1 

IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION

TIMOTHY HENNIGAN, AARON 

MCHENRY and CHRISTOPHER COCKS, 

individually and on behalf of themselves and 

all others similarly situated, 

 Case No. 2:09-cv-11912VAR-MJH 

 Plaintiffs, 

 Hon. Victoria A. Roberts 

v. 

 Magistrate Judge Michael Hluchaniuk 

GENERAL ELECTRIC COMPANY, 

 Defendant. 

 

EXPEDITED CONSIDERATION REQUESTED 

DEFENDANT’S MOTION TO STRIKE PLAINTIFFS’ THIRD AMENDED 

INITIAL EXPERT DISCLOSURE AND PRECLUDE TESTIMONY OF

PLAINTIFFS’ NEW EXPERT ABRAHAM J. WYNER 

Defendant General Electric Company (“GE”) hereby moves, pursuant to 

Fed. R. Civ. P. 26 and 37(c)(1), for entry of an order striking Plaintiffs’ Third 

Amended Initial Expert Disclosure and precluding purported “rebuttal” expert 

Abraham J. Wyner, Ph.D. from offering opinions in this matter. In support of its 

motion, GE relies on the facts, law and argument set forth in the accompanying 

Brief. As set forth in GE’s Brief, Plaintiffs’ disclosure of a “rebuttal” expert at this 

juncture is improper, untimely, unjustified and prejudicial to GE. 

GE also requests that the Court award GE its reasonable expenses, including 

Case 2:09-cv-11912-VAR-MJH ECF No. 154, PageID.5555 Filed 01/17/14 Page 1 of 37
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attorney’s fees, under Fed. R. Civ. P. 16(f)(2) and 37(a)(5)(A) for Plaintiffs’ 

unjustifiable failure to comply with the Court’s scheduling orders and to withdraw 

their untimely and improper Third Amended Initial Expert Disclosure. 

GE sought concurrence in the relief requested pursuant to Local Rule 7.1 

and concurrence was not given, requiring GE to file this Motion. The parties 

telephonically met and conferred regarding GE’s Motion on January 17, 2014 at 

10:30 am. During that meet and confer conference, GE advised Plaintiffs that GE 

intended to file this Motion on that same day, January 17, 2013. Plaintiffs’ 

counsel, for the first time, advised GE that Plaintiffs intended to file a motion 

regarding Dr. Wyner, but would not file on January 17, 2014. Notwithstanding 

such advice, Plaintiffs filed their Motion to Allow Rebuttal Expert Witness on 

January 17, 2014. 

GE requests expedited consideration of this motion because Plaintiffs have 

represented that they intend to serve their “rebuttal” expert report at the same time 

as the filing of their Motion for Class Certification, the deadline for which is 

January 30, 2014. Absent such immediate consideration, the Plaintiffs’ tactics 

Case 2:09-cv-11912-VAR-MJH ECF No. 154, PageID.5556 Filed 01/17/14 Page 2 of 37
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threaten to disrupt the orderly progression of this case, including resolution of the Plaintiffs’ 

upcoming Motion for Class Certification. 

 DICKINSON WRIGHT PLLC 

 By: /s/ Jodi Munn Schebel 

Michael J. Mueller Kenneth J. McIntyre (P17450)

Neil K. Gilman Richard W. Paul (P29443) 

Hunton & Williams LLP Jodi Munn Schebel (P55889) 

Attorneys for Defendant Attorneys for Defendant 

2200 Pennsylvania Ave., N.W. 500 Woodward Avenue, Suite 4000 

Washington, DC 20037 Detroit, MI 48226 

202-955-1500 313-223-3500 

Dated: January 17, 2014 

Case 2:09-cv-11912-VAR-MJH ECF No. 154, PageID.5557 Filed 01/17/14 Page 3 of 37
IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION

TIMOTHY HENNIGAN, AARON 

MCHENRY and CHRISTOPHER COCKS, 

individually and on behalf of themselves and 

all others similarly situated, 

 Case No. 2:09-cv-11912VAR-MJH 

 Plaintiffs, 

 Hon. Victoria A. Roberts 

v. 

 Magistrate Judge Michael Hluchaniuk 

GENERAL ELECTRIC COMPANY, 

 Defendant. 

 

EXPEDITED CONSIDERATION REQUESTED 

DEFENDANT’S BRIEF IN SUPPORT OF DEFENDANT’S MOTION 

TO STRIKE PLAINTIFFS’ THIRD AMENDED INITIAL EXPERT 

DISCLOSURE AND PRECLUDE TESTIMONY OF 

PLAINTIFFS’ NEW EXPERT ABRAHAM J. WYNER

Case 2:09-cv-11912-VAR-MJH ECF No. 154, PageID.5558 Filed 01/17/14 Page 4 of 37
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TABLE OF CONTENTS 

TABLE OF AUTHORITIES ................................................................................... i

STATEMENT OF ISSUES PRESENTED............................................................ iii

TABLE OF CONTROLLING AUTHORITIES..................................................... v

I. INTRODUCTION .............................................................................. 1

II. PROCEDURAL HISTORY ............................................................... 2

A. The Court’s Scheduling Orders set firm dates for expert 

disclosure, the exchange of expert reports and the taking 

of expert depositions ................................................................ 2

B. GE disclosed Dr. Marais’ anticipated testimony, 

including “statistical analysis,” over 14 months ago, on 

November 2, 2012 .................................................................... 3

C. Plaintiffs disclose new experts in violation of the Court’s 

Order and the parties reach agreement on various 

changes ..................................................................................... 4

D. January 9, 2014, Plaintiffs served their Third Amended 

Initial Expert Disclosure purporting to add an entirely 

new “rebuttal” expert without leave of the Court .................... 5

III. ARGUMENT ..................................................................................... 8

A. Plaintiffs’ Third Amended Expert Disclosure violates the 

Court’s Scheduling Orders ..................................................... 10

B. The provisions of Rule 26(A)(2)(D)(ii) do not apply

when the Court’s Scheduling Orders are silent regarding 

rebuttal experts ....................................................................... 12

C. The provisions of Rule 26(A)(2)(D)(ii) do not apply

because Dr. Wyner is not a “rebuttal” expert ........................ 14

Case 2:09-cv-11912-VAR-MJH ECF No. 154, PageID.5559 Filed 01/17/14 Page 5 of 37
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D. Even if the provisions of Rule 26(A)(2)(D)(ii) apply, 

Plaintiffs’ Third Amended Initial Expert Disclosure is 

still improper and untimely and should be stricken ............... 16

E. Plaintiffs cannot meet their burden of establishing that 

their failure to timely disclose Dr. Wyner is substantially 

justified or harmless ............................................................... 18

1. Plaintiffs’ illogical and baseless assertion 

concerning GE’s “gamesmanship” is not 

“compelling evidence” justifying Plaintiffs’ failure 

to disclose a “rebuttal” expert in accordance with 

the Court’s Scheduling Orders .................................... 19

2. Plaintiffs cannot meet their burden and present 

“compelling evidence” that their untimely 

disclosure of Dr. Wyner is “harmless” ........................ 21

IV. CONCLUSION ................................................................................ 25

Case 2:09-cv-11912-VAR-MJH ECF No. 154, PageID.5560 Filed 01/17/14 Page 6 of 37
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TABLE OF AUTHORITIES 

Cases

Akeva L.L.C. v. Mizuno Corp., 212 F.R.D. 306 (M.D.N.C. 2002) ..........................13 

Cason-Merenda v. Detroit Med. Ctr., No. 06-15601; 2010 U.S. Dist. LEXIS 

31376 at *6 (E.D. Mich., March 31, 2010) ...................................................17 

Dennis v. Sherman, No. 1:08-cv-1055; 2010 U.S. Dist. LEXIS 46904 at *2 

(W.D. Tenn., May 12, 2010) .........................................................................22

Dettwiller v. Racetrac Petroleum, Inc., No. 99-1125; 1999 U.S. Dist. LEXIS 

19063 at **2-4 (E.D. La., Dec. 3, 1999) .......................................................14 

Eckelkamp v. Beste, 315 F.3d 863 (8th Cir. 2002) ..............................................v, 13 

Fed R. Civ. P. 26 ......................................................................................................15 

Grain v. Trinity Health, No. 03-72486; 2008 U.S. Dist. LEXIS 102644 at *9 

(E.D. Mich., Dec. 18, 2008) ..........................................................................24 

Hartford Fire Ins. Co. v. ABC Paving Co., No. 11-14110; 2013 U.S. Dist. 

LEXIS 89588 at *16 (E.D. Mich., June 26, 2013) ....................................v, 23 

IBM v. Fasco Indus., No. C-93-20326; 1995 U.S. Dist. LEXIS 22533 at **5-

6 (N.D. Cal., Mar. 15, 1995) ............................................................... v, 13, 14

Madison Capital Co., LLC v. S & S Salvage, LLC, No. 4:08-CV-00134; 

2011 U.S. Dist. LEXIS 4788 at **11-12 (W.D. Ky., Jan. 19, 2011) ........v, 15 

Masler v. Fields, No. 06-4917; 2007 U.S. Dist. LEXIS 98596 at *7 (D. 

Minn., July 4, 2007) .......................................................................................13 

Powell v. Tosh, 276 F.R.D. 553 (W.D. Ky. 2011) ...................................................20 

Pride v. BIC Corp., 218 F.3d 566 (6th Cir. 2000) ...................................................19 

Rojek v. Catholic Charities of Jackson, Inc., No. 08-14492, 2010 U.S. Dist. 

LEXIS 52056, *18-19 n.4 (E.D., Mich. May 27, 2010)..................... v, 11, 12 

Salgado v. General Motors Corporation, 150 F.3d 735 (7th Cir. 1998)................... 9

Case 2:09-cv-11912-VAR-MJH ECF No. 154, PageID.5561 Filed 01/17/14 Page 7 of 37
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Schablonentechnik v. MacDermid Graphic Arts, Inc., No. 1:02-CV-2585; 

2005 U.S. Dist. LEXIS 45982 at **8-9 (N.D. Ga., June 21, 2005) ..........v, 14 

SG Industries, 2011 U.S. Dist. LEXIS 140341 at *30 ................................. v, 22, 24 

Shaw v. Am. Honda Motor Co., No. 10-38; 2010 U.S. Dist. LEXIS 119892 

at **2-3 (E.D. La., Nov. 10, 2010 .................................................................13 

Station Enters. v. Ganz, Inc., No. 07-CV-14294; 2009 U.S. Dist. LEXIS 

87904 at *13 (E.D. Mich., Sept. 24, 2009) ......................................... v, 18, 24 

Trs. of the Painters Union Deposit Fund v. Interio, No. 05-70110; 2007 U.S. 

Dist. LEXIS 84843 at *8 (E.D. Mich., Nov. 16, 2007) .............................v, 24 

Vance v. United States, No. 98-5488; 1999 U.S. App. LEXIS 14943 at **18-

19 (6th Cir., June 25, 1999) .................................................................... 19, 22 

Vaughn v. Homegoods, Inc., No. 07-CV-15085; 2008 U.S. Dist. LEXIS 

68831 at *12 (E.D. Mich., Sept. 11, 2008) ....................................................22 

Warren v. City of Detroit, No. 02-74288, 2006 U.S. Dist. LEXIS 8653, at *5 

(E.D. Mich., Feb. 13, 2006) ...........................................................................19 

Woodhull v. County of Kent, No. 1:04-cv-203; 2006 U.S. Dist. LEXIS 48594 

at *3 (W.D. Mich., July 18, 2006) (“Rule 37(c)(1) ......................................... 9 

Rules

Fed. R. Civ. P. 16 .................................................................................................................... 2, v, 8 

Fed. R. Civ. P. 26 ................................................................................................................... passim 

Fed. R. Civ. P. 37 .................................................................................................................. v, 9, 18 

Fed. R. Civ. P. 37(c)(1) ............................................................................................................. 9, 18 

Case 2:09-cv-11912-VAR-MJH ECF No. 154, PageID.5562 Filed 01/17/14 Page 8 of 37
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STATEMENT OF ISSUES PRESENTED 

1. Is Plaintiffs’ Third Amended Initial Expert Disclosure designating a 

previously unknown and undisclosed expert witness whose opinion will be served 

along with Plaintiffs’ forthcoming Motion for Class Certification improper and 

untimely under the express language of the Court’s Scheduling Orders and 

amendments thereto? 

GE ANSWERS: Yes 

2. Is Plaintiffs’ Third Amended Initial Expert Disclosure designating a 

previously unknown and undisclosed expert witness whose opinion will be served 

along with Plaintiffs’ forthcoming Motion for Class Certification untimely under 

Federal Rule of Civil Procedure 26(a)(2)(D)(ii)’s provisions even if those 

provisions apply? 

GE ANSWERS: Yes 

3. Do Plaintiffs lack the necessary compelling evidence establishing that: 

(1) they will be justified in serving a report by a new expert witness, over 15 

months after the express deadline for disclosing experts as set forth in the Court’s 

Scheduling Order, nearly 10 months after the close of discovery, over six months 

Case 2:09-cv-11912-VAR-MJH ECF No. 154, PageID.5563 Filed 01/17/14 Page 9 of 37
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after Plaintiffs’ expert reports were due, almost 90 days after GE’s service of its 

expert Dr. M. Laurentius Marais’ report, over 40 days after Plaintiffs’ completion 

of Dr. Marais’ deposition, and with Plaintiffs’ Motion for Class Certification, 

which is due to be filed on January 30, 2014; and (2) allowing the new expert will 

be harmless to GE? 

GE ANSWERS: Yes 

4. Should the Court enter an order pursuant to Federal Rule of Civil 

Procedure 37(c)(1) striking Plaintiffs’ untimely disclosure of Dr. Wyner, 

precluding Dr. Wyner from offering expert opinions or testimony in this case, and 

awarding GE its fees and other reasonable expenses incurred in bringing this 

motion? 

GE ANSWERS: Yes

Case 2:09-cv-11912-VAR-MJH ECF No. 154, PageID.5564 Filed 01/17/14 Page 10 of 37
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TABLE OF CONTROLLING AUTHORITIES 

 Cases 

• Eckelkamp v. Beste, 315 F.3d 863 (8th Cir. 2002) 

• Freeman v. City of Detroit, No. 09-13184; 2011 U.S. Dist. LEXIS 68914 

(E.D. Mich., June 24, 2011) 

• Hartford Fire Ins. Co. v. ABC Paving Co., No. 11-14110; 2013 U.S. Dist. 

LEXIS 89588 (E.D. Mich., June 26, 2013) 

• IBM v. Fasco Indus., No. C-93-20326; 1995 U.S. Dist. LEXIS 22533 

(N.D. Cal., Mar. 15, 1995) 

• Madison Capital Co., LLC v. S & S Salvage, LLC, No. 4:08-CV-00134; 

2011 U.S. Dist. LEXIS 4788 (W.D. Ky., Jan. 19, 2011) 

• Rojek v. Catholic Charities of Jackson, Inc., No. 08-14492, 2010 U.S. 

Dist. LEXIS 52056 (E.D., Mich. May 27, 2010) 

• Schablonentechnik v. MacDermid Graphic Arts, Inc., No. 1:02-CV-2585; 

2005 U.S. Dist. LEXIS 45982 (N.D. Ga., June 21, 2005) 

• SG Industries, Inc. v. RSM McGladrey, Inc., No. 10-cv-11119; 2011 U.S. 

Dist. LEXIS 140341 (E.D. Mich., Dec. 7, 2011) 

• Station Enters. v. Ganz, Inc., No. 07-CV-14294; 2009 U.S. Dist. LEXIS 

87904 (E.D. Mich., Sept. 24, 2009) 

• Trs. of the Painters Union Deposit Fund v. Interio, No. 05-70110; 2007 

U.S. Dist. LEXIS 84843 (E.D. Mich., Nov. 16, 2007) (Roberts) 

Rules 

• Fed. R. Civ. P. 16

• Fed. R. Civ. P. 26

• Fed. R. Civ. P. 37

Case 2:09-cv-11912-VAR-MJH ECF No. 154, PageID.5565 Filed 01/17/14 Page 11 of 37
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I. INTRODUCTION 

On January 9, 2014, Plaintiffs disclosed that they want to offer the expert 

testimony of a previously unknown and undisclosed individual, Abraham J. 

Wyner, Ph.D. (“Dr. Wyner”), “on, among other things . . . , the opinions of [GE 

expert] Dr. M. Laurentius Marais as reflected in Dr. Marais’ deposition testimony 

and declaration.” (See Plaintiffs’ Third Amended Initial Expert Disclosure attached 

as Exhibit A). Plaintiffs plan to serve Dr. Wyner’s expert report at the same time 

they file their Motion for Class Certification – nearly 10 months after the close of 

discovery, over six months after Plaintiffs’ expert reports were due, almost 90 days 

after GE served Dr. Marais’ expert report and over 40 days after Dr. Marais’ 

deposition. And Plaintiffs apparently had planned to do so in violation of the 

Court’s Scheduling Orders, without seeking leave of the Court, and over GE’s 

objections.1

 Plaintiffs’ beyond the eleventh hour attempt to add Dr. Wyner as an 

expert is unjustified and will prejudice GE. Accordingly, the Court should grant 

GE’s Motion, strike Plaintiffs’ Third Amended Initial Expert Disclosure, and 

preclude Dr. Wyner from offering any opinions or testimony in this case. 

 

1

 The parties telephonically met and conferred regarding GE’s Motion on January 

17, 2014 at 10:30 am. During that meet and confer conference, GE advised 

Plaintiffs that GE intended to file this Motion on that same day, January 17, 2013. 

Plaintiffs’ counsel, for the first time, advised GE that Plaintiffs intended to file a 

motion regarding Dr. Wyner, but would not file on January 17, 2014. 

Notwithstanding such advice, Plaintiffs filed their Motion to Allow Rebuttal 

Expert Witness on January 17, 2014. 

Case 2:09-cv-11912-VAR-MJH ECF No. 154, PageID.5566 Filed 01/17/14 Page 12 of 37
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II. PROCEDURAL HISTORY 

A. The Court’s Scheduling Orders set firm dates for expert 

disclosure, the exchange of expert reports and the taking of 

expert depositions 

The Court’s various Orders in this case set firm deadlines, ultimately 

requiring the following: 

• Identification of Plaintiffs’ Experts: September 28, 2012 

• Identification of GE’s Experts: November 2, 2012 

• Close of Discovery: April 18, 2013 (except for certain previously 

served discovery) 

• Serving of Reports of Plaintiffs’ Experts Dr. Aris Silzars, John 

Gerling and Stuart Statler: June 28, 2013 

• Serving of Report of Plaintiffs’ Expert Thomas Frazee: August 2, 

2013 

• Depositions of Plaintiffs’ Experts Silzars, Gerling and Statler: August 

30, 2013 

• Deposition of Plaintiffs’ Expert Frazee: September 18, 2013 

• Serving of Reports of GE’s Experts Dr. Shukri Souri, Dr. Donald 

Hoffmann and Michael Gidding: October 16, 2013 

• Serving of Reports of GE’s Experts Dr. Marais and Lucy Allen: 

November 5, 2013 

• Depositions of GE’s Experts Souri, Hoffmann and Gidding: 

November 30, 2013 

• Depositions of GE’s Experts Dr. Marais and Lucy Allen: December 

19, 2013 

• Class Certification Motion: January 30, 2014 

Case 2:09-cv-11912-VAR-MJH ECF No. 154, PageID.5567 Filed 01/17/14 Page 13 of 37
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(See Initial Scheduling Order and Amendments attached collectively as Exhibit 

B).2

 Minor adjustments to certain dates were made by agreement of the parties. 

(Id. see, e.g., Dkts. 146, 147, 148 and 151). 

 As required, Plaintiffs served their Initial Expert Disclosure on September 

28, 2012. (See Plaintiffs’ Initial Expert Disclosure attached as Exhibit C). One of 

the listed individual’s resume stated that he has previously provided “statistical 

analysis” services to his clients. (See Dr. Woods’ resume attached as Exhibit D). 

B. GE disclosed Dr. Marais’ anticipated testimony, including 

“statistical analysis,” over 14 months ago, on November 2, 

2012 

 GE responded by timely serving its Initial Expert Disclosure on November 

2, 2012. That document identified Dr. Marais (among others) and summarized his 

anticipated testimony as follows: 

GE anticipates that Dr. Marais will offer testimony on . . . analysis of 

GE and other data relevant to Plaintiffs’ allegations, class 

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

assessment of Plaintiffs’ alleged damages and class certification. GE 

also anticipates that Dr. Marais will offer testimony regarding certain 

opinions and testimony to be offered by Plaintiffs’ experts. In 

addition, GE anticipates that Dr. Marais may be requested to offer 

testimony on other topics relevant to Plaintiffs’ allegations, class 

certification and the merits of the case. 

 

2

 Exhibit B includes the Court’s December 14, 2010 Scheduling Order (Phase I) 

(Dkt. 83) and the following subsequent amendments: February 3, 2012 (Dkt. 123), 

December 11, 2012 (Dkt. 143), April 17, 2013 (Dkt. 144), May 16, 2013 (Dkt. 

146), June 27, 2013 (Dkt. 147), July 30, 2013 (Dkt. 148) and December 5, 2013 

(Dkt. 151). 

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(See GE’s Initial Expert Disclosure attached as Exhibit E) (emphasis added). 

C. Plaintiffs disclose new experts in violation of the Court’s 

Order and the parties reach agreement on various changes 

 On April 18, 2013, the date discovery closed, Plaintiffs served an Amended 

Initial Expert Disclosure listing five new un-retained expert witnesses. (See

Plaintiffs’ Amended Initial Expert Disclosure attached as Exhibit F). Plaintiffs did 

so without GE’s stipulation or leave of the Court. GE subsequently sought 

Plaintiffs’ agreement allowing GE to substitute one of its previously designated 

damages experts. (See Correspondence dated June 20, 2013 attached as Exhibit G). 

Plaintiffs agreed as long as GE agreed not to “object to the designations [Plaintiffs] 

made previously of un-retained experts” in Plaintiffs’ April 18, 2013 Amended 

Initial Expert Disclosure. (Id.; Exhibit F).3

 Plaintiffs also requested a “three week 

extension of the deadline to submit the expert report of [their] damages expert.” 

(Id.). The parties further agreed that the deadlines for the reports of GE’s experts 

Dr. Marais and newly substituted Lucy P. Allen and Denise Neumann Martin, 

Ph.D. would be extended by three weeks. (Id.). 

 

3

 In that regard, Plaintiffs admitted that those disclosures, made at the close of 

discovery, “were made after the deadline.” (Id.) Plaintiffs thus implicitly 

acknowledged that their April 18, 2013 Amended Initial Expert Disclosure, served 

without leave of the Court and beyond the deadline for disclosure set by the Court, 

was improper and ineffective. Yet, one year later and under even more egregious 

circumstances, Plaintiffs have once again disclosed a new expert, in this instance 

Dr. Wyner, well beyond the time allowed for disclosure. 

Case 2:09-cv-11912-VAR-MJH ECF No. 154, PageID.5569 Filed 01/17/14 Page 15 of 37
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 Counsel for the parties did not discuss the substance of their respective 

experts’ opinions. In fact, at the time, having not yet received Plaintiffs’ experts’ 

reports, GE had not conclusively decided on which of the previously and 

consistently disclosed subjects Dr. Marais, Ms. Allen or Dr. Martin would 

ultimately testify.4 The Court entered the parties’ Stipulated Order on June 27, 

2013. (See Exhibit B, Dkt. 147). 

 The parties’ expert elections were now unequivocally finalized. The parties 

served expert reports and completed expert depositions in accordance with the 

agreed 2013 Scheduling Order amendments. (See generally, Exhibit B). Plaintiffs 

served the expert report of Mr. Frazee on August 2, 2013 and GE served the expert 

reports of Ms. Allen and Dr. Marais on November 5, 2013. Dr. Marais’ deposition 

was taken on December 17 and 18, 2013. 

D. January 9, 2014, Plaintiffs served their Third Amended 

Initial Expert Disclosure purporting to add an entirely new 

“rebuttal” expert without leave of the Court 

 On December 20, 2013, Plaintiffs’ counsel in a telephone conversation for 

the first time raised the possibility of adding a “rebuttal” expert to counter Dr. 

Marais’ opinions. Plaintiffs confirmed their intention to add a “rebuttal” expert by 

letter to GE’s counsel dated December 26, 2013. Plaintiffs’ counsel stated that he 

had “assumed that Dr. Marais’ opinions would be responsive to the opinions of 

 

4

 GE later withdrew Dr. Martin as a testifying expert. 

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[Plaintiffs’] damages expert Thomas Frazee” and had “only recently discovered 

that instead, Dr. Marais [was] [being] offered only as a statistical expert.”5

 (See

Plaintiffs’ Correspondence dated December 26, 2013 attached as Exhibit H) 

(emphasis added). Plaintiffs’ counsel requested that GE consent “to a stipulation 

to time for Plaintiffs to designate a rebuttal statistical expert, for that expert to 

submit a report, and for Defendants to depose said expert.” (Id). Plaintiffs’ counsel 

also expressed a “fear that [the addition of a rebuttal expert] may delay the briefing 

schedule for class certification.” (Id.) 

 By letter dated December 31, 2013, GE declined Plaintiffs’ request, noting, 

among other reasons, that it resulted from an incorrect and baseless assumption: 

The history of this case belies Plaintiffs’ implicit claim of surprise by 

the subject matter of Dr. Marais’ report. Plaintiffs themselves listed a 

statistician, [James Woods] in their initial expert disclosure 15 

months ago; Plaintiffs have known about GE’s designation of an 

expert on statistics for 14 months; Plaintiffs have known 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. . . . 

(See GE’s Correspondence dated December 31, 2013 attached as Exhibit I) 

(emphasis added).) GE also pointed out that Plaintiffs voluntarily withdrew Dr. 

 

5

 It is still unclear what Plaintiffs’ counsel meant by “only recently discovered.” 

At the time of this letter, Plaintiffs had Dr. Marais’ report for almost two months. 

Pursuant to Fed. R. Civ. P. 26 (a)(2)(B)(i), the report contained “a complete 

statement of all opinions [Dr. Marais] will express and the basis and reasons for 

them.” 

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Woods, their previously disclosed expert who was purportedly qualified to offer 

testimony regarding “statistical analysis,” eight months after GE designated Dr. 

Marais to testify regarding “statistical analysis.” (Id.) GE also stated that 

“[p]ermitting Plaintiffs to add a statistician at this point in the case would vitiate 

the Court’s scheduling orders as stipulated to and amended by the parties” and 

therefore, “GE strongly believe[d] that Plaintiffs’ request [was] unfair and 

improper.” (Id.) 

 Nonetheless, in violation of the Court’s Scheduling Orders and despite GE’s 

proper objections, Plaintiffs served their Third Amended Initial Expert Disclosure 

on January 9, 2014, identifying an entirely new and previously undisclosed expert 

without leave of the Court. (See Exhibit A). Plaintiffs’ Third Amended Initial 

Expert Disclosure identifies Dr. Wyner “to offer testimony on, among other 

things, the following topics: (1) Rebuttal testimony regarding the opinions of Dr. 

M. Laurentius Marais as reflected in Dr. Marais’ deposition testimony and 

declaration.” (Id.) (emphasis added). 

 In light of Plaintiffs’ violation of the Court’s Scheduling Orders and 

applicable law, GE requested that Plaintiffs withdraw their Third Amended Initial 

Expert Disclosure. (See GE’s Correspondence dated January 10, 2014 attached as 

Exhibit J). Plaintiffs refused. (See Plaintiffs’ Correspondence dated January 13, 

2014 attached as Exhibit K). Instead, Plaintiffs for the first time stated their 

Case 2:09-cv-11912-VAR-MJH ECF No. 154, PageID.5572 Filed 01/17/14 Page 18 of 37
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intention to serve Dr. Wyner’s report at the same time that they file their Motion 

for Class Certification. (Id.).6

 Plaintiffs also claimed as justification for Plaintiffs’ 

late disclosure of Dr. Wyner: 

[Plaintiffs’ counsel was] led to believe that Dr. Marais would be 

providing an expert opinion on damages . . . because [GE’s counsel 

Rick Paul] told [him] that Dr. Marais and the other damages experts 

needed the extra time to respond to Thomas Frazee’s report . . . . [GE] 

only decided to have [Dr. Marais] offer an opinion on the Safety 

Database after GE received Mr. Frazee’s report. (Id.)7 

III. ARGUMENT 

District courts have inherent authority over scheduling and are empowered 

to issue scheduling orders to govern pending cases. Fed. R. Civ. P. 16(b)(1). 

Among the contents of the scheduling order, the court may “(i) modify the timing 

of disclosures under Rules 26(a) and 26(e)(1) . . . and (vi) include other appropriate 

matters.” Fed. R. Civ. P. 16(b)(3)(B). The Court has authority pursuant to Rule 

16(f) to “issue any just orders, including those authorized by Rule 37(b)(2)(A)(ii)-

(vii), if a party or its attorney. . . . fails to obey a scheduling or other pretrial 

order.” Fed. R. Civ. P. 16(f)(1)(C). 

 

6

 Contrary to this new representation, Plaintiffs’ previous correspondence 

represented that an extension of the class certification briefing schedule would 

likely be needed to accommodate the addition of Dr. Wyner. (See Exhibit H). 

7

 Plaintiffs’ representations in this regard are not only incorrect but are also selfevidently false, as the topics of Dr. Marais’ testimony were clearly disclosed to 

Plaintiffs in writing long ago. More importantly, this argument is irrelevant. All 

that happened was that GE obtained a three week extension for Dr. Marais’ report. 

Had Dr. Marais’ report been filed three weeks earlier, Plaintiffs still would not 

have been entitled to add a new expert under the Court’s Scheduling Order. 

Case 2:09-cv-11912-VAR-MJH ECF No. 154, PageID.5573 Filed 01/17/14 Page 19 of 37
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Rule 26(a)(2)(D) similarly provides that “[a] party must make [its expert] 

disclosures at the times and in the sequence that the court orders.” Fed. R. Civ. P. 

26 (a)(2)(D (ii). In the “[a]bsen[ce] [of] a stipulation or a court order,” and “if the 

evidence is intended solely to contradict or rebut evidence on the same subject 

matter identified by another party,” expert disclosures must be made “within 30 

days after the other party’s disclosure.” Id. (emphasis added). 

When “a party fails to . . . identify a witness as required by Rule 26(a) . . . , 

the party is not allowed to use that . . . 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); see also Woodhull v. County of Kent, No. 1:04-cv-203; 

2006 U.S. Dist. LEXIS 48594 at *3 (W.D. Mich., July 18, 2006) (“Rule 37(c)(1) 

requires absolute compliance with Rule 26(a).”).8 

Here, the parties agreed to and the Court entered a schedule that conformed 

to their respective burdens. As the party with the burden of proof both on the 

merits and on class certification, Plaintiffs were required to disclose their expert 

testimony first. Had they believed it would have been helpful, they could have 

 

8

See also Salgado v. General Motors Corporation, 150 F.3d 735, 742 n.6 (7th Cir. 

1998) (holding that Rule 37(c)(1) puts teeth into Rule 26, stating “the district court 

acted well within its discretion when it decided to impose the sanction of 

precluding the witnesses from testifying” since “the sanction of exclusion is 

automatic and mandatory unless the sanctioned party can show that its violation of 

Rule 26(a) was either justified or harmless”) (cited with approval in Roberts v. 

Galen of Va., Inc., 325 F.3d 776, 782 (6th Cir. 2003). 

Case 2:09-cv-11912-VAR-MJH ECF No. 154, PageID.5574 Filed 01/17/14 Page 20 of 37
10 

provided a statistician’s report, especially given that one of their identified experts 

purported to be a statistical expert and they were aware that GE had disclosed a 

statistical expert. For whatever tactical reasons, they chose not to do so. 

Plaintiffs obviously have changed their view. But it is too late under the 

Court’s Orders, the Federal Rules and principles of fundamental fairness. 

Plaintiffs should not be able to disclose a new expert over 15 months after such 

disclosures were due and submit a report over six months after reports were due, 

especially since Plaintiffs are proposing to do so on the same day as their class 

certification motion. 

A. Plaintiffs’ Third Amended Expert Disclosure violates the 

Court’s Scheduling Orders 

Rule 26(a)(2)(D) explicitly states that rebuttal expert disclosures “must” be 

made “at the times and in the sequence that the court orders.” Fed. R. Civ. P. 26 

(a)(2)(D) (emphasis added). Under the agreed upon schedule, Plaintiffs were 

required to identify their experts over 15 months ago, on September 28, 2012, and 

discovery closed nine months ago, on April 18, 2013. (See Exhibit B, Dkt. 144). 

All amendments to the deadlines in the Court’s Orders, including extensions of the 

dates for the exchange of expert reports and completion of expert depositions, were 

made through stipulated orders and identified the parties’ previously disclosed 

experts by name. (See, e.g., Exhibit B, Dkt. 147) (stipulating to, among other 

Case 2:09-cv-11912-VAR-MJH ECF No. 154, PageID.5575 Filed 01/17/14 Page 21 of 37
11 

things, an extension of time for Dr. Marais to produce his report and to be deposed 

by Plaintiffs). 

The Court’s Scheduling Orders do not permit the disclosure of rebuttal 

experts. Therefore, by the express terms of the Court’s orders, including those 

stipulated to by the parties, Plaintiffs were required to disclose all expert witnesses 

by September 28, 2012. (See generally, Exhibit B). Plaintiffs cannot circumvent 

the expert disclosure and discovery schedule as set forth in the Court’s Orders by 

characterizing Dr. Wyner as a “rebuttal” expert, particularly at this late stage of the 

litigation. Chief Judge Rosen rejected the same tactic under similar circumstances, 

ruling that a plaintiff’s designation of her witness as a “rebuttal expert” was 

insufficient to overcome the express terms of a scheduling order. See Rojek v. 

Catholic Charities of Jackson, Inc., No. 08-14492, 2010 U.S. Dist. LEXIS 52056, 

*18-19 n.4 (E.D., Mich. May 27, 2010) (explaining that the plaintiff failed to 

disclose her expert rebuttal witness in conformity with the court’s scheduling order 

concerning experts generally and holding that the rebuttal expert’s declaration 

would not be considered as a result). 

As demonstrated in Rojek, scheduling orders addressing “experts” must be 

interpreted to control the disclosure of direct and rebuttal experts. If the Court or 

the parties intended to allow rebuttal experts, whether beyond the dates provided 

for the disclosure of Plaintiffs’ direct experts or otherwise, then dates would have 

Case 2:09-cv-11912-VAR-MJH ECF No. 154, PageID.5576 Filed 01/17/14 Page 22 of 37
12 

been expressly referenced in the Court’s initial scheduling order or one of the 

amendments stipulated to by the parties since the court’s initial December 14, 2010 

Scheduling Order. (See Exhibit B, Dkts. 144, 146, 147, 148, 151). The failure to 

provide for “rebuttal” experts in the Court’s Scheduling Orders means, quite 

simply, that such experts are not permitted. Plaintiffs’ January 9, 2014 unilateral 

identification of Dr. Wyner – an entirely new and previously undisclosed expert – 

over 15 months after the date on which Plaintiffs were required to disclose expert 

witnesses is untimely, improper and should be stricken pursuant to Rule 37(c)(1). 

B. The provisions of Rule 26(A)(2)(D)(ii) do not apply when 

the Court’s Scheduling Orders are silent regarding rebuttal 

experts 

In an effort to excuse their disregard of the Court’s Orders, GE anticipates 

that Plaintiffs may assert that the absence of reference to “rebuttal experts” in the 

Court’s scheduling orders does not foreclose Plaintiffs’ use of a rebuttal expert, but 

rather triggers the provisions of Rule 26(a)(2)(D): “Absent a stipulation or a court 

order, the disclosures [of rebuttal experts] must be made . . . within 30 days after 

the other party’s disclosure.” However, that position is contrary to Judge Rosen’s 

decision in Rojek and has been rejected by other courts. In particular, the Eighth 

Circuit has ruled that the deadlines imposed in Rule 26(a)(2)(D) only apply if there 

is no court scheduling order in place. See Eckelkamp v. Beste, 315 F.3d 863, 872 

(8th Cir. 2002) (“The district court’s case order set its management requirements 

Case 2:09-cv-11912-VAR-MJH ECF No. 154, PageID.5577 Filed 01/17/14 Page 23 of 37
13 

and did not provide for rebuttal experts, and the court was entitled to hold the 

parties to that order.”). 

Other district courts have similarly ruled that where a governing scheduling 

order is silent regarding rebuttal expert reports, Rule 26(a)(2)(D) does not apply: 

The critical question . . . is whether the court has spoken on the 

subject of expert disclosures generally, not whether it has specifically 

substituted its own deadlines for those proposed in . . . [Rule 26]. The 

scheduling order does not have to account for every deadline set forth 

in . . . [Rule 26]. When the court crafted its own schedule for expert 

disclosures, the mechanism set forth in Rule 26 was nullified. . . . 

[Rule 26] merely provides alternative deadlines should the court 

neglect to set its own schedule. 

IBM v. Fasco Indus., No. C-93-20326; 1995 U.S. Dist. LEXIS 22533 at **5-6 

(N.D. Cal., Mar. 15, 1995).9

 

 

9

See also, Akeva L.L.C. v. Mizuno Corp., 212 F.R.D. 306, 310 (M.D.N.C. 2002) 

(“[T]he discovery plan did not permit a third tier of expert disclosure as plaintiff 

contends . . . . [W]hen there is a discovery plan covering expert disclosures, the 

plan controls and not the explicit provisions of . . . [Rule 26].”); Shaw v. Am. 

Honda Motor Co., No. 10-38; 2010 U.S. Dist. LEXIS 119892 at **2-3 (E.D. La., 

Nov. 10, 2010 (refusing to permit rebuttal expert report where scheduling order 

was silent regarding rebuttal reports and where plaintiff failed to submit its initial 

report by the scheduling order deadline); Masler v. Fields, No. 06-4917; 2007 U.S. 

Dist. LEXIS 98596 at *7 (D. Minn., July 4, 2007) (“Where a court issues a 

scheduling order that provides a deadline for expert disclosures, but does not 

expressly permit disclosure of rebuttal experts by plaintiff . . . , the 30-day 

disclosure deadline for rebuttal reports in Rule [26(a)(2)(D)] does not apply.”); 

Dettwiller v. Racetrac Petroleum, Inc., No. 99-1125; 1999 U.S. Dist. LEXIS 19063 

at **2-4 (E.D. La., Dec. 3, 1999) (denying the plaintiff leave to file a rebuttal 

expert report within thirty days of receipt of the defendant’s expert report where 

the court’s discovery order provided an expert report exchange deadline with no 

mention of rebuttal expert reports). 

Case 2:09-cv-11912-VAR-MJH ECF No. 154, PageID.5578 Filed 01/17/14 Page 24 of 37
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 Accordingly, the provisions of Rule 26(a)(2)(D) do not apply in this case. 

The Court’s Scheduling Orders control. Those Orders are silent regarding the use 

of “rebuttal” experts. As such, “rebuttal” experts are not permitted and Plaintiffs 

should not be permitted to disclose or offer Dr. Wyner as a “rebuttal” expert.10

C. The provisions of Rule 26(A)(2)(D)(ii) do not apply because 

Dr. Wyner is not a “rebuttal” expert 

Even assuming that the provisions of Rule 26 could be used to permit 

Plaintiffs to disclose Dr. Wyner as a “rebuttal” expert and to serve a “rebuttal” 

report, Plaintiffs’ disclosure of Dr. Wyner is still improper. Rule 26(a)(2)(D) (ii) 

applies only to “rebuttal” experts. Here, Plaintiffs Third Amended Initial Expert 

Disclosure purports to identify an entirely new and previously undisclosed expert, 

Dr. Wyner. Plaintiffs Third Amended Initial Expert Disclosure states that Dr. 

Wyner will “offer testimony on, among other things, . . . the opinions of Dr. M. 

Laurentius Marais as reflected in Dr. Marais’ deposition testimony and 

declaration.” (See Exhibit A) (emphasis added). 

 

10 This is particularly true given that Plaintiffs consented to the Court’s Scheduling 

Orders and requested several amendments without raising the issue of rebuttal 

experts. See Schablonentechnik v. MacDermid Graphic Arts, Inc., No. 1:02-CV2585; 2005 U.S. Dist. LEXIS 45982 at **8-9 (N.D. Ga., June 21, 2005) (“The 

holding of IBM is all the more persuasive . . . in light of the fact that the schedule 

adopted on the consent of both parties makes it obvious that neither party expected 

or requested the inclusion of time for rebuttal experts.”). 

Case 2:09-cv-11912-VAR-MJH ECF No. 154, PageID.5579 Filed 01/17/14 Page 25 of 37
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Rebuttal testimony is “evidence . . . intended solely to contradict or rebut 

evidence on the same subject matter identified by another party. . .” Fed R. Civ. P. 

26 (a)(2)(D)(ii). In light of Plaintiffs’ description of Dr. Wyner’s anticipated 

testimony, it is apparent that they seek to have Dr. Wyner offer new affirmative 

opinions on Plaintiffs’ behalf, and that Plaintiffs are characterizing Dr. Wyner as a 

“rebuttal” expert in a constrained and inappropriate effort to fit his disclosure and 

yet to-be-filed report into the confines of Fed R. Civ. P. 26(a)(2)(D)(ii). This is 

demonstrated by two indisputable facts. First, Plaintiffs initially disclosed an 

expert purportedly qualified to offer opinions regarding “statistical analysis,” but 

chose not to use him. The “rebuttal” strategy is an improper attempt to put forward 

expert testimony that they now recognize should have been provided initially. See 

In re Air Crash Disaster, 86 F.3d 498, 528 (6th Cir. 1996) (a party cannot 

introduce experts “merely by sticking the label ‘rebuttal’ on a neglected part of its 

affirmative case.”); Madison Capital Co., LLC v. S & S Salvage, LLC, No. 4:08-

CV-00134; 2011 U.S. Dist. LEXIS 4788 at **11-12 (W.D. Ky., Jan. 19, 2011) 

(“The Court will not allow [plaintiff] to now introduce expert testimony belonging 

in its case-in-chief masquerading as rebuttal expert testimony.”). Second, insofar 

as Dr. Marias’ testimony critiques the affirmative testimony of Plaintiffs’ experts 

Dr. Aris Silzars and John Gerling, Plaintiffs cannot use a new expert on “rebuttal” 

Case 2:09-cv-11912-VAR-MJH ECF No. 154, PageID.5580 Filed 01/17/14 Page 26 of 37
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as a means to bolster the testimony of their experts. Thus, Rule 26(a)(2)(D) does 

not apply to Plaintiffs’ improper and untimely disclosure of Dr. Wyner. 

D. Even if the provisions of Rule 26(A)(2)(D)(ii) apply, 

Plaintiffs’ Third Amended Initial Expert Disclosure is still 

improper and untimely and should be stricken 

Even if Dr. Wyner is considered to be a “rebuttal” expert, Plaintiffs should 

not be permitted to serve his report or use his testimony. The clear language of 

Rule 26(a)(2)(D) (ii) requires any disclosure by Dr. Wyner, which must include a 

report containing all the information required by Rule 26(a)(2)(B), to be made 

within 30 days of GE’s disclosure of Dr. Marais’ opinions. See Fed. R. Civ. P. 26 

(a)(2)(D) (ii) (stating that a rebuttal experts’ disclosure must be made “within 30 

days after the other party’s disclosure”). GE served Dr. Marais’ expert report on 

November 5, 2013. At that point, GE had “disclosed” Dr. Marais in compliance 

with Rule 26(a)(2)(A-B). See Fed. R. Civ. P. 26(a)(2)(A-B) (“[A] party must 

disclose . . . the identity of any [expert] witness [and] . . . [that] disclosure must be 

accompanied by a written report. . . .”). Therefore, even if Rule 26(a)(2)(D)(ii) 

were applicable (which it is not), the express terms of Fed. R. Civ. P. 6(a)(2)(D)(ii) 

required Plaintiffs to have served Dr. Wyner’s report no later than December 5, 

2013.11

 

 

11 See Cason-Merenda v. Detroit Med. Ctr., No. 06-15601; 2010 U.S. Dist. LEXIS 

31376 at *6 (E.D. Mich., March 31, 2010) (“[The] [p]laintiffs’ rebuttal reports 

Footnote continued on next page ... 

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But Plaintiffs did not even identify Dr. Wyner until Plaintiffs served their 

Third Amended Disclosure on January 9, 2014 – 35 days past the December 5, 

2013 deadline. More importantly, Plaintiffs still have not served a report from Dr. 

Wyner, instead stating that they intend to serve it with their Motion for Class 

Certification, due on January 30, 2014. (See Exhibit K). If true, Plaintiffs will not 

have properly disclosed Dr. Wyner in accordance with Rule 26(a)(2)(A-B) until 55 

days after the opinions of Dr. Marais were disclosed.12 Thus, even under this 

 

Continued from previous page ... 

plainly qualified as disclosures under Rule 26(a)(2)(B) . . . and so it seemingly 

follows that [the] [d]efendants were required to produce any sur-rebuttal reports 

within 30 days after Plaintiffs produced their rebuttal reports . . . [and] [y]et, [the] 

[d]efendants did not file the present motion and accompanying sur-rebuttal report . 

. . [until] five days after this 30-day deadline.”); Paul v. Henri-Liné Mach. Tools, 

Inc., No. 10-10832; 2012 U.S. Dist. LEXIS 180026 at *7 (E.D. Mich., Dec. 20, 

2012) (Using disclosure of the expert report to be rebutted as the trigger for 

applying Rule 26(a)(2)(D)(ii)’s 30 day time limit despite the fact that the expert 

filed supplemental reports and was deposed at a later date in the case). 

12 Plaintiffs’ January 13, 2014 letter represents that Plaintiffs did not realize their 

need for Dr. Wyner’s “rebuttal” opinions until after Dr. Marais’ deposition 

concluded on December 18, 2013. (See Exhibit K). There is no factual or legal 

basis for expanding the application of Rule 26(a)(2)(D)(ii) past the bounds of its 

plain language. (See p. 16, supra.) However, even if Plaintiffs argue that the 

Rule’s 30 day window should begin at the conclusion of Dr. Marais’ deposition, 

that period closes on January 18, 2014. Accordingly, disclosure of Dr. Wyner’s 

report at the time they file their class certification motion (due January 30, 2014) 

would still be untimely and improper under even this strained interpretation of 

Rule 26(a)(2)(D)(ii). See Station Enters. v. Ganz, Inc., No. 07-CV-14294; 2009 

U.S. Dist. LEXIS 87904 at *13 (E.D. Mich., Sept. 24, 2009) (“Even if the Court 

gives [the] [d]efendants the benefit of the doubt by assuming the latest and final of 

the [] deposition dates was . . . the latest date when the [p]laintiff provided the 

evidence which [the] [d]efendants intend to rebut, [the] [d]efendants’ . . . 

Footnote continued on next page ... 

Case 2:09-cv-11912-VAR-MJH ECF No. 154, PageID.5582 Filed 01/17/14 Page 28 of 37
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hypothetical scenario, Plaintiffs’ attempted disclosure of Dr. Wyner as a “rebuttal” 

expert is untimely and Plaintiffs’ Third Amended Initial Expert Disclosure must be 

stricken under Rule 37(c)(1). 

E. Plaintiffs cannot meet their burden of establishing that their 

failure to timely disclose Dr. Wyner is substantially justified 

or harmless 

Although Plaintiffs’ Third Amended Expert Disclsoure is improper and 

untimely, Plaintiffs assert in their January 13, 2014 letter that “Plaintiffs’ delay 

here was substantially justified and is completely harmless to GE.” (See Exhibit 

K). Plaintiffs are incorrect and cannot meet their burden in this regard. 

Pursuant to Fed. R. Civ. P. 37(c)(1), a party may not use evidence that the 

party failed to properly disclose “unless the failure was substantially justified or is 

harmless.” Fed. R. Civ. P. 37(c)(1). See Roberts, 325 F.3d at 782 (6th Cir. 2003) 

(“Rule 37(c)(1) requires ‘absolute compliance’ with Rule 26(a) and the exclusion 

sanction is “automatic and mandatory unless the sanctioned party can show that its 

violation was either justified or harmless.”). “[I]t is the responsibility of the party 

that has failed to adhere to a scheduling order to supply ‘compelling evidence’ of 

either justification or harmless failure.” Warren v. City of Detroit, No. 02-74288, 

2006 U.S. Dist. LEXIS 8653, at *5 (E.D. Mich., Feb. 13, 2006) (citing Vance v. 

 

Continued from previous page ... 

disclosure of a ‘rebuttal’ witness occurred more than thirty days later and was 

untimely.”). 

Case 2:09-cv-11912-VAR-MJH ECF No. 154, PageID.5583 Filed 01/17/14 Page 29 of 37
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United States, No. 98-5488; 1999 U.S. App. LEXIS 14943 at **18-19 (6th Cir., 

June 25, 1999)). Ultimately, “[d]istrict courts have broad discretion to exclude 

untimely disclosed expert-witness testimony.” Pride v. BIC Corp., 218 F.3d 566, 

578 (6th Cir. 2000). 

1. Plaintiffs’ illogical and baseless assertion concerning 

GE’s “gamesmanship” is not “compelling evidence” 

justifying Plaintiffs’ failure to disclose a “rebuttal” 

expert in accordance with the Court’s Scheduling 

Orders 

Plaintiffs identified Dr. Wyner almost 15 months after GE disclosed Dr. 

Marais’ anticipated testimony and two months after Plaintiffs received Dr. Marais’ 

expert report. Plaintiffs have attempted to justify this delay by wrongfully 

accusing GE of “gamesmanship.” Specifically, Plaintiffs assert that their delay is 

justified because GE mislead Plaintiffs into believing that “Dr. Marais would be 

providing an expert opinion on damages” based on its request “that Dr. Marais and 

the other damages experts [be given] extra time to respond to Thomas Frazee’s 

report.” (Exhibit K). In essence, Plaintiffs argue that GE purportedly misled 

Plaintiffs into providing a 21 day extension for serving Dr. Marais’ report. 

Plaintiffs’ proffered justification is factually wrong and, in any event, is not 

logically tied to what they are seeking.13

 

13 Plaintiffs’ January 13, 2014 letter cites Powell v. Tosh, 276 F.R.D. 553 (W.D. 

Ky. 2011) for the proposition that Plaintiffs’ delay is substantially justified because 

Footnote continued on next page ... 

Case 2:09-cv-11912-VAR-MJH ECF No. 154, PageID.5584 Filed 01/17/14 Page 30 of 37
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GE did not mislead Plaintiffs. On June 20, 2013, Plaintiffs asked GE to 

“agree to a three week extension of the deadline to submit the expert report of 

[Plaintiffs’] damages expert [Thomas Frazee].” (See Exhibit G). GE agreed and 

asked for a corresponding three week extension for two of its experts. Plaintiffs 

agreed. This is the kind of scheduling agreement parties always make, and it is 

encouraged by this Court’s Civility Principles. Plaintiffs’ claim that they only 

agreed because they thought Dr. Marais was a damages expert simply makes no 

sense in light of the fact that GE’s Initial Expert Disclosure expressly stated that 

Dr. Marais may offer analysis of “GE and other data,” “statistical analysis” and 

“testimony regarding certain opinions and testimony to be offered by Plaintiffs’ 

experts.” (See Exhibit E). There was no “gamesmanship” in GE’s actions.14

 

Continued from previous page ... 

“the [p]laintiffs were not able to depose [the] [d]efendants’ expert witness until 

May 12, 2011 and did not receive a transcript of that deposition until June 3, 

2011.” However, Powell is inapposite and distinguishable from the facts presented 

here. In Powell, unlike the present circumstances, the proffered rebuttal expert was 

an original disclosed and deposed affirmative expert whose rebuttal report “did not 

contradict or change the opinion offered in [the rebuttal expert’s] original 

affirmative expert report.” Id. at 559. The Court accordingly found that despite the 

delay, defendants suffered no prejudice or harm because “most if not all of the 

additional data cited [in the rebuttal expert’s] report has already been provided to 

Defendants through the discovery process.” Id. Here, Dr. Wyner is a new expert 

and Plaintiffs’ Third Amended Initial Disclosure expressly indicates that Dr. 

Wyner is expected to offer new affirmative opinions other than those “rebutting” 

Dr. Marais. 

14 Plaintiffs’ allegations of “gamesmanship” also appear to be new. They make the 

claim for the first time in their January 13, 2014 letter. But their December 26, 

Footnote continued on next page ... 

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Notwithstanding that there is no basis for Plaintiffs’ claim of “surprise” or 

“gamesmanship,” Plaintiffs further cannot explain how the 21 day extension for 

service of Dr. Marais’ report is relevant. Even if Dr. Marais had served his report a 

few weeks earlier on October 16, 2013, there is still no provision in the Court’s 

Scheduling Orders allowing Plaintiffs to disclose a new or “rebuttal” expert after 

the deadline for expert disclosures. (See Exhibit B, Dkt. 144). As such, the 21 day 

extension of time allowed for GE to serve Dr. Marais’ report is wholly unrelated 

and irrelevant to the issue before the Court, which is whether to allow Plaintiffs to 

put forward new expert testimony over six months after the date on which it should 

have been provided. 

2. Plaintiffs cannot meet their burden and present 

“compelling evidence” that their untimely disclosure 

of Dr. Wyner is “harmless” 

Importantly, “[t]he 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.” See Vaughn v. Homegoods, Inc., No. 07-CV-15085; 2008 U.S. 

Dist. LEXIS 68831 at *12 (E.D. Mich., Sept. 11, 2008) (citing Roberts, 325 F.3d at 

 

Continued from previous page ... 

2013 letter requesting that GE consent to Dr. Wyner’s late disclosure states simply 

that Plaintiffs’ counsel had made an apparently incorrect “assumption” about the 

nature of Dr. Marais’ then undisclosed opinions. (See Exhibit H; Exhibit K). More 

importantly, as discussed below, it simply does not matter what Plaintiffs knew 

and when they knew it. 

Case 2:09-cv-11912-VAR-MJH ECF No. 154, PageID.5586 Filed 01/17/14 Page 32 of 37
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783). “The Rule 37 advisory committee note ‘strongly suggests that 

“harmlessness” involves an honest mistake on the part of a party coupled with 

sufficient knowledge on the part of the other party.’” Id. (quoting Vance, 1999 U.S. 

App. LEXIS 14943, at **16-17 (referencing Rule 37 Advisory Committee Notes to 

1993 Amendments)). The “requirement of knowledge is further broken down into 

two parts: that opposing counsel knows ‘who [is] going to testify and to what they 

[are] going to testify.’ If opposing counsel knows these two matters, the situation is 

‘atypical of cases where sanctions have been justified under Rule 37(c)(1).’” 

Dennis v. Sherman, No. 1:08-cv-1055; 2010 U.S. Dist. LEXIS 46904 at *2 (W.D. 

Tenn., May 12, 2010) (quoting Roberts, 325 F.3d at 783)). 

Dr. Wyner’s late disclosure cannot possibly be considered harmless under 

applicable law. Plaintiffs’ counsel has not made an “honest mistake.” Rather, they 

understood the potential need for a statistical expert and disclosed an expert 

purportedly qualified as such, and they knew that GE had disclosed a statistical 

expert. Yet they made a calculated decision not to go forward with a statistical 

expert. They are not allowed relief from the consequences of that decision. See

SG Industries, Inc. v. RSM McGladrey, Inc., No. 10-cv-11119; 2011 U.S. Dist. 

LEXIS 140341 at *30 (E.D. Mich., Dec. 7, 2011) (“[T]here was no ‘honest 

mistake’ on [the] [p]laintiff’s part. It made a calculated, deliberate decision to 

Case 2:09-cv-11912-VAR-MJH ECF No. 154, PageID.5587 Filed 01/17/14 Page 33 of 37
23 

forego retention of an expert in the hope that it could settle this case without 

incurring the expense of an expert.”). 

Moreover, GE had no knowledge of Dr. Wyner or his prospective opinions, 

whether “rebuttal” or otherwise, prior to Plaintiffs’ improper and untimely service 

of their Third Amended Initial Expert Disclosure. It is not as though Plaintiffs 

seek to use one of their previously disclosed experts whose opinions were 

challenged by Dr. Marais to rebut the basis of that challenge. Rather, Plaintiffs 

seek to introduce a completely new expert and opinions under the guise of 

“rebuttal,” and purportedly intend to rely on such expert’s opinions in connection 

with their Motion for Class Certification.15 Another Judge of this Court recently 

found an untimely expert disclosure could not be deemed harmless under the 

appropriate legal standard for identical reasons: “[The plaintiff] had no knowledge 

as to who would testify, or whether it was certain that any expert would testify at 

all . . . .” See Hartford Fire Ins. Co. v. ABC Paving Co., No. 11-14110; 2013 U.S. 

Dist. LEXIS 89588 at *16 (E.D. Mich., June 26, 2013). 

Although Plaintiffs’ January 13, 2014 letter states that Plaintiffs will make 

Dr. Wyner available for deposition after serving his report (see Exhibit K), even 

with that opportunity, GE would be forced to re-examine its theory of defense – 

 

15 Plaintiffs’ January 13, 2014 letter states that Plaintiffs “would not object if GE 

requires additional time to respond to the class certification motion.” (See Exhibit 

K at p. 2). 

Case 2:09-cv-11912-VAR-MJH ECF No. 154, PageID.5588 Filed 01/17/14 Page 34 of 37
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which is entirely improper given that discovery has been closed for nine months. 

In this regard, Plaintiffs’ statement that the delay caused by the addition of Dr. 

Wyner is “harmless to GE” is inconsistent with prior rulings in this regard by this 

Court: “[T]he Sixth Circuit [has] identified excessive delay as harmful.” Trs. of the 

Painters Union Deposit Fund v. Interio, No. 05-70110; 2007 U.S. Dist. LEXIS 

84843 at *8 (E.D. Mich., Nov. 16, 2007) (Roberts) (citing Caudell v. City of 

Loveland, 226 Fed. Appx. 479, 482 (6th Cir. 2007)).16 

Delaying class certification to allow Dr. Wyner’s rebuttal testimony would 

be tantamount to allowing Plaintiffs to “take a mulligan” on their decision to 

withdraw Dr. Woods and not timely engage a statistical expert when the parties 

stipulated to modifications of their expert designations. (See Exhibit B, Dkt. 147). 

The Court should not be forced to delay its docket because Plaintiffs’ counsel 

wants relief from its previous tactical decision. See, Freeman v. City of Detroit, 

No. 09-13184; 2011 U.S. Dist. LEXIS 68914 at *6 (E.D. Mich., June 24, 2011) 

(“Disregard of the [dates set by court] order would not only undermine the court’s 

 

16 See also, SG Industries, 2011 U.S. Dist. LEXIS 140341 at *30 (“[T]o allow [the] 

[p]laintiff to introduce an expert several months after the close of discovery would 

severely prejudice [the] [d]efendant.”); Station Enters., 2009 U.S. Dist. LEXIS 

87904 at **19-20 (“The prejudice to [the] [p]laintiff is great in this instance where 

the expert was named more than three months after the close of discovery and only 

a few months prior to the . . . trial date.”); Grain v. Trinity Health, No. 03-72486; 

2008 U.S. Dist. LEXIS 102644 at *9 (E.D. Mich., Dec. 18, 2008) (agreeing that 

addition of experts was “likely to further delay the resolution of this case, and 

[was] a prejudice to the [d]efendants. . . .”). 

Case 2:09-cv-11912-VAR-MJH ECF No. 154, PageID.5589 Filed 01/17/14 Page 35 of 37
25 

ability to control its docket and disrupt the course of the litigation, but also it 

would effectively reward the indolent and the cavalier.”) (internal citation omitted) 

As such, Plaintiffs cannot meet their burden to present “compelling 

evidence” that their improper, untimely, and presently incomplete disclosure of Dr. 

Wyner is harmless to GE. Rule 37(c)(1)’s “automatic and mandatory” exclusion 

sanction applies and the Court should grant the relief requested in this Motion. 

IV. CONCLUSION 

For the foregoing reasons, GE respectfully requests that this Court enter an 

order pursuant to Rule 37(c)(1) striking Plaintiffs’ Third Amended Initial Expert 

Disclosure and precluding Dr. Wyner from offering any expert opinions in this 

case. GE also requests that this Court award it reasonable expenses, including 

attorney’s fees, under Rule 16(f)(2) and Rule 37(a)(5)(A) for Plaintiffs’ 

unjustifiable failure to comply with the Court’s scheduling orders and withdraw 

their Third Amended Initial Expert Disclosure. 

 DICKINSON WRIGHT PLLC 

 By: /s/ Jodi Munn Schebel 

Michael J. Mueller Kenneth J. McIntyre (P17450)

Neil K. Gilman Richard W. Paul (P29443) 

Hunton & Williams LLP Jodi Munn Schebel (P55889) 

Attorneys for Defendant Attorneys for Defendant 

2200 Pennsylvania Ave., N.W. 500 Woodward Avenue, Suite 4000 

Washington, DC 20037 Detroit, MI 48226 

202-955-1500 313-223-3500 

Dated: January 17, 2014 

Case 2:09-cv-11912-VAR-MJH ECF No. 154, PageID.5590 Filed 01/17/14 Page 36 of 37
1 

CERTIFICATE OF SERVICE

 I hereby certify that on January 17, 2014, I electronically filed the foregoing 

paper with the Clerk of the Court using the ECF system which will send 

notification of such filing to all counsel of record. 

/s/ Jodi Schebel 

Dickinson Wright PLLC 

500 Woodward Avenue, Suite 4000 

Detroit, Michigan 48226-3425 

Tel: (313) 223-3500 

Case 2:09-cv-11912-VAR-MJH ECF No. 154, PageID.5591 Filed 01/17/14 Page 37 of 37