Bader Farms, Inc. et al v. Monsanto Company

Filing 277

MEMORANDUM AND ORDER re: 269 MOTION to Strike Supplemental Expert Report of Dr. Guido Schnabel and Supplemental Document Production of Dr. Phillip Brannen filed by Plaintiff Bill Bader, Plaintiff Bader Farms, Inc. motion is DENIED. Signed by District Judge Stephen N. Limbaugh, Jr on 12/11/19. (MRS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
BADER FARMS, INC. and
BILL BADER
Plaintiffs,
v.
MONSANTO CO. and
BASF CORP.,
Defendants.

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MDL No. 1:18md2820-SNLJ
Case No. 1:16cv299-SNLJ

MEMORANDUM and ORDER
This matter is before the Court on plaintiffs’ motion to strike the supplemental
expert report of Dr. Guido Schnabel and supplemental document production of Dr.
Phillip Brannen.
On February 25, 2019, plaintiffs disclosed written reports from Drs. Baldwin and
Guenthner opining that Plaintiffs’ peach operation was biologically and financially
unsustainable beyond 2018. On March 15, plaintiffs moved to add claims for 2018
damages and to include allegations reflecting these opinions. This Court granted the
motion to amend the complaint, and the Court also granted defendants’ motions to
extend certain discovery deadlines. This Court stated that the parties would be
permitted to supplement expert disclosures as required and that additional expert
depositions could be taken at the direction of the Special Master.
Defendants requested an inspection between June 13 and June 20 to see the
orchard during a relevant time of tree health. Plaintiffs denied the request for those
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dates, but eventually the parties agreed that defendants could inspect the orchard on May
28 and 29, 2019, and produce supplemental expert reports based on their experts’
findings. BASF Corporation’s expert, Dr. Guido Schnabel, inspected plaintiffs’ orchards
on May 28 and 29 and noted that plaintiffs’ orchards were still producing peaches. He
also reaffirmed his opinion that Plaintiffs’ orchards suffered from yield-reducing factors
other than alleged dicamba exposure, such as armillaria root rot, bacterial spot, and
weather stress. Plaintiffs deposed Schnabel on June 25 and suggested that Dr.
Schnabel’s May 2019 inspection had been too early to be relevant. After this deposition,
plaintiffs’ expert Dr. Baldwin conducted another inspection of Bader Farms on July 20,
2019. Based on this inspection, Dr. Baldwin produced a supplemental report opining
that the alleged dicamba exposure at Bader Farms was causing primary damage and
secondary effects to emerge, stressing and ultimately killing Bader’s trees. Dr. Schnabel
conducted a second inspection of Bader Farms on July 31, 2019. Based on data he
collected during his July inspection, as well as the new opinions disclosed in Dr.
Baldwin’s supplemental report pertaining to his own July inspection, Dr. Schnabel
prepared a second supplemental report. BASF produced the report on September 10,
2019, six days after the deadline for close of discovery on September 4, 2019.
In his September 2019 report, Dr. Schnabel opined that: (1) in July 2019 Bader
Farms suffered from drought and weed stress; (2) bacterial spot disease was defoliating
trees and rendering their fruit unmarketable; (3) Bader’s 2019 spray records revealed
insufficient bacterial spot management practices; (4) armillaria root rot infections had
predictably expanded at a steady pace; and (5) claims that armillaria root rot affects only
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peach trees weakened by other stress factors lack scientific evidence.
In the meantime, on August 2, 2019 plaintiffs served their Fourth Set of Requests
for Production of Documents to Defendant Monsanto Company. Monsanto served
responses to those requests on September 3. Included with those responses were the
4,000 files—photographs, maps, videos, and other materials—that support the opinions
of Dr. Phillip Brannen, and 900 files in support of the opinions of Dr. Schnabel.
Plaintiffs move to strike both Schnabel’s report and the production of the
Brannen documents as untimely filed and prejudicial. They filed their motion on
November 4, 2019.
I.

Dr. Schnabel’s Supplemental Report
Federal Rule of Civil Procedure 37(c)(1) states, “If a party fails to provide

information or identify a witness as required by Rule 26(a) or (e), the party is not allowed
to use that information or witness to supply evidence on a motion, at a hearing, or at trial,
unless the failure was substantially justified or is harmless.” Courts routinely use their
discretion to allow untimely supplementation of expert reports under Rule 26 where there
is time to remedy the harm caused by the late submission. See, e.g., United States v.
STABL, Inc., 800 F.3d 476, 488 -89 (8th Cir. 2015); In re Genetically Modified Rice
Litig., 4:06 MD 1811 CDP, 2009 WL 3336086, at *1 (E.D. Mo. Oct. 6, 2009).
Defendants’ position is that although “fact discovery” closed on September 4, they
were free to continue expert discovery. They correctly assert that Federal Rule of Civil
Procedure 26(a)(3)(B) and (e)(2) allow expert supplemental reports to be produced at
least 30 days before trial unless the Court states otherwise. On the other hand, plaintiffs
believe the Court intended for all discovery to close on September 4 because the Order
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stated “Discovery will close on September 4, 2019.” [#180 at 3.] They add that the
Order granted defendants’ motion to extend discovery deadlines, and in that motion the
defendants asked for “all discovery” to close on September 4.
In any event, plaintiffs claim that the late filing of Schnabel’s report was neither
substantially justified nor harmless because they do not have time to depose Schnabel
again before the trial setting next month. Again, this Court stated (after allowing
plaintiffs to extend the expert witness deadlines in April) that it “will permit the parties to
supplement expert disclosures as required, and additional expert depositions may be
taken as well and at the direction of the Special Master.” #180. Although there was a
delay from the July 31 inspection date to the September 10 disclosure, it is notable that
plaintiffs also delayed filing their motion to strike until November 4, some eight weeks
after the disclosure. And surely that was a sufficient window to request that Schnabel
submit to a supplemental deposition.
Given the complexity of the case, and the obvious need for an ongoing review of
the damage to the peach trees, this Court finds that Schnabel’s supplemental report was
not so untimely as to warrant its exclusion. However, to offset any harm to plaintiffs, and
because the trial is still more than five weeks away, and if plaintiffs so request, Dr.
Schnabel will be required to submit to a supplemental deposition as soon as practicable.
And of course, plaintiffs may also request that the trial be continued.
II.

Dr. Brannen’s Documents
Defendants timely responded to plaintiffs’ August 2 document request on

September 3. Their responses included voluminous documents from experts. That they
were disclosed the day before the discovery deadline is not controlling, as it was the
timing of plaintiffs’ requests that set the disclosure deadline. Nonetheless, plaintiff argue
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that the kind of documents produced on September 3 should have been produced much
earlier—in line with Rule 26(a)(2)(B)’s requirement that they be disclosed with
Brannen’s initial report. Defendants respond that the required documents were
previously identified during depositions or otherwise. They add that production of the
documents did not result in prejudice to plaintiffs because the documents did not change
the experts’ opinion.
Accordingly,
IT IS HEREBY ORDERED that the plaintiffs’ motion to strike the supplemental
expert report of Dr. Guido Schnabel and supplemental document production of Dr. Phillip
Brannen [#269] is DENIED.
So ordered this 11th day of December, 2019.
STEPHEN N. LIMBAUGH, JR.
UNITED STATES DISTRICT JUDGE

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