Amber Reineck House v. City of Howell

1

AMBER REINECK HOUSE, COURTNEY ATSALAKIS, and FAIR HOUSING CENTER OF SOUTHEAST & MID MICHIGAN, INC., Plaintiff, v. CITY OF HOWELL, MAYOR NICK PROCTOR, and TIM SCHMITT, Defendants.

No. 20-10203

United States District Court, E.D. Michigan, Southern Division

September 29, 2021

Paul D. Borman, United States District Judge

REPORT AND RECOMMENDATION ON MOTIONS TO EXCLUDE EXPERTS (ECF Nos. 42, 43, 45, 46, 47, 49)

Curtis Ivy, Jr., United States Magistrate Judge

I. BACKGROUND

A. Procedural History

Plaintiffs Amber Reineck House, Courtney Atsalakis, and Fair Housing Center of Southeast and Mid-Michigan, Inc., filed this civil rights case alleging violations of the Fair Housing Act (“FHA”), the Americans with Disabilities Act (“ADA”), and Michigan's Persons with Disabilities Civil Rights Act (“PWDCRA”) on January 27, 2020. (ECF No. 1). On June 16, 2021, Plaintiffs and Defendants filed motions to exclude experts. These motions were referred to the undersigned for report and recommendation. (ECF No. 50). The undersigned held a hearing on the motions on September 14, 2021. The matter is now ready for report and recommendation.

For the reasons discussed below, the undersigned RECOMMENDS Defendants' Motion to Exclude Jeffery Van Treese (ECF No. 42) be GRANTED, Plaintiffs' Motion to Exclude Patrick O'Keefe (ECF No. 43) be GRANTED IN PART, Plaintiffs' Motion to Exclude Richard Carlisle (ECF No. 45) be GRANTED, Plaintiffs' Motion to Exclude Rodney Arroyo (ECF No. 46) be GRANTED IN PART, Defendants' Motion to Exclude Brian Connolly (ECF No. 47) be DENIED, and Plaintiffs' Motion to Exclude Gerald Fisher (ECF No. 49) be GRANTED.

B. Factual Background

Plaintiff Courtney Atsalakis founded nonprofit organization plaintiff Amber Reineck House (“ARH”) in her sister, Amber Reineck's memory. Due to a controlled substance overdose, Plaintiff's sister perished on December 24, 2015. Plaintiff Atsalakis founded ARH for the purpose of acquiring residential properties located in Michigan that would subsequently provide housing and support services to women seeking recovery from substance abuse disorders. Plaintiff Fair Housing Center of Southeast and Mid-Michigan, Inc. (“FHC”), is a nonprofit organization aimed at ending discrimination in housing and public accommodations. On February 20, 2018, Atsalakis purchased a single-family residential property located at 304 South Walnut Street in Howell, Michigan (“304 South Walnut” or “the property”). At the time of the purchase, her intent was to promptly sell the property to ARH which would later establish an affordable, eight-resident transitional living home for women in recovery from substance use disorders. (ECF No. 14, PageID.127, at ¶ 5).

To state Plaintiffs' claims generally, Plaintiffs accuse the defendants of blocking the establishment of ARH at 304 South Walnut from April 2018 to the filing of the amended complaint on March 17, 2020.

304 South Walnut is located in an area of the City of Howell zoned for single family occupancy. Therefore, Atsalakis submitted an application for a Special Use Permit (“SUP”) to Howell's Planning Commission on April 9, 2018, requesting approval to use the property as a sober living home for eight residents. (Id. at PageID.137, at ¶ 37-38). Howell's Community Development Director, defendant Tim Schmitt, sent a letter to Atsalakis confirming receipt of the SUP application. In the letter Schmitt further advised that the SUP would be considered at an upcoming meeting of the Planning Commission, but in the meantime the property could not be used as anything other than a single-family home for Atsalakis and her immediate family. Schmitt also recognized unrest in the community regarding the proposed establishment of the sober living home, including rumors that residents had already moved in or would do so soon. (Id. at PageID.137-38, at ¶ 39-40). Between April 2018 and March 2020, Plaintiffs were informed through news articles, social media, and by Schmitt of community members' disagreement over the proposed plan to house women recovering from addiction at 304 South Walnut.

During May 2018, Howell's city planning consultant, Richard Carlisle, confirmed Schmitt's decision to treat the proposed use of the property as similar to adult foster care homes in evaluating the SUP application. According to ARH, if it had six or fewer residents living at 304 South Walnut, like adult foster care homes, ARH's use of the property would be permitted as of right. (Id. at PageID.142, at ¶ 51). In response to this assessment, during June 2018, Atsalakis announced her intention to have only six residents housed at the property and withdrew the April 9, 2018, special use permit accordingly. (Id. at PageID.144, at ¶ 54). Atsalakis was unaware of her right to submit a request for a reasonable accommodation from existing zoning requirements for the proposed use of the property because Howell's zoning ordinance did not contain a process for such an accommodation.

Subsequently, Schmitt emailed Atsalkis and revealed Howell required a copy of the State license for the facility to qualify for the exception from the single-family zoning requirement for homes with six or fewer residents, similar to adult foster care homes. As Michigan did not require sober homes to be licensed, Atsalakis was unable to meet this request. (Id. at PageID.144, at ¶ 57). In response to community opposition, on June 22, 2018, Schmitt recommended defendant Mayor Nick Proctor and the Howell City Council institute a one-year moratorium on applications for special land use permits. (Id. at PageID.147, at ¶¶63-64). The City later imposed a 12-month moratorium commencing July 23, 2018 and terminating July 22, 2019. (Id. at PageID.149, at ¶ 67). The moratorium was extended on a few occasions, ultimately to March 23, 2020. (Id. at PageID.159, at ¶ 98). During the moratorium, several proposed ordinance amendments were circulated. These proposed amendments, according to Plaintiffs, would have the effect of keeping sober living homes out of single-family residential neighborhoods. (Id. at PageID.150-51, 156-58).

On September 27, 2019, Atsalakis submitted a request to Howell for (1) the city to waive its requirements for special land uses to permit operation of the six-resident sober living home as a reasonable accommodation for disabled persons, and (2) an exception to the moratorium as a reasonable accommodation to permit ARH to begin operations as an ordinary rental property allowed as of right under the ordinance (as if it were an adult foster care facility). (Id. at PageID.152-53, at ¶ 78). The request was denied October 3, 2019. Atsalakis was informed she would be required to apply under the proposed ordinance following its adoption. (Id. at ¶ 79).

The city held a public hearing on January 15, 2020, during which the latest proposed ordinance amendment was considered. Defendant Proctor made remarks indicating his desire to adopt the amendment and suggested any legal issues be addressed in subsequent lawsuits. (Id. at PageID.158-59, at ¶¶ 95-96). The amended zoning ordinance (the “2020 zoning ordinance”) was adopted on March 9, 2020. (Id. at PageID.160, at ¶ 99). According to Plaintiffs, the 2020 zoning ordinance “imposes conditions on sober living home applicants that impose significant financial and logistical burdens on those applicants[.]” (Id. at PageID.160, at ¶ 100).

Plaintiffs claim economic and non-economic damages due to Defendants' alleged stalling concerning consideration of the application for special use permit and imposing the moratorium, enactment of the allegedly discriminatory 2020 zoning ordinance, and otherwise preventing ARH from operating at 304 South Walnut.

Plaintiffs filed motions to exclude four of Defendants' designated experts; Defendants filed motions to exclude two of Plaintiffs' designated experts. (ECF Nos. 42, 43, 45, 46, 47, 49). Each will be addressed in turn.

II. LEGAL STANDARDS

Federal Rule of Evidence 702 requires the trial judge to perform a “gatekeeping role” when considering the admissibility of expert testimony. Daubert v. Merrell Dow Pharm. Inc., 509 U.S. 579, 597 (1993). The rule provides as follows:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:

(a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;

(b) the testimony is based on sufficient facts or data;

(c) the testimony is the product of reliable principles and methods; and

(d) the expert has reliably applied the principles and methods to the facts of the case.

Fed. R. Evid. 702. The United States Supreme Court has established that Rule 702 requires district courts to ensure that expert testimony “rests on a reliable foundation and is relevant to the task at hand.” Daubert, 509 U.S. at 597; see also Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152 (1999) (expanding Daubert's analysis of expert scientific testimony to cover expert testimony based on “technical” and “other specialized knowledge”). The Sixth Circuit has described the district court's gatekeeping function under Daubert as an “obligation . . . to exclude from trial expert testimony that is unreliable and irrelevant.” Conwood Co., L.P. v. U.S. Tobacco Co., 290 F.3d 768, 792 (6th Cir. 2002) (internal quotation marks omitted).

The gatekeeping role progresses in three steps. First, the witness must be qualified according to his or her “knowledge, skill, experience, training, or education.” In re Scrap Metal Antitrust Litig., 527 F.3d 517, 529 (6th Cir. 2008) (quoting Fed.R.Evid. 702). Second, the expert's testimony must be relevant, in that it will...