Nolen Scott Ely, et al v. Cabot Oil & Gas Corporation and Gassearch Drilling Services Corproation

Filing 630

MEMORANDUM ORDER granting in part 616 MOTION to Compel Discovery filed by Monica Laura Marta-Ely, Ray Hubert, Victoria Hubert, Nolen Scott Ely. Signed by Magistrate Judge Martin C. Carlson on October 26, 2015. (kjn)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
NOLEN SCOTT ELY, et al.,
Plaintiffs
CABOT OIL & GAS
CORPORATION, et al.,
Defendants

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Civil No. 3:09-CV-2284
(Judge Jones)
(Magistrate Judge Carlson)

MEMORANDUM ORDER
I.

INTRODUCTION
Now pending in this litigation is the plaintiff’s motion for leave to take

deposition of a non-testifying expert of the defendants, Brent Brelje, an employee of
SLR International Corporation and an expert in water treatment systems. Mr. Brelje
had previously been designated as a testifying expert in this case. However, Cabot
subsequently de-designated Mr. Brelje as a testifying expert, before the plaintiffs had
taken any steps to take his deposition. Since Mr. Brelje is no longer listed as a
testifying expert, Cabot asserts that the Federal Rules of Civil Procedure entitles them
to protect Mr. Brelje from being deposed, and thus opposes the motion. The plaintiffs
argue that exceptional circumstances exist that should cause them to be permitted
leave to depose Mr. Brelje notwithstanding the defendant’s de-listing of him as a

testifying expert witness. For the reasons that follow, the motion will be granted, in
part, to permit narrowly focused examination of this witness.
II.

OVERVIEW OF THE PARTIES’ POSITIONS
The plaintiffs have moved for leave to depose Mr. Brelje because they maintain

that he is the only defense expert available to them who is capable of answering
fundamental questions relating to the details of the design, construction and
maintenance of water treatment systems that have been installed in a number of
Dimock, Pennsylvania households that claimed to have had their water contaminated
by Cabot or other natural gas drillers. The plaintiffs further emphasize that the
defendant’s testifying experts who were made available for deposition were incapable
of testifying in any meaningful way about the water treatment systems at issue, or
answering any questions regarding the collection of data taken with respect to the
systems that have been put in place in other Dimock households, but were refused by
the plaintiffs. Moreover, the plaintiffs indicate that defense experts Dr. James Pinta
(geologist), L. Brun Hilbert (petroleum engineer), David Pyatt (toxicologist), or Tarek
Saba (environmental engineer) were unable to speak meaningfully about the data that
Mr. Brelje had made available to them, or about the plaintiffs’ inquiry into Cabot’s
use of water treatment systems in the Dimock area.

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The plaintiffs further observe that prior to being de-designated, Mr. Brelje had
furnished a report the purpose of which was to provide scientifically-based opinions
as to “the efficacy of using standard water treatment technologies to treat the well
water of [the plaintiffs].” In his report, Mr. Brelje noted that “[SLR] Projects have
included removal of methane from groundwater associated with Oil and Gas
production, assessing and controlling naturally occurring methane, and controlling
methane migration and intrusion in residential neighborhoods.” Mr. Brelje’s report
identifies him as a lead engineer with over a quarter century of experience designing,
constructing and operating water treatment systems.
The materiality of this information came into sharp focus late in this litigation,
following a series of decisions made by the defense. First, in May of 2015, after
nearly six years of litigation, the defense asserted an affirmative defense of failure to
mitigate, an affirmative defense which rested in large measure upon the plaintiffs’
failure to accept the type of water systems described by Mr. Brelje. (Doc. 595.) On
the heels of the decision to assert this affirmative defense, the defense then dedesignated Mr. Brelje as a testifying expert witness. Despite his experience and
apparent expertise in this area, in the defendant’s supplemental Rule 26(a)(2) Expert
Disclosures (Doc. 610.), Mr. Brelje was de-listed as a testifying expert witness, and
in his place was substituted John Smelko as a non-retained testifying expert. Mr.
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Smelko is the Regional Manager of Environmental and Regulatory Compliance at
Cabot, and purportedly has some unspecified expertise in “water quality and water
treatment.” Nevertheless, the plaintiffs contend that nothing is known to them about
Mr. Smelko’s familiarity with or expertise regarding the water treatment systems that
have been put to use in and around Dimock.
The plaintiffs insist that obtaining answers to these issues from Mr. Brelje – an
actual employee of the company that Cabot uses to install the water systems, and the
individual who designed the systems – is crucial, largely because the state of water
treatment is central to the defendant’s affirmative defense that the plaintiffs failed to
mitigate their damages by refusing to accept a water treatment system provided by
Cabot. The plaintiffs further argue that Mr. Brelje’s deposition is especially
important because of Cabot’s persistent refusal to provide information and
documentation regarding the water treatment systems being used in Dimock, which
the plaintiffs sought in the First and Second Sets of Requests for Admissions,
Interrogatories, and Requests for Production with respect to Cabot’s defenses.1 In
this regard, the plaintiffs view the defendant’s de-listing of Mr. Brelje has a testifying

Cabot flatly disputes the plaintiffs’ characterization of their discovery
responses, and notes that the company has provided approximately 118,000 pages
of documents and other information in response to discovery requests in this case.
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expert as a continuation of an ongoing pattern of refusing to make available
information that is central and relevant to this litigation.
Moreover, in contrast to Mr. Smelko, the plaintiffs view Mr. Brelje’s testimony
as necessary to provide context and depth for the deposition questions that were
posed to Dr. Pinta, a geologist who the plaintiffs maintain was unable to testify with
specificity about matters upon which Mr. Brelje claimed to have familiarity and direct
involvement, including data that was apparently furnished by Mr. Brelje and thus
formed the basis for some of Dr. Pinta’s own testimony. In short, the plaintiffs assert
that despite the defendant’s array of retained and non-retained testifying experts, Mr.
Brelje is the only expert who has direct knowledge and information regarding the
design, construction, modifications, maintenance, and effectiveness of the water
treatment systems that Cabot has installed in Dimock, and which was offered to the
plaintiffs and refused.
For its part, Cabot views the matter very differently, and asserts that this is a
problem largely of the plaintiff’s own making. Cabot begins by asserting something
both sides agree upon: under Rule 26(b)(4)(D)(ii), a party ordinarily may not take the
deposition to discover “facts known or opinions held by an expert who has been
retained or specially employed by another party in anticipation of litigation or to
prepare for trial and who is not expected to be called as a witness at trial.” Fed. R.
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Civ. P. 26(b)(4)(D)(ii). Cabot acknowledges that the general rule does allow for an
exception based upon a showing of “exceptional circumstances under which it is
impracticable for the party to obtain facts or opinions on the same subject by other
means.” Id. However, Cabot insists that this exception is not triggered here, because
the plaintiffs have not come forward with sufficiently exceptional circumstances to
justify permitting them to depose Mr. Brelje and potentially obtaining work product
or opinions that were developed in preparation for this litigation. Cabot refers to
cases holding that parties enjoy a broad right to change the designation of an expert
from “testifying” to “non-testifying” at any time during the course of litigation, and
that such a change when exercised triggers the protections prescribed by Rule
26(b)(4)(B).
Cabot also argues that the plaintiffs have not made any showing that they were
or are unable to obtain similar information from an expert that they retained or could
have retained – something that Cabot suggests could have easily been done in this
case thus precludes a finding of exceptional circumstances that would justify Mr.
Brelje’s deposition. In contrast, Cabot notes that both Messrs. Brelje and Smelko
have been identified as expert witnesses on potential treatment system issues since
April 2013, and that Mr. Brelje was only de-listed on June 19, 2015, yet the plaintiffs
never took any steps to depose him when they had the chance to do so. The
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defendant emphasizes that courts typically will find that exceptional circumstances
exist to justify allowing discovery from nontestifying expert witnesses only where
plaintiffs lack the ability to discover equivalent information by other means, and
insist that the plaintiffs’ own failings show that this standard has not been met.
Finally, Cabot argues that even if the plaintiffs have shown exceptional
circumstances exist here, the policy considerations underlying the rule outweigh the
exceptional circumstances that the plaintiffs have offered to justify the discovery
being sought, and thus discovery should be disallowed. In this regard, the defendants
reiterate much of their argument regarding the asserted lack of exceptional
circumstances, and argue that the plaintiffs should not be permitted to free-ride on the
defendants’ own discovery efforts after failing to seek the information from other
sources when they had ample opportunity to do so.
III.

DISCUSSION
Rule 26 of the Federal Rules of Civil Procedure addresses specifically whether,

and when, a party may obtain discovery from a non-testifying expert witness of
another party.

That rule provides that “[o]rdinarily, a party may not, by

interrogatories or deposition, discover facts known or opinions held by an expert who
has been retained or specially employed by another party in anticipation of litigation
or to prepare for trial and who is not expected to be called as a witness at trial.” Fed.
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R. Civ. P. 26(b)(4)(D). However, a party may do so, inter alia, only on a showing of
“exceptional circumstances under which it is impracticable for the party to obtain
facts or opinions on the same subject by other means.” Id.
In opposing the plaintiffs’ motion, the defendant takes pains to argue that the
protections prescribed by Rule 26(b)(4)(D) are vast and sweeping and in many cases
nearly insurmountable for the party seeking to take discovery from a de-listed expert.
In fact, commentators considering the rule have at times expressed greater reservation
about the rule’s application and its scope. Thus, a leading treatise has indicated “that
the number of situations in which the protective provisions of the Rule would come
into effect is small.” Tellabs Operations, Inc. v. Fujitsu Ltd, 283 F.R.D. 374, 376
(N.D. Ill. 2012) (citing to 8A Wright, Miller & Marcus, Federal Practice & Procedure,
§ 2033 at 126 (2010)). In that treatise, the authors observe that “[t]here is a legitimate
concern that a party may try to immunize its employees who are actors or viewers
against proper discovery by designating them experts retained for work on the case,”
and thus they warn that “courts should be exceedingly skeptical when employees who
have otherwise discoverable information are designated ‘experts,’ and efforts must
be made to preserve the opportunity to discover that information.” Id.2 That
The Court recognizes that in these cases, courts were tasked with
determining whether a party’s own employees could qualify as experts under Rule
26 who were specially employed for purposes of the litigation, but the caution
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admonition has some application in this case, notwithstanding the fact that Mr. Brelje
was not an employee of Cabot but is instead an employee of a company with which
Cabot contracted to provide and install the water treatment systems that Cabot
provided to a number of households in Dimock. If anything, the caution has even
more particular resonance because Mr. Brelje had been designated as an expert
witness for a significant portion of this litigation, and was only de-listed this past
summer, before the plaintiffs could depose him.3 The defendant now seeks to insulate
him entirely from deposition or other discovery into his opinions and the basis
therefor, while also proffering experts who are basing some of their opinions on
information supplied by Mr. Brelje, yet whom the plaintiffs maintain have been
incapable of testifying meaningfully.

expressed by these courts and by commentators on the potential scope of the Rule
has some relevance to the disposition of the pending motion and the particular
discovery being sought in the context of this particular litigation.
The defendants also argue that the time period for fact discovery expired
long ago, apparently as a way of disposing of the plaintiffs’ assertion that Mr.
Brelje had knowledge of “facts” relevant to water treatment systems. We
understand the plaintiffs to be arguing that they wish to take Mr. Brelje’s
deposition so that they can discover information relevant not only to his opinions
regarding the efficacy of the water treatment systems and their use, but also so
they can obtain relevant information that purportedly formed the basis for the
testimony offered by other defense experts who were deposed.
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We remain mindful that under the rule the facts known and opinions held by
non-testifying experts who were retained or specially employed in anticipation of
litigation or preparation for trial are subject to discovery only in “exceptional
circumstances.” In re Shell Oil Refinery, 132 F.R.D. 437, 440 (E.D. La. 1990). The
party seeking to take discovery from a non-testifying expert thus carries a heavy
burden to demonstrate that exceptional circumstances exist. Id. at 442. As Cabot
notes, this requirement has been interpreted by courts to mean that the party seeking
the discovery is unable to obtain equivalent information from other sources. Id.
At the same time, courts have cautioned against applying this rule too broadly
in a way that would insulate from discovery the facts or opinions held by experts prior
to being specially employed as an expert in the particular litigation at issue. See id.
(“The Rule does not protect facts or opinions of expert employees developed while
conducting business activities related to matters in issue, but before being specially
employed.”) (citing Pielemeier, Discovery of Non-Testifying ‘In-House’ Experts
Under Federal Rule of Civil Procedure 26, 58 Ind.L.J. 587, 600 (1984) (“Facts known
or opinions held by experts before the prospect of litigation arose, such as the
processes by which a product was produced and an expert’s opinion at the time of
production of the safety process, are not protected.”); see also Marine Petroleum Co.
v. Champlin Petroleum Co., 641 F.2d 984, 992 (D.C. Cir. 1979) (“[O]ne may
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simultaneously be a litigational expert with Rule 26(b)(4) protection as to some
matters and simply an unprotected actor or witness as to others . . . .”).
In addition to navigating these legal guidelines regarding the scope and limits
of the rule, the pending motion must be assessed in the context of a litigation that has
been marked by periodic and sometimes prolonged pre-trial delays that stem from a
series of difficulties that are not entirely the fault of any particular party, but which
have nonetheless marred the course of this action and contributed to the current
litigation posture. Fact discovery, itself delayed at points, has been closed now for
some time. And the parties have engaged in diligent if at times contentious expert
discovery as this case approaches the conclusion of the pre-trial period and readies
itself for trial. During this process the defendant has taken the strategic step of delisting Mr. Brelje as a testifying expert and has now maintained him as a nontestifying expert. The defendant is entirely within its right to make this tactical
decision, and to rely on other defense witnesses in his place. The question is whether
the defendant’s choice to do so at a late date, while also proffering experts who
purport to rely on the de-designated expert’s opinions or information, should leave
some room for the plaintiffs to inquire of Mr. Brelje despite the protections prescribed
by Rule 26(b)(4)(D).

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We address this question on a set of circumstances which are certainly unusual.
The information possessed by Mr. Brelje and shared with the defense testifying
experts relates to the affirmative defense of mitigation of damages. But that
affirmative defense was first clearly articulated by the defendant at a late stage in this
litigation, in May of 2015, nearly six years after this lawsuit commenced. (Doc. 595.)
Given the belated assertion of this affirmative defense, we cannot say that the plaintiff
unreasonably delayed in pursuing this deposition.
The timing of these events highlights why this may be an exceptional case.
The difficulty in the context of this particular litigation, where the defendants asserted
at a late date an affirmative defense that the plaintiffs failed to mitigate their damages,
is that the defendants have de-designated an expert in water treatment systems whose
own report apparently provided part of the substantive basis for some of the
remaining defendant’s experts’ testimony. And having done so, the defendant now
seeks to prevent the plaintiffs from taking even limited expert discovery from a
witness who was listed as a testifying expert for nearly two years, and who presented
as an expert with substantial knowledge undergirding opinions regarding the efficacy
of the very water treatment systems that the defendant has utilized in the Dimock
area. The plaintiffs have declined such a system, insisting that the systems have

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significant shortcomings. Cabot has pointed to the plaintiff’s declination of its offer
of a suitable treatment system as a basis for its failure-to-mitigate defense.
Although the defendant rightly emphasizes that it is entitled to make this
tactical choice, and the tactical choice to assert this affirmative defense at a late stage
in this litigation, the plaintiffs argue that the experts they have been able to depose
have proven incapable of testifying in a meaningful way about the water treatment
systems that have been used, and about the data that supports the defendant’s position
that the systems are effective. These are matters which are material to the affirmative
defense which the defendant has elected to assert at a late stage of these proceedings.
The plaintiffs, now in a position of having to litigate against recently added
affirmative defense that they failed to mitigate by refusing a water treatment system
offered to them, find themselves disadvantaged by being prevented from inquiring of
the one expert with significant experience and familiarity with the systems that have
been used by the very company that Cabot has engaged to install the systems. The
plaintiffs’ conundrum was exacerbated by their asserted failure to discover
information from the defendant’s current testifying experts about the data relating to
the water treatment systems, while these experts purportedly relied in part on
information supplied by Mr. Brelje.

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Although we appreciate the defendant’s position that the plaintiffs failed to
undertake discovery of Mr. Brelje and others when they had the opportunity to do so,
we cannot ignore the realities of the current posture of this litigation, or the manner
in which we arrived here more some six years after this case was first filed. We also
are compelled to consider the fact that the circumstances which bring us to this
juncture are, in part, a consequence of the defendant’s decision to first assert the
affirmative defense of failure to mitigate in May of 2015, nearly six years after this
litigation began. Although it is a close case, on this unique constellation of facts, we
find that the plaintiffs have sufficiently demonstrated exceptional circumstances exist
to allow them a narrow and limited opportunity to take discovery from Mr. Brelje.
That discovery, though, must be tailored to the proffer of relevance made by the
plaintiffs. We do not find that the plaintiffs should be granted leave to conduct openended discovery of this de-listed expert. Instead, we will limit the plaintiffs to taking
discovery into Mr. Brelje’s opinions (and related factual knowledge) that helped form
the basis for the opinions being offered by the defendant’s remaining experts.
Further, our ruling is intended only to govern the completion of pretrial
discovery. The question of what use, if any, can be made at trial of the information
obtained from this expert witness must await another day. Whether there should be
any further limits placed upon the potential use of any evidence discovered during the
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limited deposition of Mr. Brelje at trial will not be addressed in this opinion, and must
wait until the parties are closer to trial.4 The Court finds little to be gained by
engaging in a Rule 403 balancing test to consider the admissibility of evidence that
has not yet been revealed. Such a determination will be made, if necessary, closer to
or at the time of trial.
IV.

ORDER
Accordingly, upon consideration of the plaintiffs’ motion for leave to take the

deposition of Brent Brelje (Doc. 616.), and considering the parties’ multiple briefs in
support of and opposition to the motion (Docs. 617, 618, 620, 625, 627.), IT IS
HEREBY ORDERED THAT the motion is GRANTED in part. The Court having
found that exceptional circumstances exist in this unique case that justify permitting
narrow and limited discovery from an expert whose information may be material to
an affirmative defense that was first asserted in May of 2015 and who was dedesignated nearly two years after he was first listed as a testifying expert; and the
Court having found that the plaintiffs have demonstrated that Mr. Brelje has

To the extent that the defendant wishes to call Mr. Brelje as a witness at
trial, as Cabot suggested in its brief, (Doc. 618, at p. 12 n. 10.), the plaintiff has
not opposed this request but has in fact welcomed it. (Doc. 620, at p. 1.) As such,
barring any objection that would need to be resolved closer to trial, the defendant
would be permitted to elicit testimony from Mr. Brelje at trial, limited to those
matters upon which the plaintiffs were permitted to inquire.
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particular and specific knowledge relevant to an issue that the defendant placed in
issue with respect to water treatment systems that were offered to the plaintiffs and
refused; and the Court finding that the plaintiffs have made a compelling showing
that they lack the ability to obtain the same information from another source; the
plaintiffs shall be permitted to take limited discovery into Mr. Brelje’s opinions and
related factual knowledge that helped form the basis for the opinions being offered
by the defendant’s remaining experts with respect to water safety.
So ordered this 26th day of October 2015.

/s/ Martin C. Carlson
Martin C. Carlson
United States Magistrate Judge

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