Saint Croix Ventures, LLC et al v. Union Pacific Railroad Company

Brief in Reply

W.D. Wis.April 1, 2019

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WISCONSIN SAINT CROIX VENTURES, LLC, and The DONALD L. HARVEY MARITAL TRUST, Plaintiffs, Case No. 17-CV-903 v. UNION PACIFIC RAILROAD COMPANY, Defendant. DEFENDANT’S REPLY BRIEF IN SUPPORT OF ITS MOTION TO STRIKE SECOND DECLARATION OF KEVIN J. MILLER Defendant Union Pacific Railroad Company (“UP”), through its undersigned attorneys, Greenberg Traurig, LLP, hereby submits its Reply Brief In Support Of Its Motion To Strike Second Declaration Of Kevin J. Miller [ECF No. 55] (“UP’s Motion”). INTRODUCTION UP’s Motion demonstrated clearly that the Second Miller Declaration1 violates this Court’s Preliminary Pretrial Conference Order [ECF No. 12] (hereafter referred to as the “Court’s Order”) and Federal Rule of Civil Procedure 26 obligations governing the timing and content of expert disclosures and supplements. As UP demonstrated in its summary judgment Response,2 the requirements for an expert’s opinion to be admissible under Federal Rule of Evidence 702 were not satisfied in his original declaration submitted with Plaintiffs’ motion for partial summary judgment. Any opinions that Miller is actually qualified to provide must be based on sufficient facts or data and 1 See The Second Declaration of Kevin J. Miller In Support Of Plaintiffs’ Motion for Partial Summary Judgment [ECF No. 50] (hereinafter referred to as “Second Miller Declaration”). 2 See UP’s Response to Plaintiffs’ Motion for Partial Summary Judgment [ECF No. 37] (“UP’s Response”). Case: 3:17-cv-00903-wmc Document #: 57 Filed: 04/01/19 Page 1 of 19 2 be the product of reliable principles and methods. Plaintiffs must also demonstrate that Miller reliably applied those principles and methods to the facts of the case in order for those opinions to be in an admissible form. Fed.R.Evid. 702. Miller is a hydrogeologist with experience as an environmental consultant.3 He is not an expert in historical railroad operations, which is what is required for the most critical components of his opinions. In that regard, Miller, at a minimum, must have knowledge, skill, experience, training, or education related to historical railroad operations generally (including historical railroad painting operations) if not knowledge specific to the Property at issue in this litigation.4 It was clear that Miller’s prior opinions didn’t meet the standard for admissibility. This is why Plaintiffs filed the Second Miller Declaration, which contains a significant amount of new information in violation of this Court’s Order. Nothing in Plaintiffs’ brief in opposition to UP’s Motion [ECF No. 56] (“Plaintiffs’ Response”) changes the fact that the Plaintiffs violated this Court’s Order or that the Second Miller Declaration should be stricken. The record demonstrates this is a just result. Miller testified under oath at his deposition that he has no knowledge of the railcar painting methods and practices that may have been employed at the Property and has no knowledge of any paint removal practices that may have been used at the Property. See Transcript of January 7, 2019 Deposition of Kevin Miller [ECF No. 29] (“Miller Deposition” or “Miller Dep. Tr.”), at 117:13-118:16. It is not that he simply fails to have first-hand knowledge; Miller testified that he did not have “any knowledge” of these topics, whether through professional experiences, a review of literature, or from any other source. In addition, and 3 See Kevin J. Miller, Professional Profile [ECF 35-1] (“Miller CV”). 4 The real estate that is the subject of this litigation is comprised of 4 parcels of land located at 239 N. Monroe Street, 247 N. Monroe Street, 215 N. Monroe Street, and 207 N. Monroe Street in North Hudson, Wisconsin in St. Croix County. These 4 parcels are more commonly referred to in this case as Lots 1, 2, 5, and 6, respectively. UP refers to those 4 parcels collectively as the “Property” in this brief. Case: 3:17-cv-00903-wmc Document #: 57 Filed: 04/01/19 Page 2 of 19 3 notwithstanding the lack of qualifications needed to render his opinions in the first place, Miller’s opinions (based on a lack of data and facts and reliable principles and methods) identify nothing more than “potential” sources, rather than “actual” sources, of release of lead and/or PAHs found on the Property. This is not just semantics. The difference here is material because an opinion about a “potential” source of release is not sufficient whereas an opinion about an “actual” source of release may be. See Varlen Corp. v. Liberty Mut. Ins. Co., No. 13-CV-05463, 2017 WL 4278787, at *8 (N.D. Ill. Sept. 25, 2017) (citing CNH Am., LLC v. Champion Envtl. Servs., Inc., 863 F. Supp. 2d 793, 804 (E.D. Wis. 2012)); Textron Inc. By & Through Homelite Div. v. Barber-Colman Co., 903 F. Supp. 1546, 1554-55 (W.D.N.C. 1995).5 This takes on even more significance here considering that UP identified in summary judgment briefing Miller’s failure to adequately consider other potential sources of the lead and PAHs found on the Property. See UP’s Resp. Br. [ECF No. 37], pp. 25-29. Miller swears under penalty of perjury in the Second Miller Declaration to knowledge he testified under oath at his deposition that he didn’t have. See Miller 2nd Decl. [ECF No. 50], ¶¶ 33- 49 (regarding painting operations); Miller Dep. Tr. [ECF No. 29] at 117:13-118:16. Miller swears in the Second Miller Declaration to experiences he testified under oath that he didn’t have, or that he 5 The Textron court’s analysis of the expert opinion being offered in that case is instructive on the sufficiency of an expert opinion regarding sources of releases: Koon asserts that given certain waste-producing operations at the plant, metal-working and cooling water discharge, it is reasonable to infer that heavy metals would be present in Burlington’s wastewater tank “probably all of the time.” But Koon has no factual basis concerning how metal-working operations performed at the Burlington plant contributed heavy metals to the wastewater stream. His opinion reflects this absence of foundation. For example, in his report Koon opines that cutting oils “could have been discharged to the sanitary sewer” or that operations in the metal shop “could produce heavy metals” that “could be introduced into plant wastewaters.” […] Similarly, Koon states that cooling water discharges may have contained heavy metals, because many corrosion-preventing additives used during this period contained heavy metals. But Koon admits that he does not know what additives Burlington used in 1975 or 1976, when McKee picked up Burlington’s waste, and he has no idea what amount of additive was added. Under these circumstances, Koon’s opinion suggests a mere possibility, not a probability, that any cooking water additives used by Burlington contained heavy metals and it cannot serve as the significantly probative evidence that is necessary to withstand a motion for summary judgment. Textron, 903 F. Supp. at 1554-55 (citations omitted). Case: 3:17-cv-00903-wmc Document #: 57 Filed: 04/01/19 Page 3 of 19 4 did not rely on those newly identified experiences in forming his opinions. See Miller 2nd Decl. [ECF No. 50], ¶¶ 3, 4, 5, 6, 7, 8, 9 (professional experiences); Miller Dep. Tr. [ECF No. 29] at 13:2- 11; 23:12-24:8. Miller swears in the Second Miller Declaration to opinions regarding the fires on the Property and the impact of motor vehicles that appear nowhere in his original report dated October 1, 2018.6 See Miller Report [ECF No. 55-1], pp. 17-20 (“Absence of Other Potential Sources of PAH and Lead Impact (Post-1969)”); Miller 2nd Decl. [ECF No. 50], at p. 13 (“Absence of Other Significant Sources of Contamination”), ¶¶ 70, 71, 83. Miller swears under penalty of perjury in the Second Miller Declaration to opinions that are materially different from what was in the original Miller Report. See Miller Report [ECF No. 55-1], pp. 14-15, 16; Miller 2nd Decl. [ECF No. 50], ¶¶ 38, 40, 48, 49, 63. It is with this backdrop Plaintiffs assert to this Court that UP is searching for some “technicality” to avoid a determination of liability here. (Plfs’ Resp., [ECF No. 56], at p. 1). UP respectfully submits that Plaintiffs’ failure to adhere to this Court’s Order governing the timing and requirements of expert disclosures, Federal Rule of Civil Procedure 26, and Federal Rule of Evidence 702 are not technicalities. Tellingly, Plaintiffs do not even mention this Court’s Order in their Response. Instead, Plaintiffs claim that the Second Miller Declaration was submitted merely to supplement the foundation for Miller’s original opinions or to explain his opinions further in response to a Daubert challenge. The record tells a different story and makes clear that Plaintiffs are attempting to circumvent this Court’s Order and the applicable federal rules noted above in an effort to salvage what should be deemed inadmissible testimony by Miller. In short, Plaintiffs are 6 A copy of Miller’s original report dated October 1, 2018 was attached to UP’s Motion for the limited purpose of demonstrating how Miller’s opinions in the Second Miller Declaration have changed, but the report was not submitted in connection with summary judgment briefing. See Expert Report of Kevin J. Miller, dated October 1, 2018 [ECF No. 55-1] (“Miller Report”). Case: 3:17-cv-00903-wmc Document #: 57 Filed: 04/01/19 Page 4 of 19 5 attempting to do exactly what this Court’s Order is designed to prevent—change the opinions and the basis for opinions after an original expert report was issued, after this Court’s deadline for supplementing an expert opinion had passed, after UP took the deposition of the expert, and after UP briefed a summary judgment argument. As a result, there is clear prejudice to UP if the Second Declaration is not stricken. The Court should reject Plaintiffs’ tactics, and UP respectfully requests the Court to strike the Second Miller Declaration pursuant to Federal Rule of Civil Procedure 37. A. Miller’s Claimed Professional Experiences in the Second Miller Declaration Were Not Previously Disclosed. This Court’s Order specifically required that all expert disclosures “must comply with the requirements of Rule 26(a)(2).” (Court’s Order [ECF No. 12], p. 2). Pursuant to F.R.C.P. 26(a)(2), Plaintiffs were required to disclose with Miller’s original written report a complete statement of all opinions that Miller will express and the basis and reasons for them, the facts or data considered, and his qualifications. Fed.R.Civ.P. 26(a)(2). Plaintiffs’ Response claims that “[e]very site for which Miller had relevant professional experience was disclosed in his expert report and his attached CV,” and that the Second Miller Declaration “simply provides detail about his experiences with lead-based paint at those sites.” (Plfs’ Resp. [ECF No. 56], p. 11-12). As detailed extensively in UP’s Motion, nowhere in Miller’s CV is the word “paint” ever mentioned, nor did Miller mention such experience at his deposition, specifically with regard to having any experience with lead-based paint applied to railcars. As is clear from the face of his CV, the details about Miller’s work for various companies that were disclosed at the time that his original report was filed do not contain sufficient information to indicate that such projects involved lead-paint and/or railcars in the manner described in the Second Miller Declaration. Then, when specifically asked at his deposition whether there were any other professional experiences on which he relied in forming his opinions, he testified that there were not. (Miller Dep. Tr. [ECF No. 29], at 13:8-11). UP learned, for the first time, through the Second Case: 3:17-cv-00903-wmc Document #: 57 Filed: 04/01/19 Page 5 of 19 6 Miller Declaration that Miller claims to have experience on projects involving lead paint long after such disclosure was required. Although Plaintiffs attempt to characterize the information in the Second Miller Declaration as merely providing additional foundation and detail in response to UP’s Daubert challenge, it is clear that Miller is trying to change what he testified to under oath to address significant deficiencies by now claiming (in the Second Miller Declaration) to have knowledge and experience that apparently formed the basis for his opinions. B. The Second Miller Declaration Contains New and Different Opinions From The Opinions Set Forth in Miller’s Original Report. 1. Miller’s Original Report Does Not Contain Any Opinions on Releases of PAHs to the Property Resulting from the 1991 and 2008 Fires or on the Impact of Vehicles or Other Fuels on Site During Plaintiffs’ Ownership. The Second Miller Declaration contains new and different opinions that clearly do not appear in the original Miller Report and that appear to be in direct response to criticisms by UP’s expert, Neal Grasso, that Miller failed to consider alternative sources of PAHs and lead, including the impacts of the 1991 and 2008 fires, and the impact of vehicles and semi-trucks on the Property. Mr. Grasso’s expert report detailing the deficiencies in Miller’s October 1, 2018 report was provided to Plaintiffs on November 1, 2018, well ahead of the January 2, 2019 deadline for Miller to supplement his opinion, well ahead of Miller’s January 7, 2019 deposition, and well ahead of Plaintiffs’ summary judgment motion.7 In Miller’s original report, his only opinion pertaining to the fires on the Property is a conclusion that lead found in the soil surrounding Building 5 did not result from the 1991 fire. (See Miller Report [ECF No. 55-1], p. 18). Nowhere in that report is there an opinion about the impact of releases of PAHs resulting from that fire, nor is there any opinion or reference to the 2008 fire that burned down Building 1 (which would have released PAHs into the environment during 7 Excerpts from Mr. Grasso’s Report dated November 1, 2018 addressing the deficiencies in Miller’s Report as it relates to his opinions on sources of PAHs and lead are attached hereto as Exhibit A. Case: 3:17-cv-00903-wmc Document #: 57 Filed: 04/01/19 Page 6 of 19 7 Plaintiffs’ ownership of the Property). Similarly, Miller’s original report does not contain any opinions on the impact of motor vehicles or use of other fuels on the Property during Plaintiffs’ ownership. Plaintiffs essentially concede that this was an untimely disclosure by pointing to Miller’s deposition testimony to establish Miller’s opinion on those fires in the first place. (See Plfs’ Resp. [ECF No. 56], p. 10 n.3). However, Miller’s deposition took place on January 7, 2019, and this Court’s Order required Plaintiffs to supplement Miller’s opinion five days prior to that deposition. The Court’s Order also expressly stated that “there shall be no third round of rebuttal expert reports” and that supplementation “is limited to matters raised in an expert’s first report.” (See Court’s Order [ECF No. 12], p. 2). If, after receiving the expert report of Mr. Grasso, Plaintiffs or Miller felt that his opinions set forth in his original report were incomplete, Plaintiffs could have supplemented Miller’s opinion in the manner required by this Court’s Order.8 They did not. Plaintiffs do not even attempt to justify their non-compliance with F.R.C.P. 26 or with this Court’s Order in regards to Miller’s new opinions on PAHs released from the fires and PAHs attributable to motor vehicles during Plaintiffs’ ownership. Accordingly, Miller’s opinions regarding the 1991 and 2008 fires and the impact of motor vehicles should be stricken and he should be precluded from testifying or offering any opinions on those matters at trial.9 2. The Opinions in the Second Miller Declaration Regarding the Likelihood of Releases From Railcar Operations Are Materially Different from the Opinions Set Forth in the Original Miller Report. Between the time that Plaintiffs submitted the original Miller Report on October 1, 2018 and when the Second Miller Declaration was filed on February 19, 2019, Miller’s opinion has morphed 8 Miller testified that he reviewed the expert report of Neal Grasso prior to his January 7, 2019 deposition. (Miller Dep. Tr. [ECF No. 29], at 61:1-5). 9 Further, nowhere in Miller’s CV or in the Second Miller Declaration does Miller explain how those new opinions on the fires are reliable. He has not disclosed any experience, knowledge, or identified any objective scientific data to render his opinions on such matters admissible under Fed. R. Evid. 702. Case: 3:17-cv-00903-wmc Document #: 57 Filed: 04/01/19 Page 7 of 19 8 from an opinion that certain railcar operations had the “potential” for releases to the environment to an opinion that those releases did actually occur in the manner and from the methods that Miller speculates. Such change is material in this context, as courts considering expert testimony in the context of opinions on releases of substances to the environment have recognized that it would be speculation for an expert to say that something which “could have resulted in a release … did result in an actual release.” See Varlen, 2017 WL 4278787 at *8; Textron, 903 F. Supp. at 1554. Miller’s opinions in his original report offered precisely this type of improper speculation, and he even conceded at his deposition that he has no knowledge regarding the painting methods and practices employed by Chicago St. Paul on the Property. (Miller Dep. Tr. [ECF No. 29], at 117:13-17). The Second Miller Declaration reflects different opinions regarding sources of releases of lead and PAHs to the soil in an attempt to establish that a release of contaminants did actually occur in the manner that he speculates—not merely in an attempt to respond to a Daubert challenge. 3. Plaintiffs’ Response Misstates Miller’s Original Opinions. Plaintiffs attempt to characterize UP’s arguments about the certainty of Miller’s original opinions versus the opinions in the Second Miller Declaration as being merely semantics. However, the changes in Miller’s opinion from something having the “potential” for releases to an opinion that such releases did in fact occur are not semantical and are legally significant, as described above. The Miller Report makes it clear that his opinions were that certain operations and/or practices (which may or may not have actually even occurred on the Property) had the potential for releases to the environment. However, Plaintiffs argue to this Court that his opinions were that the releases actually happened as a “direct consequence” of historic railroad operations. It is telling that Plaintiffs quoted that language in the Miller Report while inserting an ellipsis for the remainder of that sentence from the Miller Report that literally changes the opinion that certain railroad operations had the potential for such releases. Plaintiffs’ Response states the following: Case: 3:17-cv-00903-wmc Document #: 57 Filed: 04/01/19 Page 8 of 19 9 • “I believe this lead impact to be a direct consequence of several historic railcar manufacturing operations and facilities present during the railroad’s tenure . . . includ[ing] . . . sandblasting and painting emissions associated with lead-based paint removal/application.” (See Plfs’ Resp., pp. 5, 7) (emphasis added); • “[C]ontaminant distribution [of PAHs] suggests a nonpoint release source . . . correlate[ing] with multiple release sources . . . [including] coal fired boilers and smokestacks with associated airborne particulate emissions[.]” (See Plfs’ Resp., p. 9) (emphasis added). The Miller Report actually said the following (emphasis on the language omitted by Plaintiffs): • “I believe this lead impact to be a direct consequence of several historic railcar manufacturing operations and facilities present during the railroad’s tenure that had potential for undocumented releases of metals . . . includ[ing] . . . sandblasting and painting emissions associated with lead-based paint removal/application.” (See Miller Report, p. 15) (emphasis added); • “[C]ontaminant distribution [of PAHs] suggests a nonpoint release source . . . correlate[ing] with multiple release sources . . . [including] coal fired boilers and smokestacks with associated airborne particulate emissions[.] … Each of these operations increased the potential to disperse impacts across the entire Site[.]” (See Miller Report, p. 17) (emphasis added). With regard to the remaining quotes to the Miller Report that Plaintiffs cite to in bullet points throughout their Response, each of those statements also reflect that Miller’s original opinion was limited to an opinion about potential releases and not actual releases: • “EnecoTech drew two conclusions of sifnificance with direct bearing on this matter, and I concur [that] …[t]he occurrence of elevated lead concentrations is suggestive of lead-based painting …” (See Plfs’ Resp., p. 5; Miller Report, p. 6) (emphasis added); • “A significant and probable source of lead in Site soil relates to the extensive painting operations associated with the railcar refurbishing and repair.” (See Plfs’ Resp., p. 5; Miller Report, p. 16) (emphasis added); • “Lead paint was in common use during the period the shops were in operation (pre-1957). Fugitive emissions of lead-based paint … represent a significant potential source of lead …” (See Plfs’ Resp., pp. 5-6; Miller Report, p. 16) (emphasis added). Case: 3:17-cv-00903-wmc Document #: 57 Filed: 04/01/19 Page 9 of 19 10 Plaintiffs also point to a summary statement at the beginning of Miller’s report where he generally states in an introductory section of his report that he has concluded “that there was a release of hazardous substances (lead and PAHs) at the Site [and] that such releases occurred prior to 1969 as a direct consequence of former Railroad operations.” (Plfs’ Resp. [ECF No. 56], p. 5; Miller Report [ECF No. 55-1], p. 2). However, Plaintiffs notably left out the beginning of that sentence where he indicated that his conclusions would be discussed more fully in the report. (See Plfs’ Br., p. 5; Miller Report, p. 2 (“As discussed more fully in this report, I have concluded that …”) (emphasis added). As outlined above, the opinions that Miller discussed “more fully” in the Miller Report were opinions about potential and probable sources of releases of lead and PAHs—they were not opinions on actual sources of release. The speculative nature of Miller’s original opinions on how railcar operations may have resulted in releases of lead and PAHs to the soil on the Property is precisely what UP has taken issue with all along. It is improper for Plaintiffs to attempt through the Second Miller Declaration to change Miller’s opinion that a release actually happened on the Property in the way he speculates when his previous opinions were that certain operations had potential for releases. Further, while it may be appropriate in some circumstances to file a declaration that responds to a Daubert challenge when the declaration is consistent with the expert’s overall opinion, the problem is that the Second Miller Declaration is not consistent with Miller’s overall opinion and instead is an attempt to change his opinions. For example, the Second Miller Declaration contains a conclusion regarding lead-paint and removal operations that is expressly at-odds with his deposition testimony regarding the knowledge that he testified to regarding painting operations. At his deposition, Miller testified he did not have knowledge as to which painting or removal methods were utilized at the Property: Q. Do you have any knowledge as to the methods and practices for the painting methods employed by the railroad at this specific site at the time that they operated those paint shops? Case: 3:17-cv-00903-wmc Document #: 57 Filed: 04/01/19 Page 10 of 19 11 A. No, I don’t. Q. So when you say here: Fugitive emissions of lead-based paint during application due to overspray, as well as paint chips and dust from paint removal operations, i.e., sandblasting and sanding, you have no knowledge of whether those practices were actually employed by the railroad on this property specifically? A. Direct, firsthand knowledge, no. I think it’s more likely than not that there were paint removal operations since this was a refurbishing and repair facility. I believe cars would have come in. If they were going to be repainted at the paint shops, they would, at some point in time, need to remove paint. Q. Are you aware that there are other methods of removing paint, other than sandblasting, that were employed by railroads during this time? A. I imagine that there were. They could do it by sanding, by sandblasting, scraping. Q. And potentially other methods as well? A. Potentially. Q. But you don’t have any knowledge of which method may have been used on this property, right? A. No. (Miller Dep. Tr. [ECF No. 29], at 117:13-118:16) (emphasis added). It is clear that Miller testified under oath on January 7, 2019 that he had no knowledge as to whether spray painting methods to apply paint and sandblasting methods to remove paint were utilized on the Property. Accordingly, Miller is not qualified to render an opinion about historic railroad practices to which he testified he had no knowledge. Miller, in the Second Miller Declaration, now claims to have knowledge as to which paint application and removal methods were utilized on the Property and offers the following conclusion regarding paint application and removal methods utilized on the Property: 38. It is also reasonable to conclude based on my experience and review of applicable literature, that Chicago St. Paul spray painted (to apply) and sandblasted (to remove) the lead-based paint on railcars in those paint shops on the Property. Other methods may have included the use of brushes and rollers (to apply paint) and hand sanding (to remove paint). (Miller 2nd Decl. [ECF No. 50], ¶ 38). This is improper supplementing of an expert’s opinion in violation of this Court’s Order. Case: 3:17-cv-00903-wmc Document #: 57 Filed: 04/01/19 Page 11 of 19 12 4. The Second Miller Declaration Contains Other New Opinions and Conclusions Not Previously Disclosed. With regard to Miller’s opinions regarding paint containment methods, Plaintiffs cite to statements in the Miller Report including that “painting operations were conducted long before environmental regulations existed regarding control of emissions from painting and related sandblasting operations” to argue that his opinions in the Second Miller Declaration were previously disclosed regarding the commonality of use of paint containment methods during historical painting operations. (Miller Report [ECF No. 55-1], p. 16; Miller 2nd Decl. [ECF No. 50], ¶ 44). In their Response, Plaintiffs argue that such statements regarding the absence of environmental laws “explain that the painting operations were conducted at a time when modern methods to control—i.e. contain—fugitive paint emissions (such as paint booths) were not likely used at the Property.” (See Plfs’ Resp. [ECF No. 56], at pp. 7-8). However, this argument by Plaintiffs improperly presupposes that environmental regulations would be the only reason that railroads may have had for using methods to control paint emissions, and goes beyond the scope of Miller’s opinion which merely stated a fact that there were no environmental regulations in place during the time of historic railroad operations. There may have been economic or operational reasons that railroads may have controlled fugitive paint emissions that had nothing to do with environmental regulations. Miller offers no opinion that environmental regulations would be the only reason that such methods may have been utilized to permit the inference that Plaintiffs argue in their Response. It is broad speculation and a significant leap to conclude that there was a release of paint to the environment from inside of the paint shops through windows and skylights to outside of those buildings into the soil because of the absence of environmental regulations. The statements in the Second Miller Declaration that it would have been uncommon for paint containment methods to be used during the relevant time periods are Case: 3:17-cv-00903-wmc Document #: 57 Filed: 04/01/19 Page 12 of 19 13 also new, and, given that Miller testified that he did not have knowledge about historic painting operations utilized on the Property, he is not qualified to render such an opinion in the first place. Further, as outlined more fully in UP’s Motion, Miller’s opinions in the Second Miller Declaration regarding concentrations of PAHs and lead on the Property being “consistent” with railroad operations are also departures from the original opinions in the Miller Report. See UP’s Motion, pp. 14-16. For example, the Miller Report states that the smokestack “would likely have resulted in undocumented releases of PAHs” while the Second Declaration now states that ash and particulate matter from the smokestack “was a significant source” of PAHs distributed across the Property. (See Miller Report [ECF No. 55-1], p. 15; Second Miller Declaration [ECF No. 50], at ¶ 61). Overall, the Second Miller Declaration is riddled with new and different opinions in an improper attempt to “beef up” Mr. Miller’s original opinion, which is not proper supplementation in this district. See CTI Systems, S.A. v. Global Finishing Solutions, LLC, No. 14-cv-744, 2016 WL 110605, at *5 (W.D. Wisc. Jan. 8, 2016) (“Parties may not use supplemental reports to “beef up” an expert’s initial opinions or to add new support for those opinions. Such maneuvers would counteract the very purpose of Rule 26(a)(2), which is to give parties full and fair notice of an expert’s opinions early enough in a case to allow them time to plan their strategies accordingly.”); Innogenetics N.V. v. Abbott Labs., No. 05-cv-0575, 2006 WL 6000791, at *2 (W.D. Wis. Aug. 3, 2006) (the court’s preliminary pretrial conference order regarding supplementation “is intended to provide parties an opportunity to correct mistakes and oversights, not to include new examples and illustrations that could have been included in an original expert report”). Case: 3:17-cv-00903-wmc Document #: 57 Filed: 04/01/19 Page 13 of 19 14 C. Plaintiffs’ Cited Authority Does Not Support Their Claim That The Second Miller Declaration Is Appropriate In Response to UP’s Daubert Challenge. Plaintiffs attempt to circumvent this Court’s Order by arguing that the Second Miller Declaration was filed in response to a Daubert challenge. As discussed above, the Second Miller Declaration appears less to be in response to UP’s Daubert challenge and more of an attempt to cure material deficiencies in Miller’s opinions that were known to Plaintiffs prior to UP’s challenge. Nonetheless, the cases cited by Plaintiffs describe materially different circumstances where federal courts have found it appropriate to submit an expert affidavit in response to a Daubert challenge, and thus none of Plaintiffs’ arguments on the appropriateness of the Second Miller Declaration find legal purchase in the cases cited.10 See Lyman v. St. Jude Med. S.C., Inc., 580 F. Supp. 2d 719, 725 n.3 (E.D. Wis. 2008) (the court found the affidavit by a new expert submitted in response to a Daubert challenge was appropriate where the affidavit was submitted by a different expert than the challenged-expert and new expert provided an opinion on the reliability of the challenged-expert’s methodologies); In re Fluidmaster, Inc., Water Connector Components Prods. Liab. Litig., No. 14- CV-5696, 2017 WL 1196990, at *16 (N.D. Ill. Mar. 31, 2017) (the short expert declaration submitted in response to Daubert challenge was to clarify a factual mistake where the expert brought the wrong product to his deposition, and the declaration clarified that the product that was actually tested in forming his expert opinion was the correct product); Cedar Petrochemicals, Inc. v. Dongbu Hannong Chem. Co., 769 F. Supp. 2d 269, 279 n. 3 (S.D.N.Y. 2011) (where the court ruled that Rule 26 violation was harmless because the additional evidentiary details submitted at summary judgment 10 Plaintiffs also cite to Felski v. Bretl, No. 16-CV-1062, 2018 WL 4689119, at *9 (E.D. Wis. Sept. 27, 2018) for the proposition that a movant may offer additional affidavits in reply to rectify an evidentiary deficiency or to provide further foundational support for a movant’s statement of material facts. However, that case was dealing with additional affidavits by fact witnesses, not experts, and is thus inapposite. Case: 3:17-cv-00903-wmc Document #: 57 Filed: 04/01/19 Page 14 of 19 15 through expert declaration described the expert’s background and expert previously “testified extensively regarding his background” at his deposition). In an unreported case out of the Massachusetts district court, Massachusetts Mutual Life Insurance Co. v. DB Structured Products, Inc., the district court allowed some expert supplementation in response to new criticisms raised after the experts provided their original reports, while other portions of the experts’ declarations “cross[ed] the line from proper to improper supplementation” and went beyond the scope of the original reports. Mass. Mut. Life Ins. Co. v. DB Structured Prods, Inc., No. 11-30039, 2015 WL 12990692, at *4 (D. Mass. Mar. 31, 2015). The court found that it was unfair for the proffering party to rely on it at summary judgment when the other party did not have an opportunity to explore the issues in discovery. Id. Unlike in Mass. Mutual, and as discussed above, the Second Miller Declaration contains new information and opinions that were not in response to any “new” criticisms but appear to be responding to criticisms of the opinions in the original Miller Report by UP’s expert Neal Grasso as well as attempting to rectify deficiencies in admissibility requirements for expert opinions. Further, the Declaration of Neal Grasso filed in support of UP’s Response in Opposition to Plaintiffs’ summary judgment motion did not contain any new criticisms of Miller’s opinions and was limited to the separate issue of compliance with the National Contingency Plan. (See Declaration of Neal Grasso [ECF No. 38]). Overall, the situation in the Mass. Mutual case is not analogous to this situation. Striking the Second Miller Declaration would be an appropriate sanction at this stage of litigation.11 11 Courts in this district have stricken supplemental expert reports in their entirety for failing to comply with the district courts’ preliminary pretrial conference orders. See CTI Systems, 2016 WL 110605 at *4 (striking untimely improper supplement of expert testimony at summary judgment and limiting opinions of expert at trial); Citgo Petroleum Corp. v. Ranger Enterprises, Inc., 632 F. Supp. 2d 878, 884-885 (W.D. Wis. 2009). UP submits that the Second Miller Declaration is improper supplement to an expert’s opinion and should be addressed by this Court as such, regardless of whether that supplement is submitted in the form of a supplemental report or a declaration. However, if the Court declines to strike the Second Case: 3:17-cv-00903-wmc Document #: 57 Filed: 04/01/19 Page 15 of 19 16 D. UP Is Prejudiced By Plaintiffs’ Untimely Disclosures and Their Violation of This Court’s Order Are Not Harmless. Given the extent of the new and different opinions being offered in the Second Miller Declaration and contrary to Plaintiffs’ inflammatory language, UP’s arguments that it will be prejudiced if the Second Miller Declaration is not stricken are not disingenuous. That Miller now claims to have experience involving lead-based paint is not merely additional foundational detail in response to a Daubert challenge—it goes to the very heart of the issues in this litigation and whether Miller is qualified to render the opinions being offered. Under the standard set forth in NutraSweet Company v. X-L Engineering Company, 227 F.3d 776 (7th Cir. 2000), an expert must still otherwise be qualified to render the opinions being offered to make them admissible under Federal Rule of Evidence 702 before a court can apply a more “flexible” standard on evaluating the reliability of a qualified expert’s opinion. Miller is a hydrogeologist. He is not an expert on historic railroad operations and cannot offer testimony on topics on which, by his own admission, he does not have knowledge. As Plaintiffs readily admit in their Response, neither party is aware of any living person with first-hand knowledge of the painting or other railcar operations at the Property which they claim first began over 120 years ago. Accordingly, Plaintiffs must rely exclusively on the opinions of Miller in this case to support their claims that UP is responsible for the soil contamination on the Property (rather than others, including Plaintiffs and/or their tenants or third-parties, for activities that took place on or near the Property). Miller’s professional qualifications, and whether he contains the requisite knowledge or expertise to render certain opinions, are therefore critical to Plaintiffs’ case and their summary judgment motion. UP questioned Miller extensively about his prior professional Miller Declaration in its entirety, UP’s Motion identifies specific paragraphs in the Second Miller Declaration which offer new or different information and/or opinions than had been previously disclosed, including but not limited to, ¶¶ 3, 4, 5, 6, 8, 9, 10, 26, 27, 33, 34, 35, 37, 38, 39, 40, 41, 42, 43, 44, 45, 48, 49, 61, 63, 69, 70, 71, and 83. Case: 3:17-cv-00903-wmc Document #: 57 Filed: 04/01/19 Page 16 of 19 17 experiences and whether he relied on any of them in forming his opinions in this matter. His testimony did not produce anywhere near the numerous items about Miller’s professional experiences that appear in the Second Miller Declaration.12 UP has already spent time addressing certain opinions and conclusions in the Miller Report which were shown to have no basis, and it would be prejudicial to require UP to now address all of the new information in the Second Declaration at this late stage in the litigation. The Miller Report laid out certain opinions relating to historic railroad operations which were flat-out incorrect and/or had no verifiable support. That includes, but is not limited to opinions that PAHs on the Property could have been released from a locomotive roundhouse (which was never actually located on the Property) and the use of oilers on steam locomotives which Miller attributes as a “significant potential source” of releases, despite there being no verifiable evidence that locomotives (at a roundhouse or otherwise) were present on the Property given it was a railcar (not locomotive) facility. See Miller Report [ECF No. 55-1], pp. 12-14; see also Miller Dep. Tr. [ECF No. 29], at 60:20-62:5 (location of locomotive roundhouse); 110:4-116:24 (locomotive ash pan dumping); 73:19-76:5 (locomotive use on the Property and location and timing of the main line). It was clear from his testimony and his report that Miller did not have the requisite knowledge to render opinions on historic railcar operations. Further, until the Second Miller Declaration was filed, UP had no reason to believe, based on Miller’s previous disclosures, that he had any previous experiences on sites involving lead-based paint, or previous experience pertaining to lead-based paint on railcars. On a whole, Plaintiffs’ previous disclosures regarding their proffered expert indicated that Miller’s 12 UP does not concede that these claimed, newly disclosed professional experiences render Miller qualified to offer certain opinions in this matter, but rather points out that given the timing of such disclosures, UP has been prejudiced by being deprived of such information in preparing its litigation strategy. Such harm cannot be cured as UP has devoted significant time and resources in shaping its litigation strategy based on Miller’s original opinions. Case: 3:17-cv-00903-wmc Document #: 57 Filed: 04/01/19 Page 17 of 19 18 opinion had material and significant deficiencies with respect to both his knowledge and professional experiences that would not render him qualified to offer the opinions in the original Miller Report. Plaintiffs’ late disclosures are therefore not harmless and cannot at this stage be cured as UP relied on this Court’s Order governing expert disclosures as required by F.R.C.P. 26(a)(2)(B).13 See CTI Systems, 2016 WL 110605, at *4 (precluding an expert from testifying at trial due to a late disclosure that could not be cured, noting that the “purpose of setting and enforcing deadlines for expert disclosures is to allow the parties ample time to prepare their cases, present issues for summary judgment, and plan trial strategies.”). CONCLUSION For the foregoing reasons, UP request that this Court grant its Motion to Strike the Second Miller Declaration. Dated: April 1, 2019 Respectfully Submitted, /s/ Matthew Cannon Matthew Cannon Jonathan H. Claydon Tiffany M. Andras Greenberg Traurig, LLP 77 W. Wacker Dr., Suite 3100 Tel: (312) 456-8400 Fax: (312) 456-8435 Attorneys for Defendant 13 To support their arguments about Miller’s professional experiences disclosed in the Second Miller Declaration, Plaintiffs cite to Allgood v. General Motors Corp., No. 102-CV-1077, 2006 WL 2669337 (S.D. Ind. Sept. 18, 2006). The court in that case stated, “While Rule 26 demands that expert disclosures be ‘complete,’ there is no requirement that such disclosures cover any and every objection or criticism of which an opposing party might conceivably complain.” (Id. at *5). However, from day one there was an issue in this case regarding how lead was released into the soil on the Property and who released it. Plaintiffs knew their expert’s qualifications and opinions would be critical to this issue and therefore they should have disclosed those now claimed experiences” and opinions in accordance with the Court’s Order. Case: 3:17-cv-00903-wmc Document #: 57 Filed: 04/01/19 Page 18 of 19 CERTIFICATE OF SERVICE I, Tiffany M. Andras, an attorney, hereby certify that on April 1, 2019, I caused the foregoing Defendant’s Reply Brief In Support of Its Motion to Strike Declaration of Kevin J. Miller In Support of Plaintiffs’ Motion for Partial Summary Judgment On The Basis That It Violates This Court’s Preliminary Pretrial Conference Order to be served on all counsel of record via the Court’s electronic filing service (“ECF”). By: /s/ Tiffany M. Andras Case: 3:17-cv-00903-wmc Document #: 57 Filed: 04/01/19 Page 19 of 19