United States District Court, E.D. Tennessee, Knoxville
MEMORANDUM AND ORDER
case is before the undersigned pursuant to 28 U.S.C. §
636, the Rules of this Court, and Standing Order 13-02. Now
before the Court are the following:
(1) Plaintiffs' Report Regarding New Expert Witnesses
[Doc. 233 in Adkisson, 3:13-CV-505; Doc. 228 in
Thompson, 3:13-CV-666; Doc. 209 in
Cunningham, 3:14-CV-20; Doc. 155 in Rose,
3:15-CV-17; Doc. 164 in Wilkinson, 3:15-CV-274; Doc.
145 in Shelton, 3:15-CV-420; Doc. 147 in
Church, 3:15-CV-460; Doc. 149 in
Vanguilder, 3:15-CV-462; Doc. 75 in Ivens,
3:16-CV-635; and Doc. 71 in Farrow, 3:16-CV-636];
(2) Defendant's Response to Plaintiffs' Report
Regarding New Expert Witnesses and Motion to Exclude the
Expert Opinions of Barry S. Levy, M.D., M.P.H., Kenneth S.
Garza, C.I.H., M.S., and Marco Kaltofen, Ph.D., P.E. [Doc.
234 in Adkisson, 3:13-CV-505; Doc. 229 in
Thompson, 3:13-CV-666; Doc. 210 in
Cunningham, 3:14-CV-20; Doc. 156 in Rose,
3:15-CV-17; Doc. 165 in Wilkinson, 3:15-CV-274; Doc.
146 in Shelton, 3:15-CV-420; Doc. 148 in
Church, 3:15-CV-460; Doc. 150 in
Vanguilder, 3:15-CV-462; Doc. 76 in Ivens,
3:16-CV-635; and Doc. 72 in Farrow, 3:16-CV-636].
reasons stated more fully below, the Court will
DENY Plaintiffs' request to extend the
expert disclosure deadline, and GRANT
Defendant's motion to exclude Plaintiffs' proposed
January 30, 2017, the District Court consolidated the above
captioned cases for discovery, motion practice, and a
bifurcated trial plan. [Doc. 136]. In sum, Phase 1 of trial
will deal with general causation. [See Id. at 7].
Phase 1 of trial was originally scheduled for January 29,
2018, in addition to the following deadlines: (1)
Plaintiffs' expert disclosures were due May 1, 2017, (2)
Defendant's expert disclosures were due June 17, 2017,
(3) rebuttal expert disclosures were due July 5, 2017, (4)
all discovery (fact and expert) was to be completed by
October 13, 2017, and (5) the parties had until October 27,
2017 to file Daubert and summary judgment motions.
[Doc. 138 at 3-4].
18, 2017, shortly after Plaintiffs' expert disclosure
deadline, the Court conducted a discovery conference to
address Defendant's complaints regarding deficiencies in
Plaintiffs' expert reports. The Court found that of the
eight expert witnesses Plaintiffs had disclosed for Phase 1
of trial, Plaintiffs failed to provide written reports for
Paul Terry, Ph.D., M.P.G., F.A.C.E., and Rajiv Dhand, M.D.,
F.C.C.P., F.A.C.P., F.A.A.R.C., and the written reports of
William J. Rea, M.D., and John W. Ellis, M.D., were deficient
under Federal Rule of Civil Procedure (a)(2)(B). [Doc. 162].
The Court ordered Plaintiffs to (1) produce written reports
for Dr. Terry and Dr. Dhand, and (2) supplement the written
reports of Dr. Rea and Dr. Ellis by July 14, 2017.
[Id. at 10, 14]. Defendant's expert disclosure
deadline was accordingly extended to August 18, 2017.
[Id. at 14].
complained at a subsequent discovery conference held on
August 15, 2017, that Plaintiffs' supplemental expert
reports remained deficient. Although Dr. Ellis and Dr. Dhand
had been withdrawn, Defendant argued that the supplemental
reports by Dr. Rea and Dr. Terry continued to be incomplete,
and the reports provided by Plaintiffs' other four
remaining expert witnesses were similarly deficient.
position statements provided to the Court by the parties
ahead of the August 15, 2017 discovery conference, Defendant
outlined perceived deficiencies in Plaintiffs' expert
reports, including that the reports lacked an explained basis
for the conclusions reached therein, the facts or data
considered by the experts, and the exhibits to be used at
trial. Notably, Defendant also argued, in its position
statement and before the Court, that Plaintiffs' expert
reports did not address any of the issues that Defendant
believed Plaintiffs must prove to meet their burden on
general causation. Relying on various case law, including
In re TVA Ash Spill Litig., 805 F.Supp.3d 486, 482
(E.D. Tenn. Aug. 2, 2011), Defendant argued that Plaintiffs
must present expert testimony that: (a) establishes each of
Plaintiffs' injuries; (b) determines the dose and
duration of each Plaintiffs' actual exposure to the
potentially toxic constituents within fly ash (as opposed to
just exposure to the ash itself); (c) reviews the scientific
literature to determine the predicted response to the
identified dose; and (d) finds that the dose in question is
capable of causing the injuries in question. Defendant,
however, did not seek any specific relief from the Court and,
instead, noticed Plaintiffs that it would challenge the
merits of Plaintiffs' expert proof on general causation
through forthcoming pleadings. [Doc. 178 at 3]. Indeed, less
than two months later, on October 6, 2017, Defendant filed a
Motion for Partial Summary Judgment on General Causation.
responded shortly thereafter by moving to continue Phase I of
the trial and to modify other deadlines accordingly to allow
Plaintiffs to continue discovery. [Doc. 200]. On November 9,
2017, the District Court granted Plaintiffs' motion to
continue to the extent that Phase I of the trial was
continued to April 16, 2018, all unexpired deadlines were
recalculated according to the same time limitations set forth
in the original Scheduling Order, and “the dispositive
motion and expert disclosure deadlines are reset to
120 days prior to the trial date.”
[Doc. 215 at 3 (emphasis in original)]. The District Court
then denied without prejudice with leave to refile
Defendant's motion for partial summary judgment.
District Court subsequently held a status conference on
November 30, 2017, to address scheduling matters and provide
clarification of the expert disclosure deadline.
[See Docs. 217 & 219]. Plaintiffs' counsel
informed the District Court that its office had recently
suffered a fire, prompting the District Court to continue the
trial to September 17, 2018, and to move the dipositive
motion deadline to 150 days prior to trial. [Docs. 220 &
224]. As to a lack of agreement between the parties over the
expert disclosure deadline, the matter was referred to this
Court, given the undersigned's familiarity with the issue
pertaining to expert disclosures in this case. In short,
Plaintiffs interpreted the extension of time as setting an
entirely new deadline for the disclosure of new expert
witnesses and/or reports, while Defendant believed the
extension of time only applied to existing experts and merely
allowed for the supplementation of existing reports. [Doc.
December 8, 2017, this Court held a discovery conference to
address the expert disclosure issue. Plaintiffs stated they
anticipated adding three new expert witnesses, including
Avner Vengosh, Ph.D., who was initially identified as a
potential fact witness in Plaintiffs' initial
disclosures, and eliminating one or two of their existing
expert witnesses. While Plaintiffs argued that the
continuance order reopened the expert disclosure deadline,
this Court subsequently determined that the District Court
“neither contemplated nor anticipated the introduction
of new expert witnesses when it reset the expert disclosure
deadline, ” but rather “the extension of time was
meant to accommodate the Plaintiffs' specific request to
allow their existing experts more time to complete and/or
supplement their reports accordingly.” [Doc. 230 at
given that Defendant was at least aware of Dr. Vengosh to
some extent, the Court gave Plaintiffs 30 days to submit a
short report that: (1) identified the names of the other
proposed expert witnesses; (2) stated generally the testimony
the experts are expected to provide; (3) stated the basis for
the experts' testimony; and (4) stated why Plaintiffs
need these expert witnesses and why the Court should allow
late disclosure. [Doc. 230 at 6]. Thereafter, the Court would
determine whether “good cause” had been shown for
allowing new experts in this case.
February 7, 2018, Plaintiffs filed their report [Doc. 233],
and on February 16, 2018, Defendant filed a response in
opposition and a motion to exclude Plaintiffs' proposed
expert reports under Rule 37 [Doc. 234]. Thus, the parties
have fully briefed the Court on whether Plaintiffs should be
allowed to disclose new expert witnesses, and the matter is
now ready for disposition.
Positions of the Parties
seek to introduce the following three expert witnesses: (1)
Barry S. Levy, M.D., M.P.H., an occupational and
environmental health physician and epidemiologist who is
expected to testify that exposure to fly ash and its
constituents is capable of causing Plaintiffs' illnesses;
(2) Kenneth S. Garza, C.I.H., M.S., a consultant on
industrial hygiene matters who is expected to testify about
the measurements of fly ash performed by contractors,
including Defendant, the standard of care for measurements
and worker safety, and Defendant's breach of those
standards; and (3) Marco Kaltofen, Ph.D., P.E., a consultant
in chemical radionuclide environmental fate and transport
investigations who is expected to testify about the general
exposure of Plaintiffs to fly ash and its toxic constituents,
that Defendant's monitoring data does not fully present
all exposure evidence, and the methods to determine general
exposure levels to provide additional information about
exposure not captured by Defendant and other contractors.
[Doc. 233 at 5-7]. Although Plaintiffs anticipated that one
of their new experts would be Dr. Vengosh, he no longer is
proposed to be a witness. Plaintiffs explain that Dr. Vengosh
is no longer available as he “has taken on other
projects . . . and cannot meet the short deadlines in this
case . . . .” [Id. at 4].
on the parties' disagreement on the requisite proof
needed to demonstrate general causation, Plaintiffs assert
that they need these experts “to make sure they meet
the Court's expectations for proof of ‘general
causation' for Phase I” should the District Court
agree with Defendant's theory on general causation.
[Id. at 9-10]. Furthermore, Plaintiffs argue that
they should be allowed to introduce the foregoing expert
witnesses because Defendant failed to provide discovery in a
timely manner, Defendant's ...