Consumers Energy Co. and DTE Electric Co. v. Toshiba America Energy Systems Corp. and Toshiba Corp.

• Court: District Court, E.D. Michigan
• Decided: October 31, 2025
• Docket: 4:22-cv-10847
• Status: Unknown

Opinion

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

CONSUMERS ENERGY CO. and DTE ELECTRIC CO.,

Plaintiffs, Case No. 22-10847 v. Hon. F. Kay Behm TOSHIBA AMERICA ENERGY SYSTEMS CORP. and TOSHIBA CORP.,

Defendants. _________________________________/

ORDER ON PRETRIAL MATTERS The court heard from the parties on several pre-trial issues on October 30, 2025. The court will address each issue separately below. 1. Illustrative Aids. The parties agree that illustrative aids will be provided to the other side by noon the day before the witness is expected to be called. The parties disagree regarding the timing of disclosure of any accompanying text statements that would accompany the illustrative exhibits. Plaintiffs propose to provide such text one hour before the witness is expected to be called. Defendants propose that the text should be provided at the same time as the illustrative exhibit. The court determines that accompanying text statements must be provided by close of business the day before the witness is expected to testify.

2. Plaintiffs seek to offer the testimony of Mr. Takagi via video deposition, as they designated in the final pre-trial order. Defendants object,

taking the position that because Mr. Takagi is available to testify, Plaintiffs cannot present his testimony via video. But, Defendants also take the position that Plaintiffs cannot call Mr. Takagi as a witness because he was not

listed in the joint final pretrial order as a live witness. The court takes a different view. Plaintiffs, as required by Local Rule 16.2(b)(8), indicated in their witness list in the Joint Final Pretrial which witnesses would be provided

by deposition. The court considers that incorporation of Appendix A in the Joint Final Pretrial Order to include the naming of the witnesses therein as part

of Plaintiffs’ witness list. (ECF No. 266, PageID.27256) (The Utilities have separately disclosed deposition designations for witnesses the Utilities expect to present through deposition in whole or part. Those designations are

attached hereto as Appendix A.”). According to the parties, Mr. Takagi lives in Texas and thus lives more than 100 miles from the court. A witness is unavailable to testify at trial if the court finds that the witness “is more than

100 miles from the place of hearing or trial…” Fed. R. Civ. P. 32(a)(4)(B). Unless Defendants agree to produce Mr. Takagi voluntarily via the parties’ stipulation, the court finds that he is unavailable for trial and thus, his

testimony may be presented via video deposition. This does not conflict with the court’s decision on the motion in limine, which concluded that witnesses

otherwise available to testify could not be presented by video deposition. (ECF No. 305, PageID.30957). 3. Plaintiffs object to the disclosure by Defendants’ expert, William

Marscher, on Tuesday October 28, 2025 (two days before trial was set to begin) of a new Computational Fluid Dynamics (CFD) computer model of a form of erosion activity that was not previously addressed in any other models

disclosed by this witness. Plaintiffs move to exclude this model and any testimony about it, along with an additional model that Mr. Marscher

disclosed that he is still working on. Under Fed. R. Civ. P. 37(c)(1), “If a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to

use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless.” The computer model at issue here certainly falls within the expert disclosures

required by Rule 26(a)(2). Expert discovery closed on February 14, 2025. The parties’ continued with some limited expert discovery after that date, including depositions allowed by court order. The question is whether this

particular disclosure of a new CFD two days before trial is simply too late. In order to make that assessment, the court must determine whether the late

disclosure is “substantially justified” or “harmless.” According to the Sixth Circuit, the court must evaluate the following five factors: (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.

Howe v. City of Akron, 801 F.3d 718, 747–48 (6th Cir. 2015). The surprise is evident. While Mr. Marscher previously discussed this type of erosion in his reports, he never previously produced any computer modeling on this subject. Plaintiffs indicate that it would take weeks to analyze and respond to the new CFD, which given that trial has already started, seriously impairs any ability to cure the surprise. Defendants have offered to permit another deposition of Mr. Marscher, but given the time needed to analyze and prepare a response to the new CFD, Plaintiffs will be well into presentation of their case at trial. The ability to cure the surprise is essentially non-existent, given the timing of the disclosure.

The court also finds that the evidence would disrupt the trial by presenting an important new theory through computer modeling while

Plaintiffs have already prepared for trial based on the disclosures timely made. The court is also not persuaded by Defendants’ proffered reasons for the late disclosure. The CFD was produced purportedly in response to

Plaintiffs’ expert Dr. Owens July 16, 2025 review of a Toshiba CFD analysis from 2022 and its recent inspection of the unit. Defendants do not sufficiently explain why they waited until two days before trial to produce the CFD based

on information received three months ago (the Dr. Owens letter) and over one month ago (the recent inspection). The court finds that the CFD was simply

produced too late and it, along with any related testimony, must be excluded. SO ORDERED. Dated: October 31, 2025 s/F. Kay Behm F. Kay Behm United States District Judge