Cooper et al v. Meritor, Inc. et al
Filing
464
ORDER granting (439) Motion to Strike (338 in 4:16-cv-00053-DMB-JMV, 405 in 4:16-cv-00052-DMB-JMV, 342 in 4:16-cv-00055-DMB-JMV, 340 in 4:16-cv-00056-DMB-JMV, 340 in 4:16-cv-00054-DMB-JMV). Signed by Magistrate Judge Jane M. Virden on 12/28/17. Associated Cases: 4:16-cv-00052-DMB-JMV, 4:16-cv-00053-DMB-JMV, 4:16-cv-00054-DMB-JMV, 4:16-cv-00055-DMB-JMV, 4:16-cv-00056-DMB-JMV (bfg)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
GREENVILLE DIVISION
BRENDA J. COOPER, ET AL.
PLAINTIFFS
VS.
CIVIL ACTION NO. 4:16-CV-52-DMB-JMV
MERITOR, INC., ET AL.
DEFENDANTS
CONSOLIDATED WITH
JOE E. SLEDGE, ET AL.
VS.
PLAINTIFFS
CIVIL ACTION NO. 4:16-CV-53-DMB-JMV
MERITOR, INC., ET AL.
DEFENDANTS
AND
KATHERINE LONGSTREET COOKE, ET AL.
VS.
PLAINTIFFS
CIVIL ACTION NO. 4:16-CV-54-DMB-JMV
MERITOR, INC., ET AL.
DEFENDANTS
AND
SRA INVESTMENTS, LLC, ET AL.
VS.
PLAINTIFFS
CIVIL ACTION NO. 4:16-CV-55-DMB-JMV
MERITOR, INC., ET AL.
DEFENDANTS
AND
FELICIA WILLIS, ET AL.
VS.
PLAINTIFFS
CIVIL ACTION NO. 4:16-CV-56-DMB-JMV
MERITOR, INC., ET AL.
DEFENDANTS
1
ORDER
This matter is before the court on the [439] joint motion of defendants to strike the [405]
supplemental report of plaintiffs’ expert James Fineis. For the reasons discussed below, the motion
will be GRANTED.
Law and Analysis
In addition to the authorities cited by the defendants, the court notes generally the
following: “Courts have routinely rejected untimely ‘supplemental’ expert testimony where the
opinions are based on information available prior to the missed deadline for service of initial
disclosures.” Buxton v. Lil' Drug Store Prods. Inc., No. 2:02CV178, 2007 WL 2254492, at *5
(S.D.Miss. Aug.1, 2007), affd, 294 Fed. Appx. 92 (5th Cir.2008) (citing Sierra Club, 73 F.3d at
571) (additional citations omitted); see also Akeva L.L.C. v. Mizuno Corp., 212 F.R.D. 306, 310
(M.D.N.C.2002) (“[Rule 26(e)] does not cover failures of omission because the expert did an
inadequate or incomplete preparation.”). Furthermore, expert opinions should be disclosed before,
and not at expert depositions. See Booker v. Moore, No. 5:08cv309, 2010 WL 2426013, at *2
(S.D.Miss. June 10, 2010) (“‘The purpose of Rule 26(a)(2) is to provide notice to opposing
counsel—before the deposition—as to what the expert will testify...”’) (quoting Ciomber v. Coop.
Plus, Inc., 527 F.3d 635, 642 (7th Cir.2008)).
Judged against the backdrop of this and like controlling law in this circuit, the undersigned
finds the purported supplemental opinion should be stricken because it contains, on its face,
opinions markedly different from those set forth in the original, timely designation, and it comes
long after the passage of the expert designation deadline.
2
Most notably, the prior opinion addressed the existence of “vapor intrusion pathways”1
while the new opinion is not limited to such pathways; it addresses “pathways” generally.2 One
likely reason for this change is that, concerning indoor air quality, the original report provided, at
least in part, that because indoor air sampling found the presence of one or more compounds for a
large percentage of the homes sampled, “this indicated the vapor intrusion pathway is complete
for large number of the home sampled.”3 However, at the expert’s deposition, he conceded he did
not know if a vapor intrusion pathway was complete in homes where the indoor air sampling was
conducted, and revealed compounds, if no corresponding sub slab sampling was taken—which
was the case with respect to some number of the homes.
Conclusion
In short, in the undersigned’s view, the diversion from opinions about the existence of
“vapor intrusion pathways,” specifically, to opinions about the existence of “pathways” generally,
is a material change. Moreover, this change comes too late and, if allowed, would prejudice the
defendants, because: defendants would not have an opportunity to depose the witness on this
expanded opinion; there is no opportunity to cure at this late date; nor has any justifiable excuse
1
See, e..g., “Sub-slab Samples: … The results of the limited sub-slab sampling that has occurred indicate the vapor
intrusion pathway is complete for the homes sampled…. Indoor Air: The results of the indoor air sampling that has
occurred indicate the vapor intrusion pathway is complete for large percentage of the homes sampled… Conclusions:
Based on the evaluation of 119 samples… collected during the initial phase of the investigation of Eastern Heights
neighborhood, the vapor intrusion pathway from groundwater or soil gas is complete for all 19 homes tested. The
vapor intrusion pathway with regards to soil gas contamination is complete for all 50 properties tested.” Doc #440-1,
Exhibit A- Evaluation of Vapor Intrusion Conditions Eastern Heights Neighborhood Grenada, Mississippi 38901 at
10-12.
2
See, e.g., “Conclusions: … Specifically looking at the soil vapor samples... A pathway for these non-naturally
occurring chemicals to be in the soil vapor on these properties is complete. Specifically looking at the sub-slab samples
collected… A pathway for these nonnaturally occurring chemicals to be in the sub-slab in these houses is complete.
Specifically looking at the indoor air samples collected... A pathway for these non-naturally occurring chemicals to
be in the indoor air in these houses is complete.” Doc# 440-4, Exhibit D – Supplemental Report to the April 2017
Report Titled “Evaluation of Vapor Intrusion Conditions Eastern Heights Neighborhood Grenada, Mississippi 38901”
at 9.
3
Doc #440-1, Exhibit A- Evaluation of Vapor Intrusion Conditions Eastern Heights Neighborhood Grenada,
Mississippi 38901 at 12.
3
been offered for this change. Indeed, as defendants’ counsel points out, this change is not based
on data not heretofore available to the expert.
For all of the foregoing reasons, the purported supplemental opinion is STRICKEN.
SO ORDERED this, Thursday, December 28, 2017.
/s/ Jane M. Virden
UNITED STATES MAGISTRATE JUDGE
4
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?