ASARCO v. British Petroleum et al

Filing 255

ORDER re pending motions relating to the recent expert disclosures. Signed by Judge Dana L. Christensen on 5/25/2018. (ASG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
HELENA DIVISION

ASARCO LLC, a Delaware
corporation,

CV 12-53-H-DLC

Plaintiff,
ORDER

v.
ATLANTIC RICHFIELD COMPANY,
a Delaware Corporation,
Defendant.

At the time of the final pretrial conference in this case, the Court agreed to
address the pending motions relating to the recent expert disclosures. The purpose
of this Order is to address those motions and associated briefs, which include
Asarco LLC's ("Asarco") Objection to Atlantic Richfield Company's ("ARCO")
Untimely Disclosure of Brian Hansen's Supplemental Report (Doc. 224),
Response to Objection to Supplemental Expert Report of Brian Hansen (Doc. 226),
Asarco's Reply in Support of its Objection to Brian Hansen's Supplemental Report
as Untimely Expert Disclosure (Doc. 240), ARCO's Motion to Strike and Exclude
Dr. Andy Davis's Surrebuttal Report and Opinions (Doc. 245), and Asarco's
Response in Opposition to ARCO's Motion to Strike and Exclude Dr. Andy

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Davis's Surrebuttal Report and Opinions (Doc. 250), and to provide the parties and
their respective experts with some guidance for purposes of the bench trial set to
commence on Tuesday, May 29, 2018.
This dispute is the result of the Court's Order allowing for the filing of
limited supplemental expert reports "to address site activity occurring over the last
two years." (Doc. 210.) As indicated in the Order, Federal Rule of Civil Procedure
26(e)(l) requires parties to supplement or correct an incomplete or incorrect
disclosure in a timely manner if the "additional or corrective information has not
otherwise been made known to the other parties during the discovery process or in
writing." (Id.) The Court ordered that supplementation of incomplete or incorrect
expert reports be filed no later than February 28, 2018. (Id.) The Court did not
address in its Order whether rebuttal reports would be allowed.
ARCO's expert, Brian Hansen ("Hansen"), prepared a supplemental report,
dated February 28, 2018. Asarco objects to expert Hansen's supplemental
opinions on the grounds that the opinions offered in subsection (A) are new,
previously undisclosed opinions based on information available at the time ARCO
exchanged Hansen's prior reports, and that the opinion contained in subsection (B)
is an entirely new opinion that Hansen was never qualified to offer and was not
previously and timely disclosed. (Doc. 224.) In the alternative, in the event the
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Court allows expert Hansen to offer supplemental opinions, Asarco sought leave to
allow its expert, Dr. Andy Davis ("Davis"), to prepare and produce rebuttal
opinions to expert Hansen's supplemental opinions. Because the Court did not
timely address Asarco' s alternative request, expert Davis has now prepared and
produced a surrebuttal expert report, dated May 10, 2018. ARCO now objects to
Davis's surrebuttal report and opinions, arguing that the report is untimely, and
contains improper new and expanded opinions. (Doc. 246.)
The Court has read and re-read all of the reports prepared by experts Hansen
and Davis and has concluded that the testimony of these two experts will be central
to the positions of the respective parties at the time of trial, but must confess that
although its reading of these reports has been helpful to a general understanding of
the issues in this case, the Court's current level of understanding can best be
characterized as "a mile wide and an inch deep." This characterization is based
not on a lack of effort, but due to the simple fact that the Court has not heard from
a single sworn witness, nor has had the opportunity to carefully consider any
admitted exhibits. In other words, as it relates to the subject expert dispute, the
Court is operating in a vacuum, without context, and thus is unable to determine
whether any supplemental or surrebuttal opinion is consistent with the Local Rules,
the Rules of Civil Procedure, or, most importantly, consistent with the Court's
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Order allowing supplemental opinions in the first instance. Thus, the Court is in
no position to parse out the new opinions of the experts, and will not do so at this
time.
However, in an attempt to provide some guidance to the parties, their
counsel and experts, the Court offers the following:
•

The rationale for allowing supplemental opinions in the Order dated

December 13, 2017 (Doc. 210), is based on the Court's belief that the
activities which have occurred at the site since this case was appealed to the
Ninth Circuit on August 26, 2014, may not only be helpful, but necessary to
the Court's ultimate findings and conclusions in this case, particularly on the
issues of costs subject to allocation, and the percentage of allocation
between the parties, assuming the Court concludes that ARCO is liable for a
share of costs related to the site cleanup, all of which are matters to be
determined at the conclusion of the bench trial.
•

Steadfast adherence to the Local Rules, Rules of Civil Procedure and

scheduling orders is not only desirous, but expected, particularly as it relates
to the disclosure of expert opinions. Both parties have cited Montana
District cases consistent with this approach. However, we collectively find
ourselves in a unique situation, for which the Court bears some
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responsibility. The Court allowed supplemental opinions to be filed in the
first instance, thus setting the stage for this dispute, and has not yet
addressed Asarco' s alternative request to allow a surrebuttal report from
expert Davis. 1 Absent prejudice to one party or the other, strict adherence to
the rules in this instance does not seem to be the wisest course.
•

The last minute disclosure of expert opinions is unsettling to the

parties and counsel, and in some instances, can result in prejudice.
However, again, having read all of the reports of experts Hansen and Davis,
the Court is of the opinion that neither party will be unduly prejudiced, if at
all, if some supplemental and surrebuttal opinions are allowed at trial. Both
experts have provided testimony in other cases, and can accurately be
described as sophisticated expert witnesses. 2 Like all seasoned expert
witnesses, they will offer opinions, bolster previously offered opinions, and
prepare reports until someone, usually a judge, tells them they have reached
the end of the road. And, of course, any expert worth his or her salt, wants
to have the last word on any given subject. The Court is of the opinion that

1

The easier path would have been to refuse ARCO's request to allow the parties to file
supplemental reports, but the Court feared that in doing so it would have been deciding this case
without the benefit of intervening events, as explained in the first bullet point above.
2
The Court does not intend to imply anything negative in making this comment, and in fact,
welcomes and looks forward to the opinion testimony of both experts Hansen and Davis.
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some of that is at play here.
In the spirit of these comments, the Court will proceed at trial as follows:
•

In Asarco' s case in chief, expert Davis shall testify and offer opinions

consistent with his 12/16/13 Expert Report, 11/15/14 Rebuttal Report,
3/13/14 Rebuttal Report (Medine), 3/10/14 Rebuttal Report (Hansen),
5/29/14 Rebuttal Report (Monte) and 6/30/14 Rebuttal Report (Errata).
Cross-examination by ARCO shall be limited to the opinions offered by
Davis consistent with these reports.
•

In ARCO's case in chief, expert Hansen shall first testify and offer

opinions consistent with his 12/16/13 Expert Report, 1/15/14 Rebuttal
Report and 2/5/14 Statement. Then, before proceeding to offer any of the
opinions contained within his 2/28/18 supplemental report, expert Hansen
shall initially identify any new information he has received since his last
report in 2014, and specifically explain why this information renders his
original opinions incomplete or incorrect in some material respect as
contemplated by Federal Rule of Civil Procedure 26(e)(l)(A). If the Court
is satisfied he has met this test, the supplemental opinion or opinions of
expert Hansen will likely be allowed, provided they are contained within his
2/28/18 supplemental report. Asarco will then be allowed to cross-examine
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expert Hansen on all opinions offered and allowed by the Court.
•

If the Court allows expert Hansen to offer supplemental opinions,

then, of course, Asarco will be allowed to re-call, in rebuttal, expert Davis,
who will then be allowed to offer rebuttal to the supplemental opinions
offered by Hansen, provided they are contained within his 5/10/18
surrebuttal report. At this juncture, ARCO's cross-examination will be
limited to the surrebuttal opinions offered and allowed by the Court.
Having provided this guidance, if the parties are able to stipulate to an
alternative manner in which to resolve the subject dispute regarding experts
Hansen and Davis, please advise the Court of your agreement, and most likely the
parties stipulated approach will be followed by the Court.
Accordingly, IT IS ORDERED that:
1.

Absent a stipulation to the contrary, the Court will proceed as outlined

2.

The Court RESERVES ruling on Asarco's Objection to ARCO's

above.

Untimely Disclosure of Brian Hansen's Supplemental Report (Doc. 224) and
Defendant Atlantic Richfield Company's Motion to Strike and Exclude Dr. Andy
Davis's Surrebuttal Report and Opinions (Doc. 245) until the time oftrial. 3

3

The Court also agreed to review the deposition designations before trial and make a
determination regarding the manner of presentation of this testimony and address the objections.
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~

DATED this z.2 day of May, 2018.

Dana L. Christensen, Chief Judge
United States District Court

Having reviewed the designated deposition testimony, the Court has concluded that the most
expeditious approach is for the deposition testimony to be presented during the course of the
trial, and the Court will rule on the objections as the testimony is presented. If the objection is
sustained, the answer will be disregarded.
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