Cooper et al v. Meritor, Inc. et al

Filing 690

ORDER that Meritor's objections are OVERRULED re (445 in 4:16-cv-00056-DMB-JMV, 447 in 4:16-cv-00055-DMB-JMV, 522 in 4:16-cv-00052-DMB-JMV, 445 in 4:16-cv-00053-DMB-JMV, 447 in 4:16-cv-00054-DMB-JMV) Objection,, filed by Meritor, Inc.. Signed by District Judge Debra M. Brown on 5/25/18. 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 (tab)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
GREENVILLE DIVISION
BRENDA J. COOPER, et al.

PLAINTIFFS

V.

NO. 4:16-CV-52-DMB-JMV

MERITOR, INC., et al.

DEFENDANTS
ORDER

These consolidated actions are before the Court for consideration of “Defendant Meritor
Inc.’s Objections to Magistrate Judge’s Ruling (Dkt. #512) and Appeal to the District Court.” Doc.
#522.
I
Relevant Procedural History1
This lawsuit involves claims for property damage and emotional distress allegedly caused
by pollution emanating from a manufacturing plant in Grenada, Mississippi. Discovery related to
this litigation has been extensive and contentious.
On March 8, 2018, United States Judge Jane M. Virden issued an order granting a motion
filed by the plaintiffs to compel production of almost 1,500 documents listed in a privilege log
regarding communications as to James Peeples, one of Meritor’s retained experts. Doc. #512. The
order directed disclosure of three classes of documents: (1) communications between Peeples and
Meritor’s counsel from January 1, 2015, to the present; (2) communications related to work
Peeples allegedly performed as a litigation consultant at the manufacturing plant; and (3)
communications on limited groundwater sampling conducted by Peeples at the direction of the
defendants’ consulting expert.

1

A more detailed procedural history is set forth in this Court’s May 15, 2018, Order. Doc. #612.

On March 22, 2018, Meritor filed an appeal of Judge Virden’s order insofar as it relates to
approximately 1,000 of the relevant documents.2 Doc. #522.
II
Standard
“A party may serve and file objections to the order [of a magistrate judge] within 14 days
after being served with a copy. … The district judge in the case must consider timely objections
and modify or set aside any part of the order that is clearly erroneous or is contrary to law.” Fed.
R. Civ. P. 72(a); see L.U. Civ. R. 72(a)(1)(B) (“No ruling of a magistrate judge … will be reversed,
vacated, or modified on appeal unless the district judge determines that the magistrate judge’s
findings of fact are clearly erroneous, or that the magistrate judge’s ruling is clearly erroneous or
contrary to law.”).
III
Analysis
On May 15, 2018, this Court entered an order which overruled objections to a separate
Judge Virden order directing disclosure of a collection of documents involving the same three
classes of documents at issue here. See Doc. #612. In its objections here, Meritor raises a number
of arguments addressed in the May 15 order.
The only new objection appears to be that Peeples’ consulting work involved issues related
to the manufacturing plant’s Permeable Reactive Barrier (“PRB”) in anticipation of certain
warranty claims which are unrelated to this litigation.3 See Doc. #522 at 4. Judge Virden rejected
this assertion on the ground that Peeples was designated as a testifying expert on issues related to
2
Meritor represents that it agreed to produce 490 of the documents and that the plaintiffs agreed to cease pursuing 34
of the documents. Doc. #522 at 2. n1.
3

Meritor also notes that, unlike the handwritten notes at issue in the previous order, the handwritten notes relevant
here relate to conversations occurring after January 1, 2015, when Peeples was allegedly retained. Because there is
no indication these conversations were undertaken uniquely in Peeples’ role as a retained expert, the Court finds the
timeframe to be a distinction without a difference.

2

the status and placement of the PRB at the manufacturing plant. Doc. #512 at 8–9. While Meritor
insists that it does not intend to call Peeples to testify on the PRB issues (or the related vapor
intrusion issues), the simple fact is that Peeples was designated as a testifying expert on precisely
these issues. While this designation may have been a mistake, it remains controlling in the absence
of a proper re-designation. For this reason, and for the reasons in this Court’s May 15 order,
Meritor’s objections [522] are OVERRULED.
SO ORDERED, this 25th day of May, 2018.
/s/Debra M. Brown
UNITED STATES DISTRICT JUDGE

3