Ballard et al v. Union Carbide Company et al
Filing
206
MEMORANDUM OPINION AND ORDER granting defendants' 194 EXPEDITED MOTION to to modify the 10/5/2012 181 scheduling order and to compel the deposition of Steven Cole, modifying the schedule as follows: The depositions of Mr. Haunschild a nd Mr. Cole are to be completed by 11/13/2012; the defendants' expert disclosures must be served by 11/15/2012; the defendants' counter-expert, if any, must be deposed by 11/21/2012; motion for class certification due by 12/02/2012, with r esponses due by 12/21/2012, and replies due by 1/14/2013; the plaintiffs are directed to disclose to the defendants all discoverable information in the files of both Mr. Haunschild and Mr. Cole no later than 3 days prior to their respective depositions. Signed by Judge John T. Copenhaver, Jr. on 11/8/2012. (cc: attys; any unrepresented parties) (taq)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
JAMES COLEMAN and LARRY KIMBRO and
CARL MOTEN and ADELLE NEWBELL and
PHILLIP SCHULTE and NAOMI TACKETT and
DAVID TAMPLIN and CAROLYN TURNER and
PATRICIA WARD and TERRY WHITE and
BRIAN and CYNTHIA WRIGHT, husband and wife,
all of whom are residents
of the State of West Virginia,
Plaintiffs,
v.
Civil Action No. 2:11-0366
UNION CARBIDE CORPORATION, a Delaware
corporation, having its principal place
of business in the State of West Virginia and
THE DOW CHEMICAL COMPANY, a Delaware
corporation, with its principal place of
business in Michigan, and EMC ALLOY, L.P.
f/k/a ELKEM METALS COMPANY -- ALLOY, L.P., a
Norwegian corporation, having its principal
offices in the State of Pennsylvania, and
GLOBE SPECIALTY METALS, INC., a Delaware
corporation, having its principal place
of business in the State of New York, and
GLOBE METALLURGICAL, INC., a Delaware corporation,
having its principal place of business in
the State of Ohio, and WEST VIRGINIA ALLOYS, INC.,
a Delaware corporation, having its principal
place of business in the State of West Virginia, and
WVA MANUFACTURING LLC, a Delaware corporation,
having its principal place of business in the
State of West Virginia,
Defendants.
MEMORANDUM OPINION AND ORDER
Pending is the defendants' expedited motion (1) to modify
the October 5, 2012, scheduling order, and (2) to compel the
deposition of Steven Cole ("expedited motion"), filed October 31,
2012.
The defendants seek an order permitting them leave to
depose one of the plaintiffs' experts, Greg Haunschild1, before the
deadline set for the defendants' counter-expert reports.
The Agreed
Scheduling Order entered December 30, 2011, provided a 30-day
interval between the plaintiffs' deadline -- August 10, 2012 -- and
defendants' deadline -- September 10, 2012 -- for their respective
expert witness disclosures.
This approach resulted in a sufficient interval within
which the defendants could depose any expert witnesses disclosed by
the plaintiffs prior to the defendants tendering their own
disclosures.
The interval also served the interests of both time
and economy inasmuch as it would allow the defendants to retain an
expert on a certain point only after determining if they deemed one
1
Mr. Haunschild entered the case on October 26, 2012, after the court
granted the plaintiffs' motion to substitute him as their air
modeling expert in the place of Steven Cole, who ostensibly was unable
to serve his supplemental expert report by the October 19, 2012,
deadline previously imposed by the court.
2
to be necessary in light of the opinions expressed by the plaintiffs'
expert on that point.
On August 8, 2012, the court extended the aforementioned
expert disclosure deadlines by two weeks, preserving the potential
for both time and cost savings.
On October 5, 2012, the court allowed
the plaintiffs until October 19, 2012, to serve their supplemental
expert report of Mr. Cole long after the August 24, 2012, extended
plaintiff-expert-disclosure deadline set by the August 8, 2012,
order.
The defendants were correspondingly given leave until
November 2, 2012, a very compressed interval indeed, to file their
counter-expert reports.
The defendants appear to have thereafter exercised due
diligence to depose Mr. Cole, and then his successor, Mr. Haunschild,
on or before their November 2, 2012, expert disclosure deadline.
Their inability to do so appears to have been caused primarily by
the unavailability of one of the plaintiffs' lawyers, J. Paul Gignac.
The defendants are hampered as well by the apparent failure of both
Mr. Haunschild and the plaintiffs' counsel to provide sufficient
detail respecting the steps that Mr. Haunschild took to arrive at
his opinions in this action.
The plaintiffs' crystallized
opposition to the defendants' request for relief appears below:
This Court should deny Defendants’ motion because granting
it would: (1) require the Court to redo the entire schedule
yet again to address the substantial prejudice against
3
Plaintiffs, who need sufficient time to prepare their
class certification motion by November 30, 2012; (2)
impose additional and unnecessary expenses on Plaintiffs
to make two separate cross-country trips when Defendants
conceded in two separate emails that they already are
available to take Mr. Haunschild’s deposition on November
13; and (3) require Plaintiffs to depose Defendants’
counter expert during Thanksgiving week if Plaintiffs do
not receive Defendants’ expert designation until after
November 13, as Defendants propose.
(Pls.' Resp. at 4).
The plaintiffs appear to desire two full weeks to prepare
and file their class certification motion following the completion
of class certification discovery.
The October 5, 2012, order set
the conclusion of class certification discovery at November 16, 2012,
with any motion seeking class certification to be filed no later than
November 30, 2012.
Any response and reply are to be filed no later
than December 20, 2012, and January 11, 2013, respectively.
The defendants have demonstrated good cause for
modification of the scheduling order.
There is no indication that
they have acted other than diligently in attempting to ascertain the
opinions of the plaintiffs' experts, exhibited most recently by their
rapid pivot to adhere to the schedule despite the late substitution
of Mr. Haunschild for Mr. Cole.
Respecting the defendants' requested deposition of Mr.
Cole, the plaintiffs do not contest that Mr. Cole collaborated with
some of the plaintiffs' other experts and that those experts relied,
4
and that they apparently continue to rely, upon Mr. Cole concerning
some of their opinions.
Mr. Cole may also need to be questioned in
the event that Mr. Haunschild relied upon any of Mr. Cole's data or
opinions in the course of Mr. Haunschild rapidly arriving at his
opinions in October.
It is thus a sensible request that Mr. Cole appear for
deposition in Charleston, West Virginia, according to the same
schedule set for Mr. Haunschild.
It is, accordingly, ORDERED that
the schedule be, and it hereby is, modified as follows:
The date by which the depositions of Mr.
Haunschild and Mr. Cole are to be completed.
The date by which the defendants= expert
disclosures must be served.
11/13/2012
The date by which the defendants'
counter-expert, if any, must be deposed.
Filing of motion for class certification.
Response regarding class certification.
Reply regarding class certification.
11/21/2012
11/15/2012
12/02/2012
12/21/2012
01/14/2012
3
Based upon the foregoing discussion, it is ORDERED that
the expedited motion be, and it hereby is, granted.
It is
additionally ORDERED that the plaintiffs be, and they hereby are,
directed to disclose to the defendants all discoverable information
in the files of both Mr. Haunschild and Mr. Cole no later than three
days prior to their respective depositions.
5
The Clerk is directed to forward copies of this written
opinion and order to all counsel of record and any unrepresented
parties.
DATED:
November 8, 2012
John T. Copenhaver, Jr.
United States District Judge
6
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?