Newark Group, Inc. v. Dopaco, Inc.

Filing 256

ORDER signed by Judge Garland E. Burrell, Jr. on 11/30/2011 DENYING 245 Motion for Order to Show Cause. (Michel, G)

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1 2 3 4 5 IN THE UNITED STATES DISTRICT COURT 6 FOR THE EASTERN DISTRICT OF CALIFORNIA 7 8 THE NEWARK GROUP, Plaintiff, 9 v. 10 11 DOPACO, INC., 12 Defendant. ________________________________ ) ) ) ) ) ) ) ) ) ) 2:08-cv-02623-GEB-DAD ORDER* 13 Defendant seeks an order under Federal Rule of Evidence 14 15 (“Rule”) 706 to show cause 16 appointed, arguing 17 extremely difficult 18 experts’ methodology 19 contamination presents an imminent and substantial endangerment to 20 health or the environment, and whether Dopaco and/or Newark contributed 21 to the alleged contamination.” (Def.’s Mot. 3:12-17.) Plaintiff opposes 22 the motion, arguing, inter alia, Dopaco’s request should be denied since 23 “[t]here are already three expert witnesses to offer opinions on [the 24 triable] issues, and Dopaco provides no compelling reason why the Court 25 should enlist a fourth.” (Pl.’s Opp’n 1:14-15.) “without for the meets why an expert Court the expert witness assistance, to decide rigors of . should . . it not be will be whether the parties’ Daubert, the alleged Defendant argues that since “the parties’ experts seriously 26 27 28 * argument. This matter is deemed suitable for decision without oral E.D. Cal. R. 230(g). 1 1 disagree 2 impartial groundwater engineer “to assist it in (1) evaluating the 3 scientific basis of the parties’ experts irreconcilable differences, (2) 4 determining the admissibility of the evidence the parties’ experts 5 purport to offer, and (3) evaluating the credibility of those experts.” 6 (Def.’s Mot. 3:10-12.) Specifically, Defendant would direct the expert 7 to report on the following issues: on 8 1. 9 at 2. 10 3. 11 4. 12 5. 13 6. 14 15 7. 16 least six points[,]” the Court should appoint an The source(s) of toluene detected by AEMC in 1986. Whether the 1986 cleanup of the Property was effective at eliminating any contamination that existed at that time. The source(s) of toluene detected by AGE and MACTEC in 2005. The extent of toluene contamination at the Property. Whether the methane beneath the floor slab at the Property derives from toluene. Whether the methane beneath the floor slab at the Property poses a threat to any Marcor employee. If there is a threat posed to any Marcor employee by methane at the Property, what the process and cost to remediate that threat should be. 17 18 Id. 5:21-6:2. 19 Rule 706(a) prescribes: “The court may on its own motion or on 20 the motion of any party enter an order to show cause why expert 21 witnesses should not be appointed.” “Courts have broad discretion to 22 appoint expert witnesses.” Sanders v. York, 2011 WL 3152814, at *2 (July 23 27, 2011). However, “Rule 706 should be invoked only in rare and 24 compelling circumstances.” Monolithic Power Sys., Inc. v. O2 Micro Int’l 25 Ltd., 558 F.3d 1341, 1346 (9th Cir. 2009); see also Gorton v. Todd, 2011 26 WL 2557508, at *10 (E.D. Cal. June 29, 2011) (“Expert witnesses are 27 rarely appointed under Rule 706 because the adversary system is usually 28 sufficient to promise accurate factfinding.”). 2 “[E]xpert witnesses 1 should 2 significantly useful for the trier of fact to comprehend a material 3 issue in a case.” Gorton, 2011 WL 2557508, at *9. Defendant has not 4 shown unusual circumstances justifying appointment of an independent 5 expert, since experts are already involved in the case and it is unclear 6 how the referenced expert could provide the Court with additional 7 meaningful assistance. Therefore, Defendant’s motion for an order to 8 show cause why an independent expert should not be appointed is DENIED. 9 Dated: not be appointed under Rule 706 where not necessary November 30, 2011 10 11 12 GARLAND E. BURRELL, JR. United States District Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 or

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