Tyco Thermal Controls, LLC v. Redwood Industrials et al

Filing 429

ORDER GRANTING MOTION in Limine to Exclude Plaintiff's Undisclosed Expert Witnesses filed by Rowe Industries, Inc., (397 in 4:06-cv-07164-SBA) MOTION in Limine To Exclude Plaintiff's Undisclosed Expert Witnesses filed by Rowe Industries, Inc.. Signed by Judge ARMSTRONG on 6/29/12. (lrc, COURT STAFF) (Filed on 7/2/2012)

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UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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OAKLAND DIVISION

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TYCO THERMAL CONTROLS, LLC,
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Case No: C 06-7164 SBA
C 10-1606 SBA

Plaintiff,
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vs.
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REDWOOD INDUSTRIALS, LLC., et al.,
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Defendants.

ORDER GRANTING DEFENDANT
ROWE INDUSTRIES, INC.’S
MOTION IN LIMINE TO
EXCLUDE PLAINTIFF’S
UNDISCLOSED EXPERT
WITNESSES

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Docket 397
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The parties are presently before the Court on Defendant Rowe Industries, Inc.’s

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Motion in Limine to Exclude Plaintiff’s Undisclosed Expert Witnesses. Dkt. 397. Having

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read and considered the papers filed in connection with this matter and being fully

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informed, the Court hereby GRANTS the motion for the reasons set forth below. The

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Court, in its discretion, finds this matter suitable for resolution without oral argument. See

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Fed. R. Civ. P. 78(b); N.D. Cal. Civ. L.R. 7-1(b).

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I.

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BACKGROUND
On November 17, 2006, Plaintiff Tyco Thermal Controls LLC (“Tyco”) filed suit in

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this Court against Redwood Industries, among others, seeking recovery of remediation

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costs in connection with contaminated property located at 2201 Bay Road, Redwood City,

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California. On January 15, 2007, Redwood filed a First Amended Complaint (“FAC”)

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seeking, inter alia, recovery of response costs and contribution, pursuant to §§ 107(a)(1-

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4)(B) and 113(f) of the Comprehensive Environmental Response, Compensation and

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Liability Act of 1980, as amended by the Superfund Amendments and Reauthorization Act

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of 1986 (“CERCLA”), 42 U.S.C. § 9601, et seq., and injunctive relief under the Resource

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Conservation and Recovery Act (“RCRA”), 42 U.S.C. § 6901, et seq. Dkt. 4. The FAC

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joined Rowe Industries, Inc. (“Rowe”) as a party-defendant. Dkt. 4. On September 19,

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2011, Judge Fogel, who then was presiding over the action, granted summary judgment in

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favor of Rowe on Tyco’s RCRA claim, but denied summary judgment as to its claim under

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CERCLA. Dkt. 344. Tyco and Rowe are the only parties remaining in the action. Dkt.

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233.

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On September 28, 2011, the case was reassigned to the undersigned. Dkt. 347. On

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October 19, 2011, this Court issued an Order for Pretrial Preparation, which set December

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30, 2011, as the fact discovery cut-off, and December 2, 2011 as the deadline for

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designation of experts. Dkt. 356. The Court warned that: “No expert will be permitted to

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testify to any opinion, or basis or support for an opinion, that has not been disclosed in

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response to an appropriate question or interrogatory from the opposing party.” Id. On

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December 1, 2011, the Court granted Tyco and Rowe’s joint request to extend the expert

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disclosure deadline to December 9, 2011. Dkt. 367. Expert discovery closed on January

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27, 2012. Dkt. 356.

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Rowe has now filed a motion in limine to exclude expert testimony from Carmen

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Santos (“Santos”) and Steve Armann (“Armann”), both of whom are employed by the

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United States Environmental Protection Agency, as well as Leonard Long (“Long”) of SCS

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Engineers and George Reid (“Reid”) of GRE & Associates, on the grounds that they were

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not disclosed by Tyco as experts under Federal Rule of Civil Procedure 26(a)(2). Dkt. 397.

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Tyco counters that all of these witnesses are being offered solely as percipient witnesses,

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and thus, are not subject to Rule 26(a)(2)’s disclosure requirements. Dkt. 406. None of

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these witnesses were disclosed by Tyco as potential witnesses in its initial disclosures or

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any supplemental disclosures required under Rules 26(a)(1) and 26(e), respectively. See

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Boone Reply Decl. ¶ 3 & Ex. B, Dkt. 420.

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II.

DISCUSSION

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Rule 26 governs discovery and the duty to disclose percipient and expert witnesses.

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“Percipient testimony—a witness testifying to something they saw, heard, said, or did—is

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subject only to the minimal disclosure requirements of Rule 26(a)(1).” Howell v. Centric
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Group, LLC, No. 09-cv-02299-MSK-CBS, 2011 WL 4499372, at *6 (D. Colo., Sept. 27,

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2011). Rule 26(a)(1) requires, among other things, the disclosure of the names and

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addresses of fact witnesses. Tribble v. Evangelides, 670 F.3d 753, 759 (7th Cir. 2012).

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Rule 26(e) requires a party to supplement or correct its disclosure or discovery response if

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the party subsequently acquires additional and corrective information. Fed. R. Civ. P.

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26(e).

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The disclosure of expert witnesses is governed by subsection (a)(2) of Rule 26.

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Goodman v. Staples The Office Superstore, LLC, 644 F.3d 817, 824 (9th Cir. 2011).

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Retained experts must provide an expert report in accordance with Rule 26(a)(2)(B). Non-

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retained experts need not submit an expert report, but the party proffering the witness must

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disclose: “(i) the subject matter on which the witness is expected to present evidence under

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Federal Rule of Evidence 702, 703, or 705; and [¶] (ii) a summary of the facts and opinions

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to which the witness is expected to testify.” Id. 26(a)(2)(C). A party must provide its

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expert witness disclosures “at the times and in the sequence that the court orders.”

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Id. 26(a)(2)(D). “Rule 37(c)(1) gives teeth to these requirements by forbidding the use at

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trial of any information required to be disclosed by Rule 26(a) that is not properly

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disclosed,” irrespective of the party’s bad faith or willfullness. Yeti by Molly Ltd. v.

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Deckers Outdoor Corp., 259 F.3d 1101, 1106 (9th Cir. 2001).

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Tyco cannot call any of the subject witnesses to offer either fact or opinion

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testimony. None of these witnesses were disclosed by Tyco in its initial or any

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supplemental disclosures, as required by Rules 26(a)(1) and 26(e). See Boone Reply Decl.

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¶ 3 & Ex. B. Nor did Tyco disclose any of these witnesses as retained or non-retained

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experts in accordance with Rule 26(a)(2). Consequently, the testimony of these witnesses

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is subject to exclusion unless Tyco can show that its failure to disclose is harmless or

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substantially justified. See Fed. R. Civ. P. 37(c)(1). As Tyco has made no such showing,

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exclusion of these witnesses is appropriate. See Yeti by Molly Ltd., 259 F.3d at 1107; e.g.,

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Pickern v. Pier 1 Imports (U.S.), Inc., 457 F.3d 963, 969 n.5 (9th Cir. 2006) (“It is not an

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abuse of discretion to exclude a party’s expert testimony when that party failed to disclose
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the expert report by the scheduling deadline and that party reasonably could have

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anticipated the necessity of the witness at the time of the deadline.”). Moreover, given that

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fact and expert discovery have long since closed, coupled with the imminent trial date, it

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would be unduly prejudicial to permit the trial testimony of these previously undisclosed

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witnesses—none of whom Rowe has had the opportunity to depose.

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III.

CONCLUSION

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For the reasons set forth above,

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IT IS HEREBY ORDERED THAT:

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1.

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Defendant Rowe’s Motion in Limine to Exclude Plaintiff’s Undisclosed

Expert Witnesses is GRANTED.
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This matter is referred to Magistrate Judge Donna Ryu for a further

settlement conference.

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3.

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IT IS SO ORDERED.

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This Order terminates Docket 397.

Dated: June 29, 2012

______________________________
SAUNDRA BROWN ARMSTRONG
United States District Judge

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