Black Warrior River-Keeper Inc. v. Drummond Co. Inc.

          MEMORANDUM OPINION AND ORDER

          ABDUL K. KALLON UNITED STATES DISTRICT JUDGE

         Before the court is Black Warrior River-keeper's (“BWR”) motion to strike untimely expert opinions, doc. 66, Drummond Company, Inc. submitted in response to BWR's motion for partial summary judgment (“MPSJ”). Apparently, rather than citing to the expert reports BWR produced during discovery, BWR submitted declarations from its experts instead in support of its MPSJ, and Drummond, in turn, also submitted declarations from its experts that address specific contentions in BWR's MPSJ. BWR contends that the Drummond declarations contain new, untimely expert opinions in violation of Federal Rule of Civil Procedure 26(a)(2), and asks the court to strike and exclude them pursuant to Federal Rule of Civil Procedure 37(c)(1). Id. The motion is fully briefed, docs. 66-1, 71, 72, and is due to be granted in part.

         I. ANALYSIS

         This case arises out of a dispute over alleged discharges of pollutants from the site of a former coal mine into the Locust Fork of the Black Warrior River and a tributary of the Locust Fork. Doc. 24. BWR filed suit against Drummond, which owns the Maxine Mine site (“the site”), alleging that Drummond has violated the Clean Water Act (CWA) and Resource Conservation and Recovery Act (RCRA) by discharging pollutants without a permit from point sources at the site into the Locust Fork and its tributaries. See id. The case has advanced to the dispositive motions stage. At issue in this pending motion is whether the court can consider declarations Drummond submitted from its experts in ruling on the pending motions for summary judgment.

         Under Rule 26, a party seeking to introduce expert testimony must disclose a written report containing “a complete statement of all opinions the witness will express and the basis and reasons for them” and “the facts or data considered by the witness in forming them[.]” Fed.R.Civ.P. 26(a)(2)(B)(i), (ii). “A party must make these disclosures at the times and in the sequence the court orders.” Id. 26(a)(2)(D). Furthermore, the disclosing party must supplement or correct its report “in a timely manner if the party learns that in some material respect the disclosure or response is incomplete or incorrect, and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing[.]” Id. 26(e).

         The expert disclosure rule is “designed to allow both sides in a case to prepare their cases adequately and to prevent surprise[.]” Reese v. Herbert, 527 F.3d 1253, 1266 (11th Cir. 2008). In light of this principle, Rule 37 provides that, “if a party fails to provide information or identify a witness as required under Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or harmless.” Fed.R.Civ.P. 37(c)(1). “The burden of establishing that a failure to disclose was substantially justified or harmless rests on the nondisclosing [sic] party.” Mitchell v. Ford Motor Co., 318 Fed.Appx. 821, 824 (11th Cir. 2009).

         In determining whether a failure to disclose was “substantially justified or harmless, ” the court considers: “(1) the importance of the testimony; (2) the reason for the [offering party's] failure to disclose the witness earlier; and (3) the prejudice to the opposing party if the witness [is] allowed to testify.” Bearint ex rel. Bearint v. Dorell Juvenile Group, Inc., 389 F.3d 1339, 1353 (11th Cir. 2004). Contrary to Drummond's contention, a non-disclosing party does not have “an absolute due process right” to submit new and untimely expert opinions merely because they are “directly responsive” to its opponent's arguments and/or expert declarations. See doc. 71 at 6-9. However, a non-disclosing party may show that its untimely expert opinion is “substantially justified” if its opponent has introduced a new argument or an untimely expert opinion, thereby potentially justifying a rebuttal expert opinion. See Friends of Santa Fe Cty. v. LAC Minerals, Inc., 892 F.Supp. 1333, 1351 (D.N.M. 1995) (finding that defendants' new expert opinion was “substantially justified” where plaintiffs raised an argument for the first time on summary judgment).

         BWR contends that portions of Drummond's new expert declarations allegedly contain new opinions that were disclosed after the deadlines for expert disclosures. Doc. 66. BWR argues further that certain portions of these declarations are “entirely speculative, constitute mere legal conclusions, or both . . ., ” or lack a sufficient basis. Doc. 66-1 at 4, 7, 8, 10. The court addresses each of the challenged declarations in turn.

         A. Maggie Weems's Declaration

         BWR moves to strike paragraphs 13 and 14 of Weems's declaration as purportedly new opinions. Doc. 66-1 at 5-6.

         Paragraph 13: In Paragraph 13, Weems criticizes BWR expert Barry Sulkin's reliance on a single sample “as a background comparative” for his analysis, quoting a standard from ADEM's Alabama Environmental Investigation and Remediation Guidance (AEIRG) document. Doc. 61-1 ¶ 13 (citing AEIRG (Revision 4.0, February 2017)). In response to the motion to strike, Drummond contends generally that paragraphs 13 (as well as 14) responded to Sulkin's declaration, doc. 56-1, and that “Weems's criticism of Sulkin's supposed background samples is not new.” Doc. 71 at 2-3. These contentions are unavailing because the Amec Foster Wheeler (“AFW”) and Wood Environment & Infrastructure Solutions (“Wood”) expert rebuttal reports that Drummond submitted during discovery fail to cite the AEIRG standard. See doc. 71 at 3; doc. 61-3 at 76, 77, 80.^[1] Because Rule 26 requires disclosure of “all opinions . . . and the basis and reasons for them, ” Weems's reliance on this previously uncited standard in her declaration is an untimely disclosure and, thus, Paragraph 13 expresses a new opinion. See Fed. R. Civ. P. 26, 37(c)(1); United States v. Alabama Power Co., 274 F.R.D. 686, 691 (N.D. Ala. 2011), aff'd, 730 F.3d 1278 (11th Cir. 2013) (striking as a “new opinion” portion of an expert's declaration that relied on previously uncited documents and formulas). Paragraph 13 is also due to be stricken because Drummond has not shown that this untimely opinion is responsive to a new and untimely opinion by Sulkin or otherwise substantially justified or harmless. See doc. 56-1; 56-2; Mitchell, 318 Fed.Appx. at 824.

         Paragraph 14: Weems uses Paragraph 14 of her declaration to respond to specific paragraphs of Sulkin's declaration. Doc. 61-1 ¶ 14. First, Weems attacks paragraphs 7, 9, and 11 of Sulkin's declaration by citing the previously uncited AEIRG standard. Doc. 61-1 at 5. Like her opinions in Paragraph 13, these sentences in Paragraph 14 express new and untimely opinions, and the late disclosure is not substantially justified or harmless. Thus, these sentences in Paragraph 14 are also due to be stricken.

         Second, in response to paragraph 10 of Sulkin's declaration, Weems asserts that Sulkin's comparison of the background conductivity levels of “unimpacted sampling sites” from August 2017 are misleading because these samples were “collected directly from the river.” Doc. 61-1 at 6 (citing doc. 56-1 ¶ 10). The court agrees with BWR generally that these sentences express a new opinion. As BWR notes, Sulkin made the same comparisons and conclusions in his previously-disclosed expert report, and Drummond did not address them in the AFW and Wood reports it provided previously. See doc. 56-2 at 6. However, one sentence in this section does not state a new opinion, as it was included in the AFW Sulkin rebuttal report. See doc. 61-3 at 73.^[2] Accordingly, with the exception of this single sentence, the remaining sentences addressing paragraph 10 of Sulkin's declaration constitute an untimely disclosure of a new opinion that is not substantially justified or harmless, and are due to be stricken.

         Third, Weems criticizes Sulkin for omitting the analytical results of two particular samples, SW1 and SW15, which indicate that water from the site flowing into Locust Fork has not impacted the water quality. Doc. 61-1 at 6-7 (citing doc. 56-1 ¶¶ 13, 15, 18, 20). The AFW Sulkin rebuttal report makes this same point. See doc. 61-3 at 72. Therefore, this criticism is not new and is not due to be stricken. Miele v. Certain Underwriters at Lloyd's of London, 559 Fed.Appx. 858, 861-62 (11th Cir. 2014) (finding no Rule 37 violation where an expert's new declaration “stated essentially what he had said in [his expert] report”).

         Fourth, in the next three sentences, Weems claims that Sulkin's declaration mischaracterized the pH value ranges of on-site samples as “dangerously low” because “numerous foods and drinks have pH values in this range.” Id. at 7 (citing doc. 56-1 ¶ 10). Although these sentences express a new opinion, see doc. 61-3 at 67- 82, 102-07, they are not due to be stricken because Sulkin's previously-disclosed expert reports do not characterize the pH values of his samples as “dangerously low.” Compare doc. 56-1 at 5 (“I consider pH in these ranges to be dangerously low.”) with doc. 56-2 at 5-6. Therefore, because Sulkin's declaration expresses a new opinion, Weems's new opinion is substantially justified as a direct response. See Friends of Sante Fe Cty., 892 F.Supp. at 1351.

         Fifth, Weems challenges Sulkin's contentions regarding purportedly jointly agreed upon sampling procedures. According to Weems, the August 2017 sampling was not “jointly agreed upon” by the parties' consultants, and BWR did not provide the sampling plan to Drummond's consultants until 2018. Doc. 61-1 at 7 (citing doc. 56-1 at 4). Sulkin's position was reflected, however, in his previously-disclosed report, which states, “Also, for the August 2017 sampling, procedures were agreed upon, followed, and observed in concert with Drummond representatives who were conducting Drummond's sampling.” Doc. 56-2 at 3. By waiting until the summary judgment briefing to respond to this contention, instead of offering her opinion in the timely disclosed expert reports, Weems has stated a new opinion after the deadline. See doc. 61-1 at 11-109; 61-2; 61-3 at 1-82. Therefore, because Drummond has failed to show that Weems's new opinion is substantially justified or harmless, see Mitchell, 318 Fed.Appx. at 824, these sentences are due to be stricken.

         Finally, as further challenge to Sulkin's contention about the jointly agreed upon sampling procedures, Weems enumerates ten “elements” of a “defensible sampling plan.” Doc. 61-1 at 7-8. As BWR notes, however, the AFW and Wood reports do not describe a so-called “defensible sampling plan” or mention several of the “elements” listed in Weems's declaration, such as the need for permanent monitoring wells, a conceptual site model, and “Shelby Tubes.” See doc. 61-1 at 7- 8, 11-109; 61-2; 61-3 at 1-82. Therefore, the “defensible sampling plan” described in Paragraph 14 is a new opinion from Weems, and is due to be stricken in light of Drummond's failure to show that its late disclosure is substantially justified or harmless. See Mitchell, 318 Fed.Appx. at 824.

         B. Leslie Noble's Declaration

         BWR also moves to strike paragraphs 5 (second half only), 6, 8 and 9 of Noble's declaration. Doc. 66-1 at 6.

         Paragraph 5 (second half only, beginning at “To my knowledge . . .”): The first sentence to which BWR objects-which states, “To my knowledge, none of BWR's consultants measured flow volume at a specific juncture of “T1” and the Locust Fork”-does not express a new opinion. The AFW and Wood reports contained a substantially similar criticism of the flow volume estimates and analysis of BWR experts Anthony Brown and Gordon Johnson.^[3] Docs. 61-5 ¶ 5; 61-3 at 63, 88; In re Stand ‘N Seal Prod. Liab. Litig., 623 F.Supp.2d 1355, 1362 (N.D.Ga. 2009) (finding no new opinion where expert declaration did “not differ substantially” from expert report). However, the remainder of paragraph 5 contains new estimates of the flow of “Tributary 1” or “T1, ” the flow volume of Locust Fork, and the ratio of discharge of “T1” to total flow volume of Locust Fork, none of which were mentioned in the AFW or Wood reports. Docs. 61-5 ¶ 5; 61-1 at 11-109; 61-2; 61-3 at 1-107. Therefore, the portion of Paragraph 5 from the sentence, “However, on-site visual estimates can be made . . ., ” until the conclusion is due to be stricken.

         Paragraph 6: BWR moves to strike Noble's statements that “T1” does not satisfy the U.S. Army Corps of Engineers (USACE) definition of “intermittent stream” and that “T1” is an ephemeral stream. See docs. 61-5 ¶ 6; 61-1 at 11-109; 61-2; 61-3 at 1-107. Drummond concedes that Noble's statements about the USACE's definition express a new opinion that is not contained in the AFW or Wood reports, and asserts that the court should allow this paragraph instead as it simply rebuts Brown's assertion. Doc. 71 at 3. The court declines to do so because Brown's expert report asserted that “T1” satisfied the USACE's definition. Doc. 53-6 at 28. To the extent Drummond wanted to rebut Brown's contention, it should have done so in a timely fashion through the AFW and Wood reports. However, Noble's assertion in the last sentence of this paragraph that “T1” is an ephemeral stream is not a new opinion. See docs. 61-5 ¶ 6; 71 at 3. The transcript of Noble's deposition indicates that BWR elicited Noble's opinion on this issue, and that the opinion Noble expressed in her deposition is substantially the same as the one in Paragraph 5. See doc. 61-31 at 21. Thus, BWR cannot claim any unfair surprise by Noble's assertion in her declaration that “T1” is an ephemeral stream. See Reese, 527 F.3d at 1266 (noting the expert disclosure rule's purpose of “prevent[ing] surprise”); Bearint, 389 F.3d at 1353 (requiring consideration of prejudice to the moving party). Accordingly, Paragraph 6, with the exception of the last sentence in the paragraph, is due to be stricken.

         Paragraph 8: Like Weems, Noble also disputes Sulkin's characterization of the August 2017 sampling visit as “jointly agreed upon.” Doc. 61-5 ¶ 8. As stated previously, Sulkin's assertion is not new, and the untimely disclosure of Noble's new opinion is not substantially justified or harmless. Accordingly, Paragraph 8 is due to be stricken.

         Paragraph 9 (first sentence only): BWR has moved to strike the first sentence of this paragraph, which states, “Comparison to a handful of upland ‘background' samples does not constitute an appropriate background for the onsite samples, nor does comparison to the Locust Fork flowing at a higher volume than any of the puddles and seeps from which the samples cited by BWR were collected.” Doc. 61-5 ¶ 9. Only the second half of this sentence (“nor does comparison to the Locust Fork . . .”) expresses a new opinion. BWR is correct that Noble's criticism based on the Locust Fork's flow volume is not included in her expert reports, see supra Paragraph 5; docs. 61-1 at 11-109; 61-2; 61-3 at 1-107, and although Drummond is correct that Noble's criticism is “responsive” to BWR's contention, this fact does not substantially justify or render harmless Noble's new opinion, as BWR's contention is based on Brown's previously-disclosed opinion and data. See docs. 71 at 4 (citing doc. 52 ¶ 30); 53-6 at 76, 91-99. Therefore, the second half of the first sentence of Paragraph 9 is due to be stricken.

         C. Bruce Wielinga's Declaration

         BWR moves to strike paragraphs 5, 6 (last paragraph only), 7 (last two paragraphs only), 8, and 9 of Wielinga's declaration. Doc. 66-1 at 6-7.^[4]

         Paragraph 5: BWR has moved to strike Wielinga's assertion in Paragraph 5 that the acid based accounting results for the coarse coal residual samples analyzed by BWR expert Johnson “showed that sulfide sulfur was below the analytical detection limit, ” and, thus, does not support BWR's contention that “sulfide-bearing minerals” are creating acid mine drainage. Doc. 61-6 ¶ 5 (quoting doc. 52 ¶ 7). Drummond counters that Wielinga previously expressed this opinion in the AFW Johnson rebuttal report. Doc. 71 at 4. Although Drummond's contention is incorrect, ^[5] the transcript of Wielinga's deposition indicates that BWR elicited Wielinga's opinion on Johnson's acid-based accounting analysis, and that the opinion Wielinga expressed in his deposition is substantially the same as the one in Paragraph 5. See doc. 61-32 at 27-28. Thus, BWR cannot claim to be unfairly surprised by Wielinga's declaration. See Reese, 527 F.3d at ...