NOT RECOMMENDED FOR PUBLICATION File Name: 23a0310n.06
Nos. 22-1740/1764
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED Jul 11, 2023 RAYMOND MCDOWELL; TAJ DORSEY, ) DEBORAH S. HUNT, Clerk ) Plaintiffs-Appellees/Cross-Appellants, ) ) ON APPEAL FROM THE v. ) UNITED STATES DISTRICT LIVONIA HOTEL BUSINESS, INC., dba Americas ) COURT FOR THE EASTERN ) DISTRICT OF MICHIGAN Best Value Inn; EDWARD MAKMOURA, ) Defendants-Appellants/Cross-Appellees. ) OPINION )
Before: SUTTON, Chief Judge; LARSEN and MURPHY, Circuit Judges.
LARSEN, Circuit Judge. This civil suit arises out of an armed robbery that took place at
a motel in Livonia, Michigan. Plaintiffs, Raymond McDowell and Taj Dorsey, were guests at the
motel when they were violently attacked in their room in the early morning. They sued the motel
and the front desk clerk for negligence. The case went to trial, and the jury returned a verdict for
the plaintiffs. Because the jury found that McDowell was eighty-percent responsible for his own
injuries, the court reduced his award by eighty percent. Both parties filed post-trial motions and
now appeal the district court’s rulings. We AFFIRM.
I.
Plaintiffs Raymond McDowell and Taj Dorsey are New Jersey residents who work as
truckers. In February 2018, McDowell hired Dorsey to help him with a furniture delivery in the
metro Detroit area. McDowell later used a listing on Craigslist.com to hire nonparty Antonio
Fowler-Mitchell to help with the delivery. He did not perform a background check on Fowler-
Mitchell before hiring him. After finishing the delivery, McDowell and Dorsey rented a motel Nos. 22-1740/1764, McDowell v. Livonia Hotel Business, Inc.
room at the America’s Best Value Inn Livonia. McDowell asked Fowler-Mitchell to buy him
alcohol and deliver it to plaintiffs’ motel room, where McDowell would pay Fowler-Mitchell for
his work. Fowler-Mitchell came to the motel room where McDowell pulled out a “large wad of
cash” to pay him. Fowler-Mitchell received payment and stayed to socialize for about an hour.
After Fowler-Mitchell left, plaintiffs locked their hotel room and went to bed.
Later that night at around 4:30 a.m., Fowler-Mitchell called McDowell to ask if he could
spend the night in the motel room because his girlfriend had kicked him out. McDowell told
Fowler-Mitchell not to come. At around 6:00 a.m., Fowler-Mitchell showed up at the motel room
and knocked on the door. Neither McDowell nor Dorsey answered because they believed Fowler-
Mitchell was drunk. McDowell and Dorsey did not call the police or seek help from anyone else;
instead, they began to pack up to leave the motel. Fowler-Mitchell went to the motel’s front desk
and asked the motel clerk, Edward Makmoura, for a key card to the room. Without asking for
identification, Makmoura gave Fowler-Mitchell a key card. Then Fowler-Mitchell and two
unidentified individuals kicked in the motel room door, beat up McDowell and Dorsey, and took
cash from them. Fowler-Mitchell was arrested and pleaded guilty to first‑degree home invasion,
two counts of armed robbery, and possession of firearms as a felon. He is currently serving his
sentence in prison.
McDowell and Dorsey sued Livonia Hotel Business, Inc. (dba America’s Best Value Inn)
and Edward Makmoura in federal court (collectively, “the hotel”). The district court dismissed
most of the plaintiffs’ claims but allowed their negligence claim to proceed. Plaintiffs alleged that
the hotel was negligent for failing to operate the premises in a reasonably safe condition, including
by failing to have an adequate safety policy regarding room key control and security.
-2- Nos. 22-1740/1764, McDowell v. Livonia Hotel Business, Inc.
The case went to trial. The jury found that the hotel was negligent and that its negligence
was a proximate cause of both plaintiffs’ injuries. The jury also found that McDowell was
comparatively negligent and determined that he was 80 percent at fault for his own injuries and
that the hotel was only 20 percent at fault. As a result, the court reduced McDowell’s damages by
80 percent. But the jury found that Dorsey was not comparatively negligent. Dorsey’s verdict
form did not allow the jury to assign any percentage of fault to McDowell for Dorsey’s injuries,
and the jury assigned 100 percent of the fault for Dorsey’s injuries to the hotel. The court ordered
the hotel to pay for all of Dorsey’s damages.
After trial, both sides filed post-judgment motions under Federal Rules of Civil Procedure
50 and 59. See McDowell v. Livonia Hotel Bus., Inc., No. 19-10217, 2022 WL 2916675, at *1
(E.D. Mich. July 25, 2022). The hotel’s motion sought to reduce Dorsey’s damages award by 80
percent, arguing that under Michigan’s “fair share” liability scheme, the hotel should not have
been held liable for 100 percent of Dorsey’s damages. The court denied the motion, based in part
on its understanding of Michigan law and in part on its conclusion that the hotel had failed to
“preserve [its] affirmative defense[] that McDowell was a cause of Dorsey’s injuries.” McDowell,
2022 WL 2916675, at *3. McDowell’s motion sought to alter the judgment, raising several reasons
why his recovery should not have been reduced by 80 percent. The court rejected all of
McDowell’s arguments and denied his Rule 59 motion. The hotel also moved to dismiss Dorsey’s
award for future non-economic damages, arguing that there was no evidence in the record to
support it. The court agreed and granted the Rule 50 motion. And over the plaintiffs’ objection,
the court also awarded the hotel Rule 37 sanctions for plaintiffs’ failure to timely disclose an
expert’s report. Each party appeals the district court’s respective adverse rulings.
-3- Nos. 22-1740/1764, McDowell v. Livonia Hotel Business, Inc.
II.
We review Rule 50 motions for judgment as a matter of law de novo. Rhinehimer v. U.S.
Bancorp Invs., Inc., 787 F.3d 797, 804 (6th Cir. 2015). When sitting in diversity, we “use the
standards for a judgment as a matter of law applicable under the law of the forum state.” Ventas,
Inc. v. HCP, Inc., 647 F.3d 291, 319 (6th Cir. 2011) (quotation omitted). We review the district
court’s ruling on the parties’ Rule 59 motions to alter or amend judgment for an abuse of discretion
and claims of legal error de novo. Tchankpa v. Ascena Retail Grp., Inc., 951 F.3d 805, 811 (6th
Cir. 2020).
A.
The hotel argues that the district court made a “clear error of law” justifying relief under
Federal Rule of Civil Procedure 59(e). Specifically, the hotel claims that faulty verdict forms
permitted the jury to hold the hotel liable for more than its jury-determined pro rata share of fault
against Dorsey. By way of relief, the hotel seeks an amended judgment, reducing Dorsey’s award
by 80 percent.
Under Michigan’s “fair share liability” scheme, tort liability is to be allocated by the trier
of fact in direct proportion to the person’s percentage of fault regardless of whether the person is,
or could have been, named as a party to the action. Mich. Comp. Laws § 600.2957(1). For tort
actions involving the fault of more than one person:
(1) . . . the court, unless otherwise agreed by all parties to the action, shall instruct the jury to answer special interrogatories . . . indicating both of the following:
(a) The total amount of each plaintiff’s damages (b) The percentage of the total fault of all persons that contributed to the death or injury, including each plaintiff and each person released from liability under section 2925d, regardless of whether the person was or could have been named as a party to the action.
-4- Nos. 22-1740/1764, McDowell v. Livonia Hotel Business, Inc.
Mich. Comp. Laws § 600.6304. “Except [for medical malpractice claims], a person shall not be
required to pay damages in an amount greater than his or her percentage of fault as found under
subsection (1).” Id. § 600.6304(4).
Michigan courts, however, have imposed a limitation on which persons a jury may allocate
fault to, establishing that “before fault may be allocated to that person under the comparative-fault
statutes, there must be proof that the person owed a legal duty to the injured party.” Est. of
Goodwin by Goodwin v. Nw. Mich. Fair Ass’n, 923 N.W.2d 894, 907 (Mich. Ct. App. 2018) (citing
Romain v. Frankenmuth Mut. Ins. Co., 762 N.W.2d 911, 913 (Mich. 2009)). That’s because
“[w]ithout owing a duty to the injured party, the ‘negligent’ actor could not have proximately
caused the injury and could not be at ‘fault’ for purposes of the comparative fault statutes.” Id.;
see also Mich. Comp. Laws § 600.6304(8) (defining “fault”).
During trial, the parties contested the content and structure of the verdict form. The hotel
wanted a verdict form for each plaintiff that would have allowed the jury to allocate fault among
the hotel, McDowell, and Dorsey. During off-record arguments before the court, the hotel
“predicted a scenario where the jury could find comparative negligence against McDowell but not
[against] Dorsey[,] and if the two Plaintiffs were not included on each other’s[] verdict forms,
defendants would have to take on McDowell’s negligence as their own.” The court subsequently
acknowledged this exchange on the record. Plaintiffs, on the other hand, “objected to any language
that reduced one plaintiff’s recovery by the negligence of the other plaintiff.” The court ultimately
sided with plaintiffs, offering two reasons. In its written order, the court expressed its
understanding that Mich. Comp. Laws § 600.2957(1) spoke only to “the question of whether each
plaintiff was comparatively negligent for his own injuries” not to the question of whether “one
plaintiff is liable for the injuries of the other plaintiff.” And, in response to defendants’ objections,
-5- Nos. 22-1740/1764, McDowell v. Livonia Hotel Business, Inc.
the court explained its view that defendants had not, in any event, adequately presented a theory
of the case “say[ing] that the negligence of one [plaintiff] caused the injury of the other one.” The
court ordered that there would be two verdict forms—one for each plaintiff—and that “each form
must refer only to the comparative negligence of that Plaintiff.”
While the jury was deliberating, it sent a question to the court that said: “[W]e feel the
hotel has the same amount of negligence overall. If we assume negligence from one plaintiff, then
would we add that plaintiff’s negligence to the hotel for the other plaintiff?” The court answered
“yes.” On McDowell’s verdict form, the jury found that both McDowell and the hotel were
negligent. The jury determined that McDowell was 80 percent at fault for his own injuries, while
the hotel was only 20 percent at fault. On Dorsey’s verdict form, the jury found that Dorsey was
not negligent and found that the hotel was 100 percent at fault for Dorsey’s injuries, despite the
jury’s question indicating its apparent belief that the hotel “ha[d] the same amount of negligence
overall” as to the two plaintiffs.
After trial, the hotel moved to alter or amend the judgment under Rule 59, arguing that it
should have to pay for only 20 percent of Dorsey’s damages given the jury’s apparent finding that
the hotel “ha[d] the same amount of negligence overall”—presumably 20 percent. The court
denied the hotel’s motion. The court again explained its view that “Michigan’s comparative fault
scheme” mandates reduction of “a plaintiff’s damages by the [percentage of] his own fault” but
“does not require reduction of an innocent plaintiff’s damages based on the comparative fault of a
co-plaintiff.” McDowell, 2022 WL 2916675, at *3. So “Dorsey’s recovery can be reduced only
by his own comparative negligence.” Id. at *4. Alternatively, the court held that, even if the hotel
could have reduced its liability to Dorsey based on McDowell’s negligence, the hotel had failed
-6- Nos. 22-1740/1764, McDowell v. Livonia Hotel Business, Inc.
“to follow proper procedure, propose proper instructions, and preserve [its] affirmative defenses
that McDowell was a cause of Dorsey’s injuries.” Id. at *3.
The district court’s ruling that Michigan law would not have permitted the hotel to reduce
its liability to Dorsey based on McDowell’s negligence was in error. Section 600.2957(1) directs
the trier of fact to consider the fault of each involved person, regardless of whether the person was
named as a party to the action. Facially, this includes co-plaintiffs. And if there were any doubt,
§ 600.2957(1) cross-references § 600.6304, which directs the court to instruct the jury to make a
finding on the percentage of the “total fault of all persons that contributed to the death or injury,
including each plaintiff.” There is no statutory carveout barring the jury from allocating fault to
co-plaintiffs.
The district court also erred to the extent that it suggested that the hotel needed to file a
counterclaim against McDowell to reduce its liability to Dorsey. The Michigan Court of Appeals
has concluded that, post-tort reform, there is “no basis for a claim of contribution” because “a
defendant cannot be held liable for damages beyond the defendant’s pro-rata share.” Kokx v.
Bylenga, 617 N.W.2d 368, 372 (Mich. Ct. App. 2000). And as that court recently explained, the
allocation of fault under § 600.2957 and § 600.6304 does not depend on a plaintiff’s ability to
recover from the person to whom the jury allocates fault. See Est. of Goodwin, 923 N.W.2d at 909
(holding that a child’s “inability to recover damages against a parent in no way precludes an
assessment of a parent’s fault for purposes of accurately determining a defendant’s liability and
ensuring that a defendant only pays his or her fair share”). So the hotel’s ability to ask the jury to
consider McDowell’s negligence toward Dorsey should not have depended on whether either the
hotel or Dorsey filed a claim against McDowell. The district court misunderstood Michigan’s
“fair share” liability scheme.
-7- Nos. 22-1740/1764, McDowell v. Livonia Hotel Business, Inc.
We cannot so quickly dismiss the district court’s alternative holding, however. The district
court concluded that, even if the hotel had the correct view of Michigan law, the hotel had “failed
to follow proper procedure, propose proper instructions, and preserve [its] affirmative defenses
that McDowell was a cause of Dorsey’s injuries.” McDowell, 2022 WL 2916675, at *3. The court
noted that the hotel failed to raise this defense “in various iterations of draft Joint Final Pretrial
Orders submitted and the final one entered by the Court.” Id. Instead, the hotel had resurrected
the defense “at the eleventh hour and with no supporting instructions.” Id. The court said that the
hotel “abysmally failed” to propose the adequate jury instructions that would have allowed the
jury to find that McDowell owed a duty to Dorsey and was a proximate cause of Dorsey’s injuries.
Id. at *3–6 (“Jury instructions regarding duty, breach, and liability between co-plaintiffs were not
requested by Defendants, and they were necessary for the jury to allocate liability to McDowell as
the proximate cause of Dorsey’s injuries.”). The court determined that the one comparative
negligence jury instruction the hotel did request was “insufficient to guide the jury because
Defendants did not request instructions concerning: (1) any duty McDowell may have owed
Dorsey; (2) what conduct on the part of McDowell breached any duty he may have owed Dorsey;
or (3) how the jury could allocate McDowell’s fault if it believed he caused some or all of Dorsey’s
harm.” Id. at *3. And while the court acknowledged that the hotel proposed a verdict form that
would have allowed the jury to attribute fault to McDowell for Dorsey’s injuries, it ruled that the
verdict form was not sufficient without supporting instructions. Finally, the court found that the
jury’s questions during deliberations “did not operate as a proximate cause finding or an allocation
of fault to McDowell for Dorsey’s injuries.” Id. at *4.
The district court also noted several deficiencies in the verdict forms that the hotel proposed
to the district court. For one thing, the verdict form the hotel proposed for Dorsey would not have
-8- Nos. 22-1740/1764, McDowell v. Livonia Hotel Business, Inc.
allowed the jury to allocate fault to McDowell. Question 8 of the proposed verdict form asked the
jury to enter the percentage of negligence attributable to the hotel and to Dorsey but did not include
a line where the jury could have attributed fault to McDowell. Second, the hotel included language
in both proposed verdict forms that said: “Please note that the judge will reduce the total amount
of Plaintiff Raymond McDowell[’s] damages for noneconomic loss by the percentage of the
negligence attributable to Plaintiff Raymond McDowell and Taj Dorsey, if any.” This language
suggests that the hotel asked the court to reduce the plaintiffs’ noneconomic damages based on
their combined negligence, regardless of the percentage of fault the jury attributed to each plaintiff
separately. This too is contrary to Michigan’s fair share liability scheme, which is designed so the
finder of fact can assess damages and apportion liability for each plaintiff individually. See
§ 600.6304 (instructing that the jury shall make findings on the total amount of each plaintiff’s
damages and the percentage of total fault of all persons that contributed to the death or injury,
including each plaintiff). And the parties agreed to instruct the jury that “[e]ach plaintiff is entitled
to separate consideration of his own case.” McDowell, 2022 WL 2916675, at *5.
We cannot say that the district court abused its discretion in denying the hotel’s Rule 59
motion. The district court determined that the hotel did not preserve its defense that McDowell
caused Dorsey’s injuries and failed to request the appropriate verdict form and accompanying jury
instructions that would have allowed the jury to find that McDowell’s negligence was a proximate
cause of Dorsey’s injuries. See Lamp v. Reynolds, 645 N.W.2d 311, 319 (Mich. Ct. App. 2002).
The hotel’s only response is that “while the District Court denied Defendants’ post-judgment
motion in part because the necessary jury instructions were not given, that was only because the
District Court had previously—and erroneously—rejected Defendants’ interpretation of the
comparative fault scheme.” But the hotel never requested the requisite jury instructions even
-9- Nos. 22-1740/1764, McDowell v. Livonia Hotel Business, Inc.
before the court had “rejected Defendants’ interpretation of the comparative fault scheme.” None
of the various iterations of the jury instructions the hotel requested contained language that would
have facilitated a jury finding that McDowell breached a duty he owed to Dorsey and proximately
caused Dorsey’s injuries. That includes the hotel’s first set of proposed instructions—submitted
long before the district court initially misinterpreted the comparative fault statutes and denied the
hotel’s proposed verdict form. The only duties the hotel’s proposed jury instructions covered were
the duty of each plaintiff to use ordinary care for his own safety and the safety of his property and
the duty the hotel owed plaintiffs. No version of the instructions ever mentioned any duty
McDowell may have owed to Dorsey.
The district court reasonably concluded that the hotel failed to properly preserve and
present its theory that McDowell breached a duty to Dorsey that contributed to his injuries. The
court therefore did not abuse its discretion by denying the hotel’s motion.
B.
On cross-appeal, McDowell argues that the district court erred by denying his post-trial
motion to alter or amend the judgment under Federal Rules of Procedure 59 and 60. McDowell
contends that his damages should not have been reduced by 80 percent. He offers three reasons
why the reduction was error.
First, McDowell argues that his damages should not have been reduced because the hotel
did not plead comparative negligence as an affirmative defense.
Rule 8(c) of the Federal Rules of Civil Procedure requires parties to state any affirmative
defense they plan to raise in response to a pleading. But our court has long held that the “failure
to raise an affirmative defense by responsive pleading does not always result in waiver.” See, e.g.,
Brent v. Wayne Cnty. Dep’t of Hum. Servs., 901 F.3d 656, 680 (6th Cir. 2018) (quoting Moore,
-10- Nos. 22-1740/1764, McDowell v. Livonia Hotel Business, Inc.
Owen, Thomas & Co. v. Coffey, 992 F.2d 1439, 1445 (6th Cir. 1993), as amended on denial of
reh’g (Aug. 31, 1993)). That’s because the purpose of Rule 8(c) is to “give the opposing party
notice of the affirmative defense and a chance to rebut it.” Id. If a plaintiff receives notice of the
defense by some other means, the defendant’s failure to comply with Rule 8(c) does not prejudice
the plaintiff. Id. Absent prejudice, a district court does not abuse its discretion by permitting the
defense. See Rogers v. I.R.S., 822 F.3d 854, 857 (6th Cir. 2016).
In its answer to plaintiffs’ complaint, the hotel alleged that “[t]he negligence, gross
negligence, and/or willful or wanton misconduct of the Plaintiffs and/or others not including these
Defendants acted as an intervening cause sufficient to bar any claim against these Defendants.”
So while McDowell is right that the hotel did not use the label “comparative negligence,” its
pleading did provide notice that McDowell’s negligence would be a key component of its defense,
which in turn should have allowed plaintiffs to “conduct discovery, file pretrial motions, and
otherwise prepare for such a defense at trial.” Even if the hotel’s answer didn’t place McDowell
on notice that the hotel would assert McDowell’s comparative negligence as a defense, the parties’
substantial pretrial discussions over the verdict forms did. Therefore, the court did not abuse its
discretion in denying McDowell’s Rule 59 motion on this ground.
Second, McDowell argues that the district court improperly interposed sua sponte the
theory that McDowell was comparatively negligent by breaching a duty he owed to himself. But
the district court did not raise this theory sua sponte. This was the very theory of negligence that
the verdict form and accompanying instructions asked the jury to evaluate. The verdict form
expressly directed the jury to determine whether McDowell was negligent and whether his
negligence was a proximate cause of his own injuries. The accompanying instructions defined
negligence as “the failure to use ordinary care.” The next page of the instructions clearly
-11- Nos. 22-1740/1764, McDowell v. Livonia Hotel Business, Inc.
stated: “It was the duty of the plaintiff, in connection with this occurrence, to use ordinary care
for his own safety and the safety of his property.” As the district court found, these instructions
“informed the jury that McDowell owed a duty of ordinary care to himself.” McDowell, 2022 WL
2916675, at *8.
McDowell characterizes the district court’s order as raising a novel argument when, in fact,
the court was attempting to refocus the parties on the theory of McDowell’s comparative
negligence that the jury actually decided—whether McDowell’s negligence was a proximate cause
of his own injuries—and away from the theory of negligence that the jury did not decide—whether
McDowell’s negligence was a proximate cause of Dorsey’s injuries. As McDowell acknowledges
in his brief, a Rule 59(e) motion cannot be used to argue a new legal theory. By refocusing the
parties on whether McDowell’s comparative negligence was a proximate cause of his own injuries,
the district court was merely trying to give effect to this rule, not interject “a novel and previously
unasserted legal issue.”
Third, McDowell argues that the court improperly allowed the jury to reduce his damages
because there is no duty to protect against unforeseeable criminal conduct of a third-party. But
that is not an accurate statement of Michigan law.
Under Michigan law, there is no general duty to anticipate and prevent criminal activity.
See, e.g., Graves v. Warner Bros., 656 N.W.2d 195, 202 (Mich. Ct. App. 2002). Michigan law,
however, recognizes that criminal acts of third parties can be foreseeable in some situations. See
Dawe v. Bar-Levav & Assocs., 808 N.W.2d 240, 249 (Mich. Ct. App. 2010) (“Courts in Michigan
have long recognized that criminal acts by third parties can be foreseeable.”); MacDonald v. PKT
Inc., 628 N.W.2d 33, 40–41 (Mich. 2001) (holding that criminal activity can be foreseeable when
“specific acts occur[] . . . that pose a risk of imminent and foreseeable harm to an identifiable”
-12- Nos. 22-1740/1764, McDowell v. Livonia Hotel Business, Inc.
individual). For instance, a person can be negligent and held liable for the theft of a borrowed car
when he fails to lock the car in a high-crime area and leaves the keys in the ignition with the motor
running. See Davis v. Thornton, 180 N.W.2d 11, 15 (Mich. 1970). Whether the risk of harm from
third-party criminal activity is foreseeable is generally a question of fact for the jury. See
MacDonald, 628 N.W.2d at 41; Holland v. Liedel, 494 N.W.2d 772, 774 (Mich. Ct. App. 1992).
The district court denied McDowell’s motion because it found that “[t]he record contains
sufficient evidence to raise a question of fact regarding the foreseeability of Fowler-Mitchell’s
crimes and the reasonableness of McDowell’s actions.” McDowell, 2022 WL 2916675, at *9. The
court identified specific facts that could have supported the jury’s conclusion that McDowell was
comparatively negligent: the fact that McDowell did not run a background check on
Fowler‑Mitchell after hiring him off Craigslist, that McDowell invited Fowler-Mitchell inside his
motel room and displayed a large amount of cash in front of him, and that McDowell did not call
the police, seek help, or otherwise take action after Fowler-Mitchell called him three times, and
pounded on his door in the middle of the night with strangers flanking him.
McDowell counters that he was not comparatively negligent because there is not a “scintilla
of evidence” that he had prior knowledge of Fowler-Mitchell’s propensity to engage in criminal
activity. But while this lack of knowledge may have been one relevant consideration the jury could
have weighed, it was not the only one. Ultimately, the foreseeability of Fowler-Mitchell’s criminal
conduct and whether McDowell exercised due care under the circumstances were questions for the
jury. See Rodis v. Herman Kiefer Hosp., 370 N.W.2d 18, 20 (Mich. Ct. App. 1985). The district
court did not abuse its discretion in determining that there was no clear error of law or fact that
would warrant overriding the jury’s decision to reduce McDowell’s damages as a result of his
comparative negligence.
-13- Nos. 22-1740/1764, McDowell v. Livonia Hotel Business, Inc.
C.
Dorsey appeals the district court’s decision to grant the hotel’s Rule 50(b) motion to
dismiss Dorsey’s award for future non-economic damages.
At trial, the hotel argued that the plaintiffs had presented no evidence of their life
expectancies and thus that the court should not permit the plaintiffs to seek future non-economic
damages under Michigan law. To be “fair and equitable” on this damages issue, the district court
chose to limit the plaintiffs’ ability to seek future non-economic damages to three years. The jury
awarded Dorsey $36,000 in future non-economic damages—$12,000 per year for the three years.
After trial, the hotel challenged this award, renewing its argument that no evidence in the record
supported it. The district court agreed that its earlier ruling was in error. The court explained that
“[w]ithout testimony as to life expectancy or judicial notice of Dorsey’s life expectancy, the jury
was left to speculate as to whether Dorsey would experience symptoms in the future and how long
he would live.” McDowell, 2022 WL 2916675, at *14. We affirm the district court’s order given
the “complete absence of proof” regarding Dorsey’s life expectancy. See Karam v. Sagemark
Consulting, Inc., 383 F.3d 421, 427 (6th Cir. 2004).
In Michigan, “[a] plaintiff must prove damages with reasonable certainty; speculative
damages, or those based on conjecture, are not generally recoverable.” Vehicle Dev. Corp. PTY
Ltd. v. Livernois Vehicle Dev., L.L.C., 995 F. Supp. 2d 758, 773 (E.D. Mich. 2014) (applying
Michigan law); see also Health Call of Detroit v. Atrium Home & Health Care Servs., Inc., 706
N.W.2d 843, 852 (Mich. Ct. App. 2005); Kubicek v. J. Walter Thompson U.S.A., Inc., 902 F.2d
33, at *5 (6th Cir. 1990) (Table). The jury must make specific findings on the future damages the
plaintiff is likely to suffer for each future year they award damages for, as opposed to a lump sum.
-14- Nos. 22-1740/1764, McDowell v. Livonia Hotel Business, Inc.
See Mich. Comp. Laws § 600.6305(1)(b). Thus, a non-speculative award of future lifetime
damages necessarily requires the jury to determine the plaintiff’s life expectancy.
Here, there was no evidence at trial to establish Dorsey’s life expectancy. The plaintiffs
withdrew one of their expert witnesses, and the district court struck the other expert witness who
was slated to testify to Dorsey’s life expectancy and future damages. And the plaintiffs made a
strategic decision to withdraw their motion to take judicial notice of life expectancy tables because
that would have opened the door to admitting evidence about the plaintiffs’ alleged drug and
alcohol use and prior convictions.
To be sure, the district court limited future non-economic damages to three years, and it
might not take much to convince a reasonable juror that the average person in his forties will live
for that short period. But the district court seemed to arbitrarily pick this three-year number
without any basis in the evidence or Michigan law. Regardless, Dorsey has not claimed on appeal
(as he argued below) that the jury could use its “experience with everyday life” in deciding how
long a person would live.
Instead, Dorsey argues only that no evidence of life expectancy was needed because of the
legal presumption that a missing person is dead after an absence of five continuous years during
which he or she has not been heard from. But Dorsey cannot merely point to an abstract legal
presumption from Michigan’s estate code to make the requisite showing that it was reasonably
certain that Dorsey would sustain future non-economic damages for a certain period. See Kubicek,
902 F.2d at *5 (citing Clissold v. St. Louis–San Francisco Ry. Co., 600 F.2d 35, 39 (6th Cir. 1979)
(holding that damages for future consequences of an injury are recoverable only if there is “such
a degree of probability of such consequences as to amount to [a] reasonable certainty that they will
-15- Nos. 22-1740/1764, McDowell v. Livonia Hotel Business, Inc.
result”)). Without any evidence of Dorsey’s life expectancy, the jury’s award was mere conjecture.
Id. Dorsey’s motion fails.
D.
Finally, plaintiffs argue that the district court erred by awarding the hotel $17,105 in Rule
37 discovery sanctions for plaintiffs’ failure to timely disclose the report of their economic expert
witness, Barry Grant. That report concluded that plaintiffs would sustain $6 million in present and
future lost wages.1
We review the court’s decision to impose Rule 37 sanctions for an abuse of discretion.
Bisig v. Time Warner Cable, Inc., 940 F.3d 205, 218 (6th Cir. 2019); McCarthy v. Ameritech Pub.,
Inc., 763 F.3d 488, 490 (6th Cir. 2014). An abuse of discretion occurs when the court relies on
clearly erroneous findings of fact, improperly applies the law, or uses an erroneous legal standard.
Bisig, 940 F.3d at 218. To reverse the sanctions order, we must be left with a “definite and firm
conviction that the trial court committed a clear error of judgment.” Id. We hold that the district
court acted within its discretion in imposing sanctions.
Rule 37(c)(1)(A) permits a court to order payment of the reasonable expenses caused by a
party’s failure to timely disclose expert witness materials. Here, expert disclosures were due on
September 18, 2020, but the plaintiffs did not disclose Grant’s expert report until February 14,
2022, mere days before trial was to begin. The trial date was later postponed to March 22, 2022.
Upon the plaintiffs’ untimely disclosure, the hotel moved to strike Grant as an expert
witness, along with his expert report. While its motion to strike was pending, the hotel deposed
Grant on March 17, because trial was set to begin a few days later. Then, on March 18, at a pretrial
1 We granted plaintiffs’ motion to raise this argument in a corrected second brief over the hotel’s objection. See Doc. 32. -16- Nos. 22-1740/1764, McDowell v. Livonia Hotel Business, Inc.
conference, plaintiffs agreed not to call Grant as a witness because they decided to waive their
request for future economic damages. In a pretrial order, the district court ordered plaintiffs’
counsel to pay the hotel’s reasonable expenses, including attorney’s fees, caused by their failure
to timely disclose Grant’s expert report.
The district court rejected plaintiffs’ argument that their untimely disclosure was harmless
because the hotel would have expended the same amount regardless of when the report was
disclosed. Specifically, the district court found that Grant’s report “led Defendants into a fren[z]y
trying to adequately prepare for and complete Grant’s deposition a month before trial” and that the
“late disclosure caused them to spend more time and money on the process of researching the law
and facts regarding Plaintiffs’ work history; researching and drafting the motion to strike;
reviewing and fact checking Plaintiffs’ expert’s files and reports, which totaled closed to 1,000
pages; and preparing for and completing Grant’s six-hour discovery deposition.” McDowell, 2022
WL 2916675, at *19. The court found that the late disclosure “made the matter much more urgent,
time consuming, and expensive as trial loomed less than a month away.” Id. The court found that
all the fees the hotel requested were caused by plaintiffs’ failure to timely disclose the expert
report. The court further held that the expenses defendants requested were reasonable, relying on
the familiar “lodestar” approach, under which a court multiplies the reasonable number of hours
billed by a reasonable billing rate prevailing in the community for similar services by lawyers of
reasonably comparable skill and experience. Id. (citing Disabled Patriots of Am., Inc. v. Taylor
Inn Enters., Inc., 424 F. Supp. 2d 962, 965 (E.D. Mich. 2006); Fuhr v. Sch. Dist. of Hazel Park,
364 F.3d 753, 762 (6th Cir. 2004)).
The district court’s finding that the hotel’s expenses were directly tied to the plaintiffs’
untimely disclosure was well reasoned and grounded in the record. It was not clearly erroneous.
-17- Nos. 22-1740/1764, McDowell v. Livonia Hotel Business, Inc.
See Jackson by Jackson v. Nissan Motor Corp., 888 F.2d 1391, at *5 (6th Cir. 1989) (per curiam);
see also First Bank of Marietta v. Hartford Underwriters Ins. Co., 307 F.3d 501, 517 n.13 (6th
Cir. 2002).
Plaintiffs argue that they disclosed Grant’s report as soon as they received it and that they
could not have produced the testimony any earlier. But plaintiffs offer no reason why they did not
request the report from their expert sooner to comply with the court’s deadline and their obligation
under Rule 26(a)(2)(b). The plaintiffs had years between the time they designated Grant as an
expert witness and the start of trial to follow up with Grant to obtain the report he planned to use
to support his testimony at trial. Cf. Howe v. City of Akron, 801 F.3d 718, 749–50 (6th Cir. 2015)
(holding that the plaintiffs’ late disclosure was understandable because it was the result of a
discovery period that was a “rushed, confusing nightmare” and because the district court caused
many of the problems that led to the late disclosure). The remainder of plaintiffs’ arguments
concerning the secret motives of the trial court for assessing sanctions are too speculative to
warrant relief.
***
We AFFIRM.
-18-