Food & Water Watch, Inc. et al v. Environmental Protection Agency et al

Filing 115

ORDER by Judge Edward M. Chen Denying 113 Defendants' Motion for Extension of Time. (emcsec, COURT STAFF) (Filed on 9/25/2019)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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FOOD & WATER WATCH, INC., et al.,
Plaintiffs,

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Case No. 17-cv-02162-EMC
ORDER DENYING DEFENDANTS’
MOTION FOR EXTENSION OF TIME

v.
UNITED STATES ENVIRONMENTAL
PROTECTION AGENCY, et al.,

Docket No. 113

United States District Court
Northern District of California

Defendants.
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I.

INTRODUCTION

Plaintiffs filed suit against the Environmental Protection Agency and Scott Pruitt, in his

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official capacity as Administrator of that Agency, seeking to “compel the initiation of rulemaking

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pursuant to the Toxic Substances Control Act (“TSCA”), 15 U.S.C. § 2605(a), to prohibit the

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addition of fluoridation chemicals to drinking water supplies.” Complaint at 1–2, Docket No. 1.

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Over the last two years, the parties have stipulated to numerous scheduling agreements, several of

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which pertained to expert discovery issues. See Plaintiff’s Opposition to Defendant’s Motion to

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Enlarge Time (“Opp.”) at 1, Docket No. 114. However, a dispute has now arisen, and Defendants

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have filed a motion for extension of time to conduct additional expert discovery. See Docket No.

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113. Plaintiffs oppose the motion. See Opp.

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II.

DISCUSSION

Defendants seek an extension of time pursuant to Civil Local Rule 6-3 for limited

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additional expert discovery. Defendants contend that “two new developments” necessitate this

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change: (1) the completion of a forthcoming Monograph on Systematic Review of Fluoride

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Exposure and Neurodevelopmental and Cognitive Health Effects by the National Toxicology

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Program, and (2) the identification by EPA of “one additional expert witness who is not required

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to submit an expert report.”1 See Motion to Enlarge Time for Limited Expert Discovery (“Mot.”)

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at 1, Docket No. 113. The EPA seeks an additional 65 days to “conduct additional expert

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discovery” and a “temporary stay of the remaining deadlines . . . which may include seeking a new

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trial date.” Id. at 2.
Three reasons counsel against granting Defendants’ Motion for Enlargement of Time.

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First, it appears that Defendants waited a long time before contacting their new expert witness, Dr.

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Angeles Martinez-Mier. The deadline for disclosure of experts was June 27, 2019. See Docket

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No. 98. On that date, the parties exchanged initial expert disclosures, and Plaintiffs disclosed the

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identities of two non-retained experts—Dr. Bruce Lanphear and Dr. Howard Hu—along with

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scientific papers they had published. Mot. at 3. As Defendants note, “Dr. Martinez-Mier [was

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United States District Court
Northern District of California

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listed as] a co-author on all of the studies that Drs. Hu and Lanphear attached to their June 27,

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2019 ‘expert reports.’” Mot. at 4. However, Defendants did not speak with Dr. Martinez-Mier

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until September 11, 2019, approximately two and a half months later. Id.; see also Opp. at 3.
After speaking with Dr. Martinez-Mier, Defendants “supplemented [their] expert

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designations and disclosures . . . [on] September 18, the close of expert discovery under the

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existing schedule.” Mot. at 5. However, this amendment was long after the deadlines for expert

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disclosures and disclosure of rebuttal experts had passed. See Docket No. 98. As Plaintiffs note,

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“Rule 37 provides that ‘If a party fails to . . . identify a witness as required by Rule 26(a) or (e),

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the party is not allowed to use that . . . witness to supply evidence on a motion, at a hearing, or at a

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trial, unless the failure was substantially justified or is harmless.’” Opp. at 3 (citing Fed. R. Civ.

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P. 37). Because EPA’s motion “fails to provide any intelligible justification for its late last-minute

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disclosure of Dr. Martinez-Mier,” (aside from accounting for the fact that she was traveling just

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prior to the close of expert discovery) Opp. at 3, the EPA will not be permitted to use Dr.

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Rule 26(a)(2)(B) of the Federal Rules of Civil Procedure requires that an expert witness provide
a report if he or she is “retained or specially employed to provide expert testimony in the case or
one whose duties as the party’s employee regularly involve giving expert testimony.” Pursuant to
Rule 26(a)(2)(C), if an expert witness is not required to provide a written report (in this case
because she is not retained to provide expert testimony), the disclosure must state (1) the subject
matter on which the witness is expected to present evidence, and (2) a summary of the facts and
opinions to which the witness is expected to testify. See Declaration of Debra Carfora, Exh. E,
Docket No. 113-1 for additional discussion of this distinction.
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Martinez-Mier as a witness.
Second, it is not necessary to extend time “to minimize the inefficiency and/or confusion

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that could otherwise result from proceeding with litigation prior to public disclosure of the NTP

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Monograph.” Mot. at 2. For one thing, the upcoming release will be a draft version of the

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document only. See Opp. at 1. And the National Toxicology Program disclaims the finality of the

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draft’s conclusions because it must still “undergo 12 months of peer review by the National

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Academy of Sciences” as well as “extensive public comment” prior to finalization. Opp. at 2; see

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also Mot. at 2. In addition, Defendants note that the forthcoming publication is a “systematic

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review of the existing . . . studies,” Mot. at 2–3, and as Plaintiff notes, “it is not a study generating

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new data. Both parties’ experts have already reviewed the same scientific literature that the NTP

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United States District Court
Northern District of California

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reviewed.” Opp. at 2. As a result, both parties are currently free to utilize the information and

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studies that will be the basis of the forthcoming Monograph; the current availability of these

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resources counsels against delaying the existing schedule.
Third and finally, Plaintiffs note that they would be prejudiced by an enlargement of time

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because of the expenses associated with such a change at this stage. In particular, Plaintiffs fear

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“substantial expenses . . . including re-deposing multiple experts (at a cost of over $5,000 per

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deposition), and paying Plaintiffs’ experts (at a rate of $225 to 300/hour) to supplement their

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reports so as to not be at a disadvantage vis-à-vis EPA. EPA’s requested relief will also inherently

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vacate the trial date, which therein invites uncertainty as to whether Plaintiffs’ experts will all be

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available on the future replacement date.” Opp. at 5. This also counsels against granting

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Defendants’ motion.
For the forgoing reasons, the Court DENIES Defendants’ Motion for Enlargement of

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Time.

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This order disposes of Docket No. 113.

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IT IS SO ORDERED.

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Dated: September 25, 2019
______________________________________
EDWARD M. CHEN
United States District Judge
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