintiffs’ failure to abide by the deadline in Rule 26

was substantially justified. 

Plaintiffs’ only contention that touches on whether their conduct was substantially

justified is their assertion that they were not aware a statistical expert was necessary

until after they deposed Dr. Marais. However, a review of the facts shows that this

contention does not support a finding that Plaintiffs’ untimely disclosure was

substantially justified. First, the undisputed facts show that Plaintiffs were first notified

that Dr. Marais may testify about statistical matters in November 2012; more

importantly, they “were clearly on notice that Dr. Marais was providing a statistical

analysis [on November 5, 2013] when they received his report.” Based on this alone, it

is clear that Plaintiffs’ delay of approximately two and three months, respectively, to

disclose Dr. Wyner as an expert witness and serve Defendant with his report was not

substantially justified. In addition, even if Plaintiffs did not realize they would need a

statistical expert until after concluding Dr. Marais’ deposition on December 18, 2013,

they still did not serve Defendant with Dr. Wyner’s report until 43 days later –

approximately two weeks past what the deadline would have been; they offer no

substantial justification for why it took this long.

Because Magistrate Judge Hluchaniuk did not “fail[] to apply or misappl[y]

relevant statutes, case law, or rules of procedure” in finding that Plaintiffs’ untimely

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disclosure was not substantially justified, that legal conclusion is not contrary to law. 

See Robinson, 2011 WL 3111947, at *2 (citation omitted). Plaintiffs’ first objection is

rejected.

B. Objection 2

Plaintiffs’ second objection is that the Magistrate “incorrectly held as a matter of

law that Plaintiffs’ failure to submit their rebuttal expert disclosure and report within 30

days after receipt of Dr. Marais’ expert report was not harmless.”

 Plaintiffs say their untimely filing was harmless because: (1) they “did not believe

that a rebuttal expert to Dr. Marais’ report was necessary until after they deposed him”

and this was due to an honest mistake; (2) Defendant now has full knowledge of Dr.

Wyner’s opinions; (3) Dr. Wyner’s report was not used in support of any dispositive

motion; and (4) Defendant is not facing any deadline and may depose Dr. Wyner.

The Court in Vaughn provided a useful summary of what to consider in

determining whether a failure to timely disclose is “harmless”:

The Sixth Circuit has treated the “harmless” requirement as referring to

the nature of the party's failure to disclose and not the effect on the

opposing party. Roberts, 325 F.3d at 783 (finding lack of disclosure

“harmless” when party neglected to include expert's signature and details

of his education but opposing party nonetheless knew who would testify

and to what he would testify). Generally, this requires an “inadvertent,” id.,

or “an honest mistake on the part of a party coupled with sufficient

knowledge on the part of the other party.” Sommer v. Davis, 317 F.3d

686, 692 (6th Cir. 2003) (internal quotation marks omitted).

Vaughn, 2008 WL 4239505, at *4.

In addition to holding that Plaintiffs failed to show good cause for their untimely

disclosure and that they did not adequately explain why they failed to timely disclose Dr.

Wyner and serve Defendant with his report, the Magistrate Judge found that: (1)

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Plaintiffs “presented no evidence that their failure to timely disclose the rebuttal expert in

accord[ance] with Rule 26 was harmless or inadvertent as described in Vaughn”; and

(2) “just as in Vaughn, there is no evidence that defendant[] had prior knowledge of

plaintiffs’ rebuttal expert’s identity or report so as to render plaintiffs’ failure to timely

disclose harmless.” (Order at pp. 4-5, 9-10). 

The Court agrees with the Magistrate Judge: Plaintiffs failed to show that their

failure to abide by the deadline in Rule 26 was inadvertent or due to an honest mistake;

and thus, their untimely disclosure was not harmless. 

Despite knowing that Dr. Marais’ report contained statistical analysis regarding

Defendant’s alleged liability on November 5, 2013, Plaintiffs waited two months after

receiving his report (and three weeks after deposing him) before disclosing Dr. Wyner

as a rebuttal expert witness; then, they waited nearly three additional weeks before

serving Defendant with Dr. Wyner’s report. Throughout this entire time, Plaintiffs had

been conferring with Dr. Wyner regarding Dr. Marais’ opinions. This is not an

inadvertent failure or honest mistake. See Vaughn, 2008 WL 4239505, at *4. 

Moreover, the Magistrate Judge is correct that Defendant was not aware of Dr. Wyner’s

identity prior to the disclosure; and, Defendant did not know the content of Dr. Wyner’s

report until approximately two months after the deadline under Rule 26 had passed. 

Plaintiffs’ untimely disclosure was not harmless. See id. 

Magistrate Judge Hluchaniuk followed the legal standard set out in Vaughn; his

finding that Plaintiffs’ untimely disclosure was not harmless was reasonable. Because

the Magistrate Judge did not “fail[] to apply or misappl[y] relevant statutes, case law, or

rules of procedure” in reaching this legal conclusion, it is not contrary to law. See

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Robinson, 2011 WL 3111947, at *2 (citation omitted). Plaintiffs’ second objection is

rejected.

C. Objection 3

Last, Plaintiffs say that “[e]ven if [their] failure to timely disclose Dr. Wyner was

not substantially justified or harmless, the Magistrate Judge still erred by incorrectly

holding as a matter of law that Fed. R. Civ. P. 37(c)(1) imposes a mandate requiring

exclusion of Dr. Wyner and depriving the court of discretion to impose a lesser sanction,

which would have been more appropriate under the circumstances.” 

This objection is unfounded; Plaintiffs misrepresent Magistrate Judge

Hluchaniuk’s findings. Although he ultimately excludes Dr. Wyner’s report and

testimony, the Magistrate Judge does not “hold[] as a matter of law that Fed. R. Civ. P.

37(c)(1) imposes a mandate requiring exclusion,” as Plaintiffs contend. The Order

mentions Rule 37(c)(1)’s so-called mandate twice: (1) “Because plaintiffs have not

established substantial justification or harmlessness, defendant[] assert[s] that Rule

37 mandates Wyner’s automatic exclusion”; and (2) “Vaughn further points out that the

rule’s language imposes a mandate on this court ....” (Order at p. 8) (emphasis added). 

The first reference merely recites one of Defendant’s arguments; the second

reference accurately interprets Vaughn’s holding that Rule 37(c)(1) imposes a mandate

on this court to issue some sanction, not necessarily exclusion. See Vaughn at *3. 

Indeed, Vaughn explicitly recognizes that “[t]he rule does allow the court to impose

other sanctions ‘in addition to or instead of’ exclusion.” Id. at *4, n. 9 (citing Fed. R. Civ.

P. 37(c)(1)). In the order, Magistrate Judge Hluchaniuk notes that “Vaughn sets forth

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the applicable Sixth Circuit standards.” (Order at p. 8). Contrary to Plaintiffs’ assertion,

the Magistrate Judge did not conclude that exclusion was required as a matter of law. 

Plaintiffs’ third objection is rejected.

VI. CONCLUSION

Plaintiffs’ objections are REJECTED; the Magistrate Judge’s Order was not

clearly erroneous or contrary to law. 

The Court ADOPTS the Magistrate Judge’s Order Denying Plaintiffs’ Motion for

Leave and Granting Defendant’s Motion to Strike (Doc. # 185).

Pursuant to the parties’ stipulated order (Doc. # 192), Plaintiffs’ Motion for Class

Certification (Doc. # 157) is TERMINATED; the motion will be refiled and briefed in

accordance with the stipulated order.

IT IS ORDERED.

S/Victoria A. Roberts 

Victoria A. Roberts

United States District Judge

Dated: September 8, 2014

The undersigned certifies that a copy of this

document was served on the attorneys of

record by electronic means or U.S. Mail on

September 8, 2014.

s/Linda Vertriest 

Deputy Clerk

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