*1 On November 28, 2018, Plaintiffs filed a motion to exclude witnesses and for expedited consideration. D.E. 402; see also D.E. 391 (Plaintiffs’ Objections to Defendants’ Proposed Witness List and Proposed Exhibit List). They asked the Court to exclude from next week's evidentiary hearing all witnesses contained in Defendant's proposed list, located at Docket Entry 397. See D.E. 402-1. The Court ordered a response by December 3. D.E. 403. Defendants responded (D.E. 407), and Plaintiffs filed a brief reply (D.E. 408).

According to Plaintiffs’ motion, on November 15, 2018, Defendants served on Plaintiffs an Initial Witness List that “included 21 witnesses, 14 of whom had never been previously identified as potential witnesses by Defendants either in their Rule 26 Disclosures or in Interrogatory Responses.” D.E. 402 at 1. Then, on November 27, Defendants filed their Final Witness List, which includes “the same 21 witnesses.” Id. at 2.

For the reasons that follow, IT IS HEREBY ORDERED THAT Plaintiff's motion (D.E. 402) is GRANTED, IN PART, as follows: No proposed defense witness who was not previously identified in Defendants’ initial disclosures or discovery responses will be allowed to testify.

According to Rule 37(c)(1), “If a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or 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). “[E]xclusion of late or undisclosed evidence is the usual remedy for noncompliance with Rule 26(a) or (e)[.]” Howe v. City of Akron, 801 F.3d 718, 747 (6th Cir. 2015). “[T]he sanction is mandatory unless there is a reasonable explanation of why Rule 26 was not complied with or the mistake was harmless.” Bessemer & Lake Erie R.R. Co. v. Seaway Marine Transp., 596 F.3d 357, 370 (6th Cir. 2010).

Defendants do not explain why fourteen of their proposed witnesses were not disclosed during discovery. Accordingly, the Court has no basis whatsoever for finding that the failure to disclose was substantially justified. And, after six years of litigation, identifying more than a dozen new potential witnesses is textbook prejudice. Accordingly, the failure to disclose was not harmless. Rule 37(c)(1) mandates barring the testimony of the fourteen defense witnesses who were not disclosed in discovery.

Plaintiffs also seek to exclude any expert or opinion testimony. Discovery closed on September 1, 2013. D.E. 16. Expert discovery closed on May 31, 2013. D.E. 39. The Court previously denied Defendants’ May 5, 2017 motion to extend the expert disclosure deadlines. D.E. 345 at 8. Defendants objected to that August 1, 2017 Order, and those objections were overruled on July 27, 2018. D.E. 368. Because Defendants never timely disclosed any expert witnesses, no expert testimony on behalf of the defense will be permitted at the hearing. However, the Court will consider opinion testimony from fact witnesses, to the extent that such testimony complies with Federal Rule of Evidence 701.

*2 Defendants argue that their hands are tied because they do not know whether certain witnesses will be needed in support of their motion for a ruling to limit damages. D.E. 407 at 2 (citing D.E. 387). In their motion for a ruling as to the measure of damages, Defendants sought to limit Plaintiffs’ evidence in relation to damages via a determination that Plaintiffs were entitled only to the “delay costs” associated with late payments. D.E. 375 at 1. Defendants’ proposed order concerning that motion does not authorize the introduction of specific evidence by either party. Instead, it limits Plaintiffs’ evidence to the damages theory chosen by Defendants. D.E. 375-8. So Defendants cannot be confused by what evidence may be presented at the hearing, especially given the voluminous pre-hearing filings submitted by Plaintiff. See, e.g., D.E. 258, 396. The Court's announced intention to deny Defendants’ damages motion is not a limitation on the evidence Defendants can present at the hearing; it is a rejection of the limitation proposed by Defendants. Thus, Defendants’ feigned confusion over the scope of the hearing is not a basis for allowing previously undisclosed witnesses to testify.

The Court enters this Order on a non-dispositive pretrial matter pursuant to 28 U.S.C. § 636(b)(1)(A) and Federal Rule of Civil Procedure 72(a). Any objection to this Order SHALL be asserted in accordance with Rule 72(a) of the Federal Rules of Civil Procedure and 28 U.S.C. § 636(b)(1). Failure to make a timely objection consistent with the statute and rule may, and normally will, result in waiver of further appeal to or review by the District Court and Court of Appeals. See United States v. Walters, 638 F.2d 947, 950 (6th Cir. 1981).