Clayton v. Hogan et al

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
MARK CLAYTON,
Plaintiff,
v.
WILLIAM YOUNG et al.,
Defendants.
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Case No. 3:22-cv-00936
Judge Aleta A. Trauger
MEMORANDUM and ORDER
Now before the court is the defendant’s Motion in Limine No. 2 to Exclude Documents
and Information Not Produced and Related Testimony. (Doc. No. 187.) More specifically, citing
Federal Rules of Civil Procedure 26, 34, and 37, defendant Paige Burcham-Dennis seeks to
exclude from evidence at trial documents that were identified in the plaintiff’s initial Rule 26
disclosures and Rule 26 computation of damages, and requested by the defendants in discovery,
but that the plaintiff has failed to produce. (Id. at 1.) Plaintiff Mark Clayton filed a Response (Doc.
No. 202), arguing that the motion is largely moot, either because the plaintiff does not intend to
produce the evidence identified in the motion or because it is the subject of the defendant’s Motion
in Limine No. 1.
For the reasons set forth herein, the motion will be granted in part, denied in part without
prejudice, and denied in part as moot.
I. 	BACKGROUND
The defendant asserts that the plaintiff identified in his initial disclosures four categories
of documents supporting his claims for damages: (1) medical and psychological treatment records,
(2) employment and earnings documentation, (3) expert reports regarding economic loss, and (4)
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reputation management industry cost analysis. (Doc. No. 187 at 1; see also Pl.’s Initial Disclosures,
Doc. No. 187-1 at 4.) The defendants’ Requests for Production of Documents (“RFPs”) asked the
plaintiff to produce these documents, including, with respect to the second category, personal
income tax returns from 2019 to the present, along with all schedules, worksheets, W-2 forms,
1099 forms, interest statements, K-1 statements, receipts, invoices, and supporting documentation.
(See Doc. No. 187 at 1–2; see also Pl’s Resp. to RFPs, Doc. No. 187-2.) According to the
defendant, the plaintiff has never produced any of these documents.
The plaintiff’s Initial Disclosures also included a computation of damages that was
purportedly based on “actual costs and expert projections,” “comparable cases,” “industry standard
rates” for “reputation management,” and “comparable cases” for ratios for alleged punitive
damages. (Doc. No. 187-2 at 5–6.) The defendant asserts that the plaintiff has never provided
supporting documentation of such “actual costs, expert projections, or industry rates or standards
for reputation management, or comparable cases.” (Doc. No. 187 at 2.)
The defendant argues that, because the plaintiff has failed to produce documentation in
response to discovery requests, or to supplement his discovery responses in a timely fashion, he is
precluded by Rule 37(c) from “offering specific testimony related to these categories of
Documents” and his computation of damages at trial. (Id. at 3–4.)
In his response, the plaintiff clarifies that he does not intend to introduce into evidence his
personal income tax returns, W-2s, 1099s, or other employment and earnings records that were not
produced in discovery. (Doc. No. 202 at 1.) Nor does he intend to offer medical or psychiatric
treatment records “beyond those already disclosed,” nor any “additional expert reports concerning
economic loss beyond those of Dr. Kenner and Barbara Luna.” (Id.) He asserts that the request to
exclude these documents should be excluded as hypothetical and therefore moot.
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He further argues that the admissibility of the Kenner and Luna reports is governed by the
defendant’s Motion in Limine No. 1 (and, presumably, the court’s ruling on that motion); that he
has not withheld any documents relating to his “reputation-management damages estimate”; and
that he “executed and provided a HIPAA authorization identifying his medical providers and
authorizing Defendants to obtain the records directly from those third parties,” thus making his
medical records “available for inspection and copying within the meaning of Rule 34.” (Doc. No.
202 at 2–4.) Otherwise, he argues that exclusion of his damages-related evidence is not warranted
under Rule 37(c) based on harmless error.
II. 	LEGAL STANDARDS
Federal Rule of Civil Procedure 26 requires the plaintiff to provide, with his initial
disclosures, “a computation of each category of damages claimed by the disclosing party—who
must also make available for inspection and copying as under Rule 34 the documents or other
evidentiary material . . . on which each computation is based.” Fed. R. Civ. P. 26(a)(1)(A)(iii).
Rule 26(e) provides for supplementation of incorrect or incomplete disclosures.
Rule 34 governs requests for production of documents. And Rule 37states that a party who
“fails to provide information as required by Rule 26(a) or (e) . . . is not allowed to use that
information or witness to supply evidence . . . at trial, unless the failure was substantially justified
or harmless.” Fed. R. Civ. P. 37(c)(1).
III. 	DISCUSSION
It is somewhat unclear to the court to what extent any portion of the defendant’s Motion in
Limine No. 2 remains unresolved. First, the court’s ruling on the defendant’s Motion in Limine
No. 1 disposes of any issue regarding the Affidavits of Dr. Kenner or Barbara Luna, as well as the
plaintiff’s ability to offer lay testimony about the future costs of repairing reputational damages.
In short, the plaintiff may not offer the Kenner or Luna Affidavit into evidence; nor may he testify
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about information he gleaned from a website on reputation remediation or the potential future costs
of reputation remediation. That conclusion governs evidence about Edelman’s strategy but also
about information on the website identified in the plaintiff’s Response to Motion in Limine No. 2.
The plaintiff simply is not competent to testify about what steps might be necessary to repair his
reputation or the putative future costs of doing so.
Second, the plaintiff states that he does not intend to offer into evidence his personal
income tax returns from 2019 to the present, along with all schedules, worksheets, W-2 forms,
1099 forms, interest statements, K-1 statements, receipts, invoices, and supporting documentation.
What other admissible “employment and earnings documentation” is in his possession and has
already been produced remains to be seen, but he will not be permitted to offer into evidence
documentation that he was previously asked to produce in discovery but did not produce.1
Finally, regarding the plaintiff’s medical records, it is unclear from the plaintiff’s Witness
and Exhibit List what medical records he actually seeks to introduce into evidence, aside from the
Kenner Affidavit, which the court has already found to be inadmissible. The List also references
“Medical Records/HIPAA Release.” (Doc. No. 221.) The court does not know whether the plaintiff
simply seeks to introduce a HIPAA Release or medical records themselves, but the plaintiff states
that he does not intend to introduce records “beyond those already disclosed.” (Doc. No. 202 at 1.)
By “disclosure,” he seems to mean that he identified medical providers and signed authorizations
that would permit the defendants to obtain those documents directly from the providers. That may
be true, but the Order Setting Case for Trial directed the parties to exchange copies of their intended
exhibits no later than January 6, 2026. (See Doc. No. 124 ¶ 3.) Irrespective of whether the
1 The plaintiff has now filed his Witness and Exhibit List. Many of his exhibits related to
damages appear to be largely in the form of inadmissible hearsay, including his own deposition,
his own previously produced affidavits, and the Luna Affidavit.
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defendant had the ability to obtain the plaintiff’s medical records through his provision of release
authorizations, the plaintiff still had an obligation to produce the actual exhibits he intends to offer
into evidence. On the record now before the court, it is unclear whether he has supplied copies of
all of his proposed exhibits to the defendant. It is also unclear what medical records the plaintiff
intends to introduce into evidence. The court declines to rule on a hypothetical issue. If the plaintiff
seeks to introduce medical records, or medical billing records, at trial, the defendant may renew
her objection at that time.
IV. 	CONCLUSION AND ORDER
For the reasons set forth herein, the defendant’s Motion in Limine No. 2 is DENIED AS
MOOT with respect to the issues resolved in the court’s ruling on Motion in Limine No. 1. More
specifically, the plaintiff may not offer into evidence the Luna Affidavit or the Kenner Affidavit,
or testimony from either Dr. Kenner or Dr. Luna regarding the plaintiff’s mental health or financial
damages that predate the May 18, 2022 meeting at issue in this lawsuit, and he may not testify
about “reputation management industry cost analysis.”
The court DENIES WITHOUT PREJUDICE the motion insofar as it pertains to medical
records; the defendant may renew her objection at trial, if the issue arises.
The motion is GRANTED with respect to the introduction of any other documentation
supporting the plaintiff’s lost earnings or economic loss that has not been produced in discovery.
It is so ORDERED.
ALETA A. TRAUGER
United States District Judge
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