LAWTON & CATES SC V INTERNATIONAL BROTHERHOOD OF TEAMSTERS
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STATE OF MICHIGAN
COURT OF APPEALS
LAWTON & CATES, S.C.,
UNPUBLISHED
September 21, 2010
Plaintiff/Counter-DefendantAppellee,
v
No. 290479
Wayne Circuit Court
LC No. 06-633728-CK
INTERNATIONAL BROTHERHOOD OF
TEAMSTERS LOCAL UNION 299,
Defendant/Counter-PlaintiffAppellant.
Before: SHAPIRO, P.J., and SAAD and SERVITTO, JJ.
PER CURIAM.
In this action for breach of a contract to pay for legal services, a jury awarded plaintiff a
judgment of $45,632.42. Defendant appeals and, for the reasons set forth below, we affirm.
I. FACTS AND PROCEEDINGS
Defendant, a local Teamsters union, retained plaintiff, a Wisconsin law firm, to provide
legal representation in connection with various federal labor law matters. From 1999 until 2004,
the parties operated under an oral fee agreement that was negotiated between Kurt Kobelt, an
attorney with plaintiff’s firm, and Donald Smith, who was defendant’s president at the time.
According to both Kobelt and Smith, the fee agreement required defendant to pay plaintiff a flat
fee of $5,000 a month, which was based on the parties’ estimate that plaintiff would provide
approximately 50 hours of legal services each month, at a rate of $100 an hour. Defendant’s
international union later conducted an investigation to determine whether defendant was paying
too much for legal services. A dispute arose concerning the terms of the parties’ oral fee
agreement, including whether that agreement entitled defendant to a monthly fee adjustment or a
monthly credit if plaintiff did not actually perform 50 hours of legal work in a given month.
After an audit, the international union concluded that defendant had overpaid plaintiff for
legal services and instructed defendant to seek a credit or withhold future monthly payments
until the amount of the alleged overpayment was satisfied. Plaintiff denied that it was overpaid
and instead claimed that defendant actually owed an outstanding balance for legal services
because it had allowed defendant to delay making the full monthly payment of $5,000 during
some months of financial distress. Plaintiff then filed this action for breach of the parties’
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contract to pay for legal services, and defendant filed a counter-complaint in which it sought
reimbursement for the amount of its alleged overpayment. The case proceeded to trial and the
jury returned a verdict in favor of plaintiff.
II. ANALYSIS
Defendant claims that the trial court erred when it granted plaintiff’s motion in limine to
bar the testimony of defendant’s expert witness, Donald Campbell, as a discovery sanction for
defendant’s failure to disclose Campbell’s anticipated testimony before trial.
“This Court reviews for an abuse of discretion a trial court’s decision with regard to
whether to impose discovery sanctions.” Linsell v Applied Handling, Inc, 266 Mich App 1, 21;
697 NW2d 913 (2005). As explained in Maldonado v Ford Motor Co, 476 Mich 372, 388; 719
NW2d 809 (2006):
“[A]n abuse of discretion standard acknowledges that there will be
circumstances in which there will be no single correct outcome; rather, there will
be more than one reasonable and principled outcome.” . . . “[W]hen the trial court
selects one of these principled outcomes, the trial court has not abused its
discretion and, thus, it is proper for the reviewing court to defer to the trial court’s
judgment.” [Citations omitted.]
MCR 2.302(B)(4)(a)(i) provides:
A party may through interrogatories require another party to identify each
person whom the other party expects to call as an expert witness at trial, to state
the subject matter about which the expert is expected to testify, and to state the
substance of the facts and opinions to which the expert is expected to testify and a
summary of the grounds for each opinion.
In addition, MCR 2.302(E)(1)(a)(ii) provides that a party has a duty to supplement a response to
a discovery request regarding “the identity of each person expected to be called as an expert
witness at trial, the subject matter on which the expert is expected to testify, and the substance of
the expert’s testimony.”
Here, plaintiff served defendant with interrogatories that asked defendant to identify any
expert witness it intended to call at trial, and to describe the substance of the expert’s anticipated
testimony, including the substance of any facts or opinions to which the expert was expected to
testify. Defendant’s responses identified Donald Campbell as an expert who would testify on the
subject of “fee agreements, engagement versus retainer fees, etc.” Defendant also stated that
Campbell had “not finished” his review and analysis, but that he would testify regarding “all
facts in Plaintiff’s correspondence” and facts in the correspondence of local union officers, and
that he would rely on “Rules of professional conduct governing attorneys” as the basis for his
opinions. Defendant did not supplement its responses before trial.
The trial court ruled that the court rules permitted plaintiff to inquire about the identity of
defendant’s expert and the substance of any opinions or testimony its expert intended to offer at
trial. The court further ruled that, although defendant identified Donald Campbell as an expert
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witness on fee agreements, nothing in defendant’s interrogatory answers provided plaintiff with
notice of the substance of his testimony, including any facts or opinions to which he was
expected to testify. The court ruled that Campbell could not testify because defendant never
provided plaintiff with notice of Campbell’s expected testimony, and plaintiff was therefore
unable to prepare to address any testimony Campbell might give.
We reject defendant’s argument that it had no duty to supplement because Campbell
failed to render an opinion before trial, orally or in writing. Regardless of whether Campbell
previously offered any opinion or provided a report, MCR 2.302(B)(4)(a)(i) permitted plaintiff to
inquire about the substance of any facts or opinions to which Campbell was “expected to testify.”
If, as defendant contends, Campbell had not previously identified any facts or opinions to
defendant, defendant nonetheless had an obligation to identify for plaintiff any facts or opinions
to which defendant expected Campbell to testify. Defendant cannot properly identify a person as
an expert witness and then profess ignorance of that expert’s expected testimony.
Further, defendant’s vague and generalized responses to plaintiff’s inquiries did nothing
to state any actual facts or to assist plaintiff in understanding the substance of any facts to which
Campbell was expected to testify. When defendant was asked to state the substance of any facts
to which Campbell was expected to testify, it responded, “[A]ll facts in Plaintiff’s
correspondence and correspondence of Local Union’s Officer’s.” In addition, when plaintiff
asked defendant to state the grounds for each opinion by Campbell, it responded, “Rules of
professional conduct governing attorneys.” Defendant did not identify any particular
correspondence, or any particular facts in any correspondence to which Campbell was expected
to testify. Defendant also did not identify any particular rule in the Rules of Professional
Conduct to which Campbell was expected to offer testimony. This was plainly insufficient.
Defendant maintains that plaintiff could have taken Campbell’s deposition to discover his
anticipated testimony. The availability of that discovery option does not excuse defendant from
complying with its obligation to provide appropriate responses to plaintiff ’s interrogatories
under MCR 2.302(B)(4)(a)(i), or with its duty to supplement responses under MCR 2.302(E).
Defendant contends that Campbell’s testimony was admissible under MRE 705, which
provides:
The expert may testify in terms of opinion or inference and give reasons
therefor without prior disclosure of the underlying facts or data, unless the court
requires otherwise. The expert may in any event be required to disclose the
underlying facts or data on cross-examination.
This rule addresses the admissibility of evidence underlying an expert’s opinion. See People v
Pickens, 446 Mich 298, 334-335; 521 NW2d 797 (1994). Here, the trial court did not rule that
Campbell’s testimony was inadmissible under MRE 705, but rather excluded the testimony as a
discovery sanction. Thus, defendant’s reliance on MRE 705 is misplaced.
We also disagree with defendant’s argument that the court’s sanction of precluding
Campbell’s testimony was improper. The failure to supplement answers to interrogatories
regarding expert testimony may result in sanctions even if the trial court did not order a party to
respond to the interrogatories. LaCourse v Gupta, 181 Mich App 293, 296; 448 NW2d 827
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(1989). The preclusion of expert testimony is a permissible sanction. Id. at 297; MCR
2.313(B)(2)(b). In Colovos v Dep’t of Transp, 205 Mich App 524, 528; 517 NW2d 803 (1994),
aff’d 450 Mich 861 (1995), this Court stated:
Before imposing a sanction, such as barring a witness, several factors
should be considered, including whether the violation was wilful or accidental;
the party’s history of refusing to comply with discovery requests or disclosure of
witnesses; the prejudice to the party; the actual notice to the opposite party of the
witness; and the attempt to make a timely cure.
Here, defendant’s discovery violation cannot be considered accidental. Although the
record does not disclose a history of other discovery violations, plaintiff was prejudiced because
defendant’s vague and generalized responses did little to reveal the subject matter of Campbell’s
expected testimony, its responses did nothing to provide notice of the substance of any facts and
opinions to which Campbell was expected to testify, and defendant never cured its inadequate
responses.1 Thus, plaintiff was unable to prepare to address any testimony Campbell might
offer. See Bass v Combs, 238 Mich App 16, 34; 604 NW2d 727 (1999), overruled in part on
other grounds in Dimmitt & Owens Fin, Inc v Deloitte & Touche (ISC), LLC, 481 Mich 618,
627-628; 752 NW2d 37 (2008), and Beach v State Farm Mut Auto Ins Co, 216 Mich App 612,
618-620; 550 NW2d 580 (1996). Further, the trial court’s sanction was limited to the witness
whose testimony was affected by the discovery violation. Under the circumstances, the trial
court did not abuse its discretion by precluding defendant from calling Campbell as an expert
witness at trial.
Affirmed.
/s/ Henry William Saad
/s/ Deborah A. Servitto
1
Moreover, at oral argument on appeal, counsel for defendant acknowledged that he knew
plaintiff wanted defendant to supplement the answers and he acknowledged that he knew that
plaintiff intended to file a motion in limine and he failed to file supplemental answers in response
to plaintiff’s motion in limine.
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