Yost v. Wilhoit

MEMORANDUM AND ORDER

Debra C. Poplin United States Magistrate Judge

This case is before the undersigned pursuant to 28 U.S.C. § 636(c), Rule 73(b) of the Federal Rules of Civil Procedure, and the consent of the parties, for all further proceedings, including entry of judgment [Doc. 20].

The parties appeared before the Court on November 15, 2021, for a scheduled pretrial conference. Attorneys Edward Kershaw and Francis Santore, Jr., appeared on behalf of Plaintiffs. Attorneys Benjamin Lauderback and Brian Bibb appeared on behalf of Defendants. During the pretrial conference, the parties presented oral arguments on Defendant's Motions in Limine [Docs. 113-115]. The parties agreed that the Court's Memorandum and Order [Doc. 124] mooted Defendant's Motion in Limine [Doc. 114], and therefore, the Court DENIES AS MOOT Motion in Limine No. 2 [Doc. 114]. Accordingly, for the reasons stated below, the Court GRANTS IN PART AND DENIES IN PART Defendant's Motions in Limine [Docs. 113, 115]. Specifically, the Court will exclude evidence regarding Alan Yost's lost wage claim but will allow Plaintiffs to present testimony regarding their emotional distress damages.

Defendant's remaining Motions in Limine [Docs. 113, 115] request that the Court preclude Plaintiffs from presenting evidence of their damages in this case. Specifically, in Motion in Limine

No. 1 [Doc. 113], Defendant states that the Court should instruct the jury that it can only award nominal damages for Plaintiffs' claims. For grounds, Defendant asserts that Plaintiffs never served initial disclosures, despite the mandatory language in Federal Rule of Civil Procedure 26(a) to provide a computation of each category of damages claimed. Defendants state that Rule 37(c) mandates exclusion and that Plaintiffs should be barred from presenting evidence of damages, including lost wages, lost income, or damages of any kind.

Defendant's Motion in Limine [Doc. 115] specifically requests exclusion of Alan Yost's claim for lost wages for similar reasons.^[1] Defendant explains that in response to discovery, Alan Yost stated that he had lost his job with One Communications, which paid approximately $65, 000 per year, plus living expenses. [Doc. 115-1 at 3]. In addition, Alan Yost produced an unauthenticated document, which states that Alan Yost was hired by One Communications and that his pay was based on production work. [Doc. 115-2].

Plaintiffs respond [Doc. 118] that mental distress, humiliation, loss of reputation, and other general pain and suffering are largely unquantifiable and must be left to the jury. Plaintiffs intend to claim damages for emotional distress and lost wages, which they argue were addressed through written discovery and depositions. Plaintiffs further state that the Court may limit the scope of Alan Yost's testimony regarding his lost wages but argue there is no basis to exclude such evidence in its entirety.

Defendant replies [Docs. 130, 131] that the Court dismissed Plaintiffs' emotional distress claim, which means that the only damages Plaintiffs can claim are lost wages. Defendant states

that it is undisputed that neither Keaton Yost nor Kameron Yost have a lost wage claim. Defendant maintains that none of the Plaintiffs submitted a computation and that Alan Yost failed to supplement his discovery responses regarding lost wages as required by the Rules. Defendant also asserts that during Alan Yost's deposition, it was evident that he did not have personal knowledge about his lost wage claim.

During the pretrial conference, Plaintiffs agreed that neither Keaton Yost nor Kameron Yost has a claim for lost wages. With respect to Alan Yost's claim for lost wages, Plaintiffs acknowledge that he did not submit initial disclosures, and therefore, did not provide a computation. The Court notes that Defendant served Alan Yost with a Second Request for Production of Documents (“RFP”), requesting that he itemize all lost wages and other economic damages claimed as a result of the incident, setting out the specific amount for each and the timeframe for all. Alan Yost responded as follows:

The Plaintiff lost his employment with One Communications, which paid approximately $65, 000 per year plus living expenses. It was expected that such employment would continue for 18 months. The Plaintiff as unable to find comparable work despite his efforts to do so as identified in the prior responses to discovery.

[Doc. 115-1 at 3]. Defendant also requested “any and all documents” related to Plaintiffs' individual claims for damages. [Doc. 131 at 2]. In response, Alan Yost provided an undated letter, from the construction manager of One Communications, stating that Alan Yost had been hired as a contract employee and that his pay was based on production work. [Doc. 115-2]. The letter explains that Alan Yost will be a major contributor to Bermuda's network upgrade, which is scheduled to be completed within the next 18 months. [Id.]. Finally, during his deposition, Alan Yost stated that he could not calculate his lost wages without a calculator and that he did not have pay stubs from his employer because the money was directly deposited into his bank account.

[Doc. 115-3 at 2-3]. Alan Yost testified that in order to provide a figure for lost wages, he would need to look at his hours and use a calculator. [Doc. 115-3 at 5]. He explained that on average, he worked 55 to 65 hours, and he was paid $65 per hour. [Id.]. He continued that his lowest paycheck for three (3) days was $4, 300 or $4, 500. [Id.]. Alan Yost also explained that when he worked for One Communications, he would work for thirty (30) days and then be off for seven (7) to ten (10) days. [Doc. 131-2 at 2].

In the instant matter, the Court agrees with Defendant. Rule 26 requires a party to provide the opposing party “a computation of each category of damages claimed” as well as “the documents or other evidentiary material . . . on which each computation is based, including materials bearing on the nature and extent of injuries suffered.” Bessemer & Lake Erie R.R. Co. v. Seaway Marine Transp., 596 F.3d 357, 366-67 (6th Cir. 2010) (quoting Fed.R.Civ.P. 26(a)(1)(A)(iii)). Courts have explained that the “documentation and evidence required by Rule 26 must be sufficient to allow the opposing party to ‘independently analyze' the claim.” Champion Foodservice, LLC v. Vista Food Exch., Inc., No. 1:13-CV-1195, 2016 WL 4468000, at *5 (N.D. Ohio Aug. 23, 2016) (citing Bessemer, 596 F.3d at 370). Rule 26(e) places an ongoing duty on parties to supplement disclosures. Fed.R.Civ.P. 26(e).

Should a party fail to provide information as required under Rule 26(a) or (e), the party is not allowed to use that information at trial unless the failure was substantially justified or is harmless. Fed.R.Civ.P. 37(c). Courts have explained, “Federal Rule of Civil Procedure 37(c)(1) requires absolute compliance with Rule 26(a); that is, it ‘mandates that a trial court punish a party for discovery violations in connection with Rule 26 unless the violation was harmless or is substantially justified.'” Hunt v. Hadden, 127 F.Supp.3d 780, 789 (E.D. Mich. 2015), aff'd, 665 Fed.Appx. 435 (6th Cir. 2016) (quoting Roberts ex rel. Johnson v. Galen of Virginia, Inc., 325 F.3d 776, 782 (6th Cir. 2003)).

The burden is on the potentially sanctioned party to prove harmlessness. Id. (citing Roberts ex rel. Johnson, 325 F.3d at 782).

As mentioned above, it is undisputed that Alan Yost did not provide initial disclosures, and therefore, he never provided a computation for lost wages with supporting documents. Alan Yost does not specifically argue that his failure to make initial disclosures is harmless or substantially justified; however, he argues that in response to RFP No. 8, he stated that he lost his employment with One Communications, which...