GANIYU JAIYEOLA,g Plaintiff, v. TOYOTA MOTOR CORP., et al., Defendants. Case No. 1:17-cv-562 United States District Court, W.D. Michigan, Southern Division Filed August 10, 2018 Counsel Ganiyu Ayinla Jaiyeola, Grand Rapids, MI, pro se. David Lawrence Ayers, Watkins & Eager PLLC, Jackson, MS, Carmen M. Bickerdt, Bowman and Brooke LLP, Bloomfield Hills, MI, for Defendants. Carmody, Ellen S., United States Magistrate Judge CORRECTED ORDER *1 This matter is before the Court on Plaintiff’s Motion to Compel, (ECF No. 94); Defendants’ Motion to Compel, (ECF No. 102); Defendants’ Motion for Summary Judgment, (ECF No. 116); Defendants’ Motion to Strike, (ECF No. 118); Plaintiff’s Motion to Strike, (ECF No. 121); Plaintiff’s Motion for Sanctions, (ECF No. 123); Defendants’ Objection to Plaintiff’s Untimely and Defective Rule 26(a)(1) Supplemental Disclosure, (ECF No. 126); Plaintiff’s Motion to Deny Defendants’ Motion for Summary Judgment as Premature, (ECF No. 128); Plaintiff’s Motion to Compel, (ECF No. 145); Plaintiff’s Motion for Order, (ECF No. 153); and Defendants’ Motion Regarding the Sufficiency of Plaintiff’s Discovery Responses, (ECF No. 160). For the reasons detailed herein, Plaintiff’s motions, (ECF No. 94, 121, 123, 145, and 153), are all denied. Defendants’ Motion to Strike, (ECF No. 118), is granted in part and denied without prejudice in part. Defendants’ Objections to Plaintiff’s 26(a)(1) Disclosure, (ECF No. 126), is granted. Plaintiff’s Motion to Deny Defendants’ Motion for Summary Judgment as Premature, (ECF No. 128), is granted and Defendants’ Motion for Summary Judgment, (ECF No. 116), is denied without prejudice. Defendants’ Motion Regarding the Sufficiency of Plaintiff’s Discovery Responses, (ECF No. 160), is granted in part and denied in part. Defendants’ Motion to Compel, (ECF No. 102), is granted in part and denied in part. I. Plaintiff’s Motion to Compel - (ECF No. 94) Plaintiff has sued Toyota Motor Corporation and Aisan Industry Co., Ltd. asserting product liability claims arising from a motor vehicle accident. During the course of discovery, Plaintiff sought from Toyota, a Japanese corporation, certain documents. The documents were produced to Plaintiff who now moves the Court to order Defendants to translate the documents in question from Japanese to English. Federal Rule of Civil Procedure 34(b)(2)(E)(i) expressly provides that “[a] party must produce documents as they are kept in the usual course of business or must organize and label them to correspond to the categories in the request.” Defendants have submitted evidence that the documents in question were produced to Plaintiff “as they are kept in the usual course of business of [Toyota Motor Corporation].” (ECF No. 100-2 at PageID.1389). Plaintiff has presented no evidence suggesting otherwise. Instead, Plaintiff is improperly seeking to transfer the cost of litigating his claims to Defendants. Accordingly, Plaintiff’s motion is denied. II. Defendants’ Motion for Summary Judgment – (ECF No. 116, 128) On January 3, 2018, the Court entered a Case Management Order providing, in part, that discovery was to be completed by August 22, 2018. (ECF No. 34). On June 6, 2018, more than two months before the close of discovery, Defendants filed a motion for summary judgment. Plaintiff asserts that he cannot properly respond to Defendants’ motion because discovery is still ongoing. Although Plaintiff has neither cited Federal Rule of Civil Procedure 56(d) nor expressly complied with the requirements of this Rule, the Court finds Plaintiff’s pleading in response, (ECF No. 128), to be in substantial compliance with Rule 56(d). Accordingly, the Court grants Plaintiff’s motion, (ECF No. 128), and denies without prejudice Defendants’ motion for summary judgment, (ECF No. 116). *2 The Court recognizes that Plaintiff recently submitted a response to Defendants’ Motion for Summary Judgment. (ECF No. 179-81). However, Plaintiff has not moved to withdraw his motion to dismiss Defendants’ Motion for Summary Judgment as premature. Moreover, discovery is still ongoing. Accordingly, Plaintiff’s response, (ECF No. 179, 180, 181), will be stricken from the record. In the event Defendants file another dispositive motion after the close of discovery, Plaintiff will be permitted to respond thereto as permitted by the applicable rules of civil procedure. III. Defendants’ Motion to Strike - (ECF No. 118) Pursuant to the Court’s Case Management Order, and subsequent extensions, Plaintiff was required to identify his expert witnesses no later than May 3, 2018. (ECF No. 34, 91). On May 3, 2018, Plaintiff identified two potential expert witnesses: (1) John Stilson, and (2) Star Thomas. (ECF No. 118-2 at PageID.1658-62). Defendants now move to strike Plaintiff’s expert witnesses thereby precluding them from testifying as expert witnesses at trial. A. John Stilson Plaintiff asserts that Mr. Stilson is an expert on the type of vehicle at issue in this case. Plaintiff further asserts that he cannot afford to pay Mr. Stilson for his services and, therefore, intends to introduce into evidence in the present matter testimony Mr. Stilson offered in a 2010 lawsuit tried in a Minnesota federal court. Plaintiff asserts that “a party may admit prior expert testimony in place of live testimony at trial.” Plaintiff has failed, however, to identify authority that supports this proposition. In his Rule 26 disclosures, Plaintiff asserts that Hanson v. Parkside Surgery Center, 872 F.2d 745 (6th Cir. 1989), supports his intention to simply introduce Stilson’s testimony from a previous action. The Hanson decision, however, does not support Plaintiff’s position. In Hanson, the court discussed Federal Rule of Civil Procedure 32 which addresses the circumstances in which a party may use a deposition in a court proceeding. Id. at 850. In his response to the present motion, Plaintiff again incorrectly cites to Rule 32 in support of his position. Plaintiff is not seeking to introduce a deposition, however. Furthermore, even if Rule 32 applied to the introduction of prior trial testimony, Plaintiff has failed to demonstrate that Rule 32(a)(1) is satisfied. As Defendants correctly assert, to permit Stilson’s prior trial testimony to be admitted in the present action would violate Federal Rules of Evidence 801-802 which prohibit, generally, the introduction at trial of an out-of-court statement offered for the truth of the matter asserted. Plaintiff has not identified, and the Court cannot discern, an exception to the rule against hearsay that would apply to permit the introduction of Stilson’s prior testimony in this matter. See Fed. R. Evid. 803-804. Accordingly, Defendants’ motion to strike Stilson as an expert witness in this matter is granted. B. Star Thomas In his Rule 26 disclosures, Plaintiff asserts that Thomas is the police officer that arrived at the scene of the accident which gives rise to this action. Thomas thereafter completed a State of Michigan Traffic Crash Report regarding the accident. (ECF No. 118-5 at PageID.1696-97). Thomas also appears to have subsequently authored a document entitled “Accident Investigation and Accident Reconstruction Opinion.” (ECF No. 118-9 at PageID.1766). Plaintiff asserts that he intends to question Thomas at trial concerning “the accident investigation and reconstruction for this case.” Defendants argue that Thomas should not be permitted to testify as an expert witness in this case because Plaintiff failed to provide “a summary of the facts and opinions to which [Thomas] is expected to testify.” *3 The Court disagrees that Plaintiff failed to identify the facts and opinions to which Thomas would testify. In his Rule 26 disclosures, Plaintiff specifically referenced the State of Michigan Traffic Crash Report and Accident Investigation and Accident Reconstruction Opinion discussed above. In these two documents, Thomas recorded and identified numerous facts surrounding the accident in question. As for her opinions, Thomas expressly states in her Accident Investigation and Accident Reconstruction Opinion the following: My opinion is that the crash occurred due to the driver of this vehicle travelling too fast for the weather and conditions of the roadway. (ECF No. 118-9 at PageID.1766). The Court further notes, however, that Thomas also stated in this Opinion that she is “not trained as an accident reconstructionist.” (ECF No. 118-9 at PageID.1766). Thus, Plaintiff is precluded from eliciting from Thomas expert testimony on the subject of accident reconstruction. Whether Thomas is or can be qualified as an expert in the area of accident investigation has not yet been established, however. In sum, Plaintiff is precluded from eliciting at trial expert testimony from Thomas on the subject of accident reconstruction. In this respect, therefore, Defendants’ motion is granted. With respect to the topic of accident investigation, however, Defendants’ motion is denied without prejudice. This does not mean that Thomas will absolutely be permitted to testify as an expert at trial on the subject of accident investigation, only that if Plaintiff can establish that Thomas satisfies the requirements of the Federal Rules of Evidence (and any other applicable authority) to testify as an expert, Plaintiff may be permitted to elicit from Thomas expert testimony concerning the facts and opinion contained in the State of Michigan Traffic Crash Report and Accident Investigation and Accident Reconstruction Opinion discussed above. Finally, the Court has no opinion at this juncture whether either of these documents are admissible, as the present motion only concerns whether Thomas is to be excluded from testifying as an expert witness. Accordingly, Defendants’ motion is granted in part and denied in part. IV. Plaintiff’s Motion to Strike – (ECF No. 121) Defendants are represented in this matter by David Ayers, a Mississippi attorney who has never before appeared in this Court, and Carmen Bickerdt, a Michigan attorney who was admitted to practice in this Court several years ago. In his motion, Plaintiff alleges the following. On May 16, 2017, Defendants were permitted to inspect the vehicle involved in the accident giving rise to this action. Defendants were represented at the inspection by Mr. Ayers. On December 14, 2017, Plaintiff again interacted with Mr. Ayers during a telephone conference. On December 22, 2017, the Court conducted a Rule 16 Scheduling Conference at which Plaintiff, Ms. Bickerdt, and Mr. Ayers appeared. Plaintiff objects to Mr. Ayers participation in these various matters on the ground that Mr. Ayers did not formally secure admission to this Court until after the December 22, 2017 Rule 16 Scheduling Conference. Plaintiff requests that the Court “strike any evidence or activity in this case that Mr. David Ayers was involved with Before December 20, 2017.” Plaintiff further requests that the Court remove Mr. Ayers from this case for “misconduct” and sanction Defendants for permitting Mr. Ayers to participate in this case before he was properly admitted to this Court. Plaintiff has identified no authority supporting his motion or requested relief. Moreover, the Court discerns no basis to afford Plaintiff the requested relief. The rule that an attorney be admitted to this Court before appearing before it does not preclude an attorney from practicing law. Mr. Ayers did not appear before the Court, or submit anything to the Court, prior to the December 22, 2017 Scheduling Conference. Thus, there was nothing improper about Mr. Ayers attending the vehicle inspection or participating in a telephone conference with Plaintiff. *4 While Mr. Ayers arguably should have secured his formal admittance to this Court prior to attending the Scheduling Conference, the Court regularly permits attorneys to participate in such conferences prior to being admitted to the Court, provided they timely thereafter secure their admission which Mr. Ayers accomplished. Moreover, Plaintiff was not prejudiced by Mr. Ayers’ participation in the Scheduling Conference. Plaintiff’s motion is, therefore, denied. V. Plaintiff’s Motion for Sanctions – (ECF No. 123) On July 21, 2017, Plaintiff filed a pleading “notifying” the Court that attorneys representing Defendants “viewed Plaintiff’s LinkedIn internet profile without authorization.” (ECF No. 13). Plaintiff alleged that this conduct violated the Federal Stored Communications Act. On June 8, 2018, Plaintiff filed a “Motion to Remind the Court to Rule on Plaintiff’s Motion (ECF No. 13).” (ECF No. 123). The Court notes that Plaintiff’s July 21, 2017 filing was not styled as a motion, thus it was not considered as such. Nevertheless, the Court interprets Plaintiff’s June 8, 2018 motion as incorporating by reference his previously filed pleading. The Stored Communications Act (SCA), 18 U.S.C. §§ 2701-2712, “governs the various circumstances under which [an electronic communication] service provider may divulge the contents of certain electronic communications or disclose other subscriber or customer records and information.” Long v. Insight Communications of Central Ohio, LLC, 804 F.3d 791, 794 (6th Cir. 2015). Neither Defendants nor the individuals alleged to have viewed Plaintiff’s LinkedIn profile are electronic communication service providers as defined by the SCA. As such, the SCA has no applicability in the present circumstance. Plaintiff’s motion is, therefore, denied. VI. Plaintiff’s Motion to Compel – (ECF No. 145) As noted above, this is a products liability action involving a Toyota motor vehicle. Plaintiff asserts that the cause of the accident giving rise to this action was an air cleaner hose which comprises part of the throttle control system. Plaintiff now moves the Court to compel Defendants to perform a “failure analysis test” on this particular automotive part. Plaintiff has identified no authority supporting the proposition that Defendants are in any way obligated, or can properly be compelled, to prosecute Plaintiff’s case for him. To the contrary, Plaintiff cannot simply “demand that [Defendants] perform any tests of [Plaintiff’s] specification.” American Water Heater Co. v. Taylor Winfield Corp., 2017 WL 7732713 at *2 (E.D. Tenn., Nov. 17, 2017). Plaintiff was permitted to conduct tests on the part in question. See Fed. R. Civ. P. 34(a)(2). Plaintiff has failed to demonstrate that any efforts on his part to conduct tests on the part in question were denied or otherwise thwarted. Accordingly, Plaintiff’s motion is denied. VII. Plaintiff’s Motion for Appointment of Expert – (ECF No. 153) Federal Rule of Evidence 706 permits the Court to appoint an expert witness. Citing this Rule, Plaintiff requests that the Court “appoint a neutral expert witness for this case.” The decision to appoint an expert under Rule 706 “rests solely in the Court’s discretion, informed by such factors as the complexity of the matters to be determined and the fact-finder’s need for a neutral, expert view.” Peterson v. Burris, 2015 WL 7755402 at *2 (E.D. Mich,. Dec. 2, 2015). However, appointment of an expert under this Rule should be “rare” and undertaken only in “exceptional cases.” Ibid. Plaintiff has had ample opportunity to secure the services of expert witnesses in this matter. Plaintiff has failed to persuade the Court that appointment of an expert is necessary or appropriate. Accordingly, Plaintiff’s motion is denied. VIII. Defendants’ Motion to Compel – (ECF No. 160) *5 On or about June 6, 2018, Defendants submitted to Plaintiff their First Request for Admissions. (ECF No. 160-2 at PageID.2698-2701). Attached to this discovery request were certain medical records concerning Plaintiff’s treatment by Dr. John Winestone. Defendants requested that Plaintiff admit that: (1) the attached documents are “true and correct copies” regarding Plaintiff’s treatment by Dr. Winestone, and (2) the information in the attached records “is accurate.” In response, Plaintiff advanced numerous objections and concluded that he “cannot admit or deny this Request and therefore deny it.” (ECF No. 160-3 at PageID.2703-07). Defendants request that the Court strike Plaintiff’s objections and deem the matters in question admitted. In the alternative, Defendants request that the Court order Plaintiff to serve “appropriate amended responses.” While the Court discerns nothing unusual or inappropriate in the subject discovery requests, the Court is sympathetic to the objection, inferred from Plaintiff’s many objections, that Defendant is essentially asking Plaintiff (1) to authenticate documents which he neither created nor maintained, and (2) to render a medical and/or legal opinion regarding the contents of his medical records. Plaintiff does not appear to be taking the position that his medical records cannot be discovered, only that such documents, in a sense, speak for themselves. Accordingly, Plaintiff is hereby ordered to execute an appropriate waiver, to be provided to Plaintiff by Defendants, which authorizes Defendants to obtain from Dr. John Winestone all records, medical and otherwise, regarding or pertaining to Dr. Winestone’s treatment of Plaintiff. Defendant shall serve this waiver on Plaintiff no later than seven (7) days from the date of this Order. Plaintiff shall execute this waiver and return such to Defendants no later than seven (7) days from the date Plaintiff receives the waiver from Defendants. So as to protect Plaintiff’s privacy, the information obtained by Defendants from Dr. Winestone shall be disclosed only to (1) Defendants’ counsel and any individuals assisting counsel in this matter; (2) any individual properly (and necessarily) identified by a Defendant pursuant to Federal Rule of Civil Procedure 30(b)(6); and (3) any relevant expert employed by a Defendant. In the event Plaintiff fails to execute the aforementioned waiver, the requests to admit at issue will be deemed admitted by Plaintiff. Accordingly, Defendants’ motion is granted in part and denied in part. IX. Defendants’ Motion to Compel – (ECF No. 102) On or about December 29, 2017, Defendants served on Federal-Mogul, LLC, a subpoena to produce “any and all employment records” concerning Plaintiff’s employment with Federal-Mogul. (ECF No. 105-1 at PageID.1438). Federal-Mogul objected to this subpoena on numerous grounds, including that Defendants were seeking the production of confidential information. (ECF No. 105-3 at PageID.1448-50). Defendants now move the Court to compel Federal-Mogul to produce the requested information. Federal-Mogul opposes the production of the requested material, but, in the alternative, is willing to do so subject to the entry of an appropriate protective order. Federal Rule of Civil Procedure 45(d)(1) expressly obligates the party issuing a subpoena to “take reasonable steps to avoid imposing undue burden or expense on a person subject to the subpoena.” Requiring a non-party to reveal confidential information the disclosure of which could potentially harm its business and/or subject it unnecessarily to litigation certainly qualifies as “undue expense or burden.” See Volunteer Energy Services, Inc. v. Option Energy, LLC, 2012 WL 13018688 at *1 (W.D. Mich., Feb. 12, 2012). One way to mitigate this problem is to make disclosure of the information in question subject to a protective order. To this end, Defendants and Federal-Mogul have apparently agreed to the entry of just such a protective order. (ECF No. 115-4 at PageID.1534-38). However, it also appears that Plaintiff has refused to sign and be bound by this protective order. While the Court understands that this circumstance likely, and not unreasonably, disturbs Defendants, Plaintiff’s obstinance is not a valid basis to disregard Federal-Mogul’s legitimate concerns, especially when the information sought seems only marginally relevant to the defense of Plaintiff’s claims. *6 Accordingly, to the extent Defendants seek to compel Federal-Mogul to disclose the requested information in the absence of a protective order acceptable to Federal-Mogul, Defendants’ motion is denied. To the extent Defendants seek to compel Federal-Mogul to disclose the requested information subject to a protective order acceptable to Federal-Mogul and Plaintiff, such as the one cited above, Defendants’ motion is granted. In the event that Defendants and/or Federal-Mogul cannot persuade Plaintiff to execute a protective order, Defendants will simply need to exercise some creativity and attempt to obtain the requested information via one of the other methods of discovery set forth in the Federal Rules of Civil Procedure. X. Defendants’ Objection to Plaintiff’s Rule 26 Disclosures (ECF No. 126) On January 3, 2018, the Court entered a Case Management Order which required Plaintiff to identify his expert witnesses and provide their expert reports no later than April 23, 2018. (ECF No. 34). This deadline was subsequently extended to May 3, 2018. (ECF No. 91). On May 3, 2018, Plaintiff submitted his Rule 26 disclosures in which he identified John Stilson and Star Thomas as purported expert witnesses. On June 10, 2018, Plaintiff supplemented his Rule 26 disclosures to identify himself as an expert witness in this matter. Defendants move to strike Plaintiff as an expert witness on the ground that Plaintiff’s disclosure was untimely. The Court agrees. Defendants’ motion is, therefore, granted. Plaintiff is precluded from testifying in this matter as an expert witness. XI. Warning to Plaintiff The Court has repeatedly cautioned Plaintiff that he would benefit greatly from the assistance of counsel and, moreover, that failure to obtain such assistance would not relieve him of any obligations imposed on him by the Federal Rules of Civil Procedure, the Local Rules of Civil Procedure, or any other law or authority implicated in this action. Nevertheless, Plaintiff has chosen to prosecute this action without benefit of counsel. Moreover, as the discussion herein makes abundantly clear, Plaintiff has unreasonably taxed this Court’s very limited resources with numerous motions that are patently frivolous. Accordingly, Plaintiff is expressly warned that in the event he again files such meritless or frivolous motions or pleadings, the Court will impose sanctions on Plaintiff sufficient to curtail such conduct, up to and including dismissal of Plaintiff’s lawsuit. See Federal Rules of Civil Procedure 11, 41. IT IS SO ORDERED.