Continuance-and-Deposition Cure for Late-Disclosed Witnesses and Deference to Jury Credibility Under Rule 59

1. Introduction

Garry Richardson v. City of Detroit, Michigan, Sergeant Mike Jackson (Sixth Circuit, July 1, 2026) is an unpublished decision affirming the denial of a new-trial motion after a jury returned a defense verdict on excessive force (42 U.S.C. § 1983) and Michigan battery claims.

The case arose from a September 14, 2019 encounter outside the Sweetwater Tavern in Detroit. Richardson alleged that Detroit Police Sergeant Mike Jackson lifted and threw him chest-down to the ground, causing severe back injury. Jackson alleged Richardson was illegally positioned in/near a crosswalk, refused to provide identification, and then deliberately “went limp” and fell while Jackson attempted to arrest him. There was no surviving video footage; the trial largely turned on competing eyewitness accounts and credibility.

On appeal, Richardson argued the district court should have granted a new trial because (i) the verdict was against the weight of the evidence and (ii) trial errors—late disclosure of a defense eyewitness (Officer David Taylor), admission of Detroit Detention Center (DDC) records and Michigan statutes, and defense counsel’s “golden lottery ticket” remarks—made the trial unfair.

2. Summary of the Opinion

The Sixth Circuit affirmed. Applying abuse-of-discretion review, it held:

  • The verdict was not “unreasonable” given the credibility-based nature of the dispute and evidence undermining Richardson’s account.
  • The late disclosure of Officer Taylor did not warrant a new trial because the district court cured potential prejudice by continuing trial and ordering an immediate deposition; Richardson sought no further relief.
  • Admission of DDC records (booking photo, pre-booking questionnaire) and copies of Michigan statutes was within the district court’s Rule 403 discretion.
  • Defense counsel’s “golden lottery ticket” comments did not create a reasonable probability of affecting the verdict, particularly in light of limited objections and standard instructions that attorney argument is not evidence.

3. Analysis

3.1. Precedents Cited

Rule 59(a) framework and appellate deference

  • Mosby-Meachem v. Memphis Light, Gas & Water Div., 883 F.3d 595 (6th Cir. 2018): The opinion relies on Mosby-Meachem both for the kinds of grounds that can justify a new trial (“against the weight of the evidence” or “trial being unfair”) and for the deferential abuse-of-discretion standard on review. This sets the tone: the Sixth Circuit is not re-trying the case; it is assessing whether the district court’s denial fell outside permissible choices.
  • Armisted v. State Farm Mut. Auto. Ins. Co., 675 F.3d 989 (6th Cir. 2012): Used to emphasize that granting a new trial because a verdict is against the weight of the evidence is “rare,” reserved for verdicts that are “unreasonable.” The court leverages Armisted to reject Richardson’s invitation to relitigate witness credibility.
  • Holmes v. City of Massillon, 78 F.3d 1041 (6th Cir. 1996): Central to the court’s refusal to disturb a credibility-driven verdict. Holmes is invoked for the Seventh Amendment concern that a judge should not replace the jury’s credibility determinations with the court’s own view absent extraordinary circumstances.
  • Harden v. Hillman, 993 F.3d 465 (6th Cir. 2021): Reinforces the appellate posture: reversal requires a “definite and firm conviction” that the district court erred—another layer of deference that makes new-trial relief difficult on appeal.
  • Tompkin v. Philip Morris USA, Inc., 362 F.3d 882 (6th Cir. 2004): The court uses Tompkin to stress that even if an error occurred, a new trial still requires a showing of prejudice.

Substantive standards: stop/arrest authority and excessive force

  • Coffey v. Carroll, 933 F.3d 577 (6th Cir. 2019): Provides the opinion’s key doctrinal bridge: excessive-force analysis depends on whether the officer had authority to arrest and whether the force used was reasonable to effectuate that arrest. Coffey is also cited to underscore that minor offenses alone do not justify an “aggressive takedown,” which framed why the case turned on whose factual account the jury believed.
  • United States v. Copeland, 321 F.3d 582 (6th Cir. 2003): Supports the proposition that an officer who observes illegal parking—even a civil infraction—may conduct a stop and investigation, and that discovering an invalid license or warrants can justify warrantless arrest.
  • Atwater v. City of Lago Vista, 532 U.S. 318 (2001): Anchors the legality of custodial arrest for even minor offenses, reinforcing that the key dispute was not whether arrest authority could exist in principle, but whether the facts supported the officer’s asserted grounds.
  • Young v. Barker, 405 N.W.2d 395 (Mich. Ct. App. 1987): Used to align Michigan battery law with federal excessive-force standards: an officer may use reasonably necessary force to effect a lawful arrest; thus, if no excessive force, then no battery (as the panel put it, “no daylight” between the bodies of substantive law on these facts).

Credibility, witness counting, and evidentiary inference

  • Borns v. Chrisman, 167 F.4th 335 (6th Cir. 2026) (citing Penn. R.R. Co. v. Chamberlain, 288 U.S. 333 (1933)): Cited to rebut Richardson’s “more witnesses favor me” argument; witness quantity is not dispositive. This supports the court’s conclusion that the jury could reasonably credit Sergeant Jackson and Officer Taylor despite multiple bystander witnesses.

Late-disclosed witness and Rule 26/37 remedies

  • Miller v. Suburban Mobility Auth. for Reg'l Transp., Nos. 24-1478/1503, 2025 WL 1506082 (6th Cir. May 27, 2025): Cited for the proposition that exclusion under Rule 37(c)(1) is “not mandatory,” supporting the district court’s choice of a remedial continuance/deposition rather than striking the witness.
  • Howe v. City of Akron, 801 F.3d 718 (6th Cir. 2015): Provides the five-factor test for deciding whether to excuse late disclosure (surprise; ability to cure; trial disruption; importance; explanation). The panel uses Howe to validate the district court’s pragmatic cure and to underscore the breadth of district-court discretion.
  • RJ Control Consultants, Inc. v. Multiject, LLC, 100 F.4th 659 (6th Cir. 2024): Cited for the principle that district courts have “broad discretion” in applying the Howe factors.
  • Meat Town Inc. v. Sentinel Ins., 852 F. App'x 925 (6th Cir. 2021): Along with Miller, supports the specific practice approved here: postponing trial and permitting additional depositions to cure late-disclosure surprise.

Rule 403 and “mug shot”/detention records

  • United States v. Asher, 910 F.3d 854 (6th Cir. 2018): Supplies the general lens: Rule 403 is “strongly weighted toward admission,” and trial courts get wide latitude in balancing probative value and unfair prejudice.
  • United States v. McCoy, 848 F.2d 743 (6th Cir. 1988): Recognizes the prejudicial danger that “mug shots” can suggest a person is a “bad guy” who belongs in jail, providing the baseline concern Richardson raised.
  • United States v. George, 160 F. App'x 450 (6th Cir. 2005): Used to distinguish the particular booking photo here from typical mug shots because it lacked standard indicia and looked more like a driver’s-license photo.
  • United States v. Lopez-Medina, 461 F.3d 724 (6th Cir. 2006): Supports the conclusion that this photo was unlikely to leave a “lasting impression” of criminality.

Attorney misconduct and prejudice threshold

  • Park West Galleries, Inc. v. Hochman, 692 F.3d 539 (6th Cir. 2012): Cited to confirm the court could consider the misconduct argument even though Richardson raised it in a post-verdict new-trial motion.
  • Balsley v. LFP, Inc., 691 F.3d 747 (6th Cir. 2012): Provides the totality-of-circumstances approach and the requirement of a “reasonable probability” that the misconduct affected the verdict.
  • Bridgeport Music, Inc. v. Justin Comps Publ'g, 507 F.3d 470 (6th Cir. 2007): Used for two points: failing to object increases the prejudice burden, and similar argumentative comments (accusing an opponent of trying to “pull a fast one”) have been found insufficient to warrant a new trial.
  • Michigan First Credit Union v. Cumis Ins. Soc., Inc., 641 F.3d 240 (6th Cir. 2011): Supports the curative significance of standard instructions that counsel’s statements are not evidence.

3.2. Legal Reasoning

(a) Weight of the evidence: why credibility controlled

The panel framed the case as a paradigmatic credibility contest: Richardson said he was lifted and slammed chest-down; Jackson said Richardson refused identification and intentionally “went limp,” and Jackson could not prevent the fall. With no video, the jury’s role was to choose which account to believe.

Under Armisted v. State Farm Mut. Auto. Ins. Co. and Holmes v. City of Massillon, the court treated a new trial as extraordinary where the verdict depends on credibility, because ordering a new trial (or effectively substituting a judge’s view) risks undermining the jury’s constitutional role. The opinion then marshaled concrete reasons the jury could disbelieve Richardson: impeachment (post-surgery activity vs claimed inability to walk), inconsistencies among supportive eyewitnesses, and alternative causation evidence (car accident; degenerative conditions).

(b) Excessive force and battery: lawfulness of arrest and reasonableness of force

The court emphasized that the legality of the stop/arrest was a necessary predicate to evaluating force. Citing United States v. Copeland and Atwater v. City of Lago Vista, it explained that even minor traffic-related violations can justify investigation and, upon discovering an invalid license or warrants, arrest. But citing Coffey v. Carroll, it acknowledged that minor offenses do not automatically justify an “aggressive takedown.”

The decisive move was conditional: Richardson’s own police-practices expert conceded that if the jury credited Jackson’s version—Richardson illegally parked, refused identification, and then collapsed as “dead weight” during handcuffing—then no excessive force occurred. That concession made the credibility decision outcome-determinative.

For the Michigan battery claim, the panel relied on Young v. Barker to equate the operative standard: reasonably necessary force in a lawful arrest defeats battery. Hence, if the jury found no excessive force, the battery claim fell with it.

(c) Late-disclosed witness: why continuance plus deposition was “harmless”

The court recognized a clear Rule 26 violation: Sergeant Jackson did not identify Officer Taylor until shortly before trial (and long after discovery). The remedy question was governed by Rule 37(c)(1)’s “substantially justified or harmless” carve-out, informed by Howe v. City of Akron’s five-factor test and the discretionary principles in RJ Control Consultants, Inc. v. Multiject, LLC.

The panel focused on “cure” and “surprise.” The district court continued trial by three months and ordered an immediate deposition—precisely the kind of practical cure previously approved in Miller v. Suburban Mobility Auth. for Reg'l Transp. and Meat Town Inc. v. Sentinel Ins.. The court also stressed Richardson’s litigation choices: he did not renew a motion to exclude Taylor, did not request reopening discovery, and did not pursue additional relief. That posture made it difficult to argue on appeal that the district court’s cure was inadequate.

(d) Rule 403 rulings: detention records and Michigan statutes

Applying United States v. Asher’s “weighted toward admission” approach, the panel upheld admission of:

  • DDC booking photo and questionnaire: The court acknowledged the mug-shot stigma concern noted in United States v. McCoy but found the photo non-inflammatory under United States v. George and unlikely to create a “lasting impression” under United States v. Lopez-Medina. It also credited probative value: the photo showed no facial bruising despite Richardson’s description of a forceful chest/face-down impact; the questionnaire captured Richardson’s contemporaneous denial of injury, directly relevant to claimed harm.
  • Michigan statutes: The panel reasoned that the jury needed a legal framework for the antecedent questions—was the stop/arrest grounded in observable parking and identification violations? The statutes were therefore relevant and not unfairly confusing merely because the case was ultimately about force.

(e) “Golden lottery ticket” remarks: misconduct vs prejudice

Under Balsley v. LFP, Inc., the question was whether the remarks—twice calling the lawsuit a “golden lottery ticket”—created a reasonable probability of affecting the verdict in context. The panel treated three contextual facts as critical:

  • Richardson objected only once and sought no curative instruction.
  • The district court issued standard instructions that attorney argument is not evidence (supported by Michigan First Credit Union v. Cumis Ins. Soc., Inc.).
  • The absence of an objection during closing raised Richardson’s prejudice burden under Bridgeport Music, Inc. v. Justin Comps Publ'g.

The court analogized to Bridgeport Music’s tolerance of “pull a fast one” rhetoric and deferred to the trial judge’s superior vantage point to gauge jury impact.

3.3. Impact

Although unpublished and “NOT RECOMMENDED FOR PUBLICATION,” the opinion is a useful synthesis of Sixth Circuit practice in three recurring trial contexts:

  1. Rule 59 credibility cases are exceptionally hard to overturn: When a verdict rests on conflicting testimony and impeachment/alternative causation evidence exists, the Sixth Circuit will rarely label the verdict “unreasonable,” reflecting the Seventh Amendment sensitivity highlighted in Holmes v. City of Massillon.
  2. Late disclosure does not automatically mean exclusion: The decision reinforces that a continuance plus deposition can render a Rule 26 violation “harmless,” especially when the testimony is not a “new theory” but corroborative. It also signals a practical preservation lesson: parties who accept a cure and do not seek further relief will face an uphill battle claiming prejudice later.
  3. Rule 403 challenges to detention records require a photo-specific and context-specific showing: A “booking photo” is not per se excludable; courts will look for mug-shot indicia and consider whether the record speaks to a contested factual point (injury evidence and contemporaneous statements here).

For litigators, the opinion underscores the importance of (i) making timely objections, (ii) requesting tailored curative instructions when needed, and (iii) renewing exclusion requests or seeking additional discovery if a continuance/deposition does not fully cure late disclosure.

4. Complex Concepts Simplified

  • “New trial” under Rule 59(a): A redo of the trial. It is not granted just because the judge (or appellate court) might have decided differently; the verdict must be seriously flawed (e.g., “unreasonable” against the evidence) or the trial unfair.
  • “Against the weight of the evidence”: Not “there was some evidence the other way,” but that the jury’s decision cannot be reasonably squared with the record, especially difficult where witnesses tell different stories and the jury picks one.
  • “Abuse of discretion” review: The appellate court gives the trial judge leeway. Even if another judge might have ruled differently, the decision stands unless it falls outside a range of reasonable choices.
  • Rule 26 disclosures and Rule 37 sanctions: Parties must identify likely witnesses early and supplement as needed. If they do not, the default sanction can be exclusion, but courts may allow the witness if the failure is “harmless”—often cured by postponing trial and allowing deposition.
  • Rule 403 “unfair prejudice”: Evidence can be damaging without being unfair. “Unfair” usually means it invites the jury to decide on improper grounds (e.g., “he looks like a criminal”), rather than on relevant facts.
  • Excessive force vs lawful arrest: Even when an arrest is lawful, the force must still be reasonable. But if the jury believes the officer used minimal force and the plaintiff caused the fall, the excessive-force claim fails.

5. Conclusion

The Sixth Circuit’s decision in Garry Richardson v. City of Detroit, Michigan, Sergeant Mike Jackson reinforces a practical rule of federal trial review: when a verdict turns on credibility, Rule 59 relief is rare; when late witness disclosure occurs, a continuance and deposition can cure prejudice; and evidentiary or rhetorical missteps warrant a new trial only upon a concrete showing of prejudicial effect.

In broader context, the opinion is a reminder that civil rights trials without video evidence often pivot on credibility, impeachment, and contemporaneous records. Appellate courts will generally protect the jury’s role and the trial court’s case-management discretion unless the record shows a truly unreasonable verdict or a trial error with demonstrable impact on the outcome.