Edwards et al v. National Milk Producers Federation et al

Filing 393

ORDER GRANTING PLAINTIFFS MOTION FOR PERMISSION TO SUBMIT REPLY EXPERT TESTIMONY; STRIKING DEFENDANTS DAUBERT AND DECERTIFICATION MOTIONS; AND SETTING REVISED SCHEDULE. Motion Hearing set for 3/4/2016 09:00 AM in Courtroom 5, 2nd Floor, Oakland be fore Hon. Jeffrey S. White. Case Management Statement due by 4/8/2016. Case Management Conference set for 4/15/2016 11:00 AM in Courtroom 5, 2nd Floor, Oakland. Signed by Judge Jeffrey S. White on 11/10/15. (jjoS, COURT STAFF) (Filed on 11/10/2015)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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MATTHEW EDWARDS, et al.,

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Case No. 11-cv-04766-JSW

Plaintiffs,
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v.
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NATIONAL MILK PRODUCERS
FEDERATION, et al.,

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Defendants.

United States District Court
Northern District of California

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ORDER GRANTING PLAINTIFFS’
MOTION FOR PERMISSION TO
SUBMIT REPLY EXPERT
TESTIMONY; STRIKING
DEFENDANTS’ DAUBERT AND
DECERTIFICATION MOTIONS; AND
SETTING REVISED SCHEDULE
Re: Dkt. Nos. 354, 361, 380

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Now before the Court is Plaintiffs’ administrative motion for permission to submit
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proffered rebuttal testimony of Dr. David Sunding in support of Plaintiffs’ opposition to
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Defendants’ Daubert motion to exclude the opinions and testimony of Dr. Sunding (Docket No.
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361).1 Having carefully reviewed the parties’ papers and considering their arguments and the

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relevant authority, the Court GRANTS Plaintiffs’ administrative motion for the reasons set forth
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below. The Court also STRIKES the pending Daubert motion to exclude the opinions and
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testimony of David L. Sunding (Docket No. 354) and the pending motion to decertify the classes
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(Docket No. 380), without prejudice to renewal of these motions following the deposition of Dr.
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Sunding. The Court also CONTINUES the hearing on the pending cross-motions for summary
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judgment (Docket Nos. 333, 343) and the other dates in this case as set forth below.
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At the October 10, 2014 case management conference, the Court ordered that expert
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reports were due March 16, 2015 and rebuttal expert reports were due April 15, 2015, rejecting the
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parties’ proposals to permit reply expert reports. The Court also set a hearing date for dispositive
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motions and a schedule for the filing of cross-motions for summary judgment. After the rebuttal
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See Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993).

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reports were filed, Plaintiffs again sought an opportunity to file a reply expert report, which was

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denied by a magistrate judge on May 6, 2015, as inconsistent with the discovery plan set by this

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Court. The May 6, 2015 order provided, however, that a request to be allowed to provide a reply

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expert report in response to a Daubert motion or a motion for summary judgment, or at trial, was

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not ripe and would be “properly raised before the district judge at the appropriate times.”

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Defendants timely filed a motion for summary judgment on May 22, 2015. Plaintiffs

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timely opposed the motion and filed a cross-motion for summary judgment on June 5, 2015. In

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support of their motion, Plaintiffs filed a declaration of their proposed expert David L. Sunding,

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Ph.D. On June 17, 2015, Defendants filed their Daubert motion to exclude the opinions and
testimony of Dr. Sunding. On July 1, 2015, Plaintiffs filed this administrative motion for

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United States District Court
Northern District of California

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permission to submit the proffered reply testimony of Dr. Sunding.

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After those pending motions were fully briefed, the Court continued the hearing date for

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dispositive motions to October 8, 2015. On September 24, 2015, Defendants filed a motion to

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decertify the classes. Because this motion was filed less than 35 days before the October 8, 2015

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hearing date, it was noticed for a later date, November 13, 2015. The Court continued the other

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pending motions so that all motions could be heard on the same date.

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In their motion for permission to submit Dr. Sunding’s proffered reply testimony, Plaintiffs

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contend that Dr. Sunding’s testimony is necessary to provide the Court with a complete

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evidentiary record. To the extent that Plaintiffs argue that the Federal Rules of Civil Procedure

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authorize the filing of Dr. Sunding’s reply report, their arguments fail because, as the magistrate

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judge previously explained, the Court may set and enforce its own case management schedule.

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See, e.g., Wong v. Regents of the University of California, 410 F.3d 1052, 1060-62 (9th Cir. 2005).

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Nonetheless, in this instance, the Court finds that the interests of justice weigh in favor of

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permitting Plaintiffs to submit the proffered reply testimony of Dr. Sunding to complete the

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evidentiary record, in the exercise of discretion. This is particularly so because Plaintiffs are not

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the only ones to have delayed this case. Defendants do not adequately explain why they filed their

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decertification motion so long after the filing of the Sunding report, but merely contend that they

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are authorized to do so. The Court will hear the decertification motion on the merits, but
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Defendants are ill-positioned to complain that Plaintiffs have caused delay. The harm from any

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further delay, under all the circumstances, is outweighed by Plaintiffs’ interest in presenting the

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reply of their proposed expert to Defendants’ rebuttal before the Court rules on Defendants’

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Daubert and decertification motions. The Court therefore GRANTS Plaintiffs’ administrative

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motion for permission to submit proffered reply testimony of Dr. Sunding (Docket No. 361).
This order permitting Plaintiffs to submit the proffered reply testimony of Dr. Sunding is

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without prejudice to Defendants filing a motion to strike (or for other appropriate relief regarding)

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any specific portions of Dr. Sunding’s proffered reply testimony that are neither proper rebuttal,

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nor proper under Federal Rules of Civil Procedure 26(a)(2)(D)(ii) and 26(e). Any such motion

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shall be filed pursuant to the schedule set forth below.
Having granted Plaintiffs’ motion for permission to submit proffered reply testimony of

United States District Court
Northern District of California

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Dr. Sunding, the Court must revisit the schedule for the remainder of this case, so that this matter

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may be resolved in a logical manner. Unfortunately, this necessitates vacatur of the existing trial

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date, for the following reasons. First, Defendants are correct that Plaintiffs’ submission of a reply

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expert report requires that discovery be reopened for the limited purpose of permitting Defendants

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to depose Dr. Sunding regarding his proffered reply testimony. Second, the Court finds that

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Defendants’ Daubert motion and motion to decertify the classes will need to be amended and re-

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filed in light of this order and following the deposition of Dr. Sunding, if appropriate at that time.

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Third, the Court finds that it would be premature to consider the pending dispositive motions

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before ruling on the motion to decertify the classes, because the dispositive motions are directed to

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the claims of all members of the class, not only the named Plaintiffs. The Court therefore

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VACATES the existing case schedule and ESTABLISHES the following revised schedule for this

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case.

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The Court STRIKES the Daubert motion to exclude the opinions and testimony of Dr.

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Sunding (Docket No. 354) and the pending motion to decertify the classes (Docket No. 380),

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without prejudice to renewal of these motions following the deposition of Dr. Sunding. The Court

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CONTINUES the dispositive motions hearing, currently scheduled for November 13, 2015, to

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March 4, 2016, at 9:00 a.m. The Court also SETS the following dates for this case:
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

Deadline to depose Dr. Sunding: D
December 18, 2015.

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

Deadline to file renewed Daubert m
d
motion, motio for decer
on
rtification, an
nd/or motion
n
rtions of Dr. Sunding’s t
testimony: J
January 15, 2
2016.
to strike por

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

Hearing on dispositive motions, mo
m
otions for dec
certification Daubert m
n,
motions,

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and/or motions to strike portions of Dr. Sunding testimon March 4, 2016, at
e
f
g’s
ny:
,

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9:00 a.m.

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

Joint case management statement du April 8, 2016.
m
ue:

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

Case manag
gement confe
erence: Apr 15, 2016, at 11:00 a.m
ril
m.

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S
RED.
IT IS SO ORDER
Da
ated: Novemb 10, 2015
ber
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__
___________
__________
____
JE
EFFREY S. W
WHITE
Un
nited States D
District Judg
ge

United States District Court
Northern District of California

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