Sadler et al v. International Paper Company

Filing 195

RULING re 176 MOTION to Hold Hearing on Defendant's Motions to Exclude Expert Witnesses, MOTION to Modify Case Management Order filed by Plaintiffs' and 184 MOTION to Strike Plaintiff's Experts' Affidavits and Supplemental Reports filed by International Paper Co. Signed by Judge Robert G James on 1/30/14. (crt,DickersonSld, D) Modified on 1/30/2014 to take out all plaintiffs names and state plaintiffs' motion 176 (DickersonSld, D).

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
MONROE DIVISION
DONALD SADLER, ET AL.

CIVIL ACTION NO. 09-1254

VERSUS

JUDGE ROBERT G. JAMES

INTERNATIONAL PAPER CO.

MAG. JUDGE MARK L. HORNSBY

RULING
Pending before the Court is Plaintiffs’ Motion to Hold Hearing on Defendant’s Expert
Witness Exclusion Motion and Motion to Modify Case Management Order (“Motion to Hold
Hearing and Modify CMO”) [Doc. No. 176]. Defendant International Paper Co. (“IP”) opposes the
motion. [Doc. No. 183].
Also pending before the Court is IP’s related Motion to Strike Plaintiffs’ Expert Affidavits
and Supplemental Reports (“Motion to Strike”) [Doc. No. 184]. Plaintiffs opposes IP’s motion.
[Doc. No. 194].
For the following reasons, Plaintiffs’ Motion to Hold Hearing and Modify CMO is DENIED,
and IP’s Motion to Strike is GRANTED.
I.

Procedural Background
On July 28, 2009, Plaintiffs brought suit against IP, which formerly operated a paper mill in

Bastrop, Louisiana, for trespass, public nuisance, private nuisance, negligence, intentional infliction
of emotional distress, negligence per se, fraudulent suppression, and unjust enrichment, all based
on IP’s alleged release of hazardous substances into the air.
After some motion practice before the Court, on February 23, 2011, Magistrate Judge Mark

L. Hornsby conducted a telephone status conference with counsel. [Doc. No. 50]. As a result of that
conference, counsel agreed to file a proposed Case Management Order (“CMO”) no later than March
31, 2011. Id. On March 31, 2011, the parties filed their proposed CMO. [Doc. No. 60]. On May
11, 2011, Magistrate Judge Hornsby adopted the proposed CMO. [Doc. No. 64].
On March 2, 2012, on the parties’ joint motion, Magistrate Judge Hornsby struck and
dismissed Plaintiffs’ class action allegations in their Third Amended Complaint and extended certain
deadlines in the CMO, including the deadline for Plaintiffs to make expert disclosures.
On August 8, 2012, Magistrate Judge Hornsby granted another joint motion for extension of
the CMO deadlines. [Doc. No. 105]. Among others, the order extended the discovery deadline and
the deadline for Plaintiffs to make expert disclosures.
On March 27, 2013, Magistrate Judge Hornsby granted a motion for extension of the CMO
deadlines to extend the time for the taking of Plaintiffs’ experts’ depositions and serving IP’s expert
disclosures. [Doc. No. 128].
On April 19, 2013, Magistrate Judge Hornsby granted another extension of the CMO
deadlines, again extending, among others, the deadline for the taking of Plaintiffs’ experts’
depositions.
On September 9, 2013, IP filed seven motions in limine [Doc. Nos. 135-141], which are
currently pending and which seek to exclude all Plaintiffs’ experts. Additionally, that same day, IP
filed a Motion for Summary Judgment on Plaintiffs’ Trespass, Public Nuisance, and Property
Damage Claims [Doc. No. 142] and a Motion for Summary Judgment and Partial Summary
Judgment on Certain Test Plaintiffs' Claims [Doc. No. 143].
In response, Plaintiffs moved for an extension of time to respond, which was granted by the
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Court over IP’s opposition. [Doc. No. 162]. Plaintiffs’ opposition memoranda to all motions were
due December 2, 2013. Id. Replies were due December 30, 2013. Id.
On November 19, 2013, Plaintiffs moved to continue the hearing on IP’s motions for
summary judgment [Doc. Nos. 142 and 143]. See [Doc. No. 163]. After considering the motion
and IP’s opposition, the Court denied Plaintiffs’ motion. [Doc. No. 166].
On December 2, 2013, Plaintiffs filed their memoranda in opposition to all the pending
motions except one. See [Doc. Nos. 167, 168, 169, 170, 171, 172, 173, 177]. Plaintiffs did not
oppose IP’s pending Motion for Summary Judgment on Plaintiffs’ Trespass, Public Nuisance, and
Property Damage Claims [Doc. No. 142].
However, on December 2, 2013, Plaintiffs also filed the instant Motion to Hold Hearing and
to Modify CMO. [Doc. No. 176]. On December 27, 2013, IP filed a memorandum in opposition
to this motion. [Doc. No. 183].
On December 30, 2013, IP filed the pending Motion to Strike [Doc. No. 184]. On January
20, 2014, Plaintiffs filed a memorandum in opposition to the Motion to Strike. [Doc. No. 194].
Because the issues in the pending motions overlap, the Court will address them together.
II.

Parties’ Arguments and Relevant Facts
A.

Plaintiffs’ Motion to Hold Hearing and Modify CMO

Under the CMO, as modified, Plaintiffs were required to make expert disclosures by February
27, 2013. [Doc. No. 105]. By agreement of counsel, Plaintiffs provided those disclosures one day
late on February 28, 2013.
However, without leave of Court or agreement of counsel, on May 3, 2013, Plaintiffs
provided a second report from their expert, Dr. William Clark. Relying on Dr. Clark’s opinions in
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the second report, Plaintiffs’ medical expert, Dr. Marshall Scott Irby, issued a second report on June
3, 2013, which also includes findings from medical examinations of seven Plaintiffs conducted after
the deadline. Finally, each of Plaintiffs’ seven experts, including Dr. Clark and Dr. Irby, filed
supplemental affidavits on December 2, 2013.
In their motion, Plaintiffs assert that the Court should reject IP’s argument that any and all
work performed by Plaintiffs’ experts after February 28, 2013, should be excluded from evidence.
Plaintiffs contend that they complied with the CMO and Federal Rule of Civil Procedure 26 by
timely providing complete expert reports to IP and then supplementing the initial reports after the
development of additional evidence. [Doc. No. 176, p. 8 (citing Fed. R. Civ. P. 26(a)(2)(B)(i)-(iii);
Fed. R. Civ. P. 26(e))].
In the alternative, if the Court finds that the additional reports and affidavits are not
“supplemental” under Rule 26(e), Plaintiffs assert that the reports and affidavits should not be
excluded as a discovery sanction under Rule 37. Plaintiffs assert that under Rule 16 they have shown
good cause for the Court to modify the CMO and permit Plaintiffs to present these additional reports
and affidavits as part of the evidence.
In support of their arguments, Plaintiffs explain that they timely served IP with discovery
requests, but that IP produced 54,139 files and over 1,000,000 pages without providing the data on
actual emissions that Plaintiffs needed or any direction as to where this data could be found. After
reviewing the files, Plaintiffs found a number of references to electronic/native modeling files which
were not produced. When asked, IP directed them to a third party contractor, URS Corporation
(“URS”), which had provided air permitting services to IP, and Plaintiffs then directed a subpoena
to URS. In the meantime, Plaintiffs’ expert, Mr. William A. Williams, created a model using limited
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air modeling data from the Louisiana Department of Environmental Quality (“LDEQ”) and the point
source permit information IP had supplied for years 1975-2007. He also used meteorological data
from Shreveport. Dr. Clark relied on Mr. Williams’ model to fashion his opinions on air model
predictions (Model #1). After Dr. Clark’s review, Mr. Williams obtained meteorological data from
Monroe because it is closer to Bastrop (Model #2).
Plaintiffs began receiving data from URS on February 1, 2013. Plaintiffs received a large
number of database files, spreadsheets, native air modeling input and output files, meteorological
data files, word processing documents, PDF documents, and miscellaneous other files. When Mr.
Williams tried to compare these files with the files produced by IP, he could not reconcile the data,
so he did not attempt to modify Model #2. Mr. Williams began work on a third model using the
URS data.
After Dr. Clark’s report issued on February 28, 2013, Mr. Williams continued to work for
2 months on Model #3, allegedly based on actual emissions. His completed Model #3 covers years
2004 and 2005, and Plaintiffs intend to extrapolate for years 2003, 2006, and 2007. The Model #3
numbers are actually lower than those in Model #2, so on May 3, 2013, Dr. Clark issued another
report relying on the Model #3 figures. Plaintiffs provided this report to IP and to Plaintiffs’ other
experts to consider how Dr. Clark’s May 3, 2013 report impacted their opinions. After receipt of
Dr. Clark’s second report, IP deposed him on May 15 and 16 and June 13, 2013, but declined to ask
him questions about the second report, objecting that these opinions were not contained in the
February 28, 2013 report.
Plaintiffs’ medical expert, Dr. Marshall Scott Irby, issued a second report on June 3, 2013,
which relies on Dr. Clark’s second report, but which also includes findings from medical
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examinations of seven Plaintiffs conducted after the deadline.
Plaintiffs’ other experts concluded that the new report did not change their opinions, but all
seven of Plaintiffs’ experts issued supplemental affidavits, which were not filed or provided to IP
until December 2, 2013.
Now, according to Plaintiffs, IP moves to exclude the expert opinions because they are based
on permitted emissions rather than actual emissions, even though IP was served with Dr. Clark’s
report before his deposition and had every opportunity to question him about it. Plaintiffs contend
that this is gamesmanship that should not be permitted by the Court.
Based on this chain of events, Plaintiffs argue that Dr. Clark and the other experts did not
change their opinions, but supplemented their earlier reports with “statements about more refined
data.” [Doc. No. 176, p. 9]. Even if the Court finds that these reports are not supplemental, Plaintiffs
argue that the Rule 37 sanction of exclusion is inappropriate because (1) Plaintiffs’ failure to
provide supplemented reports timely was substantially justified by IP’s own failure to provide
discovery within its “control”–albeit in the hands of URS, and (2) Plaintiffs’ failure was harmless
when Dr. Clark’s May 3, 2013 report was provided to IP prior to his deposition, and this Court could
grant a continuance to allow the cross-examination of all experts about this “crucial” evidence. [Doc.
No. 176, p. 12]. Additionally, Plaintiffs move the Court for a hearing on IP’s pending motions in
limine to hear testimony from Dr. Clark on his methodology, facts and data considered, and the
application of methodology to facts. Plaintiffs suggest that this hearing would provide IP with the
opportunity to conduct additional discovery of Dr. Clark and any other Plaintiff expert.
IP filed a memorandum in opposition to Plaintiffs’ Motion for Hearing and to Modify the
CMO and a separate Motion to Strike. IP responds that Plaintiffs waited months for their experts
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to “extensively revise their Rule 26 expert reports with new opinions, new work, and new
references.” [Doc. No. 183, p. 1]. IP points out that Plaintiffs have offered three categories of new
expert work via supplemental report or affidavit: (1) Dr. Clark’s supplemental May 3, 2013 report,
which allegedly compares reported and permitted emissions of the chemical SO², but “does not
contain any modeling outputs or exposure concentrations”; (2) Dr. Irby’s June 3, 2013 supplemental
report which includes findings from medical examinations of seven Plaintiffs conducted after the
deadline; and (3) affidavits from each of Plaintiffs’ seven experts filed on December 2, 2013, which
include “new opinions, new analysis, and numerous new references.” [Doc. No. 183, p. 1].
IP argues that Plaintiffs’ motion should be denied for four reasons. First, IP argues that it did
not violate any discovery rules because the parties negotiated and filed with the Court a “Joint Report
Regarding the Discovery of Electronically Stored Information” (“Joint ESI Report”) [Doc. No. 70]
over two years ago, and its actions did not violate the Joint ESI Report. IP points out that it
disclosed on December 8, 2011, that URS was its third party contractor for air emissions-related
services. Nevertheless, Plaintiffs did not subpoena URS until July 20, 2012, did not visit URS
offices until three months later, and did not actually provide URS with a production request until
December 11, 2012. Even though URS’ attorney sought clarification of the production request on
the same day it was received, Plaintiffs did not respond until six weeks later. Finally, even if the
Court accepts Plaintiffs’ assertions regarding discovery, IP argues that this finding would support
only the issuance of a second report from Dr. Clark, not the untimely reports from Dr. Irby and late
affidavits from all the experts.
Second, IP argues that Plaintiffs are actually attempting to contradict the language of Rule
26 and the Court’s CMO, which provides that “[n]o party shall be permitted to supplement or amend
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expert disclosure . . . [after the CMO’s] deadlines without prior Court approval.” [Doc. No. 60, p.
14]; [Doc. No. 64]. Instead, according to IP, Plaintiffs ignored the deadlines and knowingly
submitted incomplete reports and then waited from February until December 2013 to seek leave of
Court to supplement the reports. IP contends that it objected to the “supplemental” reports at the
time they were provided and that Plaintiffs’ counsel stated in June, 2013 that he would seek leave
of court to supplement, but did not do so until December, 2013. IP denies that Dr. Clark’s report
contains no new opinions, arguing that his December 2, 2013 affidavit indicates that he used a
completely new theory of assessing Plaintiffs’ exposure based on actual emissions rather than
permitted emissions as used in his February 2013 report. Dr. Irby, likewise, according to IP, has
“substantially revise[d] his report to reflect the findings from medical examinations conducted well
after the Court-ordered deadline.” [Doc. No. 183, p. 14].
Third, IP argues that Plaintiffs have not shown good cause to modify the CMO because
Plaintiffs’ own lack of diligence caused this issue as to Dr. Clark, and they offer no explanation for
the issue with Dr. Irby and the untimely affidavits. According to IP, Dr. Clark’s initial report was
not complete and supplementation was not meant to fix problems with an incomplete report.
Dr. Clark also “supplemented” with over twenty articles that were available at the time of his initial
report.
Fourth, IP argues that it would suffer unfair prejudice and the Court would be burdened with
additional proceedings if Plaintiffs are permitted to revise their expert reports in contravention of the
CMO. IP points out that there has been an exchange of 12 expert reports, and IP consented to
Plaintiffs’ requested extensions five times. [Doc. Nos. 99, 105, 118, 128, & 130]. IP argues that it
would now be forced to re-do thousands of hours of expert and attorney work when Plaintiffs’
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counsel assured its counsel in May and June that they would seek leave of Court well before the
depositions if they wanted to rely on supplemental reports. IP points out that at the time Dr. Clark
issued his second report, IP had already deposed Drs. Cormier and Goldstein who relied on Dr.
Clark’s first report. Dr. Irby’s supplemental report was not provided until June, 2013, after IP had
deposed all experts. Dr. Irby’s report was also provided after IP’s own medical causation expert had
completed his medical examinations of the test Plaintiffs. IP contends that a continuance cannot cure
the prejudice to it because, during the nine months between the date Plaintiffs should have filed this
motion and the actual date of filing, IP analyzed seven reports, spent eleven days deposing experts,
engaged five experts to offer opinions on the Rule 26 reports, retained a medical doctor to conduct
fifteen medical examinations and drafted seven motions in limine that required hundreds of pages
of briefing and 163 exhibits.
Finally, IP does not oppose a hearing on the pending motions in limine for the Court’s
benefit, but does oppose a hearing for the purpose of allowing it to “take discovery” of the new
expert opinions.

IP argues that this would transform a live hearing into Court-supervised

depositions. Then IP’s own experts would need to supplement their reports, and IP would need to
supplement its motions in limine.
B.

IP’s Motion to Strike

IP separately filed a Motion to Strike [Doc. No. 184], asserting consistently with its
opposition memorandum that the supplemental reports of Dr. Clark and Dr. Irby and all the expert
affidavits should be stricken from the record in this matter because they include “wholly new expert
opinions, analyses, and references that plaintiffs failed to timely disclose, and that failure is not
substantially justified and is not harmless.” Id.
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In response, Plaintiffs filed an opposition memorandum [Doc. No. 194]. Plaintiffs contend
that the Motion to Strike is “premature” because its Motion to Hold Hearing and Modify CMO is
still pending. Id. at p. 2. Additionally, Plaintiffs reiterate their arguments that the affidavits and
reports do not constitute new opinions or new work, but merely supplement their earlier reports.
Plaintiffs then go on to attack the bases and conclusions of IP’s own expert, Dr. Daugherty.1
III.

Law and Analysis
Rule 26(a)(2)(B) provides that an expert’s report “must contain . . . a complete statement of

all opinions the witness will express and the basis and reasons for them.” The CMO in this case
reiterated that all expert disclosures “shall be fully compliant with . . . Rule 26(a)(2).” [Doc. No. 60].
Under Rule 26(e), parties have a duty to “supplement or correct” their Rule 26(a) disclosures “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 this discovery process.” FED . R. CIV . P. 26(e)(1)(A). Given the
number of Plaintiffs in this case and the division of the case management into phases, the CMO
provided that “[n]o party shall be permitted to supplement or amend an expert disclosure provided
in Phase 1 or relating thereto after the foregoing deadlines without the Court’s prior approval.” [Doc.
No. 60].
The Fifth Circuit has made clear that any supplemental disclosure is not to take the place of
a party’s burden under Rule 26(a).
[The CMO] and Rule 26(a) clearly require[] that the initial disclosures be complete
1

Plaintiffs did not file a motion in limine by the deadline set forth in the CMO or
otherwise attempt in some manner to exclude Dr. Daugherty’s analysis and conclusions until this
opposition memorandum.
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and detailed. The purpose of rebuttal and supplementary disclosures is just that—to
rebut and supplement. These disclosures are not intended to provide an extension of
the deadline by which a party must deliver the lion’s share of its expert information.
Sierra Club v. Cedar Point Oil Co., Inc.,73 F.3d 546, 572 (5th Cir. 1996).
For violations of the duties under Rule 26(a) or (e), Rule 37(c) provides the sanction. The
Court may exclude the information or witness from trial, “unless the failure was substantially
justified or is harmless.” Rather than ordering exclusion, the Court, “on motion and after giving an
opportunity to be heard . . . (A) may order payment of the reasonable expenses, including attorney’s
fees, caused by the failure; (B) may inform the jury of the party’s failure; and (C) may impose other
appropriate sanctions, including any of the orders listed in Rule 37(b)(2)(A)(i)-(vi).”
Rule 16 addresses the scheduling order or CMO. Rule 16(b)(4) provides: “A schedule may
be modified only for good cause and with the judge’s consent.” Rule 16(f)(1)(C) provides that the
sanctions for a party’s or its attorney’s failure to “obey a scheduling or other pretrial order” may
include “those authorized by Rule 37(b)(2)(A)(ii)–(vii).”
In this case, it is clear that Plaintiffs have failed to comply with Rule 26 and the CMO.
According to Plaintiffs’ own arguments, they knowingly submitted an expert report from Dr. Clark
that was based on permitted emissions, rather than the actual emissions of the Bastrop mill.
Plaintiffs’ expert, Mr. Williams, was already working on another model at the time that Dr. Clark
submitted his first expert report, yet Plaintiffs failed to take any reasonable action to alert IP or this
Court to their alleged need for additional time to review and analyze discovery. Plaintiffs
compounded their knowing submission of an incomplete and/or inaccurate expert report because
their other experts relied on Dr. Clark’s February 28, 2013 opinion.
Further, Plaintiffs failed to notify IP or this Court of any issue with its expert reports until
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May, 2013, three months later, when they provided IP with Dr. Clark’s second report without Court
approval. At that point, IP had already deposed some of Plaintiffs’ experts and were to depose Dr.
Clark within a few days. When IP raised its objections to Dr. Clark’s so-called supplemental report,
Plaintiffs’ counsel indicated that they would present the issue to the Court, but, inexplicably, they
did not. Instead, Plaintiffs went on to give IP a second report from Dr. Irby in June, 2013, four
months after the deadline. Plaintiffs only presented this Court with affidavits from all their experts
and filed the instant motion on December 2, 2013, nine months after the Rule 26 expert disclosures
were due, after IP had filed motions in limine to exclude Plaintiffs’ expert reports, and after Plaintiffs
received an extension of time to respond to the pending motions in limine.
Even if the Court found that IP failed to comply with its discovery obligations (which it does
not), Plaintiffs ignored their own obligations under Rule 26 and the CMO. Plaintiffs had more than
one option: they could have moved for an extension of the expert disclosure deadline, they could
have filed a motion to compel or raised objections to the Court of IP’s alleged failure to comply with
reasonable discovery requests, or they could have notified IP at the time the first report was provided
that they were in the process of preparing a second report using discovery from URS.2 Plaintiffs took
none of these actions. As a result, IP’s experts and attorneys prepared for depositions based on the
initial reports, IP’s attorneys took depositions of Plaintiffs’ experts based on the initial reports, and
IP reasonably filed extensive motions in limine.
Moreover, Plaintiffs have not filed a reply and thus apparently do not dispute IP’s factual
allegations regarding Dr. Irby’s reports. The Court finds those allegations to be consistent with the

2

While this option would not have been in compliance with Rule 26 or the CMO, it would
at least have given IP notice of Plaintiffs’ intent to provide another report.
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record evidence. When deposed, Dr. Irby clearly testified that he did not examine the seven test
Plaintiffs in the eighteen-month period between their selection and the deadline for his expert report,
even though he was not prevented from doing so. Yet, without Court approval or explanation, Dr.
Irby examined those seven test Plaintiffs prior to the issuance of his second report four months later.
Plaintiffs’ complaint about IP’s discovery responses had no correlation with Dr. Irby’s failure to
examine the Plaintiffs, and his second report does not contain “supplemental” information, but
information that was available to him at the time of the issuance of his initial report. Plaintiffs then
caused a greater hardship on IP by failing to provide Dr. Irby’s second report until after IP had
already deposed Plaintiffs’ other experts, particularly Dr. Goldstein who, like Dr. Irby, is held out
to be an expert in pulmonology.
Finally, with regard to the affidavits filed on December 2, 2013, Plaintiffs have not offered
an explanation to justify its filing of extensive affidavits nine months after the expert disclosures
deadline. The Court has previously considered affidavits from experts in other cases which sought
to respond to issues raised in a motion filed by an opposing party. However, the affidavits in this
case do not seek merely to clarify the opinions of Plaintiffs’ experts, but are extensive
supplementation, elaboration, and revision of the opinions expressed in their reports.
Under the undisputed facts, the Court finds that Plaintiffs’ actions in this case are neither
substantially justified nor harmless. Likewise, Plaintiffs have failed to establish good cause to
modify the CMO put in place two and one-half years ago and under which both parties have been
granted a number of reasonable extensions. The actions and the inaction of Plaintiffs and their
counsel compel the Court to employ sanctions provided for under Rule 37. Although the Court has
considered lesser sanctions, the Court finds that holding a hearing on IP’s pending motions in limine
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will not resolve the problems caused by Plaintiffs and their counsel. Given the complicated nature
of this case, the length of Plaintiffs’ delay, and the great cost to IP of Plaintiffs’ actions and inaction,
Plaintiffs’ Motion to Hold Hearing and Modify CMO is DENIED3, and IP’s Motion to Strike is
GRANTED. The Court orders the exclusion of Dr. Clark’s and Dr. Irby’s second reports and all the
affidavits from Plaintiffs’ experts.
IV.

Conclusion
For the foregoing reasons, Plaintiffs’ Motion to Hold Hearing and Modify CMO [Doc. No.

176] is DENIED, and IP’s Motion to Strike [Doc. No. 184] is GRANTED. The May 3, 2013 report
of Dr. Clark, the June 3, 2013 report of Dr. Irby, and the affidavits of all Plaintiffs’ experts filed on
December 2, 2013, are STRICKEN.
MONROE, LOUISIANA, this 30th day of January, 2014.

3

After all briefs on the pending motions in limine have been reviewed, the Court will set a
hearing, if necessary. Such a hearing, however, will not be used for purposes proposed by
Plaintiffs, but only for the Court’s elucidation.
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