Lightfoot v. Georgia-Pacific Wood Products LLC, et al
Filing
201
ORDER denying 188 Motion for Reconsideration ; granting in part and denying in part 190 Notice - Regarding Court's Order on Defendants' Motion to Strike and Motion for Additional Fees; granting in part an d denying in part 192 Notice Regarding Court's Order on Defendants' Motion to Strike and Motion for Additional Fees; granting 194 Motion Clarification of the Court's September 20, 2018 Order regarding 185 Order on Motion in Limine, Order on Motion to Strike, Order on Motion for Joinder. The parties are DIRECTED to confer and file, within 21 days of the date of this order, a joint notice (or separate notices if necessary) proposing a period of limited additional expert discovery to allow defendants time, if desired, to amend or supplement their own experts' reports and to conduct limited supplemental depositions of plaintiff's experts. The clerk is DIRECTED to note on the face of the docket that defendant Weyerhaeuser NR Company was terminated as a party on April 17, 2018. The court AMENDS and CORRECTS its September 20, 2018, order as noted herein at footnotes two and three. Signed by District Judge Louise Wood Flanagan on 12/21/2018. (Collins, S.)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
SOUTHERN DIVISION
NO. 7:16-CV-244-FL
CHRISTOPHER LIGHTFOOT,
Plaintiff,
v.
GEORGIA-PACIFIC WOOD
PRODUCTS, LLC; GEORGIA-PACIFIC
LLC individually and as successor-ininterest to Georgia-Pacific Corporation;
WEYERHAEUSER COMPANY; and
JOHN DOE #1,
Defendants.1
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ORDER
This matter is before the court on defendants’ motion for reconsideration (DE 188) of the
court’s September 20, 2018, order, and, in the alternative, motion for certification of interlocutory
appeal; defendants’ notices regarding costs and fees and motions for additional fees (DE 190, 192);
and defendant Georgia Pacific’s motion for clarification (DE 194). These motions have been briefed,
and the issues raised are ripe for ruling. For the following reasons, defendants’ motion for
reconsideration and certification is denied; attorney’s fees are awarded as specified herein;
defendants’ motion for additional fees is granted in part and denied in part; and defendant GeorgiaPacific’s motion for clarification is granted as set forth herein.
1
The court constructively has amended the caption of this order to reflect dismissal by stipulation of former
defendant Lowe’s Home Centers, LLC (NC) (“Lowe’s”), as well as unopposed summary judgment in favor of defendant
Weyerhaeuser NR Company. The clerk is DIRECTED to note on the face of the docket that defendant Weyerhaeuser
NR Company was terminated as a party on April 17, 2018. Unless otherwise specified, the term “defendants” as used
herein refers collectively to the following moving defendants: Georgia-Pacific Wood Products, LLC and Georgia-Pacific
LLC (together, “Georgia-Pacific”); and Weyerhaeuser Company (“Weyerhaeuser”).
STATEMENT OF THE CASE
The court incorporates herein by reference the statement of the case set forth in the court’s
September 20, 2018, order. In that order, the court granted in part and denied in part defendants’
motions to exclude plaintiff’s experts, pursuant to Daubert v. Merrell Dow Pharmaceuticals, Inc.,
509 U.S. 579 (1993). The court also denied defendants’ motion to strike declarations filed by
plaintiff in opposition to the motions to exclude, but the court awarded defendants alternative
sanctions and relief, including attorney’s fees and costs associated with the motion to strike and
limited reopening of expert discovery. The court directed the parties to confer and file a joint notice
(or separate notices if necessary) proposing a period of limited additional expert discovery, as well
as a new deadline for summary judgment briefing. In addition the court directed defendants to file
an itemized statement of reasonable attorney’s fees and costs associated with the motion to strike.2
On October 9, 2018, defendants filed the instant motion for reconsideration of the court’s
September 20, 2018, order. In the alternative, defendants request that the court certify its order for
interlocutory appeal pursuant to 28 U.S.C. § 1292(b) and to stay the remainder of the proceedings
pending appeal. On October 19 and 20, 2018, defendants filed the instant notices regarding costs
and fees and motions for additional fees. On October 22, 2018, defendant Georgia Pacific filed the
instant motion for clarification of one aspect of the court’s order pertaining to plaintiff’s expert Dr.
Rachael Jones (“Jones”).
Plaintiff filed a response in opposition to defendants’ motion for reconsideration on October
30, 2018, accompanied by certain expert materials previously filed in conjunction with the Daubert
2
The court’s order incorrectly referred to the motion to strike as the “motion to exclude” in four instances
in discussing sanctions imposed in the alternative to defendants’ motion to strike. (Order (DE 185) at 19, 48). The court
AMENDS and CORRECTS its September 20, 2018, order to STRIKE these incorrect references and in their place state
“motion to strike.”
2
motions. Plaintiffs filed a response in opposition to defendants’ notices regarding costs and fees and
motions for additional fees, on November 2, 2018. Defendants replied with respect to these two sets
of motions. Plaintiff did not respond to the instant motion for clarification.
COURT’S DISCUSSION
A.
Motion for Reconsideration
1.
Standard of Review
“[A] district court retains the power to reconsider and modify its interlocutory
judgments . . . at any time prior to final judgment when such is warranted.” Am. Canoe Ass’n v.
Murphy Farms, Inc., 326 F.3d 505, 514–15 (4th Cir. 2003). “Said power is committed to the
discretion of the district court, and doctrines such as law of the case . . . have evolved as a means
of guiding that discretion.” Id. at 515 (internal citations omitted). According to the law of the case
doctrine, an earlier decision by the court “must be followed unless (1) a subsequent trial produces
substantially different evidence, (2) controlling authority has since made a contrary decision of law
applicable to the issue, or (3) the prior decision was clearly erroneous and would work manifest
injustice.” Id. (quotations omitted).
2.
Analysis
Defendants argue that the court should reconsider denial of their Daubert motions, because
the court incorrectly drew inferences in its September 20, 2018, order in the “light most favorable
to plaintiff.” (Def’s Mem. (DE 189) at 6 (quoting Order (DE 185) at 5, 24, 28, 29, 33)). Defendants
have not established, however, that doing so was clearly erroneous under the circumstances of this
case.
3
The court discussed viewing “underlying facts” of the case in the “light most favorable to
plaintiff” at multiple points in its order:
1)
“For purposes of background to the instant Daubert motions, the facts
underlying plaintiff’s claims, viewed in the light most favorable to plaintiff,
may be summarized as follows.” (Order (DE 185) at 5).
2)
“ . . . . [D]efendants draw inferences from the underlying facts in the light
most favorable to them, rather than in the light most favorable to plaintiff, as
is required at this stage of the proceedings.” (Id. at 24).
3)
“. . . . [D]efendants do not draw inferences from the underlying facts in the
light most favorable to plaintiff.” (Id. at 28).
4)
“Drawing all inferences from the underlying facts in the light most favorable
to plaintiff, . . . .” (Id. at 29).
5)
“[D]rawing facts in the light most favorable to plaintiff, Dr. Jones’s opinion
encompassing all of plaintiff’s wood dust exposures is relevant in this case.”
(Id. at 33).
Consideration of the underlying facts in the light most favorable to plaintiff is a necessary
component of the court’s analysis, at this juncture, for determining whether plaintiff’s expert
opinions are based upon “sufficient facts or data” and applied “to the facts of the case.” Federal
Rule of Evidence 702(d) (emphasis added). As part of its gatekeeping obligation under Daubert,
the court must determine whether the expert’s “reasoning or methodology properly can be applied
to the facts in issue.” Daubert, 509 U.S. at 593 (emphasis added). Along these lines, as noted by
the Advisory Committee Notes to Federal Rule of Evidence 702:
4
[Rule 702] requires that expert testimony be based on sufficient underlying “facts or
data.” . . . . The language “facts or data” is broad enough to allow an expert to rely
on hypothetical facts that are supported by the evidence. When facts are in dispute,
experts sometimes reach different conclusions based on competing versions of the
facts. The emphasis in the amendment on “ sufficient facts or data” is not intended
to authorize a trial court to exclude an expert’s testimony on the ground that the court
believes one version of the facts and not the other.
Fed. R. Evid. 702, Advisory Committee Notes (2000) (emphasis added). Rule 702 thus confirms
that the court may need to account for “competing versions of the facts,” id., and it should not
disregard plaintiff’s version of disputed facts when considering reliability and fit of an expert
opinion under Daubert. See Bresler v. Wilmington Tr. Co., 855 F.3d 178, 195 (4th Cir. 2017)
(“[Q]uestions regarding the factual underpinnings of the expert witness’ opinion affect the weight
and credibility of the witness’ assessment, not its admissibility.”); cf. Tyger Const. Co. Inc. v.
Pensacola Const. Co., 29 F.3d 137, 143 (4th Cir. 1994) (“Expert opinion evidence based on
assumptions not supported by the record should be excluded.”) (emphasis added).
Defendants suggest that consideration of the underlying facts in light most favorable to
plaintiff turns the standard of review for a Daubert motion on its head. It does not. As the court
expressly noted in setting out the standard of review in its September 20, 2018, order: “‘The
proponent of the testimony must establish its admissibility by a preponderance of proof.’ Cooper v.
Smith & Nephew, Inc., 259 F.3d 194, 199 (4th Cir. 2001).” (Order (DE 185) at 20). Nothing in the
court’s September 20, 2018, order relieves plaintiff of the obligation to prove the relevance and
reliability of his experts by a preponderance of proof. Defendants’ argument ignores a critical
distinction between viewing the expert evidence in the light most favorable to plaintiff and viewing
the underlying facts in the case in the light most favorable to plaintiff. Viewing the expert evidence
in the light most favorable to plaintiff would be an abdication of the court’s “basic gatekeeping
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obligation” under Daubert. Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147 (1999); Daubert, 509
U.S. at 592-93. Viewing the underlying facts in the case in the light most favorable to plaintiff, by
contrast, is necessary to ensure the court has taken into consideration all of the “competing versions
of the facts” when evaluating plaintiff’s experts. Fed. R. Evid. 702, Advisory Committee Notes
(2000).3
Defendants do not cite any binding authority supporting their argument that it is error for the
court at this juncture to view the underlying facts in the light most favorable to plaintiff. Instead
defendants cite a number of district court and out of circuit cases discussing or referencing summary
judgment and Daubert standards. The cases cited, however, are inapposite. None hold or state that
a court cannot consider the underlying facts in the light most favorable to plaintiff when determining
relevance or reliability of an expert opinion.
Defendants discuss, for example, an unpublished district court opinion from the Central
District of California, where the court commented upon its prior resolution of a Daubert motion and
a summary judgment motion. See Abarca v. Merck & Co., No. 1:07-CV-388 DOC DLBX, 2012 WL
137749, at *5 (C.D. Cal. Jan. 17, 2012). There, the district court denied a defendant’s motion to
exclude an expert witness, and denied a defendant’s motion for summary judgment in the same
order. In denying defendant’s motion for interlocutory appeal, the court commented on its prior
ruling, which contained references to “drawing all inferences in favor of the non-movant,” including
3
Defendants point out that the court incorrectly described a “see also” citation in the court’s order to General
Electric Co v. Joiner, 522 U.S. 136, 152 (1997) as being to the concurring opinion of Justice Breyer, where the page cited
instead is to the concurring in part and dissenting in part opinion of Justice Stephens. The court AMENDS and
CORRECTS its September 20, 2018, order to STRIKE this incorrect citation and in its place instead incorporates by
reference the law set forth in the discussion above.
6
its holding: “[d]rawing all inferences in favor of the non-movant, [the expert’s] testimony presents
a scientific dispute not resolvable as a matter of law.” Id.
Abarca is inapposite for multiple reasons. First, Abarca does not discuss, as here, the
distinction between viewing the underlying facts of the case and viewing the expert testimony itself
in the light most favorable to plaintiff. Rather, the court discusses more broadly references to
“drawing all inferences in favor of the non-movant” in resolving in the same order expert and
summary judgment motions. Id. Second, the court does not cite any binding law in its discussion
of “drawing all inferences,” but rather notes “even if the Ninth Circuit found that the ‘all favorable
inferences’ standard was inappropriate for a Daubert motion, it would not have a material effect on
the case because the Court did not use that standard.” Id. *7 (emphasis added). Finally, it is notable
that the court in Abarca denied all the defendant’s motions, despite the trial judge’s own comments
that the expert’s opinions “were ‘junk science’ and ‘slop.’” Id. *4. In sum, Abarca and other cases
cited by defendants do not have probative value in resolving the issues in the instant matter.
Furthermore, and in the alternative, even if the court strikes all references in its September
20, 2018, order to drawing inferences from the underlying facts “in the light most favorable to
plaintiff,” and replaces such references to underlying facts as “supported by the record,” the result
of the court’s decision would be no different. In those instances where the court discusses facts in
the light most favorable to plaintiff, the court references evidence in the record, largely in the form
of deposition testimony by plaintiff and plaintiff’s father. (See Order (DE 185) at 24, 29-31). In that
context, defendants have not demonstrated that plaintiff’s expert opinions should be excluded
because they were “based on assumptions not supported by the record.” Tyger, 29 F.3d at 143.
7
In sum, defendant’s have not demonstrated that the court’s September 20, 2018, order was
clearly incorrect where it considered underlying facts of the case “in the light most favorable to
plaintiff.” Therefore, defendant’s motion for reconsideration is denied.
B.
Motion for Interlocutory Appeal
Defendants request, in the alternative, that the court certify the September 20, 2018, order
for interlocutory appeal and stay the remainder of the proceedings pending appeal.
“When a district judge, in making in a civil action an order not otherwise appealable under
this section, shall be of the opinion that such order involves a controlling question of law as to which
there is substantial ground for difference of opinion and that an immediate appeal from the order
may materially advance the ultimate termination of the litigation, he shall so state in writing in such
order.” 28 U.S.C. § 1292(b). In addition, “application for an appeal hereunder shall not stay
proceedings in the district court unless the district judge or the Court of Appeals or a judge thereof
shall so order.” Id.
Defendants have not demonstrated that the criteria for certification of interlocutory appeal
have been met. First, the court’s September 20, 2018, order does not involve a controlling question
of law as to which there is substantial ground for difference of opinion. Rather, as noted in the
standard of review in that order, the court’s determination to exclude or admit expert evidence was
grounded in the Federal Rules of Evidence, and highly dependent upon the particular facts and
circumstances of the record in this case. Such a determination, where “the district court has broad
latitude in ruling on the admissibility of evidence, including expert opinion,” is not an appropriate
circumstance for certification of interlocutory appeal. United States ex rel. Michaels v. Agape
Senior Cmty., Inc., 848 F.3d 330, 341 (4th Cir. 2017). Second, an immediate appeal from the order,
8
and a stay, will not materially advance the ultimate termination of the litigation. The case has not
even advanced to summary judgment motions, which may yet raise further issues regarding the
viability of plaintiff’s claims for resolution by the court.
Therefore, defendants’ alternative motion for interlocutory appeal is denied.
C.
Notices Regarding Fees
In accordance with the court’s September 20, 2018, order, defendants have filed notices
setting forth an itemized statement of attorney’s fees associated exclusively with briefing on their
motion to strike. Plaintiff in response argues that the fees sought appear unreasonably high.
“In calculating an award of attorney’s fees, a court must first determine a lodestar figure by
multiplying the number of reasonable hours expended times a reasonable rate.” Robinson v. Equifax
Info. Servs., LLC, 560 F.3d 235, 243–44 (4th Cir. 2009). In deciding what constitutes a
“reasonable” number of hours and rate, “a district court’s discretion should be guided by the
following twelve factors”:
1) the time and labor expended;
2) the novelty and difficulty of the questions raised;
3) the skill required to properly perform the legal services rendered;
4) the attorney’s opportunity costs in pressing the instant litigation;
5) the customary fee for like work;
6) the attorney’s expectations at the outset of the litigation;
7) the time limitations imposed by the client or circumstances;
8) the amount in controversy and the results obtained;
9) the experience, reputation and ability of the attorney;
9
10) the undesirability of the case within the legal community in which the suit arose;
11) the nature and length of the professional relationship between attorney and client; and
12) attorneys’ fees awards in similar cases.
Id. at 243-44 (quoting Barber v. Kimbrell’s Inc., 577 F.2d 216, 226 n. 28 (4th Cir.1978) (adopting
twelve factors set forth in Johnson v. Ga. Highway Express, Inc., 488 F.2d 714 (5th Cir.1974))).
“[A]ny award must be accompanied by detailed findings of fact with regard to the factors
considered.” In re Abrams & Abrams, P.A., 605 F.3d 238, 244 (4th Cir. 2010) (quotations omitted).
“Although . . . some factors may not have much, if anything, to add in a given case, . . . the factors
that do apply should be considered.” Id. With respect to determination of the hourly rate, the Fourth
Circuit has noted that “market rate should guide the fee inquiry, [and] the market rate should be
determined by evidence of what attorneys earn from paying clients for similar services in similar
circumstances, which, of course, may include evidence of what the plaintiff’s attorney actually
charged his client.” Robinson, 560 F.3d at 244.
Here, the court determines that the hourly rates set forth in defendants’ itemized statements
are reasonably reflective of the market rate, because they constitute the rates for actual “fees
incurred” or fees invoiced to their clients. (DE 192-1 at 2; 190-1 at 2). For the same reason, the
number of claimed hours expended is also reasonable, in light of above factors 1,5, 7, and 12,
regarding time expended, time limitations, customary fee, and similar cases.4 Factors 2, 3, and 8,
regarding novelty, skill, and results obtained, also favor a finding that the amount of claimed hours
is reasonable. The docket further reflects the extent and nature of representation by counsel over
4
Plaintiff notes an error in the summation of the itemized fees claimed by Weyerhaeuser. Where Weyerhaeuser
has accepted in reply the lesser of fees claimed and fees reportedly “incurred by Weyerhauser,” (see Reply (DE 198)
at 2 n. 2), the court finds reasonable the number of claimed hours.
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the course of this matter, bearing on factors 6, 9, and 11, regarding attorney expectations, ability,
and length of professional relationship.
Of these factors, the most compelling and informative to the court are the novelty and
difficulty of the questions raised in the context of this case (factors 2 and 3), where the court has had
opportunity to consider closely the substance of the work product resulting from the time claimed.
The court does not accept plaintiff’s suggestion in response that the fees are unreasonable based
upon the amount of pages of work product and the effective per-page rate. The briefs on the motion
to strike were detailed, focused, and included multiple references to supporting documents and other
materials in the record. Thus, the number of pages in briefs, in itself, is not a meaningful measure
of the reasonableness of claimed time expended.
In sum, the court finds reasonable the attorney’s fees claimed by defendants. In accordance
with the court’s September 20, 2018, order, the court DIRECTS plaintiff to pay $17,208.50 to
defendant Georgia-Pacific, and $5,866.50 to defendant Weyerhaeuser, as sanctions under Federal
Rule of Civil Procedure 37(c).
D.
Motion for Additional Related Fees
Defendants move this court to award additional fees and costs resulting from the reopening
of expert discovery, on the basis that such additional fees and costs are integral to curing the surprise
identified in the court’s September 20, 2018, order. Defendants seek an award of all fees and costs
associated with reopening expert discovery, including the expenses anticipated upon re-deposing
plaintiff’s experts, and any supplemental defense expert reports that may be necessary. Plaintiff
argues that the motion for additional fees is, in effect, a second motion for reconsideration that does
11
not satisfy the standard for modifying the court’s September 20, 2018, order. In the alternative,
plaintiff seeks appropriate limitations on any award of additional fees and costs.
The court agrees with plaintiff that defendants’ motion for additional fees is, in effect, a
second motion for reconsideration; however, under the circumstances presented, the relief sought
in part is warranted. The court found in its September 20, 2018, order that plaintiff’s late disclosures
surprised defendants and could be remedied, in part, through an opportunity to cure the surprise.
With respect to cure, the court reasoned:
On the one hand, defendants are significantly hampered in their ability to cure
because the discovery deadline has passed; defendants' experts based their own
expert reports on plaintiff's experts' original expert reports and deposition testimony;
defendants filed Daubert motions on the basis of plaintiff's experts' original expert
reports and deposition testimony; and those motions now have been briefed fully.
On the other hand, there is no trial date set, and the deadline for filing summary
judgment motions is set for 30 days after the court rules upon the instant motions.
Moreover, defendants have had an opportunity to address in their reply briefs the
substance of plaintiff's experts' declarations.
(Order (DE 185) at 16). The court concluded that “for defendants to cure the surprise of the
declarations, defendants reasonably must be given the opportunity (if desired) to go back and
supplement their own experts’ reports, opportunity to conduct limited supplemental depositions of
plaintiff’s experts, and a mechanism in conjunction with summary judgment briefing for defendants
to raise any issues arising therefrom that reasonably may alter the court’s Daubert analysis.” (Id.
at 17).
Despite determining that supplemental proceedings were necessary to cure the surprise
resulting from plaintiff’s late disclosures, the court did not discuss whether sharing some of the
expenses thereof was warranted. Rather, the court stated at one point that “[g]iven the lack of
substantial justification, as well as the considerable effort required to brief the issue of exclusion and
12
to cure the late disclosure, it is appropriate to shift the attorney’s fee expense of briefing on the
motion to [strike] to plaintiff.” (Order (DE 185) at 19) (emphasis added). At another point, the
court found that “limited reopening of expert discovery to allow defendants an opportunity to cure,
as well as a sanction for the late disclosure is warranted. (Id.) (emphasis added). In light of the
court’s findings that plaintiff’s late disclosures caused the need for supplemental discovery, the court
clearly erred in not discussing the propriety of some sharing of the expenses of such supplemental
discovery.
Upon reconsideration, the court agrees with defendants that some sharing of expenses
associated with the supplemental period of discovery is warranted. The court disagrees, however,
that all expenses of such period must be borne by plaintiff, where doing so could be the equivalent
of writing a “blank check” to defendants to incur a potentially wide range of legal fees and expert
fees at plaintiff’s expense. On the one hand, the court recognizes that some anticipated expenses
are an inevitable component of a supplemental period of discovery caused by plaintiff’s late
disclosures. On the other hand, other types of expenses are more closely tied to strategy and
professional judgment of counsel, their experts, and their clients. Taking into account all the facts
and circumstances of this case, including the nature of plaintiff’s litigation conduct that gave rise
to sanctions, the court finds that inevitable expenses reasonably may be awarded but expenses tied
to strategy and professional judgment should be capped or not awarded. In addition, the court
reserves final judgment as to the amount of all the expenses reasonably borne by plaintiff until after
the parties have proposed details regarding the supplemental period of discovery, and until after
those expenses actually have been incurred.
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The following parameters will guide the court’s determination of an award of expenses,
absent significant change of circumstances from the present record:
1)
First, plaintiff shall pay all expert deposition fees charged by plaintiff’s experts for any
supplemental depositions noticed by defendants, and each such deposition shall exceed no
more than a set number of hours in length, to be determined by the court after further report
by the parties as to anticipated scope of supplemental discovery.
2)
Second, plaintiff shall pay all reasonable attorney’s fees incurred by defendants for time
spent traveling to and attending such depositions, if any.
3)
Third, plaintiff shall pay a limited portion of expert witness fees charged by defendants’
experts to prepare additional rebuttal reports, if any. Under this final category, the court will
award an amount not more than 50% of such fees or $10,000.00, whichever is less, with the
exact amount to be determined under a more complete record.
All other fees and costs anticipated to be incurred by defendants associated with the period
of reopened discovery shall be borne by defendants, including but not limited to any additional
attorney’s and expert’s fees incurred by defendants in preparing for depositions, evaluating
discovery, or engaging in additional expert or legal work associated with the supplemental period
of discovery. The court recognizes defendants’ suggestion that such additional expenses may be
anticipated to be substantial, potentially exceeding tens of thousands of dollars. Given the nature
of the sanctionable conduct and the lack of aggravating factors, however, the court finds such
expenses, which are more dependent upon subjective legal strategy, are not appropriately shifted to
plaintiffs as part of sanctions in this matter.
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In sum, defendants’ motion for additional related fees, construed as a second motion for
reconsideration, is granted in part as set forth herein. Plaintiff shall be responsible for paying those
expenses of supplemental period of discovery as set forth herein, with the specific amount thereof
to be determined after those expenses have been incurred. Per the court’s September 20, 2018,
order, the parties are DIRECTED to confer and file, within 21 days of the date of this order, a joint
notice (or separate notices if necessary) proposing a period of limited additional expert discovery
to allow defendants time, if desired, to amend or supplement their own experts’ reports and to
conduct limited supplemental depositions of plaintiff’s experts, as well as a new deadline for
summary judgment briefing.
E.
Motion for Clarification
In unopposed motion for clarification, defendant Georgia-Pacific asks the court to clarify “as
to whether it will permit Dr. Jones to provide opinion testimony on [certain specified issues] that
were not included in her report but have only been ‘forecast’ in Plaintiff’s briefing.” (Defs’ Mot.
(DE 194) at 3).
In the court’s September 20, 2018, order, the court denied in part defendants’ motion to
exclude Dr. Jones’s “hazard communication” opinions, without prejudice to defendants again raising
arguments in favor of exclusion of such opinions in the context of a more complete record and
discussion of the applicable legal issues. (Order (DE 185) at 37). In so holding, the court
enumerated five statements in Dr. Jones’s expert report and supplemental report where “Dr. Jones
makes suggestions as to the adequacy of what defendants communicated or did not communicate
to plaintiff and plaintiff’s father.” (Id. at 36-37). The court also noted the following, which is
subject of the instant motion for clarification:
15
Although not stated specifically in her expert report, plaintiff also forecasts in
briefing that Dr. Jones will testify “as to what warnings should have been provided”;
that “warnings were necessary”; and there was a “need to provide a warning
regarding wood dust exposure.” (Pl’s Br. (DE 152) at 16-17) (emphasis added).
(Order (DE 185) at 37). This court’s recitation of what plaintiff forecasted in briefing reasonably
raised the issue whether the court anticipates permitting Dr. Jones to provide opinion testimony to
the extent forecasted.
The court clarifies that it will not permit Dr. Jones to provide testimony on opinions that
were not included in her report and supplemental report but have only been forecast in plaintiff’s
briefing. The court does not provide an advance assessment at this juncture, however, as to which
opinions plaintiff forecasts in briefing that were not included in Dr. Jones’s report and her
supplemental report. As the court noted in its September 20, 2018, order “it is not feasible for the
court to determine at this juncture whether [all the statements about hazard communications in Dr.
Jones’s report and her supplemental report] are in the nature of opinions and whether they are
relevant and reliable.” (Id. at 36).
In sum, the court grants defendants’ motion for clarification to the extent set forth herein.
CONCLUSION
Based on the foregoing, the court orders as follows:
1)
Defendants’ motion (DE 188) for reconsideration is DENIED.
2)
Defendants’ alternative motion (DE 188) for interlocutory appeal is DENIED.
3)
In accordance with the court’s September 20, 2018, order, the court DIRECTS plaintiff to
pay $17,208.50 to defendant Georgia-Pacific, and $5,866.50 to defendant Weyerhaeuser, as
sanctions under Federal Rule of Civil Procedure 37(c).
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4)
Defendants’ motions (DE 190, 192) for additional related fees, construed as motions for
reconsideration, are GRANTED IN PART as set forth herein. Plaintiff shall be responsible
for paying those expenses of supplemental period of discovery as set forth herein, with the
specific amount thereof to be determined after those expenses have been incurred.
5)
The parties are DIRECTED to confer and file, within 21 days of the date of this order, a
joint notice (or separate notices if necessary) proposing a period of limited additional expert
discovery to allow defendants time, if desired, to amend or supplement their own experts’
reports and to conduct limited supplemental depositions of plaintiff’s experts.
6)
Defendants’ motion for clarification (DE 194) is GRANTED to the extent set forth herein.
7)
The clerk is DIRECTED to note on the face of the docket that defendant Weyerhaeuser NR
Company was terminated as a party on April 17, 2018.
8)
The court AMENDS and CORRECTS its September 20, 2018, order as noted herein at
footnotes two and three.
SO ORDERED, this the 21st day of December, 2018.
_____________________________
LOUISE W. FLANAGAN
United States District Judge
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