Fakhoury v. O'Reilly

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UNITED STATES DISTRICT COURT                             
                EASTERN DISTRICT OF MICHIGAN                             
                      SOUTHERN DIVISION                                  

APRIL LYNN FAKHOURY, et al.,                                              
                                       Case No. 16-13323                 
              Plaintiffs,              Hon. Gershwin A. Drain            

vs.                                                                       

JOHN B. O’REILLY JR., et al.,                                             

              Defendants.                                                
____________________________/                                             

  OPINION AND ORDER REGARDING MOTIONS IN LIMINE AND                      
SETTING FINAL PRETRIAL ORDER, FINAL PRETRIAL CONFERENCE                   
                      AND TRIAL DATES                                    

 I.  INTRODUCTION AND PROCEDURAL BACKGROUND                              
    Presently before the Court are the following pretrial motions, filed by the 
Plaintiffs:  (1)  Daubert Motion to Exclude Defendants’ Damages Experts and 
Expert Report, (2)  Motion in Limine to Exclude All Police Reports, (3)  Motion in 
Limine to Exclude References to A) Alleged Pre-2013 Judgments, Liens,     
Receiverships, or Foreclosures Relating to Plaintiff Hakim, B)  Alleged   
Investigations (Including the DOJ Investigation) Relating to Plaintiffs, C)  
Defendants John B. O’Reilly’s and Debra Walling’s Personal Finances or Health 
Issues, and D) Taxpayer Dollars or Costs, (4) Motion in Limine to Preclude 
Defendants’ Witnesses Whose Anticipated Testimony Was Not Disclosed from  
Testifying at Trial, and (5) Motion in Limine to Preclude A) the Use and/or 
Mention of Polygraph Evidence and/or B)  Evidence Related to April Fakhoury 
Being an Alleged Alter Ego of Hakim Fakhoury for the Properties at Issue. 

    Also, before the Court are the following pretrial motions, filed by  
Defendants:  (1)  Motion in Limine to Preclude Admission of Kenneth H.    
Johnson’s Expert Reports and Testimony Relating to the Reports, (2)  Motion in 

Limine to Exclude Admission of State Equalization Values as Evidence of Market 
Value, (3) Motion in Limine to Preclude Plaintiffs from Admitting Evidence 
Contradicting their Global Settlement with the Hamames Based on Judicial  
Estoppel, (4)  Motion in Limine to Allow Certain Testimony of Defendant Walling, 

(5) Motion in Limine to Bar Evidence Relating to Haidar-Fakhoury Phone Call,  
(6) Motion in Limine to Bar Testimony about Alleged Mayoral Ultimatum and to 
Preclude Lay Opinion Medical Causation Testimony, (7) Motion in Limine to Bar 

Certain Testimony from Hakim Fakhoury, and (8) Motion in Limine to Bar Certain 
Testimony from Tom Tafelski, Keith Woodcock, and the Fakhourys.           
    The Court conducted oral argument on the parties’ pending pre-trial motions 
on August 25, 2021, September 1, 2021 and September 15, 2021.             

 II.  LAW & ANALYSIS                                                     
      A.  Standard of Review                                             
    The purpose of a motion in limine is to ensure the evenhanded and    

expeditious management of trials by eliminating evidence that is clearly  
inadmissible.  Ind. Ins. Co. v. General Elec. Co.,
326 F. Supp.2d 844, 846
(N.D. 
Ohio 2004) (citing Johasson v. Lutheran Child & Family Servs.,
115 F.3d  436, 

440
(7th Cir. 1997)). A court should exclude evidence on a motion in limine only 
when that evidence is determined to be clearly inadmissible on all potential 
grounds.
Id.
When a court is unable to determine whether or not certain evidence 

is clearly inadmissible, evidentiary rulings should be deferred until trial so that 
questions of foundation, relevancy and potential prejudice can be resolved in the 
proper context.
Id.
Whether or not to grant a motion in limine falls within the 
sound discretion of the trial court.  Branham v. Thomas Cooley Law Sch.,
689 F.3d 

558, 560
(6th Cir. 2012).                                                 
    Rules 401 and 402 of the Federal Rules of Evidence permit the admission of 
only relevant evidence. Evidence that is irrelevant is inadmissible.  See Fed. R. 

Evid. 402. Evidence is relevant if it has any tendency to make the existence of a 
material fact more or less probable than it would be without the evidence.  See Fed. 
R. Evid. 401.  Under Rule 403, relevant evidence may be excluded “if its probative 
value is substantially outweighed by a danger of . . . unfair prejudice, confusing the 

issues, misleading the jury, undue delay, wasting time, or needlessly presenting 
cumulative evidence.”  Fed. R. Evid. 403.                                 
    Rule 701 of the Federal Rules of Evidence provides:                  

    If a witness is not testifying as an expert, testimony in the form of an 
    opinion is limited to one that is:                                   
    (a) rationally based on the witness’s perception;                    
    (b) helpful to clearly understanding the witness’s testimony or to   
      determining a fact in issue;                                       
    (c) not based on scientific, technical, or other specialized knowledge 
      within the scope of Rule 702.                                      

Fed. R. Evid. 701.                                                        
    Federal Rule of Evidence 702 governs the admissibility of expert testimony.  
A party offering an expert’s opinion bears the burden of establishing the 
admissibility of such opinion by a preponderance of the evidence.  Nelson v. 
Tennessee Gas Pipeline Co.,
243 F.3d 344, 251
(6th Cir. 2001).  Expert testimony 
is admissible only if it satisfies the requirements of Rule 702 of the Federal Rules 
of Evidence, which states:                                                
    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 district court must determine whether the expert’s 
testimony meets three requirements: (1) the expert witness must be qualified by 
“knowledge, skill, experience, training or education,” (2) the proffered testimony is 
relevant and “will assist the trier of fact to understand the evidence or to determine 
a fact in issue,” and (3) the testimony is reliable in that it is based on scientific, 

technical or other specialized knowledge.  Fed. R. Evid. 702; In re Scrap Metal 
Antitrust Litigation,
527 F.3d 517, 529
(6th Cir. 2008).                  

 B.  Plaintiffs’ Daubert Motion to Exclude Defendants’ Damages Experts   
and Expert Report [#185]                                                  

    On September 12, 2019, Defendants’ experts, Bradford Southern and Paul 
Schapira, submitted their expert report concluding the Plaintiffs are not entitled to 
any damages in this matter.                                               
    Schapira is qualified as an expert on all of the grounds listed in Rule 702.  
He has an undergraduate degree from the University of Michigan and an MBA 
from Carnegie Mellon.  ECF 185-4, PageID.17325.  He has worked for a number 

of financial institutions including NBD Bank and other alternative investment 
firms.
Id.
He has historically done reviews of property valuations.
Id.
at 
PageID.17326.  As part of his experience, he has analyzed appraisals to determine 
whether they are compliant with the Uniform Standards of Professional Appraisal 

Practice (“USPAP”).
Id.
at PageID.17352.                                 
    During his experience in the banking industry, Schapira reviewed “hundreds 
and hundreds and hundreds” of appraisals.  ECF 185-4, PageID.17354.  Schapira’s 

relevant experience includes “almost 9 years working for 2 publicly traded 
financial banking institutions” involving “oversight for a $2.0 billion commercial 
real estate portfolio consisting of real properties nationally with some individual 

loans up to $50 million in exposure.”
Id.
Schapira’s work experience afforded 
him “the opportunity to review several thousand appraisals” and he “regularly 
interfaced (at times on a daily basis) with federal banking regulators such as the 

Office of the Thrift Supervision (“OTS”), the Office of the Comptroller of the 
Currency (“OCC”), the Securities and Exchange Commission (“SEC”), the     
Financial Regulatory Authority (“FINRA”), and the Federal Deposit Insurance 
Company.”
Id.
at PageID.17148.                                           

    “When offering expert testimony, the defendant has ‘no burden to produce 
models or methods of their own; they need only attack those of the plaintiffs’ 
experts.’”  Scott v. Chipotle Mexican Grill, Inc.,
315 F.R.D. 33, 44
(S.D.N.Y. 

2016) (quoting In re Zyprexa Prods. Liab. Litig.,
489 F. Supp.2d 230, 285
(E.D.N.Y. 2007)).  That is precisely what Schapira did in this case.  Johnson used 
standard appraisal methodology in his approach, evaluating methods of valuation 
including the sales approach, cost approach, and income approach, generally 

employing all three.  See ECF 185-2, PageID.17147.  Schapira used this same 
methodology, basing his analysis on the income approach, and explaining why the 
income approach is the best method to use when evaluating commercial real estate 

used to generate income. See
id.
at PageID.17148-49.  Thus, Schapira did in this 
case what he spent a decade in commercial banking doing – reviewing an appraisal 
and critiquing it.                                                        

    Mr. Schapira is therefore qualified by his education, knowledge, skill, and 
experience to critique an appraisal of real property utilizing the same methodology 
as the appraiser.  His testimony is presumptively admissible, and Plaintiffs have 

identified no authority excluding testimony like his.                     
    Plaintiffs argue the Defendants’ expert report contains no analysis relating to 
the events that occurred in and after February of 2013.  Section V of the report 
involves a valuation of the properties on which Plaintiffs currently base their 

damages case.  Plaintiff’s remaining arguments are without merit and can be 
addressed during cross examination.  Plaintiffs’ objections go to the weight to 
accord Mr. Schapira’s testimony.  Plaintiffs’ motion will be denied without 

prejudice.                                                                

 C.  Defendants’ Motion in Limine to Preclude Admission of Kenneth H.    
Johnson’s Expert Reports and Testimony Relating to the Reports [#186]     

    Plaintiffs retained Kenneth H. Johnson and have proffered him as an expert 
real estate appraiser.  Mr. Johnson prepared a 368-page report (“First Report”)  
rendering his opinion of the real estate values of the 23 properties at issue in this 
case.  Mr. Johnson obtained a value of each property through a Market Approach, 
Sales Comparison Approach, and Income Analysis Approach.  The First Report’s 
preliminary valuations are computed as of September 1, 2018.  For properties 
where improvements were ongoing as of that date, Johnson calculated the value as 

of the future date at which the improvements would be completed.  The     
Fakhourys’ share of the three portfolios purports to have a 2018 market value 
totaling $36,951,000.  In Plaintiffs’ 6th Amended Rule 26a Disclosures, Plaintiffs 

claim to be seeking the value of these properties, less the $2.2 million that they 
received from their global settlement agreement with the Hamame family, which 
would represent $34,751,000 in alleged damages.  The economic damages figure 
listed in Plaintiffs’ 6th Amended Rule 26e Disclosures is $34,789,500; it is not 

clear why there is a $38,500 difference between those two numbers.        
    On January 5, 2021, Mr. Johnson produced a letter (“Second Report”)  
identifying the 2014 SEVs for the 23 properties.  Johnson testified that Plaintiffs’ 

counsel instructed him to pull the SEV figures for June 2014 because that is when 
the loss was incurred. The Second Report purports to show a “Total Assessed 
Value” of $11,423,300 and a purported “estimated Total Market Value of    
$22,846,600” for all of the listed properties.  However, after realizing a calculation 

error, Mr. Johnson produced another letter (“Third Report”) correcting the 
calculation error.  The error amounts to $850,000 in SEV, which translates into a 
$1.7 million error in alleged “Total Market Value.”  Johnson cited “[b]ad 
arithmetic” as “the only reason for my sloppiness.” Johnson considers the Third 
Report to be merely a corrected version of the Second Report.             

    Johnson testified that SEV “is something entirely different” from appraisals 
and valuation summaries. He admitted that SEVs are used for taxation purposes 
only; tax assessors do not give opinions of value for commerce reasons.  In fact, 

according to Johnson, “[i]f an appraiser relied solely on state equalized value to 
determine the value of property, I respectfully submit that appraiser would stand in 
risk of losing his license.”  The figures listed in the Third Report assume that the 
Fakhourys owned 100% of the interest in those properties.  But, in the addendum 

to Johnson’s First Report, Plaintiffs concede that they owned a 50% interest in 
what they call the Fakhoury Oasis Portfolio (see Ex. 1, at BATES 4247 n.1), and a 
50% interest in what they call the Fakhoury JV Portfolio (see Ex. 1, at BATES 

4246 n.1), except for the Village Plaza property at 23400 Michigan Avenue, in 
which the Fakhourys had only an alleged 20% interest.  Accounting for these self-
reported ownership shares means that the “Total Market Value of $21,146,600” in 
the Third Report (see Ex. 3, at BATES 5327) is overstated by $9,425,540, resulting 

in an alleged market value figure – calculated under Plaintiffs’ own version of their 
unproven allegations – of $11,721,060.  That number, of course, would also need 
to be reduced by the $2.2 million the Fakhourys obtained from transferring their 
alleged ownership in the properties as part of the Hamame settlement, resulting in 
Plaintiffs’ actual demand of $9,521,060 in economic damages.              

    Plaintiffs’ current theory for economic damages is that the Defendants 
worked with the Hamames to divest Plaintiffs of their alleged interests in certain 
properties by forcing them to sell their interests to the Hamames at a below-market 

price.  Under that theory, Plaintiffs’ damages would be a variant of “market 
damages,” representing the difference between what the property interests were 
worth and what the Fakhourys managed to obtain for them.                  
    In this case, the alleged harm occurred in June 2014, when the global 

settlement was executed and the Fakhourys allegedly lost control of their property 
interests.  In the context of a statute of limitations analysis, this Court has opined 
under the summary judgment standard that “the Plaintiffs’ injury” was the “loss of 

their commercial properties to the Hamame family in June 2014.”  ECF 166. 
Johnson also testified that Plaintiffs’ counsel had reported to him their 
understanding that the relevant loss was in June 2014.  The law therefore requires 
that the Fakhourys measure their alleged damages by computing market value as of 

June 2014.                                                                
    However, Johnson’s First Report does not do that.  Rather, Johnson   
computes his preliminary valuations as of September 1, 2018.  Where       

improvements to the properties were ongoing as of that date, Johnson calculated 
the value based on his opinion of what the properties would be worth once the 
improvements were completed.  Johnson’s estimate of the value of properties more 

than four years after the Fakhourys held any ownership interest in them – where 
the estimates include the value of improvements that subsequent owners made to 
those properties – bears no relation at all to what the properties were worth in June 

2014, when they might have been used to calculate Plaintiffs’ alleged damages.  
The First Report and any testimony relating to it are subject to exclusion under 
Rule 702.                                                                 
    Johnson’s Second Report contains an error that overstates the alleged “Total 

Market Value” by $1.7 million.  See Ex. 4, at 48.  Johnson admitted his   
“sloppiness” for the error, which he blamed on “[b]ad arithmetic.”  The Second 
Report relies solely upon SEV as a basis for computing market value.  It is 

therefore also excludable for the reasons explained below regarding the Third 
Report, which are incorporated herein by reference.  The admitted $1.7 million 
error is alone sufficient to render the Second Report irrelevant under Federal Rule 
of Evidence 402 and misleading to the jury under Federal Rule of Evidence 403.  

The Second Report and any testimony relating to it are also excluded from trial. 
    As to Mr. Johnson’s Third Report, the touchstone of proper analysis under 
Daubert is that, to be admissible, the expert must appropriately apply the teachings 

of his field to the issues confronting the jury.  A testifying expert must “employ[] 
in the courtroom the same level of intellectual rigor that characterizes the practice 
of an expert in the relevant field.” Kumho Tire, 526 U.S. at 152.  When the 

testimony of a proffered expert is challenged for insufficient rigor, “the trial judge 
must determine whether the testimony has a ‘reliable basis in the knowledge and 
experience of the discipline.’”  Id. at 149 (quoting Daubert, 509 U.S. at 592).  The 

Sixth Circuit has similarly instructed that “[e]xperts are permitted wide latitude in 
their opinions, including those not based on firsthand knowledge, so long as ‘the 
expert’s opinion [has] a reliable basis in the knowledge and experience of the 
discipline.’”  Jahn v. Equine Servs., PSC,
233 F.3d 382, 388
(6th Cir. 2000) 

(quoting Daubert, 509 U.S. at 592).                                       
    Thus, under Daubert, Johnson may testify to the use of SEV as a proxy for 
market value only if doing so has a reliable basis in the knowledge and experience 

of real estate appraisal – the field in which he was proffered as an expert.  But 
Johnson testified that the exact opposite is true:                        
    Q. And relying upon state equalized value as a means of valuing a    
    property is not a generally accepted practice in the appraisal       
    community, is it?                                                    

    A. Absolutely correct.                                               

Ex. 4, at 64.  As Johnson put it, “[i]f an appraiser relied solely on state equalized 
value to determine the value of property, I respectfully submit that appraiser would 
stand in risk of losing his license.”  Id.  That testimony definitively establishes that 
use of SEV to estimate market value does not have a reliable basis in the field of 
real estate appraisal.  See Valuation for Taxation Purposes As Admissible to Show 

Value for Other Purposes,
39 A.L.R.2d 209
(1955 & Supp. 2010) (“It is the 
overwhelming weight of authority that assessed value is not competent direct 
evidence of value for purposes other than taxation.”).
Id.,
' 4a; Bowie Lumber Co. 

v. United States,
155 F.2d 225, 228
(5th Cir. 1946) (explaining “[t]he great weight 
of authority holds that, except as declarations against interest, assessments are not 
admissible as evidence of value in condemnation proceedings.”); United States v. 
Certain Parcels of Land,
261 F.2d 287, 290
(4th Cir. 1958) (noting that, “‘[i]t is 

the overwhelming weight of authority that assessed value is not competent direct 
evidence of value for purposes other than taxation.’”).
Id.
at 290 (quoting 39 
A.L.R.2d at 214); Johnson & Wimsatt, Inc. v. Reichelderfer,
50 F.2d 336, 337
(D.C. Cir. 1931)(concluding “[i]t is widely recognized that appraisements of 
property by tax assessors for purposes of taxation are not reliable guides of market 
value, and consequently not admissible in condemnation proceedings.”); Tarrify 
Properties, LLC v. Cuyahoga County,
2020 WL 7490096
, *3 (N.D. Ohio Dec. 21, 

2020)( “nationwide precedent holds that property tax valuations cannot be used, 
and are inadmissible, to establish land value for non-tax purposes.”).  The 
overwhelming weight of authority provides that tax assessment valuations cannot 

be admitted as evidence of market value.                                  
    Moreover, the Fakourys have admitted that they did not own a 100% interest 
in all of the properties as of June 2014.  Applying the alleged ownership figures 

used by the Fakhourys at the end of the First Report to the SEV figures in the Third 
Report yields an alleged Total Market Value of the Fakhoury holdings of   
$11,721,060.  In other words, Plaintiffs wish to place before the jury a damages 

figure that is inflated by $9,425,540 representing the ownership interests of others.  
Under these circumstances, admission of the Third Report would be unduly  
prejudicial and misleading to the jury.                                   
    For all of these reasons, Defendants’ Motion to Exclude Admission of 

Kenneth Johnson’s expert reports and testimony will be granted.           
 D.  Defendants’ Motion in Limine to Preclude Admission of State         
Equalization Values as Evidence of Market Value [#187]                    

    Defendants also move to exclude SEV evidence to show market value.   
Based on this Court’s reasoning excluding the testimony of Mr. Johnson, the SEVs 
must also be excluded because they are not an appropriate measure of market value 
and thus their admission will not aid the jury in resolving the damages issue.  See 
Valuation for Taxation Purposes As Admissible to Show Value for Other Purposes,
39 A.L.R.2d 209
(1955 & Supp. 2010) (“It is the overwhelming weight of    

authority that assessed value is not competent direct evidence of value for purposes 
other than taxation.”).
Id.,
' 4a; Bowie Lumber Co. v. United States,
155 F.2d 225, 
228
(5th Cir. 1946) (explaining “[t]he great weight of authority holds that, except 
as declarations against interest, assessments are not admissible as evidence of 
value in condemnation proceedings.”); United States v. Certain Parcels of Land,
261 F.2d 287, 290
(4th Cir. 1958) (noting that, “‘[i]t is the overwhelming weight of 
authority that assessed value is not competent direct evidence of value for purposes 
other than taxation.’”).
Id.
at 290 (quoting 39 A.L.R.2d at 214); Johnson & 

Wimsatt, Inc. v. Reichelderfer,
50 F.2d 336, 337
(D.C. Cir. 1931)(concluding “[i]t 
is widely recognized that appraisements of property by tax assessors for purposes 
of taxation are not reliable guides of market value, and consequently not 
admissible in condemnation proceedings.”); Tarrify Properties, LLC v. Cuyahoga 

County,
2020 WL 7490096
, *3 (N.D. Ohio Dec. 21, 2020)( “nationwide precedent 
holds that property tax valuations cannot be used, and are inadmissible, to establish 
land value for non-tax purposes.”).                                       

    This motion will likewise be granted.                                
 E.  Plaintiff’s Motion in Limine to Exclude All Police Reports [#188]   

    Next, Plaintiffs move to exclude all police reports.  This motion will be 
denied without prejudice.  Plaintiffs’ broad approach to seeking exclusion of all 
police reports prevents both defendants and this Court from properly addressing 
their objections. A party moving in limine “should identify the particular evidence 
at issue and articulate with specificity the arguments supporting the position that 

the particular evidence is inadmissible on any relevant ground.” United States v. 
Cline,
188 F. Supp. 2d 1287, 1292
(D. Kan. 2002) (emphasis added). “A court is 
well within its discretion to deny a motion in limine that fails to identify the 

evidence with particularity or to present arguments with specificity.”
Id.
(citing 
Nation Union v. L.E. Myers Co. Group,
937 F. Supp. 276, 287
(S.D.N.Y. 1996)).   
    Plaintiffs in one fell swoop seek to exclude from trial more than 1,000 pages 

of police reports submitted at the summary-judgment phase. Brief, pg. 1. They 
divide their request into reports “involving events that occurred prior to February 
of 2013 and after June of 2014,” Id. at 3-8, and then “all police reports, including 
those allegedly created in February of 2013 to June of 2014.” Id., pp. 8-15. But 

beyond those two general groupings, they offer only generalized objections 
referring to unspecified mass groupings of reports. See, e.g., Brief, pg. 4 (“[m]ost 
of the reports” either do not involve plaintiffs, predate February 2013, or involve 

people unrelated to plaintiffs’ family”); pg. 5 (“[m]ost of the police reports” 
contain or are supported by inadmissible statements); pg. 6 (“most, if not all” 
reports were first learned of during this litigation); pg. 7 (“a vast majority of the 
alleged police reports were not even know to the individual Defendants in this case 

until after this suit was filed”); pg. 8 (“[m]ost, if not all, of those police reports” 
contain hearsay, are irrelevant, improperly offer character evidence and/or should 
be excluded under FRE 403).                                               
    Where a motion in limine simply asserts objections without tying them to 
specific evidentiary items, the Court properly may deny it as overbroad and 

insufficiently specific. See United States v. Cervantes,
170 F. Supp. 3d 1226
, 1236 
fn. 6 (N.D. Cal. 2016) (where movant sought to exclude “on relevance and Rule 
403 grounds,” court denied motion as “overbroad, insufficiently specific, and 

premature”); Kirk v. Schaeffler Grp. USA, Inc.,
2016 U.S. Dist. LEXIS 17315
;
2016 WL 593910
, at *2 (W.D. Mo. Feb. 12, 2016) (denying without prejudice 
motion in limine seeking to exclude “any documents, opinions, or other evidence 
that Plaintiff has not disclosed” because the request was “insufficiently specific”) 

(citation omitted); Hankins v. Ford Motor Co.,
2012 U.S. Dist. LEXIS 6646
;
2012 
WL 174793
, at *5 (S.D. Miss. Jan. 20, 2012) (rejecting Ford’s request to bar 
plaintiff from presenting “evidence of recalls, technical bulletins, or defects in 

other vehicles,” since the motion “is insufficiently specific”) (citation omitted); 
Evans v. Port Auth. of New York & New Jersey,
2005 U.S. Dist. LEXIS 19796
, at 
*6-*7 (S.D.N.Y. Sept. 13, 2005) (while it “seems likely” that much of plaintiff’s 
evidence should be excluded, “the motion papers now before the Court are  

insufficiently specific to permit detailed determinations,” and parties ordered to 
meet and confer to narrow the issues).                                    
    Here, Plaintiffs assert sweeping objections to a group of more than 1,000 

documents but do not tie specific legal objections to any specific documents. The 
Court will therefore deny this motion without prejudice. Cline,
188 F. Supp. 2d at 
1292
; see also Starr v. QuikTrip Corp.,
2016 U.S. Dist. LEXIS 182040
;
2016 WL 

7665589
, at *2 (N.D. Okla. Nov. 21, 2016) (quoting Walsh v. United States,
2009 
U.S. Dist. LEXIS 27238
; 2009 Westlaw 3755553, at *1 (N.D. Okla. March 31, 
2009)) (“A court is within its discretion to deny a motion in limine that fails to 

identify the evidence with particularity or present arguments with specificity”). 
    This motion is denied without prejudice.                             

    F.  Defendants’ Motion in Limine to Preclude Plaintiffs from Admitting  
Evidence Contradicting their Global Settlement with the Hamames Based on  
Judicial Estoppel [#189]                                                  

    Defendants next argue that Plaintiffs should be judicially estopped from 
seeking the fair market value of the 23 properties at issue in this case.  Defendants 
maintain that Plaintiffs’ theory of damages is directly contrary to their 
representations before the Wayne County Circuit Court as part of a settlement 
agreement between the Plaintiffs and the Hamames.  Defendants assert Plaintiffs 
represented to the state court judge that they were receiving fair market value for 
the properties at issue, therefore they should be precluded from offering evidence 
of property values contradicting their representations made as part of the Hamame 

settlement agreement.                                                     
    “Judicial estoppel is an equitable doctrine that preserves the integrity of the 
courts by preventing a party from abusing the judicial process through cynical 
gamesmanship, achieving success on one position, then arguing the opposite to suit 
an exigency of the moment.”  Teledyne Indus., Inc. v. N.L.R.B.,
911 F.2d 1214
, 

1217-18 (6th Cir. 1990).  While “there is no set formula for assessing when 
judicial estoppel should apply, at a minimum, a party’s later position must be 
clearly inconsistent with its earlier position.”  Lorillard Tobacco  Co. v. Chester, 

Willcox & Saxbe, LLP,
546 F.3d 752, 757
(6th Cir. 2008)(internal quotation marks 
and citation omitted).                                                    
    The settlement agreement with the Hamames involved over 50 different 
individuals and entities, in 13 civil actions containing various claims, cross-claims, 

counter claims, third party claims and intervening claims.  Defendants were not a 
party to the lawsuits or the settlement agreement.  Paragraph 11.5 states that the 
terms of the Agreement, “shall not constitute or be construed to be an admission on 

the part of any of the Parties hereto . . .”  The parties further agreed in paragraph 
11.9 that their settlement was “not on the record.”  Paragraph 11.19 further states 
that:                                                                     
    Adequacy of consideration.  Each and all of the individuals and      
    entities making up the Parties hereto acknowledge and agree that the 
    consideration received by each of the set forth herein is fair, adequate, 
    and sufficient in exchange for the consideration given by such parties. 

    Defendants argue the Settlement Agreement’s reference to the exchange of 
consideration being “fair, adequate, and sufficient” conclusively establishes that 
the Plaintiffs were paid fair market value for their properties.  However, the 
Agreement specifically states that “it is the intent and express purpose of each of 
the Parties hereto that this Settlement Agreement . . . fully and finally resolve” any 

and all disputes “between or among the Parties . . . .”  As such, the Plaintiffs 
agreement that the consideration exchanged was fair in the context of the disputes 
at issue in the state court is not clearly inconsistent with their later position 

regarding the fair market value of the subject properties.  Because the Plaintiffs’ 
position is not clearly inconsistent with their Settlement Agreement’s    
representations, judicial estoppel is not appropriate.  The Court will therefore deny 
Defendants’ Motion in Limine to Preclude Evidence Contradicting their Global 

Settlement with the Hamame Family.                                        

    G.  Defendants’ Motion in Limine to Allow Certain Testimony of       
Defendant/Corporation Counsel Walling [#190]                              

    Defendants next assert that the attorney-client privilege should not preclude 
Defendant Walling from testifying about conversations she had with non-party 
Tom Tafelski, a former member of the City Council.  Defendants argue Mr.  
Tafelski’s anticipated testimony concerning conversations he had with Defendant 
Walling will not be accurately portrayed by Mr. Tafelski and she seeks a ruling 

that the attorney client privilege does not bar her from rebutting Mr. Tafelski’s 
purported false testimony.                                                
    This motion will be denied.  Mr. Tafelski was deposed nearly seven months 
prior to Ms. Walling.  Now, three and a half years after Mr. Tafelski was deposed 

and two and a half years since Ms. Walling sat for her deposition, Defendants ask 
the Court to permit Ms. Walling to offer new evidence well beyond the discovery 
cutoff in this matter.  Moreover, Defendants fail to provide sufficient specificity.  

They do not identify the particular conversations between Ms. Walling and Mr. 
Tafelski at issue and do not explain why Ms. Walling could not correct the record 
during her deposition.  It is well settled that “litigants cannot hide behind . . . [t]he 
attorney-client privilege . . . as a shield” and then subsequently use it as “a sword.”  

In re Lott,
424 F.3d 446, 454
(6th Cir. 2005).                            
    This motion is denied.                                               

     H.  Defendants’ Motion in Limine to Bar Evidence Relating to Haidar-
Fakhoury Phone Call [#191]                                                

    Defendants also seek to exclude all evidence relating to the recording of the 
phone call between non-party Marwan Haidar and Plaintiff Hakim Fakhoury.  At 
Mr. Haidar’s deposition, Plaintiffs for the first time produced an audio of part of a 
phone call purportedly between Mr. Haidar and Mr. Fakhoury.   On the call, Mr. 
Haidar tells Mr. Fakhoury “[t]he mayor fucked you” and “want[s] to destroy you,” 
and “will hunt you down.” Mr. Haidar describes a vendetta by the Mayor against 

Mr. Fakhoury, claiming that the Mayor warned the Hamames that “it’s either this 
or this way, pick it.  What do you want?  You want to do business?  [The  
Fakhourys] can’t be your partner.”  Mr. Haidar further says that he is being truthful 

and “swears on his mother’s grave.”                                       
    However, Mr. Haidar recanted his statements during his deposition testifying 
to being pressured to take part in the staged call by Hakim Fakhoury, who had his 

son follow Haidar and engage him in several physical fights, to the point where 
Mr. Haidar was scared.  Mr. Haider testified that Mr. Fakhoury told him what to 
say on the call.                                                          
    Here, the audio recording and evidence related thereto is classic hearsay.  

Hearsay is an out of court statement “that a party offers in evidence to prove the 
truth of the matter asserted in the statement.”  Fed. R. Evid. 801(c).  Hearsay is 
inadmissible unless a statutory or court-rule exception applies.  Fed. R. Evid. 802.   

    Plaintiffs respond by arguing they do not intend to introduce evidence of the 
phone call for the truth of the matters asserted therein, but to show its effect on Mr. 
Fakhoury.  However, this argument is without merit. There is record evidence from 
Mr. Haidar suggesting that Mr. Fakhoury asked Mr. Haidar to make the call and 

statements about the Mayor’s animus.  Even if the phone call evidence was 
admissible under an applicable exception, it still would be subject to exclusion 
under Rule 403 because its probative value is substantially outweighed by the 

danger of unfair prejudice.  The record before the Court is that Mr. Haidar recanted 
his statements concerning the Mayor’s purported ill will towards Mr. Fakhoury.  
The phone call lacks any indicia of trustworthiness, and therefore, any small 

probative value is substantially outweighed by the danger of unfair prejudice.   
    This motion will be granted.                                         

     I.  Plaintiffs’ Motion in Limine to Exclude References to 1) Alleged Pre-
2013 Judgments, Liens, Receiverships, or Foreclosures Relating to Plaintiff 
Hakim, 2)  Alleged Investigations (Including the DOJ Investigation) Relating 
to Plaintiffs, 3)  Defendants O’Reilly’s and Walling’s Personal Finances or 
Health Issues, and 4) Taxpayer Dollars or Costs [#192]                    

    Next, Plaintiffs seek to bar Defendants from 1) making any reference to 
alleged investigations of Plaintiffs, including the one involving the DOJ and postal 
service,  2) making any reference to any previous judgments, liens, receiverships, 
or settlements involving Hakim Fakhoury pre-2013 –including the six million 
dollar Marathon judgment regarding Mr. Fakhoury’s gas stations and a Comerica 
judgment related to his gasoline operations, 3) making any reference to the fact 
Defendants will be retiring soon and should not be subject to a personal judgment 
and 4)  making any reference to taxpayer dollars being used to satisfy a judgment 
in this matter.                                                           
    Plaintiffs claim this Court should prohibit Defendants from referencing pre-

2013 judgments, liens, receiverships, or foreclosures relating to Plaintiff Hakim 
because these events (1) “have no relevance to the issues that occurred in 2013 and 
2014”; (2) “will confuse the jury”; and (3) “any relevance is substantially more 
prejudicial than probative.”                                              

    First, the events are undeniably relevant to the case at bar. “Relevance under 
the Federal Rules of Evidence is a low threshold, easily satisfied.”  United States v. 
Gramins,
939 F.3d 429, 450
(2nd Cir. 2019). Evidence is relevant so long as it “(a) 

has any tendency to make a fact more or less probable than it would be without the 
evidence and (b) the fact is of consequence in determining the action.”  FRE 401. 
The evidence Plaintiffs seek to exclude is relevant because it is a potential source 
of emotional stress that could be an alternative cause of Plaintiffs’ alleged 

emotional damages.  The jury is entitled to weigh these other potential causes of 
Plaintiffs’ alleged damages.                                              
    Plaintiffs further claim that introduction of past judgments would confuse 

the jury and cause substantial prejudice to the Plaintiffs.  Even if these judgments 
did cause some confusion or prejudice to the Plaintiffs, relevant evidence may only 
be “excluded if the evidence’s probative value is substantially outweighed by the 
danger of unfair prejudice, confusion of the issues, or misleading the jury” Fed. R. 

Evid. 403. “The exclusion of evidence under Rule 403 is an extraordinary remedy 
and should be used sparingly.”  United States v. Henthorn,
864 F.3d 1241, 1255
(10th Cir. 2017).  Apart from merely stating that this evidence would cause undue 
prejudice and confusion, Plaintiffs do not actually explain how or why this would 
be the case, or why a curative instruction would be inadequate.           

    As to the 2015 DOJ investigation, the DOJ obtained a warrant, raided and 
seized personal items belonging to Plaintiffs, including jewelry and cash from their 
home, gas station, and bank accounts."  Here, Defendants cannot argue the 2015 

DOJ investigation and raid could be the causation of Plaintiffs’ mental and 
emotional distress as this investigation occurred after the Fakhourys were divested 
of their properties.  As such, this evidence is not relevant to a potential cause of 
Plaintiff’s mental anguish.  Moreover, the DOJ investigation led to no charges 

being filed.  This evidence will be unfairly prejudicial under Rule 403 because it 
will suggest to the jury that Fakhourys are engaged in illegitimate activities.  The 
DOJ investigation is inadmissible.                                        

    As to the finances of the Defendants and references to taxpayer dollars 
satisfying the judgment, this category of evidence will also be excluded pursuant to 
Rule 403 as this evidence may result in the jury reaching its verdict on an improper 
basis.  This evidence is also inadmissible.                               

    As such, Plaintiffs’ present motion will be granted in part and denied in part. 
The 2013 judgments, liens, receiverships, or foreclosures relating to Plaintiff 
Hakim are admissible because they are relevant to the issue of causation relating to 

emotional distress damages.                                               
    J.  Defendants’ Motion in Limine to Bar Testimony About Alleged Mayoral 
Ultimatum and to Preclude Lay Opinion Medical Causation Testimony [#193]  

    Defendants next argue that there is no admissible evidence concerning 
Defendant O’Reilly’s purported “ultimatum” to the Hamames that if they wished 
to continue doing business in Dearborn, they had to oust the Fakhourys from their 
joint business arrangement.  Plaintiffs have claimed from the inception of this 
lawsuit that a meeting between the Mayor, Defendant Walling, Sam Hamame,  
Mike Hamame and local businessman, Rick Marra, occurred at Habib’s Restaurant 
on February 15, 2013.  Defendants maintain any evidence of this alleged   

ultimatum is inadmissible because there are no witnesses with personal knowledge 
who can testify that Mayor O’Reilly issued an ultimatum to the Hamame family.   
Neither Plaintiff attended the meeting, and Mr. Haidar, who purportedly overheard 

the conversation at the restaurant, disavowed under oath during his deposition that 
he overheard this conversation or that he had ever been a patron of Habib’s 
restaurant.                                                               
    In response, Plaintiffs fail to address Defendants’ argument that there is an 

absence of admissible evidence demonstrating the Mayor made a threatening 
ultimatum to the Hamames.  Plaintiffs incorrectly suggest the Court has already 
made a ruling on the admissibility of the Mayor’s purported ultimatum; however 

the Court’s decision did not rely on the purported ultimatum in denying summary 
judgment.  As such, the Court has never determined whether a proper foundation 
for the ultimatum has been made.  On this record, the Court cannot hold as a matter 

of law that a proper foundation has been made as to the admission of the ultimatum 
evidence.  There are no witnesses with personal knowledge who can lay the proper 
foundation.  Mr. Haidar has recanted his earlier statement that he overhead the 

Mayor threaten the Hamames.  This aspect of the Defendants’ motion will be 
granted.                                                                  
    Next, Defendants seek an order precluding Plaintiffs from testifying that Mr. 
Fakhoury’s stroke in 2013 was caused by the Defendants.  In response, Plaintiffs 

appear to mischaracterize Defendants’ request as improperly seeking to exclude 
broad categories of evidence relating to mental and emotional damages.  However, 
Defendants only seek to preclude lay testimony that Defendants caused Mr. 

Fakhoury’s stroke because such testimony must come from a qualified expert.  The 
Court agrees.                                                             
    Lay witnesses may testify to their personal observations of injuries or 
symptoms that are within the common realm of knowledge.  See Kovacic v.   

Ponstingle, No. 1:05CV2746,
2014 U.S. Dist. LEXIS 133600
, *10-11 (N.D. Ohio 
Sep. 22, 2014).  In cases where “there is no single, concrete incident from which 
plaintiffs can trace their alleged injuries[,]” but rather “multiple causes of 

plaintiffs’ injuries, including events that took place both well before and after” the 
unconstitutional acts, expert testimony as to causation is required.
Id.
Similar to 
the plaintiffs in Kovacic, there is no way for the lay juror to determine whether Mr. 

Fakhoury’s stroke was caused by the discrete events that gave rise to this action 
without expert testimony.  As such, Plaintiffs may testify to “their own  
observations about their conditions and other matters that are within their personal 

experience.”  Kovacic,
2014 U.S. Dist. LEXIS 133600
, at *6.  However, they may 
not testify concerning causation of Mr. Fakhoury’s diagnosis.  This aspect of 
Defendants’ motion will also be granted.                                  

   K.  Defendants’ Motion in Limine to Bar Certain Testimony from Hakim  
Fakhoury [#194]                                                           

    Defendants also move to exclude statements consistent with Mr. Fakoury’s 
January 22, 2019 Corrected Affidavit.  Defendants argue the statements should be 
excluded because they are not based on personal knowledge or a proper     
foundation, they are irrelevant and likely to confuse the jury.           
    First, Defendants maintain several statements are inadmissible hearsay.  The 
Court has already determined the Haidar-Fakhoury phone call statements are 

inadmissible.  Accordingly, all statements related to this conversation will be 
excluded, including Exhibit X.                                            
    As to Mr. Fakhoury’s statements concerning information he learned from 

Cynthia J. Grimwade and John Tanner, III, the Court will deny this aspect of 
Defendants’ motion without prejudice.  Plaintiff may be able to establish the 
admissibility of this evidence during the time of trial when the Court can properly 

evaluate whether an exception applies.                                    
    Defendants also argue several of Mr. Fakhoury’s statements lack personal 
knowledge or they are improperly conclusory and should be excluded.  As to 

paragraph 6 in Mr. Fakhoury’s corrected affidavit regarding defense counsel’s 
purported relationship with Mr. Haidar and his girlfriend, the Court has already 
ruled this paragraph is inadmissible in a prior decision.  See ECF No. 166, 
PageID.16760.                                                             

    As to the remaining paragraphs that Defendants seek to exclude, the Court 
finds Defendants’ arguments are premature.  Mr. Fakhoury may be able to   
establish personal knowledge for his statements.  Thus, the Court will deny without 

prejudice Defendants’ request to strike paragraphs 8, 14, 17, 21, 28, 29, 37, 40, 41, 
42, 43, and 45 of Mr. Fakhoury’s Corrected Affidavit.  Accordingly, Defendants’ 
Motion to Bar Certain Testimony of Hakim Fakhoury will be granted in part and 
denied without prejudice in part.                                         


   L.  Defendants’ Motion in Limine to Bar Certain Testimony from Tom    
Tafelski, Keith Woodcock and the Fakhourys [#195]                         

    Defendants seek to preclude certain testimony from Tom Tafelski, former 
City Council President. Mr. Tafelski worked on the council when Mayor O’Reilly 
took office in 2008 and continued working alongside Defendant O’Reilly in that 
capacity for the following sixteen years.  Defendants argue Mr. Tafalski’s 

anticipated statements lack the requisite personal knowledge required by Fed. R. 
Evid. 602.  Specifically, Defendants seek to preclude Mr. Tafelski from testifying 
that Mayor O’Reilly is a bully and vindictive or that Department heads were 

expected to serve at the pleasure of the Mayor.  Defendants further assert Mr. 
Tafelski should be precluded from testifying that he believed Mayor O’Reilly 
disliked the Fakhourys and that the Mayor implied Mr. Fakhoury’s financing came 
from illegitimate sources.                                                

    Here, Mr. Tafelski has worked as a member of the City Council alongside 
Mayor O’Reilly during the operative events giving rise to this action.  His 
impressions formed from day-to-day interactions and experiences gained from 

working alongside the Mayor are relevant to the Mayor’s treatment and ill will 
towards the Plaintiffs.                                                   
    Defendants also seek to exclude any evidence related to collection of rent, 
including Mr. Tafelski’s and Mr. Woodcock’s testimony that the Mayor informed 

the City Council to instruct tenants to pay the Hamames or the bank, and not to pay 
the Fakhourys.  Because there is admissible evidence in the record from the 
Fakhourys, Tafelski and Woodcock, this aspect of Defendants’ motion will also be 
denied.  However, to the extent any of these witnesses’ testimony relies on 
hearsay, such testimony is inadmissible.  This motion will be denied.     


   M.  Plaintiffs’ Motion in Limine to Preclude 1) the Use and/or Mention of 
Polygraph Evidence and/or 2)  Evidence Related to April Fakhoury Being an 
Alleged Alter Ego of Hakim Fakhoury for the Properties at Issue [#196]    

    Plaintiffs move to exclude any evidence of April Fakhoury refusing to take a 
polygraph test, as well as exclude any evidence that April Fakhoury is the alter ego 
of Hakim Fakhoury.                                                        
    1.  Polygraph Evidence                                               
    “Whether to admit a party’s refusal to submit to a polygraph examination is 
within the trial court’s discretion.”  United States v. Harris,
9 F.3d 493, 501
(6th 
Cir.1993) (trial court has discretion in determining whether evidence of a party’s 
willingness to submit to a polygraph is admissible).  “The trial court must first 
determine whether the proffered evidence is relevant.  If the court finds that the 

evidence is relevant, it must then balance the probative value of the evidence 
against the hazard of unfair prejudice and jury confusion.”  Id.; see also United 
States v. Neuhard,
770 F. App’x 251
, 255 (6th Cir.), cert. denied,
140 S. Ct. 570
,
205 L. Ed. 2d 365
(2019).  In short, “[t]he district court’s inquiry consists of 

whether the evidence is relevant and whether its probative value outweighs its 
prejudicial effect.”  United States v. Blakeney,
942 F.2d 1001, 1014
(6th Cir. 
1991); citing Wolfel v. Holbrook,
823 F.2d 970
(6th Cir. 1987), cert. denied,
484 
U.S. 1069
,
108 S.Ct. 1035
,
98 L.Ed.2d 999
(1988).                         

    Here, the relevance of evidence that Mr. Hamame took a polygraph test, and 
Mrs. Fakhoury did not, is dubious at best.  Defendants argue the different conduct 
between Mr. Hamame and Mrs. Fakhoury played a role in the different treatment 

between the two families.  However, the record before the Court is devoid of 
evidence showing any of the remaining Defendants had knowledge of Mrs.    
Fakhoury’s unwillingness to sit for a polygraph examination and that Mr. Hamame 
took a polygraph examination.  Even if Defendants can establish they knew the 

two business owners responded differently when asked to sit for a polygraph 
examination and this knowledge impacted Defendants’ responses to, and treatment 
of the Hamames versus the Fakhourys, the probative value of this polygraph 

evidence is outweighed by the risk of prejudice.                          
    The Sixth Circuit Court of Appeals has held admission of a defendant’s 
refusal to submit to a polygraph examination was error because the “marginal 
relevance of [the defendant’s] refusal to submit to polygraph testing was 

outweighed by its prejudicial effect.”  Wolfel v. Holbrook,
823 F.2d 970, 974-75
(6th Cir. 1987). “[S]ince an individual’s refusal to volunteer for polygraph testing 
is likely to create a high prejudicial inference that the results of the test would have 

been unfavorable, such evidence must be excluded.”
Id.
Consistent with Wolfel, 
the Court finds any marginal relevance provided by the polygraph evidence is 
outweighed by its prejudicial effect.                                     

       2.  Alter Ego                                                     
    Next, Plaintiffs argue any reference to April Fakhoury as the “alter ego” of 
Hakim Fakhoury is irrelevant, will confuse the jury and is highly prejudicial 

because it will suggest the Fakhourys are engaged in illegal dealings to evade 
creditors.  Plaintiffs explain that Defendants have included a partner at Plaintiff’s 
law firm on their Witness List suggesting counsel’s partner was involved in 
assisting Mrs. Fakhoury with creating the alter ego entities.             

    Defendants respond that Mr. Fakhoury’s business background is highly 
relevant to the damages issues in this case.  The Court agrees that Mr. Fakhoury’s 
business background is relevant to the damages issue.  Plaintiffs cannot rely on the 

doctrine of collateral estoppel where there is no privity between the Defendants 
and the Hamames.  The Court will deny this aspect of Plaintiff’s motion without 
prejudice.                                                                

   N.  Plaintiffs’ Motion in Limine to Preclude Defendants’ Witnesses Whose 
Anticipated Testimony Was Not Disclosed [#197]                            

    Plaintiffs also complain that Defendants failed to provide the anticipated 
testimony of 194 of their witnesses, including 82 witnesses disclosed for the first 
time on the last day of discovery.                                        
    On November 28, 2017, this Court entered a Scheduling Order in this  
matter.  ECF No. 36.  The Court set discovery cutoff for August 31, 2018.
Id.,
PageID.938.  The Court’s Scheduling Order states in relevant part:  “Discovery 
shall be completed on or before the date set forth in the scheduling order.   The 
court will not order discovery to take place subsequent to the discovery cutoff 

date.”
Id.
at PageID.939 (emphasis in original).  Discovery was subsequently 
extended 60 days until October 31, 2018.  On May 29, 2018, Defendants served 
their Responses to Plaintiffs’ First Interrogatories.  Interrogatory number 2 seeks 
the following: “For each non-expert witness Defendants may call at trial, please 

state their name, last known address, telephone number, and a complete summary 
of their anticipated testimony.”  ECF No. 197, PageID.18354.  Defendants  
responded that the request was overly broad, and they did not provide any details 

about their anticipated witnesses.                                        
     Under Rule 26, “[a] party who has made a disclosure under Rule 26(a)--or 
who has responded to an interrogatory . . . must supplement or correct its 
disclosure or response . . . in a timely manner if the party learns that in some 

material respect the disclosure or response is incomplete or incorrect[.]”  Fed. R. 
Civ. P. 26(e)(1)(A).  “This duty to supplement continues throughout the trial 
proceedings, and it does not terminate at the end of the formal discovery period.” 
Hubbell v. FedEx SmartPost, Inc.,
2016 WL 3197492
, at *8 (E.D. Mich. June 9, 
2016) (collecting cases).                                                 

    Rule 37 holds that if a party fails to identify a witness or supplement its 
disclosures as is required under Rule 26(a) or (e), the witness is barred from 
testifying at trial.  Fed. R. Civ. P. 37(c)(1).  The Sixth Circuit holds that the 

“‘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.’”  U.S. ex rel. Tennessee Valley Auth. v. 1.72 Acres of Land In Tennessee,
821 F.3d 742, 752
(6th Cir. 2016).                                        
    Indeed, “exclusion 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).  “In fact, the language of Rule 37 suggests that exclusion is 
mandatory in these circumstances, and the Sixth Circuit has cited with approval a 
Seventh Circuit decision to that effect.”  SPX Corp. v. Bartec USA, LLC,
574 F. 
Supp. 2d 748, 755
(E.D. Mich. 2008).  The reason why is that “[t]he purpose of 

Rule 37 is not only to punish discovery abusers, but also to protect litigants who 
legitimately seek information to prepare for trial.”
Id.
Here, Defendants may call only witnesses who were deposed or witnesses 

whose anticipated testimonies were disclosed during discovery, but not witnesses 
whose anticipated testimonies were never disclosed or supplemented when   
requested in Plaintiffs’ interrogatories.                                 

    The Sixth Circuit adopted a five-part test “[i]n order to assess whether a 
party’s omitted or late disclosure is ‘substantially justified’ or ‘harmless[.]’”  
Howe,
801 F.3d at 747-48
.  Those factors are:                             

      (1) the surprise to the party against whom the evidence would be   
    offered; (2) the ability of that party to cure the surprise; (3) the extent to 
    which allowing the evidence would disrupt the trial; (4) the importance 
    of the evidence; and (5) the nondisclosing party’s explanation for its 
    failure to disclose the evidence.
Id. at 748
.  Here, Plaintiffs were surprised to learn Defendants added 80 
witnesses to their Rule 26 Disclosures and 79 witnesses to their Witness List 
on the last day of discovery. By the time Defendants disclosed these witnesses 
on the last day of discovery, the case had been ongoing for over two years.  
Further, to this day – almost five years after the start of this case – Defendants 
have yet to disclose the anticipated testimony of the 194 witnesses as they are 
required to do under Rule 26(e).                                          
    The second factor – ability to cure – also weighs heavily against    
Defendants.  There is no way to cure Defendants’ failure that will not    
substantially prejudice Plaintiffs or further delay trial.  By not disclosing the 
anticipated testimony of 194 witnesses that they may rely on at trial, as 

requested in Plaintiffs’ First Interrogatories to Defendants, Plaintiffs have lost 
the opportunity to use the discovery process to explore these witnesses and 
the subject matter of their testimony “to prepare for trial.”  SPX
Corp, supra.
The third and fourth factors – the extent of the disruption to trial and 
the importance of the evidence – weigh heavily against Defendants, as well.  
Allowing the 194 witnesses to testify now would delay and disrupt trial   

because not only have Plaintiff had no prior opportunity to conduct discovery 
on these witnesses, but they would also be required to call additional    
witnesses or introduce additional evidence in an attempt to remedy the    
prejudice sustained as a result of the unfair surprise of the 194 witnesses.   

    Finally, the fifth factor – Defendants’ explanation for its failure to 
disclose the evidence – certainly weighs against Defendants.  There is no 
legitimate justification for why Defendants have gone years without       

supplementing their interrogatory responses regarding the anticipated     
testimony at trial for the Tiers Three and Four Witnesses.  Accordingly, every 
factor weighs against Defendants and they cannot show harmlessness or a   
substantial justification to overcome the mandatory Rule 37 sanctions.    

    This motion is granted.                                              

 III.  CONCLUSION                                                        
    Accordingly, for the reasons articulated above, Plaintiffs’ Daubert Motion to 
Exclude Defendants’ Damages Experts and Expert Report [#185] is DENIED    

WITHOUT PREJUDICE.                                                        
    Defendants’ Motion in Limine to Preclude Admission of Kenneth H.     
Johnson’s Expert Reports and Testimony Relating to the Reports [#186] is  

GRANTED.                                                                  
    Defendants’ Motion in Limine to Preclude Admission of State Equalization 
Values as Evidence of Market Value [#187] is GRANTED.                     
    Plaintiffs’ Motion in Limine to Exclude All Police Reports [#188] is 

DENIED WITHOUT PREJUDICE.                                                 
    Defendants’ Motion in Limine to Preclude Plaintiffs from Admitting   
Evidence Contradicting their Global Settlement with the Hamames Based on  

Judicial Estoppel [#189] is DENIED.                                       
    Defendants’ Motion in Limine to Allow Certain Testimony of           
Defendant/Corporation Counsel Walling [#190] is DENIED.                   
    Defendants’ Motion in Limine to Bar Evidence Relating to Haidar-Fakhoury 

Phone Call [#191] is GRANTED.                                             
    Plaintiffs’ Motion in Limine to Exclude References to 1) Alleged Pre-2013 
Judgments, Liens, Receiverships, or Foreclosures Relating to Plaintiff Hakim, 2)  

Alleged Investigations (Including the DOJ Investigation) Relating to Plaintiffs, 3)  
Defendants O’Reilly’s and Walling’s Personal Finances or Health Issues, and 4) 
Taxpayer Dollars or Costs [#192] is GRANTED IN PART AND DENIED IN         

PART.                                                                     
    Defendants’ Motion in Limine to Bar Testimony About Alleged Mayoral  
Ultimatum and to Preclude Lay Opinion Medical Causation Testimony [#193] is 

GRANTED.                                                                  
    Defendants’ Motion in Limine to Bar Certain Testimony from Hakim     
Fakhoury [#194] is GRANTED IN PART AND DENIED IN PART.                    
    Defendants’ Motion in Limine to Bar Certain Testimony from Tom Tafelski, 

Keith Woodcock and the Fakhourys [#195] is DENIED IN PART AND             
GRANTED IN PART.                                                          
    Plaintiffs’ Motion in Limine to Preclude 1) the Use and/or Mention of 

Polygraph Evidence and/or 2)  Evidence Related to April Fakhoury Being an 
Alleged Alter Ego of Hakim Fakhoury for the Properties at Issue [#196] is 
GRANTED IN PART and DENIED WITHOUT PREJUDICE IN PART.                     
    Plaintiffs’ Motion in Limine to Preclude Defendants’ Witnesses Whose 

Anticipated Testimony Was Not Disclosed from Testifying at Trial [#197] is 
GRANTED.                                                                  
    The parties shall submit a revised, proposed Final Pretrial Order consistent 

with the instant Order no later than May 10, 2022.                        
    A final pretrial conference will be held on May 17, 2022 at 2:00 p.m.  
    Jury trial shall commence on May 31, 2022 at 9:00 a.m.               


    SO ORDERED.                                                          
Dated:  March 28, 2022                  /s/Gershwin A. Drain                         
                                       GERSHWIN A. DRAIN                 
                                       United States District Judge      



                   CERTIFICATE OF SERVICE                                

Copies of this Order were served upon attorneys of record on March 28, 2022, by 
                   electronic and/or ordinary mail.                      
                       /s/ Teresa McGovern                               
                          Deputy Clerk