JAN BURGESS, and all 2,959 individuals identified in the Burgess FTCA Administrative Complaint v. UNITED STATES OF AMERICA

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
Case No. 17-cv-11218
In re FTCA Flint Water Cases, 	(Consolidated)
Honorable Linda V. Parker
________________________________/
OPINION AND ORDER
In this lawsuit, brought under the Federal Tort Claims Act (“FTCA”),
Plaintiffs allege that the United States Environmental Protection Agency (“EPA”)
responded negligently to the “Flint Water Crisis.” In anticipation of a bench trial
on the claims of several Bellwether Plaintiffs, the parties have filed the following
motions concerning the admissibility of expert testimony and reports:
• 	The United States of America’s motion to exclude the expert report and
testimony of Leslie Liebowitz, Ph.D. (ECF No. 293);
• 	The United States of America’s motion to exclude the expert reports and
testimony of Erik Olson and Larry L. Russell, Ph.D. (ECF No. 295);
• 	The United States of America’s motion to exclude the expert testimony of
Zak Rostar, Anthony Legins, Jamal Saad, and John Meyers, Ph.D. (ECF No.
300);
• 	Plaintiffs’ motion to exclude certain opinions of Jennifer Huffman, Ph.D.
(ECF No. 304); and
• 	The United States of America’s motion to strike the “supplemental” reports
of Dr. Russell and Vonnie C. McLoyd, Ph.D. (ECF No. 305).
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These motions are fully briefed. Also pending is Plaintiffs’ motion to compel the
production of documents from and the deposition testimony of Julie Goodman,
Ph.D., which also is fully briefed. (ECF No. 322.)
Standards Applicable to the Parties’ Daubert Motions
Federal Rule of Evidence 702 requires trial judges to perform a “gatekeeping
role” when considering the admissibility of expert testimony. Daubert v. Merrell
Dow Pharms., Inc., 509 U.S. 579, 597 (1993). The Sixth Circuit Court of Appeals
describes this gatekeeping function as an “obligation . . . to exclude from trial
expert testimony that is unreliable and irrelevant.” Conwood Co., L.P. v. U.S.
Tobacco Co., 290 F.3d 768, 792 (6th Cir. 2002) (internal quotation marks omitted).
It is designed “to protect juries from being swayed by dubious scientific
testimony.” United States v. Flores, 901 F.3d 1150, 1165 (9th Cir. 2018) (quoting
David E. Watson, P.C. v. United States, 668 F.3d 1008, 1015 (8th Cir. 2012)
(emphasis in original)).
As the gatekeeper, the trial court must determine whether the proposed
expert’s opinion satisfies three requirements parsed from Rule 702. See In re
Scrap Metal Antitrust Litig., 527 F.3d 517, 528-29 (6th Cir. 2008). First, the
witness must be qualified according to his or her “knowledge, skill, experience,
training, or education.” Id. at 529 (quoting Fed. R. Evid. 702). Second, the
expert’s testimony must be relevant, in that it will help “the trier of fact to
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understand the evidence or to determine a fact in issue.” Id. (same). Third, the
testimony must be reliable. Id. (same).
Rule 702 also provides “general standards to assess reliability: whether the
testimony is based upon ‘sufficient facts or data,’ whether the testimony is the
‘product of reliable principles and methods,’ and whether the expert ‘has applied
the principles and methods reliably to the facts of the case.’” Id. (quoting Fed. R.
Evid. 702). In Daubert, the United States Supreme Court set forth a non-
exhaustive list of factors for trial courts to consider in evaluating the reliability of
expert testimony. 509 U.S. at 592-93; see also In re Scrap Metal Antitrust Litig.,
527 F.3d at 529 (citing United States v. Langan, 263 F.3d 613, 621 (6th Cir.
2001)). Those factors include “testing, peer review, publication, error rates, the
existence and maintenance of standards controlling the technique’s operation, and
general acceptance in the relevant scientific community.” In re Scrap Metal Litig.,
527 F.3d at 529 (quoting Langan, 263 F.3d at 621). “The test of reliability is
‘flexible,’” however, “and the Daubert factors do not constitute a ‘definitive
checklist or test,’ but may be tailored to the facts of a particular case.” Id. (quoting
Kumho Tire Co. v. Carmichael, 526 U.S. 137, 150 (1999)).
Reliability should not be confused with credibility or accuracy. See id. “[A]
determination that proffered expert testimony is reliable does not indicate, in any
way, the correctness or truthfulness of such an opinion.” Id. The court’s task in
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assessing reliability is not to decide whether the expert’s opinion is correct, but
“whether it rests upon a reliable foundation, as opposed to, say, unsupported
speculation. Id. (citing Fed. R. Evid. 702; Conwood Co., 290 F.3d at 792).
Further, “rejection of expert testimony is the exception, rather than the rule[.]” Id.
at 530 (citation omitted).
Government’s Motion to Exclude Dr. Lebowitz’s Report and Testimony
Dr. Lebowitz is a licensed clinical psychologist, who earned her master’s
degree in psychology in 1985 and her doctorate degree in 1990. (See ECF No.
362-1 at PageID.13427.) For over thirty years, Dr. Lebowitz’s clinical and
research work has centered on the assessment and treatment of traumatic life
experiences. (Id.) Plaintiffs retained Dr. Lebowitz to evaluate some of the adult
Bellwether Plaintiffs to assess the following: (1) “whether they . . . experienced
any negative emotional, cognitive, and/or behavior effects, and/or diminished
quality of life as a result of [the] Flint [W]ater [C]risis”; (2) “whether any of these
harms are ongoing and likely to extend into the future”; and (3) “to what extent the
injuries and harm are related to, and/or exacerbated by, decisions made by
government agencies before, during[,] and after what is referred to as the Flint
Water Crisis.” (Id.)
The United States of America (hereafter “Government”) seeks to exclude
Dr. Lebowitz’s report and testimony, arguing that her opinions are unreliable and
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not helpful to the trier of fact. The Government asserts that Dr. Lebowitz’s
opinions are unreliable because they were formed primarily from “unstructured
interviews” of her subjects and her “improper use” of the Impact of Event Scale
(“IES”) assessment tool, and because she did not review the individuals’ medical
or psychological records or speak with their healthcare providers. Dr. Lebowitz
cannot opine on the etiology of these individuals’ symptoms, the Government
maintains, because she did not investigate additional or alternative traumas and
stressors in their lives pre- and post-dating the Flint Water Crisis.
The Government further maintains that Dr. Lebowitz’s opinions are not
helpful to the trier of fact because she does not offer any diagnosis or describe any
future psychological or medical treatment needed. Instead, she only summarizes
these individuals’ subjective beliefs and emotional reactions to the Flint Water
Crisis, which the Government argues can be presented without expert testimony.
The Government also argues that Dr. Lebowitz is not qualified to opine on the
nature and etiology of Plaintiffs’ alleged physical ailments—more specifically, that
they are “consistent with” lead exposure.
The Court is denying the Government’s motion to exclude Dr. Lebowitz’s
expert report and testimony. Turning to the Government’s last challenge first,
based on the Court’s reading of Dr. Lebowitz’s report, she does not seem to be
offering an opinion on whether the exposure to or ingestion of the tainted Flint
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River water caused the physical ailments experienced by the individuals she
interviewed and/or their family members.1 What the Court instead understands Dr.
Lebowitz to be conveying is that the Fint Water Crisis and the believed impact of
the tainted water on the physical wellbeing of the interviewed Plaintiffs and their
family members—regardless of whether those beliefs are correct or mistaken—has
changed the interviewed Plaintiffs’ world view. For example, as Dr. Lebowitz
conveys, what these individuals believe (again, whether correct or mistaken) has
caused them to no longer trust government officials, to feel not valued
individually, as a community, race, and/or socio-economic group, and to fear
consuming and using tap water even after it has been deemed safe. Thus, the Court
does not understand Dr. Lebowitz to be offering opinions that she is unqualified to
provide.
The Court next turns to the Government’s challenge to the reliability of Dr.
Lebowitz’s opinions. Dr. Lebowitz conducted lengthy clinical interviews lasting
multiple hours each with the Bellwether Plaintiffs. During those interviews, she
1 There are statements in the report which appear to offer an opinion on the cause
of the physical ailments experienced by the interviewed individuals and/or their
family members—that being, exposure to and/or consumption of the tainted Flint
River water. (See, e.g., ECF No. 362-1 at PageID.13430 ¶ 1 (“All respondents
reported some symptoms consistent with exposure to lead . . .”); id. at
PageID.13435 (providing that some physical symptoms “are consistent with
exposure to significant levels of lead and/or chronic stress”).) To the extent Dr.
Lebowitz is expressing such an opinion, she does appear unqualified to do so.
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made clinical observations, including their affect, and gathered data on their life
histories, beliefs, viewpoints, any trauma experienced before the Flint Water
Crisis, and their functioning after the Flint Water Crisis. She also administered the
IES assessment tool. Courts have recognized “that these types of diagnostic
techniques are part of a valid methodology for psychological evaluation.” Vicente
v. Barnett, 415 F. App’x 767, 770 (9th Cir. 2011) (citing United States v. Finley,
301 F.3d 1000, 1008 (9th Cir. 2002)). To the extent the Government is critical of
Dr. Lebowitz’s methods, including her administration of the IES tool, those are
issues going to the weight of her opinions and her credibility.
As to the requirement that Dr. Lebowitz’s opinions assist the trier of fact to
understand the evidence or to determine a fact in issue, the Court believes that this
requirement is satisfied. Dr. Lebowitz does not simply restate the feelings and
experiences of the interviewed Plaintiffs. She explains, based on her education,
training, and experience, how a traumatic event like the Flint Water Crisis impacts
individuals and communities, in particular minority and economically-
disadvantaged populations. Her expert opinion helps the trier of fact understand
the complexity and depth of the psychological impact of such a traumatic event,
which is particularly useful to the Court, which may have never experienced such
an event.
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If the Court ultimately finds Dr. Lebowitz’s opinions unreliable or unhelpful
based on, or for reasons independent of, the Government’s criticisms, it can choose
to ignore her opinions. The Court has the flexibility to make the assessment after
listening to the evidence, instead of before the evidence is presented, as this will be
a bench trial. There is no jury “to protect . . . from misleading or unreliable expert
testimony[.]” Deal v. Hamilton Cnty. Bd. of Educ., 392 F.3d 840, 851 (6th Cir.
2004).
As Plaintiffs and the Government ironically both argue when responding to
the other’s motion(s) to exclude testimony, a district court’s “gatekeeping” role
and Daubert are “largely irrelevant in the context of a bench trial.” Id. at 852; see
also TCWC, LLC v. Kelvin Corp., No. 18-13863, 2022 WL 22932769, at *2 (E.D.
Mich. Sept. 21, 2022) (citing Deal, 392 F.3d at 852; League of Women Voters of
Mich. v. Benson, No. 17-14148, 2019 WL 8106155, at*1 (E.D. Mich. Jan. 15,
2019)). As several judges in this District have concluded when presented with
Daubert motions preceding a bench trial, “[t]he proper course of action . . . is to
admit the evidence and then afford it whatever weight the Court deems
appropriate.” TCWC, 2022 WL 22932769, at *2 (quoting Benson, 2019 WL
8106155, at *1) (quoting Mich. State A. Philip Randolph Inst. v. Johnson, No. 16-
cv-11844, 2018 WL 1180886, at *2 (E.D. Mich. Mar. 7, 2018)). Similarly, Circuit
Courts have expressed:
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In bench trials, the district court is able to “make its reliability
determination during, rather than in advance of, trial. Thus where the
factfinder and the gatekeeper are the same, the court does not err in
admitting the evidence subject to the ability later to exclude it or
disregard it if it turns out not to meet the standard of reliability
established by Rule 702.”
United States v. Flores, 901 F.3d 1150, 1165 (9th Cir. 2018) (quoting In re Salem,
465 F.3d 767, 777 (7th Cir. 2006)).
For these reasons, the Court is denying the Government’s motion to exclude
Dr. Lebowitz’s expert report and testimony.
Government’s Motion to Exclude Mr. Olson’s and Dr. Russell’s
Reports and Testimony
Plaintiffs retained Mr. Olson as an expert in the structure, policies, rules, and
regulations related to the operations of the EPA, including the Safe Drinking Water
Act (“SDWA”), the Lead and Copper Rule, and related rules and regulations. (See
ECF No. 308-4 at PageID.10044.) In summary, Mr. Olson concludes that, if the
EPA had been complying with its obligations under the applicable law, the Flint
Water Crisis could have been averted or ended more swiftly because the EPA
would have identified, avoided, and/or remedied the serious problems with the
Flint River water far earlier. (See id. at PageID.10045-46.) Plaintiffs retained Dr.
Russell, in part, to similarly opine on EPA’s duties and whether it breached those
duties. (See ECF No. 295-3 at PageID.7504-06.) Dr. Russell is a professional
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engineer with expertise in water quality, water distribution systems, and
environmental regulations. (Id. at PageID.7505.)
The Government seeks to exclude Mr. Olson’s and Dr. Russell’s reports and
testimony, arguing that they are providing legal conclusions, which are prohibited
under Federal Rule of Evidence 702. “A witness’ testimony contains a legal
conclusion only if ‘the terms used by the witness have a separate, distinct and
specialized meaning in the law different from that present in the vernacular.”
United States v. Volkman, 797 F.3d 377, 388 (6th Cir. 2015) (quoting Torres v.
Cnty. of Oakland, 758 F.2d 147, 151 (6th Cir. 1985)). For example, in the context
of a criminal case, the Sixth Circuit provided: “An expert may not opine on the
overarching question of guilt or innocence, but he or she may ‘state opinions that
suggest the answer to the ultimate issue or that give the jury all the information
from which it can draw inferences as to the ultimate issue.’” Id. (quoting Berry v.
City of Detroit, 25 F.3d 1342, 1353 (6th Cir. 1994)).
In the context of a civil case, where the plaintiff alleged the use of excessive
force in violation of the Fourth Amendment, the Sixth Circuit delineated which
expert opinions are and are not legal conclusions as follows:
The expert can testify, if a proper foundation is laid, that the discipline
in the Detroit Police Department was lax. He also could testify
regarding what he believed to be the consequences of lax discipline.
He may not testify, however, that the lax discipline policies of the
Detroit Police Department indicated that the City was deliberately
indifferent to the welfare of its citizens.
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25 F.3d at 1353. Further, to explain the scope of the defendant’s duty, an expert
may testify as to industry standards and customs, including by referencing
applicable laws and regulations. See Malburg v. Grate, No. 11-14856, 2014 WL
4473786, at *4 (E.D. Mich. Sept. 9, 2014); see also Allen v. Cam’s Transport Co.,
No. 3:22-cv-403, 2024 WL 3970897, at *5-6 (E.D. Tenn. June 24, 2024)
(collecting cases). An expert is not precluded from opining on whether the
defendant complied with those standards, customs, or laws, or on whether the
defendant breached its duties, provided those opinions are not offered as evidence
of negligence per se. Malburg, 2014 WL 4473786 at *5 (citations omitted); Allen,
2024 WL 3970897, at *5.
As a general matter, the opinions stated in Mr. Olson’s and Dr. Russell’s
reports are directed to the applicable standards of care and whether EPA complied
with those standards. Mr. Olson and Dr. Russell do not need to be legal or
regulatory experts to offers those opinions because they are otherwise qualified
based on their knowledge, skill, experience, training, and/or education. See supra.
There is at least one instance, however, where Mr. Olsen opines on how the law
should be interpreted, which crosses over to being a legal conclusion. Beginning at
page 11 of Mr. Olsen’s report, he interprets a provision of SDWA. (ECF No. 308-
4 at PageID.10054-55.)
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Nevertheless, this limited instance is not a reason to entirely strike Mr.
Olson’s report or testimony. To the extent Plaintiffs’ counsel crosses the line into
seeking legal opinions from these experts at trial, as discussed earlier, because this
will be a bench trial, the Court can limit its consideration of these experts’
testimony to only that which is admissible.
Lastly, the Court rejects the Government’s contention that Dr. Russell is not
qualified to offer his opinions because he is not a lawyer or regulator. He has the
education, training, and experience to opine on water quality assessment, corrosion
mitigation, and the impact on materials exposed to improperly treated drinking
water. He can be an expert on the statutes and regulations relevant to his field,
without being a lawyer or regulator.
For these reasons, the Court is denying the Government’s motion to exclude
the expert reports and testimony of Mr. Olson and Dr. Russell.
Plaintiffs’ Motion to Partially Exclude Dr. Huffman’s Report and Testimony
Plaintiffs move to exclude portions of the testimony and report of the
Government’s expert, Dr. Huffman. Specifically, Plaintiffs seek to limit Dr.
Huffman’s report and testimony to her neuropsychological evaluations of the
minor Bellwether Plaintiffs. Plaintiffs argue that Dr. Huffman lacks sufficient
expertise, qualifications, and basis to opine on the Flint Water Crisis’ impact on
community, behavioral, and mental health, the adult Bellwether Plaintiffs, or the
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socioeconomic and mental health consequences on the Flint Community and
Plaintiffs, broadly. Plaintiffs point out that Dr. Huffman never met with or
examined the adult Bellwether Plaintiffs.
Dr. Huffman is a board certified clinical neuropsychologist, with a
subspecialty certification in Pediatric Clinical Neuropsychology. (ECF No. 304-
2.) She earned her doctorate degree in 2000. To be accepted as a specialist in the
field of Clinical Neuropsychology, Dr. Huffman was evaluated on neuropathology,
neurophysiology, and neurocognitive problems primarily in adults. (ECF No. 319-
19 at PageID.10772-73.) While Dr. Huffman’s private practice may place a
“particular emphasis on children” (see ECF No. 304-2 at PageID.9343), and most
of her assessments in that setting during some years may be of children (see ECF
No. 319-10 at PageID.10542), her education, training, and experience render her
qualified to provide the opinions to which Plaintiffs object.
In her private practice, Dr. Huffman provides neuropsychological
assessments to individuals of all ages. (ECF No. 304-2 at PageID.9343-44; see
also ECF No. 319-10 at PageID.10542.) She has extensive experience assessing
emotional distress and trauma associated with a wide range of causes and
disorders. (ECF No. 304-2 at PageID.9343-44; see also ECF No. 319-10 at
PageID.10542-44.) In addition to her private practice, Dr. Huffman has worked in
various hospital and medical clinic settings, where she conducted
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neuropsychological assessments and therapy for diverse populations, which
included adults and children with varying disorders, including trauma. (See ECF
No. 304-2.)
Dr. Huffman did not meet with or examine the adult Bellwether Plaintiffs.
But Plaintiffs cite no caselaw holding that an in-person examination is necessary to
render psychological expert testimony reliable. Dr. Huffman did engage in a
systematic review of the individual’s available records. (See ECF No. 319-19 at
PageID.10776.) Courts recognize this to be a reliable method to assess an
individual’s physical and/or mental health. See, e.g., Kushner v. Lehigh Cement
Co., 572 F. Supp. 2d 1182, 1192 (C.D. Cal. 2008) (rejecting the plaintiff’s attack
on a psychiatrist’s opinion based on the lack of an exam, finding the plaintiff’s
position “undermined by the wide acceptance in ERISA and disability cases of
record reviews by psychiatrists and other doctors, without in person examinations,
to uphold the propriety of claims decisions based on such reviews”) (collecting
cases); Empire Fire & Marine Ins. Co. v. Patton, No. CV-17-02159, 2019 WL
11544461, at *4-6 (D. Ariz. Aug. 26, 2019) (noting that reviewing depositions and
other documents is a reliable method for a psychologist expert); Kanellakopoulos
v. Unimerica Life Ins. Co., No. 15-CV-04674, 2018 WL 984826, at *2 (N.D. Cal.
Feb. 20, 2018) (“The Court is unpersuaded by Plaintiff’s contention that Dr.
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Perrillo’s methodology—a review of Plaintiff’s records—was unreliable because
Dr. Perrillo did not examine Plaintiff in person.”).
Nor is Dr. Huffman unqualified because Plaintiffs’ experts may arguably
have more experience in the specific areas about which they and Dr. Huffman offer
expert testimony. This goes to weight and credibility, not admissibility.
Thus, the Court is denying Plaintiffs’ motion to exclude certain opinions of
Dr. Huffman (ECF No. 304).
The Government’s Motion to Exclude the Testimony of Messrs. Rostar,
Legins, and Saad, and Dr. Meyers Pursuant to Federal Rule of Civil
Procedure 37(c)(1)
In Spring 2024, Plaintiffs identified Messrs. Rostar, Legins, and Saad as
experts under Federal Rule of Civil Procedure 26(a)(2)(C). (ECF No. 300-2.)
Plaintiffs also designated rebuttal expert Dr. Meyer under the same rule. (ECF No.
300-4.) Rule 26(a)(2)(C) witnesses need not provide a written report. See Fed. R.
Civ. P. 26(a)(2)(C).
The Government seeks to exclude the testimony of these witnesses,
contending that they, in fact, should have been designated as witnesses under Rule
26(a)(2)(B) and, therefore, should have furnished a written report. See Fed. R. Civ.
P. 26(a)(2)(B). The Government also argues that Mr. Rostar is not qualified and
that his opinions are irrelevant and unreliable.
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Rule 26(a)(2)(B) requires a written report from any witness “retained or
specially employed to provide expert testimony in the case or . . . whose duties as
the party’s employee regularly involve giving expert testimony. Fed. R. Civ. P.
26(a)(2)(B). A witness who forms his or her opinions from information obtained
and observations made independent of the litigation, and does not form those
opinions “in anticipation of litigation,” is not such an expert. See Adkins v.
Marathon Petroleum Co., LP, 105 F4th 841, 849 (6th Cir. 2024) (citing Fielden v.
CSX Transp., Inc., 482 F.3d 866, 869 (6th Cir. 2007)). Under which subsection of
Rule 26(a)(2) an expert witness falls “is determined primarily by the scope,
substance, and source of the[ir] intended testimony—not on whether the witness is
being compensated.” Ulbrick v. UPR Prods., Inc., No. 08-13764, 2011 WL
500034, at *4 (E.D. Mich. 2011) (citing Fielden, 482 F.3d at 871).
In response to the Government’s motion, Plaintiffs assert that Messrs.
Rostar, Legins, and Saad were retained to provide their “observations,” and Dr.
Meyers was retained to testify as the “creator and owner of the Meyers
Neuropsychological Battery (“MNB”) and software program and its application.
(See ECF No. 330 at PageID. 11316-20.) Notably absent from Plaintiffs’
assertion, however, is that these experts’ observations and opinions were not
formed in anticipation of litigation, which is what exempts them from the report
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requirement in Rule 26.2 Plaintiffs’ primary argument in response to the
Government’s motion is that exclusion is not the proper remedy where the
Government did not previously file a motion seeking to compel reports from these
experts, went ahead anyway with their depositions, and then waited until after
discovery closed to seek their exclusion.
Federal Rule of Civil Procedure 37 sets forth the consequence for failing to
provide an expert witness report required under Rule 26(a)(2)(B):
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); see also Roberts ex rel. Johnson v. Galen of Va., Inc., 325
F.3d 776, 782 (6th Cir. 2003) (quotation marks and citations omitted) (stating that
Rule 37(c)(1) “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”). The party that has violated Rule 26 bears the burden of showing that
2 Having reviewed Mr. Rostar’s deposition to address the Government’s other
challenges to his opinions, the Court does not believe his observations or opinions
were formed in anticipation of litigation. Instead, the plumbing company where he
works, Goyette Mechanical, was called by the homeowner of 926 Maxine Street to
address various plumbing issues, at which time water damage was observed in the
ceiling. (ECF No. 330-2 at PageID.11407.) Other Goyette plumbers found
substantial leaking and corrosion of the home’s pipes. (Id. at PageID.11407,
11409, 11413.) Mr. Rostar was then brought in to provide the homeowner with an
estimate to remove and replace the damaged piping. (Id.)
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the violation “was either justified or harmless.” Roberts ex rel. Johnson, 325 F.3d
at 782 (collecting decisions from other circuits placing burden on the potentially
sanctioned party); see also RJ Control Consultants, Inc. v. Multiject, LLC, 100
F.4th 659, 668 (6th Cir. 2024) (quoting Dickenson v. Cardiac & Thoracic Surgery
of E. Tenn., P.C., 388 F.3d 976, 983 (6th Cir. 2004)) (providing that exclusion is
“ ‘automatic and mandatory’ unless the offending party can show that its
nondisclosure was substantially ‘justified or harmless’”).
The Sixth Circuit has offered five factors for district courts to consider when
assessing whether the failure of a party to comply with Rule 26(a)’s requirements
is justified or harmless:
(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.
RJ Control Consultants, 100 F.4th at 668-69 (quoting Howe v. City of Akron, 801
F.3d 718, 748 (6th Cir. 2015)). The Sixth Circuit also has advised that “[d]istrict
courts have broad discretion in applying these factors and need not apply each one
rigidly.” Id. at 669 (quoting Bisig v. Time Warner Cable, Inc., 940 F.3d 205, 219
(6th Cir. 2019)). Having considered these factors, Plaintiffs demonstrate that the
omission of reports from these witnesses was harmless.
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At least eight months before the Government filed its motion to exclude the
testimony of these experts, it knew that they were going to testify and to what they
were going to testify. As the Sixth Circuit pointed out in Roberts ex rel. Johnson,
“[t]his fact alone makes this case atypical of cases where sanctions have been
justified under Rule 37(c)(1).” 325 F.3d at 783 (citing Ames v. Van Dyne, No. 95-
3376, 1996 WL 662899, at *4-*5 (6th Cir. Nov. 13, 1996); Bowe v. Consol. Rail
Corp., No. 99-4091, 2000 WL 1434584, at *3-*4 (6th Cir. Sept. 19, 2000)). The
Government also knew that it had not received a Rule 26(a)(2)(B) report from
these experts. Thus, there was no surprise to the Government. While the
Government may have voiced objections to Plaintiffs about the lack of reports
from these experts, it never made a motion to compel their disclosure under Rule
37(a)(2)(A), when there was time to cure the deficiency.
Had the Government filed such a motion when Plaintiffs made clear that no
reports would be produced, there would have been ample time to cure the
omission. Even now, with no trial date set, reports could be produced without
harm to the Government. And because no trial date has been set, it cannot be said
that allowing the evidence will necessarily disrupt trial. The testimony of these
experts is important to address the damage the tainted Flint Water caused to the
property of Bellwether Plaintiffs.
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Turning to the final factor, Plaintiffs’ explanation for their failure to produce
reports from these experts is not persuasive. As indicated, Plaintiffs do not address
whether the opinions being offered by these witnesses were formed in anticipation
of litigation. Nevertheless, this does not alter the Court’s conclusion that the
failure to produce reports from these witnesses is harmless.
For these reasons, the Court declines to exclude the testimony of these
witnesses because they failed to provide expert reports. If the Government still
demands a report from any of these witnesses, with the exception of Mr. Rostar for
the reasons set forth in footnote two, it shall inform Plaintiffs’ counsel and
Plaintiffs shall produce a report within thirty days of the request. If the
Government finds it necessary to re-depose any of these witnesses after obtaining
the witness’s Rule 26(a)(2)(B) report, it shall confer with Plaintiffs’ counsel,
explaining why the deposition is needed. If Plaintiffs do not agree, the
Government may seek leave of the Court to depose the witness(es), explaining why
further questioning is needed.
The Court turns lastly to the Government’s challenge to Mr. Rostar’s
testimony based on his alleged lack of qualifications and underlying methodology.
Plaintiffs retained Mr. Rostar to testify about the corroded and clogged plumbing
removed from 926 Maxine Street, the damage caused to the home when the pipes
failed, and the cost of repairing the plumbing. The Government maintains that Mr.
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Rostar, a certified journeyman plumber, lacks the requisite education, training, or
experience to qualify him to testify about the chemical impact of inadequately
treated river water on galvanized pipes. The Government also challenges the
reliability of Mr. Rostar’s opinions based on numerous asserted deficiencies in his
methods, including that he did not perform any tests on the damaged pipes, does
not know the composition of the sediment in the pipes or of the tainted Flint River
water he attributes to the corrosion, and did not investigate other possible causes of
the corrosion.
Mr. Rostar may lack the education, training, or experience to opine on
whether the tainted Flint River Water, specifically, caused the damage to the
replaced pipes at 926 Maxine Street. Plaintiffs indicate, however, that Mr. Rostar
will not be testifying about the chemical impact of inadequately treated water on
galvanized pipes, like those which needed to be replaced in that home. Mr. Roster
is qualified, though, as an experienced plumber who observed the pipes in and
damage to the home, to testify about the plumbing’s condition, the likely cause of
the pipes’ corrosion and clogging, the damage that resulted, what was involved to
repair the damage, and the cost of the repair. To the extent Mr. Rostar offers
testimony beyond his qualifications or offers unreliable conclusions, the
Government can seek to exclude or challenge that testimony at the bench trial.
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Again, because it is a bench trial, the Court will be able to ignore that testimony if
it upholds the Government’s challenge.
The Court, therefore, is denying the Government’s motion to exclude the
expert testimony of Messrs. Rostar, Legins, and Saad and Dr. Meyers.
The Government’s Motion to Exclude Drs. Russell’s and McLoyd’s
“Supplemental” Reports Pursuant to Federal Rule of Civil Procedure 37(c)(1)
The Government asks the Court to strike additional reports prepared by Drs.
Russell and McLoyd, which Plaintiffs served on the Government on September 25
and 26, 2024, respectively. The Government argues that they are not
“supplemental” materials but provide new opinions and rely on new sources never
previously disclosed. The Government maintains that the reports are, therefore,
untimely.
Applicable Law
As previously mentioned, Federal Rule of Civil Procedure 26(a)(2)(B)
requires a signed, written report from an individual retained to provide expert
testimony. The report must include:
(i) a complete statement of all opinions the witness will express and
the basis and reasons for them; (ii) the facts or data considered by the
witness in forming them; (iii) any exhibits that will be used to
summarize or support them; (iv) the witness’s qualifications,
including a list of all publications authored in the previous 10 years;
(v) a list of all other cases in which, during the previous 4 years, the
witness testified as an expert at trial or by deposition; and (vi) a
statement of the compensation to be paid for the study and testimony
in the case.
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Fed. R. Civ. P. 26(a)(2)(B). These disclosures are required “at the time and in the
sequence directed by the court.” Fed. R. Civ. P. 26(a)(2)(B). Here, opening expert
reports were due in February 2024, rebuttal reports were due in May 2024, and
discovery closed on September 9, 2024. As discussed earlier, the failure to timely
disclose an expert report leads to the exclusion of that expert’s opinion and
testimony unless the violation was harmless or is substantially justified. See Fed.
R. Civ. P. 37(c)(1).
Rule 26 imposes a duty to supplement the report of an expert whose report
was disclosed under Rule 26(a)(2)(B), and requires additions or changes to be
“disclosed by the time the party’s pretrial disclosures under Rule 26(a)(3) are due.”
Fed. R. Civ. P. 26(a)(2)(B). Under Rule 26(a)(3)(B), pretrial disclosures must be
made at least 30 days before trial “[u]nless the court orders otherwise.” Fed. R.
Civ. P. 26(a)(3)(B). Pretrial disclosures are not yet due in this case. Thus, the
timeliness of Dr. Russell’s and Dr. McLoyd’s additional reports depends on
whether they are, in fact, supplements.
Rule 26 contemplates the need for supplementation where an earlier
disclosure “is incomplete or incorrect[.]” Fed. R. Civ. P. 26(e)(1)(A). As judges
in this Circuit have explained, a true supplement corrects an “error or inaccuracy in
[an earlier report’s] reasoning[,]” or “serve[s] as a response to an opposing expert’s
pointing out gaps in [the expert]’s chain of reasoning.” Knudson v. Am. Steamship
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Co., No. 14-14854, 2018 WL 914930, at *3 (E.D. Mich. Feb. 15, 2018) (quoting
Eiben v. Gorilla Ladder Co., No. 11-cv-10298, 2013 WL 1721677, at *6 (E.D.
Mich. 2013)); see also Ullman v. Auto-Owners Mut. Ins. Co., No. 2:05-cv-1000,
2007 WL 1057397, at *4 (S.D. Ohio 2007). A supplement may “include
information thereafter acquired” or reflect “an expert’s changed opinion[.]”
Ullman, 1007 WL 1057397, at *4; Eiben, 2013 WL 1721677, at *5, *6; see also
Minebea Co. v. Papst, 231 F.R.D. 3, 6 (D.D.C. 2005) (citations omitted)
(explaining that Rule 26(e)(1) “permits supplemental reports only for the narrow
purpose of correcting inaccuracies or adding information that was not available at
the time of the initial report). In comparison, “[i]t is not mere ‘supplementation’
when a party submits a manifestly incomplete report lacking analysis or a
supporting rationale . . . and then submits a fuller report that contains actual
reasoning.” Eiben, 2013 WL 1721677, at *5 (quoting Ullman, 2007 WL 1057397,
at *4) (brackets and alterations omitted). Nor is the duty to supplement an
opportunity to provide untimely new opinions. See id.
Dr. Russell’s Reports
Plaintiffs argue that Dr. Russell’s additional report is “clearly supplemental,”
as he initially references and discusses the impact of the tainted Flint River water
on residential plumbing systems and, in his later report, applies his opinions to the
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plumbing later removed from 926 Maxine Street, which is owned by Bellwether
Plaintiff Anthony Vance. The Court agrees.
In his February 23, 2024 report, Dr. Russell discusses how improperly
treated corrosive water—such as the Flint River water during the Flint Water
Crisis—causes certain plumbing, such as galvanized pipes, to pit and eventually
collude. (See ECF No. 295-3.) This results in, among other things, the pipes
failing (e.g., leaking) and increased lead being released into the drinking water.
(Id.) In his initial report, Dr. Russell also offers his opinions regarding the faulty
water-quality testing that local, state, and federal officials employed during the
Flint Water Crisis. (Id.) According to Dr. Russell, this led to the concentration of
the lead in the water being underreported. (Id.)
In his September 24, 2024 report, Dr. Russell confirms his opinions based
on his analysis of the plumbing from Mr. Vance’s home. He is not offering new
opinions, nor is he trying to bolster a previous incomplete report or unsupported
opinions. Instead, Dr. Russell is merely applying his opinions to later-acquired
plumbing. In this situation, the Court deems the later report to be a timely-
provided supplement.
Dr. McLoyd’s Reports
In her initial report, dated February 22, 2204, Dr. McLoyd opines on the
impact of the Flint Water Crisis on the physical and mental health and academic
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progress of Fint residents. (ECF No. 305-4.) Dr. McLoyd’s opinions are based
heavily on three Community Assessment for Public Health Emergency Response
household surveys of Flint residents between May 2016 and July 2018: CASPER 1
(May 2016); CASPER 2 (December 2017); and CASPER 3 (July 2018)
(collectively “CASPER reports”). (Id.) The Government’s expert, Dr. Huffman,
has criticized Dr. McLoyd’s findings and opinions, in part because earlier
CASPER surveys were of Genesee County, as a whole, and did not provide
information limited to Flint, resulting in a lack of pre-Flint-Water-Crisis
comparative data. (See ECF No. 319-10 at PageID.10566.)
To overcome these limitations, Dr. McLoyd explains in a September 18,
2024 report, she obtained data from the 2012 through 2014 state-wide Michigan
Behavioral Risk Factor Surveys (“MiBRFS”), which were conducted by the
Michigan Department of Health and Human Services. (See ECF No. 305-6.) This
data could be segregated to obtain the results from Flint residents. Three of the
questions in the MiBRFS overlap questions asked during the CASPER surveys.
(Id.) Therefore, Dr. McLoyd obtained data disaggregated by geographic location
and preceding the Flint Water Crisis to compare to the CASPER reports. (Id.) In
her September 18, 2024 report, Dr. McLoyd outlines her findings based on the
additional data and reaches the same overall opinion expressed in her earlier
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report: “that the Flint Water Crisis had negative effects on the behavioral health of
Flint residents.” (Id. at PageID.9592.)
Thus, Dr. McLoyd’s second report merely addresses a claimed error in her
earlier reasoning and/or responds to a gap in her reasoning which Dr. Huffman
identified. As such, it is a “true supplement[.]” Knudson, 2018 WL 914930, at *3
(quoting Eiben, 2013 WL 1721677, at *6). Accordingly, it is not untimely.
Plaintiffs’ Motion to Compel the Production of Documents and Additional
Deposition Testimony from Dr. Goodman
The Government retained Dr. Goodman, whose expertise is in epidemiology
and toxicology, to opine on the causal connection between lead exposure and
various health conditions. According to Plaintiffs, the level of Dr. Goodman’s
billings in this case (totaling over $700,000 through July 2024), led them to seek
information concerning her source of income from other clients through her
employment with Gradient Corporation. To that end, during Dr. Goodman’s
deposition, Plaintiffs’ counsel asked Dr. Goodman about: (1) her
“salary/compensation for the years she was retained by [the Government in this
litigation]”; (2) “her base salary and bonuses” from Gradient Corporation; (3) “her
yearly revenue goals”; and (4) “additional compensation received by Dr. Goodman
based on a percentage of billings she generated in this case.” (See ECF No. 322 at
PageID.10841-42; ECF No. 336-1 at PageID.12707-11.) Dr. Goodman refused to
provide the information, claiming Gradient deems it confidential. (Id.)
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According to Plaintiffs, they also have not received all of Dr. Goodman’s
invoices for her work in the present matter. Plaintiffs received invoices beginning
in November 2022; however, Dr. Goodman testified that she was retained by the
Government in 2020. (See id. at PageID.12709.) Plaintiffs argue that this
evidence is relevant to Dr. Goodman’s potential bias or any undue influence.
In their pending motion, Plaintiffs ask the Court to compel Dr. Goodman to
provide documentation and submit to another deposition to allow their counsel to
question her about these areas: (a) her “base salary during her retention in this
case”; (b) her “bonuses and the formula used to calculate her bonuses during her
retention in this case”; (c) her “yearly revenue goals with Gradient and the formula
utilized to determine these goals during her retention in this case”; and (d) “[a]ny
documentation regarding [her] compensation or benefits associated with her expert
billings during her retention in this case.” (ECF No. 322 at PageID.10856.)
Plaintiffs also seek an award of their attorney fees and costs in bringing the motion,
although they do not specify against whom the award should be imposed.
The Government argues in response that the information Plaintiffs seek goes
beyond information relevant to Dr. Goodman’s potential bias. Plaintiffs request
information concerning all of Dr. Goodman’s income during the period she was
retained by the Government, not simply the money she earned from sources that
might reflect a bias or undue influence. In other words, Plaintiffs’ request is not
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limited to income representing clients, much less the Government or clients with
interests similar to the Government’s here.
Parties may discover information related to “any nonprivileged matter that is
relevant to any party’s claim or defense and proportional to the needs of the
case[.]” Fed. R. Civ. P. 26(b)(1). This includes information tending to show a
witness’ bias, undermining a witness’ credibility, or impeaching the witness. See
Behler v. Hanlon, 199 F.R.D. 553, 556-57 (D. Md. 2001) (citing United States v.
Abel, 469 U.S. 45, 49-52 (1984)) (additional citations omitted). District courts
recognize that parties may want to obtain more information from expert witnesses
than what is included in their reports “because of the proliferation of expert
witnesses who are, ‘in effect, hired guns, who, while educated and experienced in
the field, are willing and able to hire themselves out to the highest bidder to
provide opinions in favor of the hiring party.’” Profitt v. Highlands Hosp. Corp.,
No. 7:19-cv-00015, 2021 WL 5435171, at *4 (E.D. Ky. Nov. 19, 2021) (quoting
Campos v. MTD Prods., No. 2-07-0029, 2009 WL 920337, at *2 (M.D. Tenn. Apr.
1, 2009)). As the court reasoned in Behler:
[T]he fact that an expert witness may have a 20 year history of
earning significant income testifying primarily as a witness for
defendants, and an ongoing economic relationship with certain
insurance companies, certainly fits within recognized examples of
bias/prejudice impeachment, making such facts relevant both to the
subject matter of the litigation, and the claims and defenses raised,
and placing it squarely within the scope of discovery authorized by
Rule 26(b)(1).
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Behler, 199 F.R.D. at 557 (footnote omitted).
Judges in this District therefore held that an expert witness’ financial
information is discoverable if its purpose is to uncover potential bias. Estate of
Jackson v. Billingslea, No. 18-10400, 2019 WL 2743750, at *2 (E.D. Mich. July 1,
2019) (citing Behler, 199 F.R.D. at 556); see also Burger v. Allstate Ins. Co., No.
07-11870, 2009 WL 1587396, at *2 (E.D. Mich. June 8, 2009). For example, in
the case of a defense expert, “information related to the expert’s volume of work,
number of defendants he worked for, the amount paid by those defendants, and the
percentage of income derived from his expert witness services was found within
the scope of discovery.” Estate of Jackson, 2019 WL 2743750, at *2 (citing
Burger, 2009 WL 1587396, at *2-3; Great Lakes Anesthesia, PLLC v. State Farm
Mut. Auto. Ins. Co., No. 11-10658, 2011 WL 4507417, at *5-6 (E.D. Mich. Sept.
29, 2011)).
“However, as Rule 26(b)(2) instructs, the mere fact that such information
falls within the scope of legitimate discovery does not mean that parties are entitled
to unfettered discovery of impeaching information, by whatever means of
discovery they seek.” Behler, 199 F.R.D. at 561. A court may restrict or preclude
discovery found to be “burdensome, duplicative, unnecessarily costly, or
insufficiently probative to the issues in the litigation to warrant the expense of
production.” Id. (citation omitted); see also Fed. R. Civ. P. 26(b)(2)(C).
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In Behler, although recognizing the relevancy of the expert’s activities as a
defense witness in other matters, the court held that discovery of the total income
earned by the witness for the previous five years, his earnings from Rule 35
examinations, records of the hours spent as an defense expert, copies of his tax
returns, and lists of all insurance companies with which he was affiliated and cases
where he provided expert services was “overkill.” 199 F.R.D. at 561. The court
reasoned:
While there may be cases in which an expert’s gross income, and the
specific amounts thereof earned by providing services as an expert
witness, may be discoverable, this should not be ordered routinely,
without a showing, absent here, why less intrusive financial
information would not suffice. . . . permitting routine disclosure of the
expert’s gross compensation, from all sources—including those
unrelated to litigation activities—would provide the jury with little
information relevant to a fair assessment of the expert’s credibility,
while concomitantly introducing the real possibility of creating
confusion, distraction and even prejudice.
Instead, the jury readily should be able to assess possible bias
on the part of an expert witness if they are made aware of the total
percentage of his or her gross income that is earned from providing
expert witness services. Similarly, there is no need for the expert to
have to produce his or her tax returns, if the party seeking the
discovery has accurate information regarding the percentage of
income earned as an expert.
Additionally, while documents relating to all cases within a
stated period of time for which an expert was retained are relevant to
possible bias impeachment, . . . [the expert witness] should [not] be
required to assemble these records, provided the plaintiff is able to
obtain the equivalent information by a more expedient, less costly
method.
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Id. at 561-62.
The court in Estate of Jackson, in comparison, found the expert witness’
gross income, not only the percentage of his income derived from his expert
witness services, relevant to potential bias. 2019 WL 2743750, at *2. The court
reasoned:
The percentage of income informs the jury about how dependent the
expert is on the income from providing those services, whereas gross
income reveals the expert’s total monetary incentive to produce
favorable results. One can imagine a scenario where an expert’s
percentage of income from providing expert witness services is low
but he still received substantial amounts of money from them.
Id. The court also disagreed with the decision in Behler that discovery of an expert
witness’ 1099s should generally be precluded. Id. (citing Chauvin v. State Farm
Mut. Auto. Ins. Co., No. 10-cv-11735, 2011 WL 2490870 (E.D. Mich. 2011))
(indicating that “1099s are within the scope of discovery[,]” and that any fears that
this will deter experts from serving as witnesses “are likely assuaged because
sensitive information can be censored”). Thus, in Estate of Jackson, the court
allowed for discovery of all 1099s issued to the defendant’s expert witness or his
company “for any company they rendered an expert opinion for within the last five
years.” Id. at *1, *3; see also Chauvin, 2011 WL 2490870, at *2-3 (allowing
discovery of several financial documents from the defendant’s independent
medical examiner, including partially redacted 1099s for all insurance companies
the expert provided examinations for in the previous four years).
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Here, the Court finds some of Plaintiffs’ requests to be “overkill.” Plaintiffs
are not simply seeking the income Dr. Goodman generated from expert services
that might reflect a bias, such as income earned from serving as an expert witness
for the federal government or the defense. The disclosure of Gradient’s
compensation and incentive programs, Dr. Goodman’s bonuses, and Dr.
Goodman’s yearly revenue goals are unduly intrusive, while offering Plaintiffs
only a marginally greater ability to demonstrate any potential bias. Therefore, the
Court declines Plaintiffs’ request for an award of their attorneys’ fees and costs for
bringing this motion.3
The Court will order Dr. Goodman to appear at a remote deposition, not to
exceed two hours, for Plaintiffs to inquire as to her total compensation from all
sources, her total compensation from serving as an expert witness for the federal
government, and her total compensation from serving as an expert witness for any
defendant. This information is limited to the period during which Dr. Goodman
has been retained as an expert in this case. The deposition will be subject to a
protective order in that the information obtained may not be used or disseminated
for any purpose other than the prosecution of the Flint Water cases pending before
3 To the extent Plaintiffs were seeking attorney fees and costs as a sanction against
the Government, counsel for the Government did not instruct Dr. Goodman not to
answer Plaintiffs’ question. It was the Government’s suggestion that her answers
be kept confidential to encourage her to answer. Thus, for this reason, as well, the
Court finds sanctions unwarranted.
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the undersigned and the Honorable Judith E. Levy. Prior to the deposition, Dr.
Goodman shall make a diligent search of all records in her possession, custody,
and control, to be able to provide this information. Plaintiffs may seek leave of
Court to seek additional information following the deposition if they believe Dr.
Goodman’s answers warrant such additional information.
Moreover, to the extent Dr. Goodman has not produced all of her invoices
for her work in the present matter, she shall provide that information to Plaitiffs.
Conclusion
For the reasons set forth herein, the Court is denying the Government’s
motions to exclude the expert report and testimony of Dr. Lebowitz (ECF No.
293), Mr. Olson and Dr. Russell (ECF No. 295), and Messrs. Rostar, Legins, and
Saad and Dr. Meyers (ECF No. 300). The Court is denying Plaintiffs’ motion to
exclude portions of Dr. Huffman’s testimony and report. (ECF No. 304.) The
Court also denies the Government’s motion to strike the supplemental reports of
Drs. Russell and McLoyd. (ECF No. 305.)
The Court is granting in part and denying in part Plaintiffs’ motion to
compel the production of documents and testimony of Dr. Goodman. (ECF No.
322.) The Court is ordering Dr. Goodman to appear for a remote deposition, not to
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exceed two hours, to provide the information set forth above.
SO ORDERED.
s/ Linda V. Parker
LINDA V. PARKER
U.S. DISTRICT JUDGE
Dated: December 1, 2025
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