NOT RECOMMENDED FOR PUBLICATION

File Name: 23a0310n.06

Nos. 22-1740/1764

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

RAYMOND MCDOWELL; TAJ DORSEY,

Plaintiffs-Appellees/Cross-Appellants,

v.

LIVONIA HOTEL BUSINESS, INC., dba Americas 

Best Value Inn; EDWARD MAKMOURA,

Defendants-Appellants/Cross-Appellees.

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ON APPEAL FROM THE 

UNITED STATES DISTRICT 

COURT FOR THE EASTERN 

DISTRICT OF MICHIGAN

OPINION

Before: SUTTON, Chief Judge; LARSEN and MURPHY, Circuit Judges.

LARSEN, Circuit Judge. This civil suit arises out of an armed robbery that took place at 

a motel in Livonia, Michigan. Plaintiffs, Raymond McDowell and Taj Dorsey, were guests at the 

motel when they were violently attacked in their room in the early morning. They sued the motel 

and the front desk clerk for negligence. The case went to trial, and the jury returned a verdict for 

the plaintiffs. Because the jury found that McDowell was eighty-percent responsible for his own

injuries, the court reduced his award by eighty percent. Both parties filed post-trial motions and 

now appeal the district court’s rulings. We AFFIRM.

I.

Plaintiffs Raymond McDowell and Taj Dorsey are New Jersey residents who work as 

truckers. In February 2018, McDowell hired Dorsey to help him with a furniture delivery in the 

metro Detroit area. McDowell later used a listing on Craigslist.com to hire nonparty Antonio 

Fowler-Mitchell to help with the delivery. He did not perform a background check on FowlerMitchell before hiring him. After finishing the delivery, McDowell and Dorsey rented a motel 
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room at the America’s Best Value Inn Livonia. McDowell asked Fowler-Mitchell to buy him 

alcohol and deliver it to plaintiffs’ motel room, where McDowell would pay Fowler-Mitchell for 

his work. Fowler-Mitchell came to the motel room where McDowell pulled out a “large wad of 

cash” to pay him. Fowler-Mitchell received payment and stayed to socialize for about an hour. 

After Fowler-Mitchell left, plaintiffs locked their hotel room and went to bed.

Later that night at around 4:30 a.m., Fowler-Mitchell called McDowell to ask if he could 

spend the night in the motel room because his girlfriend had kicked him out. McDowell told 

Fowler-Mitchell not to come. At around 6:00 a.m., Fowler-Mitchell showed up at the motel room 

and knocked on the door. Neither McDowell nor Dorsey answered because they believed FowlerMitchell was drunk. McDowell and Dorsey did not call the police or seek help from anyone else; 

instead, they began to pack up to leave the motel. Fowler-Mitchell went to the motel’s front desk 

and asked the motel clerk, Edward Makmoura, for a key card to the room. Without asking for 

identification, Makmoura gave Fowler-Mitchell a key card. Then Fowler-Mitchell and two 

unidentified individuals kicked in the motel room door, beat up McDowell and Dorsey, and took 

cash from them. Fowler-Mitchell was arrested and pleaded guilty to first‐degree home invasion, 

two counts of armed robbery, and possession of firearms as a felon. He is currently serving his 

sentence in prison. 

McDowell and Dorsey sued Livonia Hotel Business, Inc. (dba America’s Best Value Inn) 

and Edward Makmoura in federal court (collectively, “the hotel”). The district court dismissed 

most of the plaintiffs’ claims but allowed their negligence claim to proceed. Plaintiffs alleged that 

the hotel was negligent for failing to operate the premises in a reasonably safe condition, including 

by failing to have an adequate safety policy regarding room key control and security. 
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The case went to trial. The jury found that the hotel was negligent and that its negligence 

was a proximate cause of both plaintiffs’ injuries. The jury also found that McDowell was 

comparatively negligent and determined that he was 80 percent at fault for his own injuries and 

that the hotel was only 20 percent at fault. As a result, the court reduced McDowell’s damages by 

80 percent. But the jury found that Dorsey was not comparatively negligent. Dorsey’s verdict 

form did not allow the jury to assign any percentage of fault to McDowell for Dorsey’s injuries, 

and the jury assigned 100 percent of the fault for Dorsey’s injuries to the hotel. The court ordered 

the hotel to pay for all of Dorsey’s damages. 

After trial, both sides filed post-judgment motions under Federal Rules of Civil Procedure 

50 and 59. See McDowell v. Livonia Hotel Bus., Inc., No. 19-10217, 2022 WL 2916675, at *1 

(E.D. Mich. July 25, 2022). The hotel’s motion sought to reduce Dorsey’s damages award by 80

percent, arguing that under Michigan’s “fair share” liability scheme, the hotel should not have 

been held liable for 100 percent of Dorsey’s damages. The court denied the motion, based in part 

on its understanding of Michigan law and in part on its conclusion that the hotel had failed to 

“preserve [its] affirmative defense[] that McDowell was a cause of Dorsey’s injuries.” McDowell, 

2022 WL 2916675, at *3. McDowell’s motion sought to alter the judgment, raising several reasons

why his recovery should not have been reduced by 80 percent. The court rejected all of 

McDowell’s arguments and denied his Rule 59 motion. The hotel also moved to dismiss Dorsey’s 

award for future non-economic damages, arguing that there was no evidence in the record to 

support it. The court agreed and granted the Rule 50 motion. And over the plaintiffs’ objection, 

the court also awarded the hotel Rule 37 sanctions for plaintiffs’ failure to timely disclose an

expert’s report. Each party appeals the district court’s respective adverse rulings.
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II.

We review Rule 50 motions for judgment as a matter of law de novo. Rhinehimer v. U.S. 

Bancorp Invs., Inc., 787 F.3d 797, 804 (6th Cir. 2015). When sitting in diversity, we “use the 

standards for a judgment as a matter of law applicable under the law of the forum state.” Ventas, 

Inc. v. HCP, Inc., 647 F.3d 291, 319 (6th Cir. 2011) (quotation omitted). We review the district 

court’s ruling on the parties’ Rule 59 motions to alter or amend judgment for an abuse of discretion 

and claims of legal error de novo. Tchankpa v. Ascena Retail Grp., Inc., 951 F.3d 805, 811 (6th 

Cir. 2020). 

A.

The hotel argues that the district court made a “clear error of law” justifying relief under 

Federal Rule of Civil Procedure 59(e). Specifically, the hotel claims that faulty verdict forms 

permitted the jury to hold the hotel liable for more than its jury-determined pro rata share of fault

against Dorsey. By way of relief, the hotel seeks an amended judgment, reducing Dorsey’s award 

by 80 percent.

Under Michigan’s “fair share liability” scheme, tort liability is to be allocated by the trier 

of fact in direct proportion to the person’s percentage of fault regardless of whether the person is, 

or could have been, named as a party to the action. Mich. Comp. Laws § 600.2957(1). For tort 

actions involving the fault of more than one person:

(1) . . . the court, unless otherwise agreed by all parties to the action, shall instruct 

the jury to answer special interrogatories . . . indicating both of the following:

(a) The total amount of each plaintiff’s damages

(b) The percentage of the total fault of all persons that contributed to the death 

or injury, including each plaintiff and each person released from liability 

under section 2925d, regardless of whether the person was or could have 

been named as a party to the action.
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Mich. Comp. Laws § 600.6304. “Except [for medical malpractice claims], a person shall not be 

required to pay damages in an amount greater than his or her percentage of fault as found under 

subsection (1).” Id. § 600.6304(4).

Michigan courts, however, have imposed a limitation on which persons a jury may allocate 

fault to, establishing that “before fault may be allocated to that person under the comparative-fault 

statutes, there must be proof that the person owed a legal duty to the injured party.” Est. of

Goodwin by Goodwin v. Nw. Mich. Fair Ass’n, 923 N.W.2d 894, 907 (Mich. Ct. App. 2018) (citing 

Romain v. Frankenmuth Mut. Ins. Co., 762 N.W.2d 911, 913 (Mich. 2009)). That’s because 

“[w]ithout owing a duty to the injured party, the ‘negligent’ actor could not have proximately 

caused the injury and could not be at ‘fault’ for purposes of the comparative fault statutes.” Id.; 

see also Mich. Comp. Laws § 600.6304(8) (defining “fault”).

During trial, the parties contested the content and structure of the verdict form. The hotel 

wanted a verdict form for each plaintiff that would have allowed the jury to allocate fault among 

the hotel, McDowell, and Dorsey. During off-record arguments before the court, the hotel 

“predicted a scenario where the jury could find comparative negligence against McDowell but not

[against] Dorsey[,] and if the two Plaintiffs were not included on each other’s[] verdict forms, 

defendants would have to take on McDowell’s negligence as their own.” The court subsequently 

acknowledged this exchange on the record. Plaintiffs, on the other hand, “objected to any language 

that reduced one plaintiff’s recovery by the negligence of the other plaintiff.” The court ultimately 

sided with plaintiffs, offering two reasons. In its written order, the court expressed its 

understanding that Mich. Comp. Laws § 600.2957(1) spoke only to “the question of whether each 

plaintiff was comparatively negligent for his own injuries” not to the question of whether “one 

plaintiff is liable for the injuries of the other plaintiff.” And, in response to defendants’ objections, 
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the court explained its view that defendants had not, in any event, adequately presented a theory 

of the case “say[ing] that the negligence of one [plaintiff] caused the injury of the other one.” The 

court ordered that there would be two verdict forms—one for each plaintiff—and that “each form 

must refer only to the comparative negligence of that Plaintiff.” 

While the jury was deliberating, it sent a question to the court that said: “[W]e feel the 

hotel has the same amount of negligence overall. If we assume negligence from one plaintiff, then 

would we add that plaintiff’s negligence to the hotel for the other plaintiff?” The court answered 

“yes.” On McDowell’s verdict form, the jury found that both McDowell and the hotel were 

negligent. The jury determined that McDowell was 80 percent at fault for his own injuries, while 

the hotel was only 20 percent at fault. On Dorsey’s verdict form, the jury found that Dorsey was 

not negligent and found that the hotel was 100 percent at fault for Dorsey’s injuries, despite the 

jury’s question indicating its apparent belief that the hotel “ha[d] the same amount of negligence 

overall” as to the two plaintiffs. 

After trial, the hotel moved to alter or amend the judgment under Rule 59, arguing that it 

should have to pay for only 20 percent of Dorsey’s damages given the jury’s apparent finding that 

the hotel “ha[d] the same amount of negligence overall”—presumably 20 percent. The court 

denied the hotel’s motion. The court again explained its view that “Michigan’s comparative fault 

scheme” mandates reduction of “a plaintiff’s damages by the [percentage of] his own fault” but 

“does not require reduction of an innocent plaintiff’s damages based on the comparative fault of a 

co-plaintiff.” McDowell, 2022 WL 2916675, at *3. So “Dorsey’s recovery can be reduced only 

by his own comparative negligence.” Id. at *4. Alternatively, the court held that, even if the hotel 

could have reduced its liability to Dorsey based on McDowell’s negligence, the hotel had failed 
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“to follow proper procedure, propose proper instructions, and preserve [its] affirmative defenses 

that McDowell was a cause of Dorsey’s injuries.” Id. at *3.

The district court’s ruling that Michigan law would not have permitted the hotel to reduce 

its liability to Dorsey based on McDowell’s negligence was in error. Section 600.2957(1) directs 

the trier of fact to consider the fault of each involved person, regardless of whether the person was 

named as a party to the action. Facially, this includes co-plaintiffs. And if there were any doubt, 

§ 600.2957(1) cross-references § 600.6304, which directs the court to instruct the jury to make a 

finding on the percentage of the “total fault of all persons that contributed to the death or injury, 

including each plaintiff.” There is no statutory carveout barring the jury from allocating fault to 

co-plaintiffs.

The district court also erred to the extent that it suggested that the hotel needed to file a 

counterclaim against McDowell to reduce its liability to Dorsey. The Michigan Court of Appeals 

has concluded that, post-tort reform, there is “no basis for a claim of contribution” because “a 

defendant cannot be held liable for damages beyond the defendant’s pro-rata share.” Kokx v. 

Bylenga, 617 N.W.2d 368, 372 (Mich. Ct. App. 2000). And as that court recently explained, the 

allocation of fault under § 600.2957 and § 600.6304 does not depend on a plaintiff’s ability to 

recover from the person to whom the jury allocates fault. See Est. of Goodwin, 923 N.W.2d at 909 

(holding that a child’s “inability to recover damages against a parent in no way precludes an 

assessment of a parent’s fault for purposes of accurately determining a defendant’s liability and 

ensuring that a defendant only pays his or her fair share”). So the hotel’s ability to ask the jury to 

consider McDowell’s negligence toward Dorsey should not have depended on whether either the 

hotel or Dorsey filed a claim against McDowell. The district court misunderstood Michigan’s 

“fair share” liability scheme.
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We cannot so quickly dismiss the district court’s alternative holding, however. The district 

court concluded that, even if the hotel had the correct view of Michigan law, the hotel had “failed 

to follow proper procedure, propose proper instructions, and preserve [its] affirmative defenses 

that McDowell was a cause of Dorsey’s injuries.” McDowell, 2022 WL 2916675, at *3. The court 

noted that the hotel failed to raise this defense “in various iterations of draft Joint Final Pretrial 

Orders submitted and the final one entered by the Court.” Id. Instead, the hotel had resurrected 

the defense “at the eleventh hour and with no supporting instructions.” Id. The court said that the 

hotel “abysmally failed” to propose the adequate jury instructions that would have allowed the 

jury to find that McDowell owed a duty to Dorsey and was a proximate cause of Dorsey’s injuries. 

Id. at *3–6 (“Jury instructions regarding duty, breach, and liability between co-plaintiffs were not 

requested by Defendants, and they were necessary for the jury to allocate liability to McDowell as 

the proximate cause of Dorsey’s injuries.”). The court determined that the one comparative 

negligence jury instruction the hotel did request was “insufficient to guide the jury because 

Defendants did not request instructions concerning: (1) any duty McDowell may have owed 

Dorsey; (2) what conduct on the part of McDowell breached any duty he may have owed Dorsey; 

or (3) how the jury could allocate McDowell’s fault if it believed he caused some or all of Dorsey’s 

harm.” Id. at *3. And while the court acknowledged that the hotel proposed a verdict form that 

would have allowed the jury to attribute fault to McDowell for Dorsey’s injuries, it ruled that the 

verdict form was not sufficient without supporting instructions. Finally, the court found that the 

jury’s questions during deliberations “did not operate as a proximate cause finding or an allocation 

of fault to McDowell for Dorsey’s injuries.” Id. at *4.

The district court also noted several deficiencies in the verdict forms that the hotel proposed

to the district court. For one thing, the verdict form the hotel proposed for Dorsey would not have 
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allowed the jury to allocate fault to McDowell. Question 8 of the proposed verdict form asked the 

jury to enter the percentage of negligence attributable to the hotel and to Dorsey but did not include 

a line where the jury could have attributed fault to McDowell. Second, the hotel included language 

in both proposed verdict forms that said: “Please note that the judge will reduce the total amount 

of Plaintiff Raymond McDowell[’s] damages for noneconomic loss by the percentage of the 

negligence attributable to Plaintiff Raymond McDowell and Taj Dorsey, if any.” This language 

suggests that the hotel asked the court to reduce the plaintiffs’ noneconomic damages based on 

their combined negligence, regardless of the percentage of fault the jury attributed to each plaintiff 

separately. This too is contrary to Michigan’s fair share liability scheme, which is designed so the 

finder of fact can assess damages and apportion liability for each plaintiff individually. See 

§ 600.6304 (instructing that the jury shall make findings on the total amount of each plaintiff’s 

damages and the percentage of total fault of all persons that contributed to the death or injury, 

including each plaintiff). And the parties agreed to instruct the jury that “[e]ach plaintiff is entitled 

to separate consideration of his own case.” McDowell, 2022 WL 2916675, at *5. 

We cannot say that the district court abused its discretion in denying the hotel’s Rule 59 

motion. The district court determined that the hotel did not preserve its defense that McDowell 

caused Dorsey’s injuries and failed to request the appropriate verdict form and accompanying jury 

instructions that would have allowed the jury to find that McDowell’s negligence was a proximate 

cause of Dorsey’s injuries. See Lamp v. Reynolds, 645 N.W.2d 311, 319 (Mich. Ct. App. 2002). 

The hotel’s only response is that “while the District Court denied Defendants’ post-judgment 

motion in part because the necessary jury instructions were not given, that was only because the 

District Court had previously—and erroneously—rejected Defendants’ interpretation of the 

comparative fault scheme.” But the hotel never requested the requisite jury instructions even 
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before the court had “rejected Defendants’ interpretation of the comparative fault scheme.” None

of the various iterations of the jury instructions the hotel requested contained language that would 

have facilitated a jury finding that McDowell breached a duty he owed to Dorsey and proximately 

caused Dorsey’s injuries. That includes the hotel’s first set of proposed instructions—submitted 

long before the district court initially misinterpreted the comparative fault statutes and denied the 

hotel’s proposed verdict form. The only duties the hotel’s proposed jury instructions covered were

the duty of each plaintiff to use ordinary care for his own safety and the safety of his property and 

the duty the hotel owed plaintiffs. No version of the instructions ever mentioned any duty 

McDowell may have owed to Dorsey.

The district court reasonably concluded that the hotel failed to properly preserve and 

present its theory that McDowell breached a duty to Dorsey that contributed to his injuries. The 

court therefore did not abuse its discretion by denying the hotel’s motion.

B.

On cross-appeal, McDowell argues that the district court erred by denying his post-trial

motion to alter or amend the judgment under Federal Rules of Procedure 59 and 60. McDowell 

contends that his damages should not have been reduced by 80 percent. He offers three reasons 

why the reduction was error.

First, McDowell argues that his damages should not have been reduced because the hotel 

did not plead comparative negligence as an affirmative defense.

Rule 8(c) of the Federal Rules of Civil Procedure requires parties to state any affirmative 

defense they plan to raise in response to a pleading. But our court has long held that the “failure 

to raise an affirmative defense by responsive pleading does not always result in waiver.” See, e.g., 

Brent v. Wayne Cnty. Dep’t of Hum. Servs., 901 F.3d 656, 680 (6th Cir. 2018) (quoting Moore, 
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Owen, Thomas & Co. v. Coffey, 992 F.2d 1439, 1445 (6th Cir. 1993), as amended on denial of 

reh’g (Aug. 31, 1993)). That’s because the purpose of Rule 8(c) is to “give the opposing party 

notice of the affirmative defense and a chance to rebut it.” Id. If a plaintiff receives notice of the 

defense by some other means, the defendant’s failure to comply with Rule 8(c) does not prejudice 

the plaintiff. Id. Absent prejudice, a district court does not abuse its discretion by permitting the 

defense. See Rogers v. I.R.S., 822 F.3d 854, 857 (6th Cir. 2016).

In its answer to plaintiffs’ complaint, the hotel alleged that “[t]he negligence, gross 

negligence, and/or willful or wanton misconduct of the Plaintiffs and/or others not including these 

Defendants acted as an intervening cause sufficient to bar any claim against these Defendants.” 

So while McDowell is right that the hotel did not use the label “comparative negligence,” its 

pleading did provide notice that McDowell’s negligence would be a key component of its defense, 

which in turn should have allowed plaintiffs to “conduct discovery, file pretrial motions, and 

otherwise prepare for such a defense at trial.” Even if the hotel’s answer didn’t place McDowell

on notice that the hotel would assert McDowell’s comparative negligence as a defense, the parties’ 

substantial pretrial discussions over the verdict forms did. Therefore, the court did not abuse its 

discretion in denying McDowell’s Rule 59 motion on this ground.

Second, McDowell argues that the district court improperly interposed sua sponte the 

theory that McDowell was comparatively negligent by breaching a duty he owed to himself. But 

the district court did not raise this theory sua sponte. This was the very theory of negligence that 

the verdict form and accompanying instructions asked the jury to evaluate. The verdict form 

expressly directed the jury to determine whether McDowell was negligent and whether his 

negligence was a proximate cause of his own injuries. The accompanying instructions defined 

negligence as “the failure to use ordinary care.” The next page of the instructions clearly 
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stated: “It was the duty of the plaintiff, in connection with this occurrence, to use ordinary care 

for his own safety and the safety of his property.” As the district court found, these instructions 

“informed the jury that McDowell owed a duty of ordinary care to himself.” McDowell, 2022 WL 

2916675, at *8.

McDowell characterizes the district court’s order as raising a novel argument when, in fact, 

the court was attempting to refocus the parties on the theory of McDowell’s comparative 

negligence that the jury actually decided—whether McDowell’s negligence was a proximate cause 

of his own injuries—and away from the theory of negligence that the jury did not decide—whether 

McDowell’s negligence was a proximate cause of Dorsey’s injuries. As McDowell acknowledges 

in his brief, a Rule 59(e) motion cannot be used to argue a new legal theory. By refocusing the 

parties on whether McDowell’s comparative negligence was a proximate cause of his own injuries, 

the district court was merely trying to give effect to this rule, not interject “a novel and previously 

unasserted legal issue.”

Third, McDowell argues that the court improperly allowed the jury to reduce his damages 

because there is no duty to protect against unforeseeable criminal conduct of a third-party. But 

that is not an accurate statement of Michigan law.

Under Michigan law, there is no general duty to anticipate and prevent criminal activity. 

See, e.g., Graves v. Warner Bros., 656 N.W.2d 195, 202 (Mich. Ct. App. 2002). Michigan law, 

however, recognizes that criminal acts of third parties can be foreseeable in some situations. See 

Dawe v. Bar-Levav & Assocs., 808 N.W.2d 240, 249 (Mich. Ct. App. 2010) (“Courts in Michigan 

have long recognized that criminal acts by third parties can be foreseeable.”); MacDonald v. PKT 

Inc., 628 N.W.2d 33, 40–41 (Mich. 2001) (holding that criminal activity can be foreseeable when 

“specific acts occur[] . . . that pose a risk of imminent and foreseeable harm to an identifiable” 
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individual). For instance, a person can be negligent and held liable for the theft of a borrowed car 

when he fails to lock the car in a high-crime area and leaves the keys in the ignition with the motor 

running. See Davis v. Thornton, 180 N.W.2d 11, 15 (Mich. 1970). Whether the risk of harm from 

third-party criminal activity is foreseeable is generally a question of fact for the jury. See 

MacDonald, 628 N.W.2d at 41; Holland v. Liedel, 494 N.W.2d 772, 774 (Mich. Ct. App. 1992).

The district court denied McDowell’s motion because it found that “[t]he record contains 

sufficient evidence to raise a question of fact regarding the foreseeability of Fowler-Mitchell’s 

crimes and the reasonableness of McDowell’s actions.” McDowell, 2022 WL 2916675, at *9. The 

court identified specific facts that could have supported the jury’s conclusion that McDowell was 

comparatively negligent: the fact that McDowell did not run a background check on 

Fowler‐Mitchell after hiring him off Craigslist, that McDowell invited Fowler-Mitchell inside his 

motel room and displayed a large amount of cash in front of him, and that McDowell did not call 

the police, seek help, or otherwise take action after Fowler-Mitchell called him three times, and 

pounded on his door in the middle of the night with strangers flanking him.

McDowell counters that he was not comparatively negligent because there is not a “scintilla 

of evidence” that he had prior knowledge of Fowler-Mitchell’s propensity to engage in criminal 

activity. But while this lack of knowledge may have been one relevant consideration the jury could 

have weighed, it was not the only one. Ultimately, the foreseeability of Fowler-Mitchell’s criminal 

conduct and whether McDowell exercised due care under the circumstances were questions for the 

jury. See Rodis v. Herman Kiefer Hosp., 370 N.W.2d 18, 20 (Mich. Ct. App. 1985). The district 

court did not abuse its discretion in determining that there was no clear error of law or fact that 

would warrant overriding the jury’s decision to reduce McDowell’s damages as a result of his 

comparative negligence.
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C.

Dorsey appeals the district court’s decision to grant the hotel’s Rule 50(b) motion to 

dismiss Dorsey’s award for future non-economic damages.

At trial, the hotel argued that the plaintiffs had presented no evidence of their life 

expectancies and thus that the court should not permit the plaintiffs to seek future non-economic 

damages under Michigan law. To be “fair and equitable” on this damages issue, the district court 

chose to limit the plaintiffs’ ability to seek future non-economic damages to three years. The jury 

awarded Dorsey $36,000 in future non-economic damages—$12,000 per year for the three years. 

After trial, the hotel challenged this award, renewing its argument that no evidence in the record 

supported it. The district court agreed that its earlier ruling was in error. The court explained that 

“[w]ithout testimony as to life expectancy or judicial notice of Dorsey’s life expectancy, the jury 

was left to speculate as to whether Dorsey would experience symptoms in the future and how long 

he would live.” McDowell, 2022 WL 2916675, at *14. We affirm the district court’s order given 

the “complete absence of proof” regarding Dorsey’s life expectancy. See Karam v. Sagemark 

Consulting, Inc., 383 F.3d 421, 427 (6th Cir. 2004). 

In Michigan, “[a] plaintiff must prove damages with reasonable certainty; speculative 

damages, or those based on conjecture, are not generally recoverable.” Vehicle Dev. Corp. PTY 

Ltd. v. Livernois Vehicle Dev., L.L.C., 995 F. Supp. 2d 758, 773 (E.D. Mich. 2014) (applying 

Michigan law); see also Health Call of Detroit v. Atrium Home & Health Care Servs., Inc., 706 

N.W.2d 843, 852 (Mich. Ct. App. 2005); Kubicek v. J. Walter Thompson U.S.A., Inc., 902 F.2d 

33, at *5 (6th Cir. 1990) (Table). The jury must make specific findings on the future damages the 

plaintiff is likely to suffer for each future year they award damages for, as opposed to a lump sum. 
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See Mich. Comp. Laws § 600.6305(1)(b). Thus, a non-speculative award of future lifetime 

damages necessarily requires the jury to determine the plaintiff’s life expectancy.

Here, there was no evidence at trial to establish Dorsey’s life expectancy. The plaintiffs 

withdrew one of their expert witnesses, and the district court struck the other expert witness who 

was slated to testify to Dorsey’s life expectancy and future damages. And the plaintiffs made a 

strategic decision to withdraw their motion to take judicial notice of life expectancy tables because 

that would have opened the door to admitting evidence about the plaintiffs’ alleged drug and 

alcohol use and prior convictions.

To be sure, the district court limited future non-economic damages to three years, and it 

might not take much to convince a reasonable juror that the average person in his forties will live 

for that short period. But the district court seemed to arbitrarily pick this three-year number 

without any basis in the evidence or Michigan law. Regardless, Dorsey has not claimed on appeal 

(as he argued below) that the jury could use its “experience with everyday life” in deciding how 

long a person would live. 

Instead, Dorsey argues only that no evidence of life expectancy was needed because of the 

legal presumption that a missing person is dead after an absence of five continuous years during 

which he or she has not been heard from. But Dorsey cannot merely point to an abstract legal 

presumption from Michigan’s estate code to make the requisite showing that it was reasonably 

certain that Dorsey would sustain future non-economic damages for a certain period. See Kubicek, 

902 F.2d at *5 (citing Clissold v. St. Louis–San Francisco Ry. Co., 600 F.2d 35, 39 (6th Cir. 1979)

(holding that damages for future consequences of an injury are recoverable only if there is “such 

a degree of probability of such consequences as to amount to [a] reasonable certainty that they will 
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result”)). Without any evidence of Dorsey’s life expectancy, the jury’s award was mere conjecture. 

Id. Dorsey’s motion fails.

D.

Finally, plaintiffs argue that the district court erred by awarding the hotel $17,105 in Rule 

37 discovery sanctions for plaintiffs’ failure to timely disclose the report of their economic expert 

witness, Barry Grant. That report concluded that plaintiffs would sustain $6 million in present and 

future lost wages.1

We review the court’s decision to impose Rule 37 sanctions for an abuse of discretion. 

Bisig v. Time Warner Cable, Inc., 940 F.3d 205, 218 (6th Cir. 2019); McCarthy v. Ameritech Pub., 

Inc., 763 F.3d 488, 490 (6th Cir. 2014). An abuse of discretion occurs when the court relies on

clearly erroneous findings of fact, improperly applies the law, or uses an erroneous legal standard. 

Bisig, 940 F.3d at 218. To reverse the sanctions order, we must be left with a “definite and firm 

conviction that the trial court committed a clear error of judgment.” Id. We hold that the district 

court acted within its discretion in imposing sanctions.

Rule 37(c)(1)(A) permits a court to order payment of the reasonable expenses caused by a 

party’s failure to timely disclose expert witness materials. Here, expert disclosures were due on 

September 18, 2020, but the plaintiffs did not disclose Grant’s expert report until February 14, 

2022, mere days before trial was to begin. The trial date was later postponed to March 22, 2022.

Upon the plaintiffs’ untimely disclosure, the hotel moved to strike Grant as an expert 

witness, along with his expert report. While its motion to strike was pending, the hotel deposed 

Grant on March 17, because trial was set to begin a few days later. Then, on March 18, at a pretrial 

1We granted plaintiffs’ motion to raise this argument in a corrected second brief over the hotel’s 

objection. See Doc. 32.
Nos. 22-1740/1764, McDowell v. Livonia Hotel Business, Inc.

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conference, plaintiffs agreed not to call Grant as a witness because they decided to waive their 

request for future economic damages. In a pretrial order, the district court ordered plaintiffs’ 

counsel to pay the hotel’s reasonable expenses, including attorney’s fees, caused by their failure 

to timely disclose Grant’s expert report.

The district court rejected plaintiffs’ argument that their untimely disclosure was harmless

because the hotel would have expended the same amount regardless of when the report was 

disclosed. Specifically, the district court found that Grant’s report “led Defendants into a fren[z]y 

trying to adequately prepare for and complete Grant’s deposition a month before trial” and that the 

“late disclosure caused them to spend more time and money on the process of researching the law 

and facts regarding Plaintiffs’ work history; researching and drafting the motion to strike; 

reviewing and fact checking Plaintiffs’ expert’s files and reports, which totaled closed to 1,000 

pages; and preparing for and completing Grant’s six-hour discovery deposition.” McDowell, 2022 

WL 2916675, at *19. The court found that the late disclosure “made the matter much more urgent, 

time consuming, and expensive as trial loomed less than a month away.” Id. The court found that 

all the fees the hotel requested were caused by plaintiffs’ failure to timely disclose the expert 

report. The court further held that the expenses defendants requested were reasonable, relying on 

the familiar “lodestar” approach, under which a court multiplies the reasonable number of hours 

billed by a reasonable billing rate prevailing in the community for similar services by lawyers of 

reasonably comparable skill and experience. Id. (citing Disabled Patriots of Am., Inc. v. Taylor 

Inn Enters., Inc., 424 F. Supp. 2d 962, 965 (E.D. Mich. 2006); Fuhr v. Sch. Dist. of Hazel Park, 

364 F.3d 753, 762 (6th Cir. 2004)).

The district court’s finding that the hotel’s expenses were directly tied to the plaintiffs’

untimely disclosure was well reasoned and grounded in the record. It was not clearly erroneous. 
Nos. 22-1740/1764, McDowell v. Livonia Hotel Business, Inc.

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See Jackson by Jackson v. Nissan Motor Corp., 888 F.2d 1391, at *5 (6th Cir. 1989) (per curiam); 

see also First Bank of Marietta v. Hartford Underwriters Ins. Co., 307 F.3d 501, 517 n.13 (6th 

Cir. 2002).

Plaintiffs argue that they disclosed Grant’s report as soon as they received it and that they 

could not have produced the testimony any earlier. But plaintiffs offer no reason why they did not 

request the report from their expert sooner to comply with the court’s deadline and their obligation 

under Rule 26(a)(2)(b). The plaintiffs had years between the time they designated Grant as an 

expert witness and the start of trial to follow up with Grant to obtain the report he planned to use 

to support his testimony at trial. Cf. Howe v. City of Akron, 801 F.3d 718, 749–50 (6th Cir. 2015)

(holding that the plaintiffs’ late disclosure was understandable because it was the result of a 

discovery period that was a “rushed, confusing nightmare” and because the district court caused 

many of the problems that led to the late disclosure). The remainder of plaintiffs’ arguments 

concerning the secret motives of the trial court for assessing sanctions are too speculative to 

warrant relief.

* * *

We AFFIRM.