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Adkisson v. Jacobs Engineering Group, Inc.

United States District Court, E.D. Tennessee, Knoxville

March 9, 2018

GREG ADKISSON, et al., Plaintiffs,
v.
JACOBS ENGINEERING GROUP, INC., Defendant. KEVIN THOMPSON, et al., Plaintiffs,
v.
JACOBS ENGINEERING GROUP, INC., Defendant. JOE CUNNINGHAM, et al., Plaintiffs,
v.
JACOBS ENGINEERING GROUP, INC., Defendant. BILL ROSE, Plaintiff,
v.
JACOBS ENGINEERING GROUP, INC., Defendant. CRAIG WILKINSON, et al., Plaintiffs,
v.
JACOBS ENGINEERING GROUP, INC., Defendant. ANGIE SHELTON, as wife and next of Kin on behalf of Mike Shelton, et al., Plaintiffs,
v.
JACOBS ENGINEERING GROUP, INC., Defendant. JOHNNY CHURCH, Plaintiff,
v.
JACOBS ENGINEERING GROUP, INC., Defendant. DONALD R. VANGUILDER, JR., Plaintiff,
v.
JACOBS ENGINEERING GROUP, INC., Defendant. JUDY IVENS, as sister and next of kin, on behalf of JEAN NANCE, deceased, Plaintiff,
v.
JACOBS ENGINEERING GROUP, INC., Defendant. PAUL RANDY FARROW, Plaintiff,
v.
JACOBS ENGINEERING GROUP, INC., Defendant.

          MEMORANDUM AND ORDER

         This 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]; and
(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].

         For the 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 expert witnesses.

         I. Relevant Background

         On January 30, 2017, the District Court consolidated the above captioned cases for discovery, motion practice, and a bifurcated trial plan. [Doc. 136].[1] 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].

         On May 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].

         Defendant 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.

         In 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.[2] [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. [Doc. 191].

         Plaintiffs 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. [Id.].

         The 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. 219].

         On 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 4-5].

         Nonetheless, 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.

         On 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.

         II. Positions of the Parties

         Plaintiffs 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].

         Based 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 ...


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