Blocker et al v. ConocoPhillips Company

Filing 282

ORDER denying 160 Motion to Strike and 169 Motion to Strike. Signed by Honorable Charles Goodwin on 05/14/2019. (jb)

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
JAMES BLOCKER AND JAMI
BLOCKER, husband and wife, et al.,
Plaintiffs,
v.
CONOCOPHILLIPS COMPANY,
Defendant.

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Case No. CIV-17-248-G

ORDER
Now before the Court are Plaintiffs’ Motion to Strike the Declarations of Certain of
Defendant’s Experts Pertaining to Background Soil Conditions (Doc. No. 160), and
Plaintiffs’ Motion to Strike the Supplemental Expert Opinions of John Oneacre (Doc. No.
169). Defendant has responded to both motions (Doc. Nos. 181, 182).
I.

Plaintiffs’ Motion to Strike the Declarations of Certain of Defendant’s
Experts Pertaining to Background Soil Conditions (Doc. No. 160)

Plaintiffs previously filed a motion to exclude the proposed testimony of
Defendant’s experts Cal Chapman, Tom Hennessey, and Gordon Johnson (“Soil Experts”)
regrading soil conditions. See Doc. No. 127. Plaintiffs now object that the Soil Experts
offered new opinions on background soil salinity levels in declarations attached to
Defendant’s response to Plaintiffs’ motion. See Doc. Nos. 146-2, 146-3, 146-4. Plaintiffs
argue that these submissions constitute supplements to the Soil Experts’ reports that violate
Rule 26(e) of the Federal Rules of Civil Procedure and that Defendant therefore should not

be allowed to use the information at trial or in response to Plaintiffs’ motion to exclude.
See Fed. R. Civ. P. 26(e), 37(c)(1).
Defendant responds that the material to which Plaintiffs object—soil sampling data
relevant to background soil salinity levels (“UC Davis soils data”)—was first revealed to
Defendant’s Soil Experts by Plaintiffs during depositions and that Plaintiffs’ expert Kerry
Sublette addressed the soil sampling data in a rebuttal report. See Def.’s Resp. (Doc. No.
181) at 6; Def.’s Resp. Ex. 4 (Doc No. 181-4). Defendant argues that (1) the additional
data do not constitute “new opinions,” (2) the declarations comply with Rule 26 because
that rule does not require supplementation or correction where “the additional or corrective
information has not otherwise been made known to the other parties during the discovery
process or in writing,” Fed. R. Civ. P. 26(e)(1)(A), and (3) even if the declarations violate
Rule 26, the violation was substantially justified and harmless under Rule 37(c)(1). Def.’s
Resp. at 9-29.
As an initial matter, the Court did not consider the challenged material in its
determination of Plaintiffs’ Motion to Exclude (Doc. No. 127). Thus, this portion of
Plaintiffs’ request is denied as moot.
Rule 37(c)(1) provides that “[i]f a party fails to provide information . . . 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 a trial, unless the failure was substantially justified
or is harmless.” Fed. R. Civ. P. 37(c)(1). The Tenth Circuit has explained that a court
should consider the following factors: “(1) the prejudice or surprise to the party against
whom the testimony is offered; (2) the ability of the party to cure the prejudice; (3) the
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extent to which introducing such testimony would disrupt the trial; and (4) the moving
party’s bad faith or willfulness.” Jacobsen v. Deseret Book Co., 287 F.3d 936, 953 (10th
Cir. 2002) (internal quotation marks omitted).
The Court finds that, even if the declarations violate Rule 26, the violation is
substantially justified and harmless. As Defendant notes, Plaintiffs’ counsel questioned
these experts about the UC Davis soils data during their depositions, and Plaintiffs’ expert
Sublette testified about the data during his deposition and provided a rebuttal expert report
addressing it. See Def.’s Resp. at 17-18; see also Pls.’ Mot. Exclude Ex. 9 (Doc. No. 1279) at 2-3. Thus, the incorporation of the data into the Soil Experts’ opinions should not
come as a surprise to Plaintiffs or impose the degree of prejudice warranting exclusion
under Rule 37. Second, Plaintiffs do not explain why any resulting prejudice could not be
cured by cross-examination, given Plaintiffs’ familiarity with the material. Third, there
would be no disruption of trial, which has not yet begun. Nor would there be disruption to
the pretrial process. Because Plaintiffs already discussed the UC Davis soils data with the
Soil Experts during depositions, the need to depose the Soil Experts on their opinions
adopting that new data is significantly diminished. Finally, Defendant disputes whether
the Soil Experts’ declarations qualify as supplements under Rule 26. Indeed, the fact that
Plaintiffs provided the UC Davis soils data to the Soil Experts at their depositions suggests
that Rule 26 supplementation may not have been required. See Fed. R. Civ. P. 26 (directing
that a party supplement a disclosure “if the additional or corrective information has not
otherwise been made known to the other parties during the discovery process”). Thus, the

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record does not reflect that Defendant’s conduct constituted bad faith or willful violation
of Rule 26.
II.

Plaintiffs’ Motion to Strike the Supplemental Expert Opinions of John
Oneacre (Doc. No. 169)

Similarly, Plaintiffs previously filed a motion to exclude the proposed testimony of
Defendant’s expert John Oneacre, see Doc. No. 128, and now request that the Court strike
material submitted in Defendant’s response to that motion under Rule 37(c). Plaintiffs
specifically object to Oneacre’s discussion of a 1996 academic study (the “Cates paper”),
which Plaintiffs cited in their motion to exclude. See Def.’s Mot. (Doc. No. 169) at 5-6;
Pls.’ Resp. (Doc. No. 182) at 3. Arguing that Oneacre’s discussion of the Cates paper in
his declaration (submitted as an attachment to Defendant’s response, see Doc. No. 156-1)
constitutes a supplement submitted in violation of Rule 26(e) of the Federal Rules of Civil
Procedure, Plaintiffs request that Defendant not be allowed to use the information at trial
or in response to Plaintiffs’ motion to exclude. See Fed. R. Civ. P. 26(e), 37(c)(1).
Defendant responds that it is not offering the declaration as a Rule 26(e) supplement but,
rather, that Oneacre addressed the Cates paper solely in support of Defendant’s response
to Plaintiffs’ Daubert motion. See Def.’s Resp. at 1-2.
The Court denies Plaintiffs’ request that Defendant not be allowed to refer to
Oneacre’s declaration in responding to Plaintiffs’ Daubert motion (Doc. No. 128).
Because Plaintiffs rely heavily on the Cates paper in challenging Oneacre’s proposed
testimony, Oneacre’s response to that challenge is relevant.

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As to Plaintiffs’ request that Defendant not be able to present at trial the opinions
set forth in Oneacre’s declaration, Defendant responds that the declaration was submitted
solely to support Defendant’s Daubert response and not as proposed testimony. Therefore,
the Court denies without prejudice Plaintiffs’ motion to the extent it seeks exclusion of the
material at trial. Should Oneacre independently proffer at trial the opinions to which
Plaintiffs object in their Motion, Plaintiffs may raise their objection at that time.
CONCLUSION
For these reasons, Plaintiffs’ Motion to Strike the Declarations of Certain of
Defendant’s Experts Pertaining to Background Soil Conditions (Doc. No. 160), and
Plaintiffs’ Motion to Strike the Supplemental Expert Opinions of John Oneacre (Doc. No.
169) are DENIED. Additionally, the Court denies Plaintiffs’ request for attorney fees and
expenses under Rule 37(c)(1)(A).
IT IS SO ORDERED this 14th day of May, 2019.

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