                   NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                              File Name: 17a0294n.06

                                   No. 15-4422


                        UNITED STATES COURT OF APPEALS
                             FOR THE SIXTH CIRCUIT

MICHAEL ABRAMS,                                  )
                                                 )              FILED
      Plaintiff,                                 )
                                                             May 25, 2017
                                                 )
                                                         DEBORAH S. HUNT, Clerk
and                                              )
                                                 )
HARRY AYERS, III; CHARLES M. BAKER;              )
CONNIE J. BAKER; CATHERINE BELL;                 )
CHANTELLE       BLACKBURN;     DENVER            )
BLANTON; DENZIL BLANTON; BETH BOSTIC;            )
KENNETH BRAMMER; JEREMY BURT; RANDY              )
BUSH; MELISSA BYRD; RANDALL BYRD;                )
FRANCISCO CABALLERO; STACY CLARK;                )
VINCENT D. CLARK; ALISSA COLUMBER;               )
ROBERT CUNNINGHAM; RUSSELL DAVIS;                )
CYNTHIA DEEMER; MARCUS DEEMER;                   )
SHANE DICKERSON; AMANDA DUNN; JESSE              )   ON APPEAL FROM THE
LEE DUTTON; KRISTIN EDENS; ERNEST L.             )   UNITED STATES DISTRICT
ELKINS; CHARLES ELLIOTT; MICHELE                 )   COURT FOR THE
FETTER; BRITTANY FISCHER; JEREMY                 )   NORTHERN DISTRICT OF
FOSTER; DEREK FRAZEE; JODI FRAZEE;               )   OHIO
DAVID GARRISON; LINDA GARRISON; JIM              )
GATTSHALL; WILLIAM GATTSHALL; CAROL              )
GEKLER;    RONALD     GEKLER;  TERESA            )
GENDROW; TRACY GRAHAM; MICHAEL                   )
GREENE; JANET S. GULLETT; CHANTELL               )
HALL; RONALD E. HALL; RONALD HALL, JR.;          )
JERRY HANAHAN; JEANNA HANSHAW;                   )
KATTIE HARMON; RYAN HARMON; DIANA                )
HART; RICHARD HART; CAROL HEENAN;                )
BROOK HESSON; CECIL HOLT; LYNDEE                 )
HOLT; SASHA HUFFMAN; VELMA HUGHES;               )
BEVERLY ISALY; JEFFREY JACKSON; JUDY             )
JACKSON; GERALDINE JOHNSON; DORA                 )
JONES; STEVE KILGORE; MATTHEW KINCAID;           )
PENNY KING; JACK KYSER, JR.; CATHRYN             )
LINDSAY; MARY C. MACKAN; ELIZABETH               )
No. 15-4422
Abrams v. Nucor Steel Marion, Inc.

MALONE; WENDELL MALONE; CORY MARKS;                                      )
JAMES MAZE; LINDA MAZE; MARGART                                          )
MEADOWS; BONITA MONAHAN; SHYLA                                           )
MONAHAN; GLADYS MONTGOMERY; LARRY                                        )
MONTGOMERY;     RALPH    B.  MORROW;                                     )
PHYLLIS MURPHY; CAROLYN OSKINS;                                          )
BARBARA PARKER; KENNETH PARKER, SR.,                                     )
KENNETH FERRAIL PARKER; SHINERR                                          )
PARKER; JENNIE PARR; TODD PARR;                                          )
CHLORIS PRICE; RAY PRICE; KATRINA                                        )
PRIESLER; CHARLOTTE A. QUICK; LUETTA                                     )
QUICK; MICHAEL QUICK; CHRISTOPHER                                        )
REED; KAREN REYNOLDS; TONYA SANDY;                                       )
JANE SCHARF; RICHARD L. SCHWADGRER;                                      )
JOANNE SCOTT; LAURA SEDLOCK; JOSEPH                                      )
SKATZES; BARBARA SMITH; CHARLENE                                         )
SMYTH; GREGG SNARE; MARY SONTAG;                                         )
DONNA SUTHERLAND; JUSTIN TANNER;                                         )
TAHITJA TANNER; RONALD TOLLE; JANE                                       )
WESTON; JACQUELINE WHITAKER; BONNIE                                      )
WHITE; LEWIS WILLIAMS; NANCY WILLIAMS;                                   )
COURTNEY WISE; and MELINDA WOOD,                                         )
                                                                         )
           Plaintiffs-Appellants,                                        )
                                                                         )
v.                                                                       )
                                                                         )
NUCOR STEEL MARION, INC.,                                                )
                                                                         )
           Defendant-Appellee.                                           )
                                                                         )
                                                                         )


BEFORE:              BOGGS, SUHRHEINRICH, and McKEAGUE, Circuit Judges:

SUHRHEINRICH, Circuit Judge.

           In this diversity class-action lawsuit alleging state-law claims of indirect trespass and

nuisance,1 Plaintiffs-Appellants, Randal Bush and Ronald Tolle (Plaintiffs), appeal several

unfavorable pre-trial evidentiary rulings. After the district court issued these rulings, Plaintiffs


1
    Plaintiffs do not raise any issues on appeal specifically related to their claim for nuisance.

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Abrams v. Nucor Steel Marion, Inc.

and Defendant-Appellee Nucor Steel Marion, Inc. (Defendant), agreed that if they proceeded to

trial, it would result in a directed verdict for Defendant. Consequently, Plaintiffs stipulated to a

final judgment in favor of Defendant, which led to this appeal. For the reasons set forth below,

we affirm the judgment of the district court.

                                         I. Background

                                                A. Facts

       In 2009 and 2010 the Ohio EPA (OEPA) sent Defendant a number of “notices of

violation” alleging emission-regulations infractions by Defendant at its mini-mill in Marion,

Ohio (the Facility). Defendant resolved these allegations by entering into a negotiated settlement

with the OEPA: the “Director’s Final Findings and Orders” (DFFO). In the DFFO, Defendant

agreed to comply with the OEPA’s orders and waived any rights to appeal in return for full

settlement of the disputed claims and without any “admission of fact, violation or liability.”

R. 74-2 at 1624.

       In the DFFO, the OEPA noted that manganese levels in the Marion area were “at elevated

levels that are unacceptable for protecting public health.” Id. at 1617. However, the DFFO did

not address the source of the elevated levels of manganese or find Defendant in violation of any

regulatory obligation.

       In the fall of 2012, Plaintiffs’ attorneys held a town hall meeting in Marion, Ohio. Based

on the DFFO, counsel alleged that the Facility was emitting manganese over the Marion

residents’ properties. As a result, a number of property owners, including Plaintiffs, agreed to be

members of a class-action lawsuit against Defendant.




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                                             B. Procedural History

         On December 26, 2012, Plaintiffs’ attorneys filed the class-action complaint in the

Marion County Court of Common Pleas, alleging nuisance and indirect-trespass claims under

Ohio law. The claims were based solely on harm to their property from manganese. On January

18, 2012, Defendant timely removed this case to the United States District Court for the

Northern District of Ohio, Western Division.                    Prior to discovery, the class action was

transformed into a bellwether trial,2 and Plaintiffs were designated as the bellwether plaintiffs to

test the claims of the class.

         Following the close of discovery, Defendant moved to exclude Plaintiffs’ expert

toxicology witness, Dr. Jonathan Rutchik.3 Dr. Rutchik was Plaintiffs’ key witness, as he was to

provide the evidence necessary to establish the alleged damages to Plaintiffs’ property. Perhaps

sensing that the district court was likely to exclude Dr. Rutchik, and that without his testimony

they would not be able to make out a prima facie case, Plaintiffs attempted to bolster the record

before the district court.

         First, they indicated to the district court that they would now also be relying on the DFFO

to establish damages to their properties from manganese. Second, Plaintiffs “adjusted” their

theory of liability by alleging property damage from Defendant’s particulate-matter emissions, or

PM,4 as a whole (of which the manganese here is only one component). To this end, one month



2
  A bellwether trial is where a small number of class-action plaintiffs, who can adequately represent the class, test
their claims and legal theories first, before proceeding with the rest of the class.
3
  Defendant also moved to exclude the testimonies of two of Plaintiffs’ other expert witnesses: Craig Cantrall, a
Cleveland-based real-estate agent, and Lance Traves, an environmental-compliance expert. The district court
totally excluded Cantrall’s testimony, and only partially excluded Traves’ testimony. Those rulings are not at issue
on appeal.
4
  Particulate matter, or PM, is “a mixture of solid particles and liquid droplets found in the air.” Particulate Matter
(PM) Basics, US Environmental Protection Agency (Sept. 12, 2016), https://www.epa.gov/pm-pollution/particulate-
matter-pm-basics#PM. These particles “can be made up of hundreds of different chemicals.” Id. Particles come in

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Abrams v. Nucor Steel Marion, Inc.

before trial, and after discovery had closed, Plaintiffs (1) disclosed four OEPA fact witnesses,

who presumably5 would have testified to Nucor’s standing with the OEPA and testified about the

DFFO; (2) began to claim and speak of harm to their properties from PM, rather than from only

manganese, in documents submitted to the court;6 (3) sought judicial notice of eight U.S. EPA

documents addressing PM and two more documents concerning manganese in particular

(presumably to take the place of expert testimony on the subject); and (4) asked the district court

to judicially estop Defendant from advancing arguments that allegedly contradicted litigation

positions concerning PM that Defendant had taken in unrelated lawsuits. As a result, Defendant

moved to exclude the DFFO and the OEPA witnesses, restrict Plaintiffs’ claims to harm from

manganese alone, and deny Plaintiffs’ motions for judicial notice and judicial estoppel.

        The district court issued two orders. In the first order, after “clarif[ying] Plaintiffs’

burden of proof on each claim,” R. 86 at 2883, the district court granted Defendant’s motion to

exclude the expert testimony of Dr. Rutchik. It found Dr. Rutchik’s opinion inadmissible

because Dr. Rutchik failed to “test [his] hypothesis in a timely and reliable manner or to validate

[his] hypotheses by reference to generally accepted scientific principles as applied to the facts of

the case.” Id. at 2885 (alteration in original) (quoting Pride v. BIC Corp., 218 F.3d 566, 578 (6th

Cir. 2000)). The district court further prohibited Plaintiffs from altering their theory of liability

from harm based on the emission of manganese to harm from PM. Id. at 2880. In this same

order, the district court also denied without prejudice Plaintiffs’ request for judicial notice and

judicial estoppel because Plaintiffs had failed to articulate how any of the documents in question

related to their claims. Nonetheless, the court indicated that it would allow Plaintiffs to impeach

many forms, such as dust, dirt, soot, or smoke. Id. Smokestacks are a common source of PM. Id. PM can be the
delivery agent for hazardous air pollutants. See Sierra Club v. EPA, 479 F.3d 875, 879 (D.C. Cir. 2007).
5
  The content of these witnesses’ testimony has never been revealed.
6
  These documents include Plaintiffs’ response to Defendant’s Motion to Exclude Expert Testimony, Plaintiffs’
response to Defendant’s Motion to Exclude the DFFO and OEPA Witnesses, and Plaintiffs’ brief on appeal.

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Defendant’s corporate witnesses with relevant prior inconsistent statements, and that it would

admit the EPA publications if Plaintiffs showed how the specific information they sought to

introduce related to their claims. Id. at 2888.

       In the second order, the district court first excluded the DFFO because it is a consent

decree and is therefore inadmissible under Federal Rules of Evidence 403 and 408 and Ohio

Revised Code § 3704.09. R. 102 at 3176. Plaintiffs do not challenge this ruling on appeal. Next,

the district court excluded the four OEPA fact witnesses because Plaintiffs did not disclose them

until after the close of discovery, and on the eve of trial. Id. at 3177.

       On appeal, Plaintiffs challenge the district court’s: (1) characterization of the proofs

needed to establish damages in an Ohio indirect-trespass claim; (2) exclusion of Dr. Rutchik as

an expert witness; (3) exclusion of the four OEPA fact witnesses; (4) restriction of their theory of

liability; and (5) denial, without prejudice, of their motion for judicial notice and request for

judicial estoppel.

                                             II. Analysis

       Unless Plaintiffs can prevail on the first two issues here, it is extremely doubtful that they

will be able to show damages and make out a prima facie case under a theory of harm from

manganese. Plaintiffs’ last three challenges on appeal, much like their corresponding course of

action on these issues in the district court, represent a “Hail Mary” attempt to get their case to

trial in the absence of Dr. Rutchik.

         A. Proofs Needed to Establish Damages in an Ohio Indirect Trespass Claim

       Plaintiffs contend that the district court erred by “requiring general and specific causation

proof that a contaminant deposited on a particular property caused a specific personal injury to a

specific owner to establish the fact that a contaminant is ‘harmful to humans’” in order to


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Abrams v. Nucor Steel Marion, Inc.

establish their indirect trespass claim for property damages. Appellants’ Br. 16-17. Citing Baker

v. Chevron U.S.A. Inc., 533 F. App’x 509 (6th Cir. 2013) and Little Hocking Water Ass’n, Inc. v.

E.I. du Pont Nemours & Co., 91 F. Supp. 3d 940 (S.D. Ohio 2015), the district court ruled that to

establish damages, “Plaintiffs will need to connect the dots to succeed on their trespass claim by

showing the manganese levels on each Plaintiff’s property were likely to cause harm to human

health and caused substantial damage to the properties.” R. 86 at 2882. A district court’s

determination of state law in a diversity case is reviewed de novo. Salve Regina Coll. v. Russell,

499 U.S. 225, 231 (1991). We find that Plaintiffs misread the district court’s decision and affirm

the district court.

        Under Ohio law, trespass is an unlawful entry upon the property of another. Chance v.

BP Chems., Inc., 670 N.E.2d 985, 991 (Ohio 1996). Unlike suits for direct trespass where

damages are presumed, to establish indirect trespass a plaintiff must show that a substance

invaded the land due to defendant’s intentional act and caused “some type of physical damages

or interference with the use [of the property].” Id. at 993; Brown v. Scioto Cty. Bd. of Comm'rs,

622 N.E.2d 1153, 1161-62 (Ohio Ct. App. 1993). Furthermore, the damage or interference must

be “substantial.” Baker, 533 F. App’x at 522-23 (citing Lueke v. Union Oil Co. of Cal., No. OT-

00-008, 2000 WL 1545077, at *7 (Ohio Ct. App. Oct. 20, 2000)); Brown, 622 N.E.2d at 1161

(Ohio 1993) (quoting Borland v. Sanders Lead Co., Inc., 369 So. 2d 523, 530 (Ala. 1979)).

What constitutes “substantial” interference or damage to a plaintiff’s property is determined on a

case-by-case basis. See Chance, 670 N.E.2d at 993. But, a plaintiff “ha[s] to show something

more than the ‘mere detection’ of [the invading substance] on [his] propert[y] to establish the

physical damage prong of an indirect trespass claim.” Baker, 533 F. App’x at 522-23.




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Abrams v. Nucor Steel Marion, Inc.

       There appears to be no Ohio case that explicitly deals with whether substantial physical

harm or interference in an indirect trespass case can be established by demonstrating an invading

contaminant’s harmfulness to human health. However, three federal cases interpreting Ohio law,

Baker, Little Hocking, and Brown v. Whirlpool Corp., 996 F. Supp. 2d 623 (N.D. Ohio 2014),

have applied Ohio’s abovementioned principles in this context, and therefore provide us with the

most guidance.

       In Baker, this court held that the plaintiffs failed to establish the invading contaminant

was harmful to human health and were therefore unable to establish a substantial injury to or

interference with their property, because there was no evidence that any plaintiff would live

under conditions such that the invading contaminant would cause an increased risk of cancer.

Baker, 533 F. App’x at 524. Additionally, as the district court in this case noted noted, Baker

makes clear that each plaintiff must make an individualized showing of harm in a bellwether

trial. Id. at 523. In Little Hocking, the court rejected the defendant’s contention that without

definitive proof of harm to human health, the plaintiff could not show substantial physical

damage to property, thereby implying that something less than definitive proof, i.e., a showing of

likelihood of harm to human health, would be sufficient. See Little Hocking, 91 F. Supp. 3d at

982. In Whirlpool Corp., the court dismissed the plaintiffs’ indirect-trespass claim for the

invasion of benzaldehyde emissions where the complaint merely alleged detection of the

presence of benzaldehyde in the plaintiffs’ attics, and the plaintiffs’ expert report made no

mention of, much less established, the “risks to human health from those amounts of

benzaldehyde.” Whirlpool Corp., 996 F. Supp. 2d at 641 (emphasis added).

       In essence, all three cases interpret Ohio law as saying that in an Ohio indirect-trespass

claim, a plaintiff may establish substantial physical damage to, or interference with, his property


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Abrams v. Nucor Steel Marion, Inc.

by demonstrating that the concentration of an invading contaminant on his property is likely to

cause harm to human health. This is exactly what the district court held, and, incidentally, is

consistent with the standard Plaintiffs asserted below. See R. 86 at 2881. Similarly, we also find

this to be the proper interpretation of the principles of Ohio indirect-trespass law that Ohio courts

have articulated, and we therefore affirm the district court.

         Thus, the real question was, and still remains, whether Plaintiffs have any admissible

evidence that can show that the level of manganese on their properties is likely to harm human

health and therefore establish substantial physical damage or interference with their property.

                           B. Exclusion of Dr. Rutchik as an Expert Witness

         Plaintiffs put forward Dr. Rutchik’s expert testimony as the only evidence to “connect the

dots” between the manganese levels on each Plaintiff’s property and the alleged likely harm to

human health caused by that manganese.7 The district court excluded Dr. Rutchik’s testimony

under Federal Rule of Evidence 702. R. 86 at 2884. Plaintiffs challenge that ruling. We review

a district court’s exclusion of expert testimony for abuse of discretion. United States ex rel.

Tenn. Valley Auth. v. 1.72 Acres of Land in Tenn., 821 F.3d 742, 748 (6th Cir. 2016). “A district

court abuses its discretion if it bases its ruling on an erroneous view of the law or a clearly

erroneous assessment of the evidence.” Id. (citation and internal quotation marks omitted).

         First, the district court found that:

                Dr. Rutchik is a Board Certified physician in neurology and occupational
         medicine, and specializes in the “evaluation of individuals and populations with
         suspected neurological illness secondary to exposure of various agents” (Doc. 68-
         1 at 1). After reviewing soil testing and air modeling data from Plaintiffs’
         environmental expert Lance Traves, medical studies regarding exposure to
         manganese, regulatory guidelines, and based on his own knowledge and

7
  Plaintiffs represented that they did not intend to use Mr. Traves, Plaintiffs’ environmental-compliance consultant,
to opine on the alleged health effects of manganese and the physical damages caused by manganese. R. 70 at 1486.
Further, Plaintiffs represented in a hearing before the district court that their only other evidence of liability due to
harm from manganese is the excluded DFFO, R. 102 at 3176, and Plaintiffs do not challenge its exclusion.

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       experience in medicine and toxicology, Dr. Rutchik concludes, to a reasonable
       degree of medical certainty, “that persons who reside full time in the ‘class area’
       [0.25 to 0.5 miles from Nucor’s steel plant] for a period of ten (10) years or more
       will suffer harm to their health caused by such chronic exposure to such elevated
       levels of manganese” (id. at 3).

R. 86 at 2884.

                  The district court then articulated the standards used to evaluate expert testimony:

               Expert opinion testimony involves application of “scientific, technical, or
       other specialized knowledge [that] will help the trier of fact to understand the
       evidence or to determine a fact in issue.” Federal Evidence Rule 702(a). Expert
       testimony is admissible only if the trial court finds the testimony “both rests on a
       reliable foundation and is relevant to the task at hand.” Daubert v. Merrell Dow
       Pharm., Inc., 509 U.S. 579, 589, 594–95 (1993). Under Rule 702, this Court’s
       inquiry is a “flexible one,” focusing on “the principles and methodology [an
       expert uses], not on the conclusions that they generate.” Id. at 595. This Court
       gauges reliability according to such factors as “(1) whether the theory or
       technique has been tested and subjected to peer review and publication,
       (2) whether the potential rate of error is known, and (3) its general acceptance.”
       Conwood Co., L.P. v. U.S. Tobacco Co., 290 F.3d 768, 792 (6th Cir. 2002).
       Plaintiffs bear the burden of showing by a preponderance of the evidence that the
       experts’ testimony is admissible. Daubert, 509 U.S. at 579 & n.10.

Id. at 2883-84.

       Applying these well-established principles, the district court held, and, based on our

review of the record, we agree that:

               Dr. Rutchik’s opinion is not admissible under Federal Evidence Rule 702.
       His comparison of the results of Traves’ air and soil analyses with the EPA’s
       reference concentration for manganese and eight scientific articles is not “the
       product of reliable principles and methodology.” Federal Evidence Rule 702; cf.
       Best v. Lowe’s Home Ctrs., Inc., 563 F.3d 171, 180 (6th Cir. 2009) (finding
       medical expert’s opinion and deferential diagnosis methodology were sufficiently
       reliable to warrant admissibility). Dr. Rutchik’s opinion is conclusory and his
       assertion that all Plaintiffs have been adversely affected by Nucor’s manganese
       emissions is too broad, general, and vague to be helpful to the trier of fact. See
       Baker, 533 F. App’x at 523–24 (excluding expert testimony for similar reasons).
       Dr. Rutchik’s opinion that Plaintiffs “will suffer harm to their health” is not based
       on any examination or testing and does not address the type or degree of harm
       Plaintiffs will suffer (see Doc. 68-9 at 6). Nor is Dr. Rutchik’s opinion supported
       by the record. See In re Scrap Metal, 527 F.3d 517, 530 (6th Cir. 2008) (holding
       that to be admissible under Rule 702, the expert’s opinion must find factual

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       support in the record). For instance, Plaintiffs, each of whom lived in Marion for
       over ten years, do not present any symptoms of illness relating to any alleged
       manganese exposure (see Bush Dep. (Doc. 68-7) at 13–15; Tolle Dep. (Doc. 68-8)
       at 14).

                Rutchik’s failure to “test [his] hypothesis in a timely and reliable manner
       or to validate [his] hypotheses by reference to generally accepted scientific
       principles as applied to the facts of the case renders [his] testimony . . .
       inadmissible.” Pride v. BIC Corp., 218 F.3d 566, 577–78 (6th Cir. 2000) (finding
       expert’s theory unsupported by reliable testing); see Brown v. Raymond Corp.,
       432 F.3d 640, 648 (6th Cir. 2005) (affirming exclusion of expert’s testimony and
       finding that expert’s “failure to empirically test his theories . . . undermined the
       reliability of his testimony”).

Id. at 2884-85.

       Based on the foregoing analysis, we hold that the district court did not abuse its discretion

in excluding Dr. Rutchik. As the district court explained, Dr. Rutchik failed to support his

hypothesis with any actual proof and thereby made his testimony unreliable. See Pride, 218 F.3d

at 578 (affirming the exclusion of expert witnesses for failing to test their hypotheses).

       We now turn to Plaintiffs’ remaining arguments.

                             C. Exclusion of OEPA Fact Witnesses

       Plaintiffs challenge the district court’s sanction imposed under Federal Rule of Civil

Procedure 37(c)(1), excluding as witnesses four OEPA employees Plaintiffs first disclosed in

Plaintiffs’ proposed trial order on the eve of trial, after the close of discovery. Rule 37 sanctions

are reviewed for abuse of discretion. Sommer v. Davis, 317 F.3d 686, 692 (6th Cir. 2003).

       Rule 26(a)(1) requires parties to disclose early in discovery persons likely to have

discoverable information if the disclosing party may use that information or person to support its

claim or defense. Fed. R. Civ. P. 26(a)(1)(A)(i). Rule 37 requires trial courts to punish parties

that violate this provision in Rule 26 with exclusion of evidence or witnesses, unless the

sanctioned party can show that the violation is substantially justified or harmless, or the trial


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court opts to impose an alternative sanction instead. Fed. R. Civ. P. 37(c)(1); R. C. Olmstead,

Inc. v. CU Interface, LLC, 606 F.3d 262, 271 (6th Cir. 2010). In determining harmlessness, the

Sixth Circuit looks to 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
       non-disclosing party’s explanation for its failure to disclose the evidence.

Howe v. City of Akron, 801 F.3d 718, 748 (6th Cir. 2015).

       The district court determined that Plaintiffs’ last-minute disclosure of the OEPA

witnesses was not harmless or substantially justified. We agree, as none of the abovementioned

factors weigh in Plaintiffs’ favor.

       First, Defendant could only have known about three of the witnesses because they had

authored one of the notices of violation sent to Defendant in 2009 or 2010, or they had been

carbon copied on one of those notices. Nothing in the record indicates that Defendant knew or

could have known about the existence of the fourth witness. Further, there is no evidence that

Defendant knew, or could have known, what these witnesses would say at trial. The surprise to

Defendant is obvious.

       Additionally, at this stage of litigation, allowing the witnesses to testify would delay and

disrupt the trial.   Not only would Defendant need time to depose the four witnesses, but

Defendant would also have to be given the opportunity and time to find rebuttal evidence or

testimony. Moreover, given that the content of the proposed testimony of these witnesses has

never been disclosed or even hinted at by Plaintiffs, it is impossible to weigh the importance of

this evidence. Finally, Plaintiffs did not offer any justification for their tardiness, but simply

alleged that Defendant could “easily guess what the substance of [the witnesses’] testimony

would be.”

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       In short, we find no abuse of discretion.

                        D. Restriction of Plaintiffs’ Theory of Liability

       Plaintiffs object to the district court’s repudiation of their attempt to expand the case’s

theory of liability upon the eve of trial. As the district court noted, in their opposition to

Defendant’s motion to exclude Dr. Rutchik’s testimony, Plaintiffs recast the harm alleged as

coming from “particulate matter” or “PM,” as opposed to manganese, without moving to amend

their pleadings. Plaintiffs argue that harm from PM can be inferred by looking at the totality of

the complaint, or in the alternative, that they are entitled to relief based on a theory of harm from

PM under Federal Rule of Civil Procedure 54(c), despite failing to amend their complaint. We

review questions of law de novo. Tri Cty. Wholesale Distribs., Inc. v. Labatt Operating Co.,

LLC, 828 F.3d 421, 430 (6th Cir. 2016).

                               1. Inference from Facts as Pleaded

       A plaintiff’s complaint need not contain a formal legal theory of the harm alleged,

Johnson v. City of Shelby, Miss., 135 S. Ct. 346, 346-47 (2014), however, this does not give a

plaintiff carte blanche. Complaints must provide defendants with sufficient notice of the type of

harm alleged. See In re Omnicare, Inc. Sec. Litig., 769 F.3d 455, 467 (6th Cir. 2014).

       Plaintiffs’ First Amended Complaint averred liability arising out of damage caused to

Plaintiffs’ properties as the result of contamination from “hazardous” and “ultra-hazardous levels

of manganese.” R. 6 at 124-36. Further, during discovery, Plaintiffs sought evidence and

produced expert testimony based on a theory of harm solely from manganese. Plaintiffs filed a

Second Amended Complaint, in which they made two oblique references to “particulates,” R. 34

at 617, 632; however, the Second Amended Complaint was later retracted, and Plaintiffs

stipulated that the First Amended Complaint controls, R. 40 at 691.


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         Plaintiffs now argue that because the manganese emitted by Defendant comes in the form

of PM, the harm alleged in the First Amended Complaint should be understood as encompassing

PM emissions from the Facility as a whole. Here, harm from manganese is a much narrower

claim of liability than harm from PM. The PM emitted by Defendant, according to an air-

dispersion modeling analysis conducted by Defendant and submitted to the OEPA, contained at

least nineteen air toxics, of which manganese was only one. Further, of the PM emitted,

manganese constituted only 4.93% of its concentration, as measured by weight.

         Thus, because the harm as pleaded, and used throughout litigation, is much narrower than

the harm Plaintiffs wish this Court to infer, Plaintiffs’ pleadings could not have given Defendant

sufficient notice of this type of harm. Consequently, the district court was correct to forbid

Plaintiffs from arguing harm based on PM, absent a successful motion for leave to amend the

pleadings.8

                                 2. Entitlement to Relief under Rule 54(c)

         Plaintiffs argue in the alternative that they are entitled to relief based on a theory of harm

from PM under Federal Rule of Civil Procedure 54(c). Rule 54(c) requires final judgments

(except in the case of default judgments) to “grant the relief to which each party is entitled, even

if the party has not demanded that relief in its pleadings.” Fed. R. Civ. P. 54(c).

         Plaintiffs misunderstand the meaning of “relief” in Rule 54(c). Rule 54(c) is to be read in

conjunction with Rule 8(a)(3), 10 Charles Alan Wright & Arthur R. Miller, Federal Practice &

Procedure § 2262 (3d ed. 1998), which requires pleadings to state the type of relief demanded,

8
  Plaintiffs in their brief on appeal allege that they were “denied even the opportunity to amend their Complaint . . .
to add specific allegations regarding PM.” Appellant Br. 14. Aside from Plaintiffs’ Second Amended Complaint,
which was retracted, there is no evidence in the record that Plaintiffs ever sought leave to amend their First
Amended Complaint. Plaintiffs try to substantiate their claim by pointing to the district court’s decision to limit
Plaintiffs’ arguments for liability to manganese. This, however, is not evidence of a denial of a motion seeking
leave to amend, but rather merely evidence that, in the absence of leave to amend, the district court required
Plaintiffs to remain consistent with their complaint and their unwavering litigation position.

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Abrams v. Nucor Steel Marion, Inc.

Fed. R. Civ. P. 8(a)(3). Rule 54(c), then, “makes clear that a judgment should give the relief to

which a party is entitled, regardless of whether it is legal or equitable or both.” Fed. R. Civ. P.

54(c) advisory committee’s note to 1937 adoption (emphasis added). Thus, Rule 54(c) allows

courts to give a deserving party a type of relief which their pleadings did not demand. However,

this does not mean Rule 54(c) places no limitations on relief. Wright & Miller, supra, § 2262.

“The relief must be based on what is alleged in the pleadings and justified by plaintiff’s proof,

which the opposing party has had an opportunity to challenge.” Id.

       In arguing that they are entitled to relief based on a theory of harm from PM, Plaintiffs

are not asking for a type of relief they failed to plead; rather they are asking for the same type of

relief but based on a factual allegation they did not plead, and which Defendant has not had an

opportunity to challenge. Therefore, Rule 54(c) does not apply here, and the district court was

correct to restrict the harm alleged to the harm from manganese.

    E. Denial of Plaintiffs’ Motion for Judicial Notice and Request for Judicial Estoppel

       Lastly, Plaintiffs challenge the district court’s denial without prejudice of their motion for

judicial notice and judicial estoppel. Plaintiffs asked the district court to take judicial notice of

451 pages of U.S. EPA documents concerning PM and manganese, and of court documents from

other litigation concerning Defendant’s alleged emission of PM. Based upon these latter set of

documents, Plaintiffs also asked the district court to judicially estop Defendant from making

allegedly contradictory assertions in this litigation. The district court refused to take judicial

notice of either set of documents because Plaintiffs failed to show how these documents were

relevant to their claims concerning damage to property caused by Defendant’s emission of

manganese, as it had already ruled that Plaintiffs could not claim harm based on PM. However,

the district court made this denial without prejudice, subject to a later showing of relevance, and


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Abrams v. Nucor Steel Marion, Inc.

invited Plaintiffs to “confer [with Defendant] regarding joint stipulations to be read to the jury,

including any EPA findings or matters of public record relevant to this case.” R. 86 at 2888

(emphasis added). As the parties entered into a stipulated judgment prior to trial, the parties

never produced jury stipulations.

       To preserve an alleged error on a conditional ruling by the trial court, counsel must

affirmatively raise the objection. United States v. Brawner, 173 F.3d 966, 970 (6th Cir. 1999).

Because Plaintiffs failed to preserve their objection to this error in the stipulated judgment, they

cannot raise it now. See Jolivette v. Husted, 694 F.3d 760, 770 (6th Cir. 2012) (“As a rule, we

will not review issues if they are raised for the first time on appeal.”). And although an appellate

court may take notice of a plain error by the lower court affecting a substantial right, despite the

issue not properly being preserved, Fed. R. Evid. 103(e), the “burden of establishing entitlement

to relief for plain error is on the [party] claiming it,” United States v. Dominguez Benitez,

542 U.S. 74, 83 (2004) (holding this in a criminal context).

       Plaintiffs have “ma[d]e no argument” about plain error, and therefore have “not satisfied

[their] burden to establish [their] entitlement to relief.” United States v. Threadgill, 572 F.

App’x 372, 389 (6th Cir. 2014). Therefore, we decline to consider the issue, and we affirm the

district court’s denial of Plaintiffs’ motion for judicial notice and request for judicial estoppel.

                                           III. Conclusion

       For the foregoing reasons, Plaintiffs are unable to make out a prima facie case.

Therefore, the judgment of the district court is AFFIRMED.




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