United States District Court, N.D. Alabama, Southern Division
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
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