United States of America et al v. NCR Corporation et al

Filing 1051

ORDER denying 1042 MOTION to Strike filed by United States of America and denying NCR's request to certify the judgment, signed by Chief Judge William C Griesbach on 1-25-16. (cc: all counsel)(Griesbach, William)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
UNITED STATES OF AMERICA and
THE STATE OF WISCONSIN,
Plaintiffs,
v.

Case No. 10-C-910

NCR CORPORATION, et al.,
Defendants.

ORDER

Before me presently are the Plaintiffs’ motion to strike and Defendant NCR’s motion to
certify the judgment. For the reasons given below, I will deny both motions.
I. Motion to Strike
The government seeks to strike the surrebuttal testimony of Mr. Butler regarding his “28
percent share” opinion, which was based on certain of Dr. Wolfe’s estimates Butler obtained during
the December 2012 trial. In support of its motion, the government argues that Butler’s opinion,
based on Wolfe’s estimates, should have been disclosed prior to trial. It also argues that the opinion
was not proper surrebuttal testimony because it was simply bolstering his prior testimony rather than
being responsive to any matters raised during rebuttal testimony. Georgia-Pacific and the
government raised these objections at trial, but they were overruled.
NCR raises a number of arguments in opposition to the motion to strike. In short, it defends
admission of the testimony at trial, but it also questions whether the government’s motion to strike

is procedurally appropriate. Finding it dispositive, I address only the latter objection.
At trial, this court overruled the objections to Butler’s surrebuttal testimony, concluding both
that it was procedurally appropriate and proper surrebuttal. (ECF No. 731, Tr. 2782-84.) Following
the trial, the parties filed briefs. NCR’s brief cited Butler’s testimony about his use of Wolfe’s
estimates: “Even under Dr. Wolfe’s higher estimates, the full contamination scenario would require
approximately ‘40 percent higher dredge volumes than the NCR [alone] dredge volumes.’” (ECF
No. 746 at 37.) NCR echoed its reliance on Wolfe in its brief on appeal: “Like the estimates
presented by the Simon Team and Connolly, Wolfe’s calculations showed that NCR was a minority
contributor of PCBs in OU4. (Tr. 2267:23-2268:6.) The District Court rejected Braithwaite’s and
Jones’s work and largely ignored the estimates by Wolfe and Connolly.” (ECF No. 1050-1 at 6.)
Noting this, the court of appeals remanded for consideration of whether Butler’s use of Wolfe’s
estimates would present a reasonable basis for apportionment. It is true, as the government notes,
that NCR did not specifically refer to the “28 percent” estimate Butler attributed to NCR at trial.
Even so, both this court and the court of appeals were aware that NCR was attempting to show that
the harm was divisible even if NCR relied on Georgia-Pacific’s expert for the underlying estimates.
It is unclear whether, as NCR now says, the government should have pressed its objections
to the admission of Butler’s testimony in its post-trial briefing, its appellate briefs or at oral
argument—or all three. But I need not conclude that the argument is waived to conclude that it is
not properly before me. Though it is styled as a motion to strike, in essence it is a motion seeking
reconsideration of my earlier evidentiary ruling. In support of its motion seeking reconsideration,
the government cites a vague principle encouraging district courts to explore alternative bases for
their decisions. Young v. Verizon’s Bell Atl. Cash Balance Plan, 615 F.3d 808, 815 (7th Cir. 2010).
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The government argues that even though it has won the case against NCR on other grounds, a ruling
granting the motion to strike (as opposed to finding it moot) would provide a second, independent
basis for the court of appeals to uphold the government’s victory.
The government’s earnest desire to bolster its case on appeal is understandable, but I am not
aware of any procedural mechanism, nor any precedent, for entertaining a motion addressing a
three-year-old previously-decided issue, particularly when that motion is brought by the party that
has already won on another ground. Surely, the desire to have a second ground for that victory
cannot be enough to justify reconsideration, or else parties would never cease asking for rulings, and
re-dos of rulings, despite having won on other grounds. The only precedent the government cites
is a case in which the Seventh Circuit praised a district court for developing the record fully and
exploring alternative bases of decision: in Young, the district court, due to uncertainties in ERISA
law, had decided to bifurcate a trial, applying different legal standards of review (deferential and
de novo) to each phase of the trial. Id. at 814. In essence, the district court created a record that
would allow the court of appeals to reach a complete result under either standard of review.
A general preference for thoroughness, or for exploring alternate bases for a decision, does
not warrant revisiting issues decided long ago, however. Young involved a district court that created
an alternative basis for its decision in the first instance, not on a motion for reconsideration years
later. The case is before me presently with directions to consider certain evidence, not to consider
whether that evidence should have been allowed in the first place. Whether or not this court’s
December 2012 evidentiary ruling is outside the scope of the mandate or law of the case, it remains
true that the matter is now before me only because of a completely unrelated issue. The remand to
consider the matters the Seventh Circuit cited was not an invitation to open the door to revisit other
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issues. Accordingly, the motion to strike will be denied as moot.1
II. Motion to Certify Appeal Under § 1292(b)
NCR has requested certification, for immediate appeal, of this court’s October 19, 2015
decision finding that NCR had failed to prove its divisibility defense. To guide the district court,
there are four statutory criteria for the grant of a section 1292(b) petition: there must be a question
of law, it must be controlling, it must be contestable, and its resolution must promise to speed up
the litigation. Ahrenholz v. Bd. of Trustees of Univ. of Illinois, 219 F.3d 674, 675 (7th Cir. 2000).
The parties opposed to the certification argue that the question decided in my October 19
order was essentially one of fact, rather than law; after all, the Seventh Circuit had remanded the
action to this court so that this court could undertake certain findings of fact pertinent to the
divisibility defense. Thus, there is not a question of “law” susceptible to easy resolution by the
court of appeals. NCR argues just the opposite, claiming that the divisibility defense is indeed a
question of law because it relied on the Seventh Circuit’s directives about the proper legal standards
for divisibility.
It is true, as NCR says, that there are questions of law “involved” in the proposed appeal,
but at their core they are tied up with difficult questions of fact. The Seventh Circuit has explained
that the “question of law” clause in section 1292(b) refers to a “pure” question of law, e.g., “a
question of the meaning of a statutory or constitutional provision, regulation, or common law
doctrine”—the kinds of things a court of appeals could decide “quickly and cleanly without having
to study the record.” Id. at 677. Here, it should go without saying that appellate review would

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Similarly, this court has not considered the declaration the government wants to strike, either.
Accordingly, its motion is moot as to the declaration as well.
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require much more than a “quick and clean” review of a discrete legal question.
Accordingly, the request for § 1292(b) certification is DENIED. Having found that
judgment should not be entered at this time (under § 1292(b) or otherwise), I will decline to enter
the judgment proposed by the government. The motion to strike is DENIED. The clerk will set
the case on the calendar for a telephonic scheduling conference.

SO ORDERED this 25th day of January, 2016.

/s William C. Griesbach
William C. Griesbach, Chief Judge
United States District Court

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