Total E&P USA, Inc. v. Marubeni Oil & Gas (USA), Inc. et al

RESPONSE in Opposition to 145 Opposed MOTION to Strike Reciprocal Expert Reports and Testimony

S.D. Tex.January 12, 2018

1 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION TOTAL E&P USA, INC. * CIVIL ACTION NO. Plaintiff * 4:16-cv-02674 * v. * JUDGE DAVID HITTNER * MARUBENI OIL & GAS (USA) INC. * Defendant * ************************************* MARUBENI OIL & GAS (USA) LLC’S OPPOSITION TO TOTAL E&P USA, INC.’S PROTECTIVE MOTION TO STRIKE RECIPROCAL EXPERT REPORTS AND TESTIMONY Marubeni Oil & Gas (USA) LLC (“MOGUS”), through undersigned counsel, respectfully submits this opposition to the Protective Motion to Strike Reciprocal Expert Reports and Testimony (the “Protective Motion”) filed by Total E&P USA, Inc. (“TOTAL”). The Protective Motion is procedurally improper under Federal Rule of Civil Procedure 7(b) and Local Rule 7.1 and is otherwise without basis in law or fact. What TOTAL actually seeks is an untimely and unwarranted extension of this Court’s deadline to challenge the qualifications and opinions of MOGUS’s experts. TOTAL has failed, without excuse, to comply with the Court’s Rule 16 Scheduling Order deadline to challenge expert witnesses and should be deemed to have waived any objections it might have to MOGUS’s experts’ qualifications or to the Case 4:16-cv-02674 Document 162 Filed in TXSD on 01/12/18 Page 1 of 11 2 admissibility of their opinions and testimony. Thus, TOTAL’s Protective Motion must be denied. BACKGROUND The deadline for the filing of pretrial motions initially was set by the Court for October 2, 2017. Doc. 22. The Court’s Rule 16 Scheduling Order stated: MOTION CUT-OFF. No motion, including motions to exclude or limit expert testimony under Fed. R. Evid. 702, shall be filed after this date except for good cause shown. See LR 7. Id. (emphasis added). This Court’s Procedures confirm that: If a party or counsel for a party fails to meet the deadlines in the Scheduling Order …this Court may impose sanctions as provided in Rule 37(b)(2) and Rule 16(f) of the Federal Rules of Civil Procedure. See Judge Hittner’s Procedures, p. 7 (emphasis added). Further, “[t]he Scheduling Order shall control the subsequent course of the case and shall not be modified except by leave of this Court upon a showing of good cause.” Id. (emphasis added). After multiple extensions of the deadline contained in the Rule 16 Scheduling Order, the motion cut-off was reset to December 22, 2017. Doc. 137. On that date, MOGUS filed five separate and detailed motions in limine regarding the five expert Case 4:16-cv-02674 Document 162 Filed in TXSD on 01/12/18 Page 2 of 11 3 witnesses disclosed by TOTAL.1 TOTAL, however, did not file any specific motions seeking to exclude the testimony of any of MOGUS’s experts. MOGUS’s motions assert various grounds for exclusion of TOTAL’s experts, including qualification and admissibility of their opinions under Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). Specific arguments unique to each individual expert were articulated by MOGUS in its motions. A major and consistent argument by MOGUS, amongst others, is that each of TOTAL’s experts offers purported opinions (and commentary) on issues clearly outside of their expertise. Rather than file specific motions in limine regarding particular experts and opinions, TOTAL filed the present Protective Motion vaguely requesting that “should the Court strike any of its experts, reciprocal expert reports and testimony by MOGUS’s experts be struck as well.” Doc. 145, p.1. TOTAL contends: To the extent MOGUS files any motion challenging the appropriateness of one or more of TEP USA’s experts reports and/or testimony that the Court believes has merit, TEP USA would similarly request that MOGUS’s reciprocal expert on that topic be stricken on those grounds. Alternatively, and at a minimum, TEP USA should at least be provided the opportunity to brief its argument as to any particular MOGUS expert in this regard. 1 See Docs. 146, 147, 148, 149, and 152. In these motions, MOGUS provides detail on the rationale for the exclusion of certain opinions and testimony unique to each of TOTAL’s experts. Case 4:16-cv-02674 Document 162 Filed in TXSD on 01/12/18 Page 3 of 11 4 TEP USA at this time has not filed any motion attacking the qualifications of MOGUS’s experts, but TEP USA reserves the right to question the credentials of MOGUS’s experts at trial. Id., p. 2 (emphasis added). TOTAL’s Protective Motion cites no specific grounds or authority for the exclusion of any of MOGUS’s experts’ testimony or opinions, contains no prayer for relief, and was not accompanied by a proposed order setting forth the specific relief requested. See id. TOTAL’s Protective Motion is improper and must be denied. First, the relief requested is speculative and vague, and TOTAL fails to supply any grounds or authority upon which any of MOGUS’s experts’ opinions or testimony should be excluded. Unlike TOTAL’s experts, MOGUS’s experts have not offered improper legal conclusions or opinions outside of their areas of expertise. TOTAL’s blanket request for exclusion lacks foundation and is therefore improper. This Court should not punish MOGUS and exclude its expert testimony simply because TOTAL’s expert testimony is properly excluded. Second, TOTAL was required, but failed, to timely seek disqualification or exclusion of any of MOGUS’s experts in accordance with the Rule 16 Scheduling Order deadline. Now that the deadline to make those challenges has passed, TOTAL should not be given any further opportunity to attack the qualifications of MOGUS’s experts or the admissibility of their opinions. Any such objections to MOGUS’s Case 4:16-cv-02674 Document 162 Filed in TXSD on 01/12/18 Page 4 of 11 5 experts should be deemed waived, and TOTAL’s Protective Motion should be denied. LAW AND ANALYSIS I. TOTAL’S MOTION IS DEFICIENT ON ITS FACE. Federal Rule of Civil Procedure 7(b)(1) requires that all motions “state with particularity the grounds for seeking the order;” and “state the relief sought.” Fed. R. Civ. P. 7(b)(1) (emphasis added). Local Rule 7.1 further requires that all opposed motions shall “[i]nclude or be accompanied by authority” as well as “[b]e accompanied by a separate proposed order granting the relief requested and setting forth information sufficient to communicate the nature of the relief granted . . .” LR 7.1 (emphasis added). Rule 7(b)’s “particularity requirement is meant ‘to give notice of the basis for the motion to the court and the opposing party so as to avoid prejudice, providing that party with a meaningful opportunity to respond and the court with enough information to process the motion correctly.’” Alonso v. Agrigenetics, Inc., 2005 WL 8131247, at *3 (S.D. Tex. 2005) (quoting Andreas v. Volkswagen of Am., Inc., 336 F.3d 789, 793 (8th Cir. 2003)); see also Allen v. Rector, 2001 WL 694035, at *1 (W.D. Tex. 2001) (“The purpose of the particularity requirement in [FRCP Rule] 7(b)(1) . . . is to afford notice and an opportunity to respond.”). Case 4:16-cv-02674 Document 162 Filed in TXSD on 01/12/18 Page 5 of 11 6 TOTAL’s Protective Motion does not satisfy the standards of either Rule 7(b)(1) or LR 7.1. The motion does not state with particularity the grounds for the motion or the relief sought, does not provide any authority for the vague and overly broad relief requested, and is not accompanied by a proposed order containing sufficient information to ascertain the specific nature of the relief sought. The motion does not identify a single factual or legal basis upon which any of MOGUS’s expert witnesses may be disqualified or pursuant to which their opinions and testimony could be found inadmissible. TOTAL has not argued, and cannot show, that MOGUS’s experts’ opinions suffer from the same defects as TOTAL’s experts’ opinions. TOTAL’s blanket request for parallel relief is unfounded and cannot be granted. That this Court might grant one of MOGUS’s timely and properly filed motions in limine and exclude some or all of the testimony of one or more of TOTAL’s experts does not require the automatic exclusion of “MOGUS’s reciprocal expert on that topic,” and TOTAL supplies no authority to support this assertion. The burden is on TOTAL to supply a factual and legal basis for the exclusion of any of MOGUS’s experts, which it has failed to do. Absent compliance with Rule 7(b)(1) and LR 7.1, the Protective Motion is insufficient to put MOGUS on notice or to give MOGUS a meaningful opportunity to respond. See Alonso, 2005 WL 8131247 at *3. Accordingly, the Protective Motion cannot be granted and should be denied. Case 4:16-cv-02674 Document 162 Filed in TXSD on 01/12/18 Page 6 of 11 7 II. TOTAL HAS WAIVED ANY OBJECTIONS TO MOGUS’S EXPERTS. This Court must treat TOTAL’s Protective Motion for what it really is - an untimely, improper, and unjustified request for additional time to seek disqualification of MOGUS’s expert witnesses and/or exclusion of their testimony and opinions. Under Rule 16(b)(4), the court’s scheduling order “may be modified only for good cause and with the judge’s consent.” Fed. R. Civ. P. 16(b)(4). This standard is specifically incorporated in the Court’s Rule 16 Scheduling Order and reiterated in the Court’s Procedures. Doc. 22; Judge Hittner’s Procedures, p. 7. The trial court has “broad discretion to preserve the integrity and purpose of the pretrial order.” Leggett & Platt, Inc. v. Yankee Candle Co., 2008 WL 8792255, at *1 (N.D. Tex. 2008) (quoting Geiserman v. MacDonald, 893 F.2d 787, 790 (5th Cir. 1990)). “The good cause standard” under Rule 16(b)(4) “requires the ‘party seeking relief to show that the deadlines cannot reasonably be met despite the diligence of the party needing the extension.’” S&W Enterprises, L.L.C. v. SouthTrust Bank of Alabama, NA, 315 F.3d 533, 535 (5th Cir. 2003) (quoting 6A Charles Alan Wright et al., Federal Practice and Procedure § 1522.1 (2d ed. 1990)). Rule 16(f) authorizes the district court “[o]n motion or on its own” to sanction a party who “fails to obey a scheduling or other pretrial order” including “prohibiting the disobedient party from supporting or opposing designated claims or defenses, or from introducing designated matters in evidence.” Fed. R. Civ. P. 16(f) (incorporating Case 4:16-cv-02674 Document 162 Filed in TXSD on 01/12/18 Page 7 of 11 8 Fed. R. Civ. P. 37(b)(2)(A)(ii)-(vii)). This Court specifically put the parties on notice that a failure to meet a deadline in the Rule 16 Scheduling Order may result in the imposition of these sanctions. See Judge Hittner’s Procedures, p. 7. Courts have held that a motion seeking exclusion of expert testimony filed after the scheduling order deadline to do so, without leave of court and without “any evidence or explanation to show that good cause exists for the Court to permit it” to be filed late, is properly denied in the trial court’s discretion. Leggett & Platt, 2008 WL 8792255 at *1. Here, the Court’s deadline to bring motions challenging the qualifications and opinions of expert witnesses has long been set and was repeatedly extended. See Docs. 22, 99, 116, and 137. TOTAL has not even attempted to meet the “good cause” standard required under the law, this Court’s Scheduling Order, and this Court’s Procedures, to justify further extension of the deadline. TOTAL, in fact, supplies no excuse for its failure to timely bring a proper motion setting forth the grounds and authority under which any of MOGUS’s experts should be disqualified or their opinions excluded. TOTAL has not argued, much less proven, that the December 22, 2017 deadline could not “reasonably be met despite the diligence of” TOTAL. See S&W Enterprises, 315 F.3d at 535. TOTAL should, therefore, be deemed to have waived any objections to MOGUS’s experts’ qualifications or the admissibility of their opinions and testimony as a result of its failure to comply with the Court’s Rule 16 Scheduling Order. See Fed. Case 4:16-cv-02674 Document 162 Filed in TXSD on 01/12/18 Page 8 of 11 9 R. Civ. P. 16(f); Fed. R. Civ. P. 37(b)(2)(A)(ii); Judge Hittner’s Procedures, p. 7; Leggett & Platt, 2008 WL 8792255 at *1. CONCLUSION For the foregoing reasons, the Protective Motion to Strike Reciprocal Expert Reports and Testimony filed by Total E&P USA, Inc. should be denied. Respectfully submitted, LOOPER GOODWINE P.C. /s/ Paul J. Goodwine Paul J. Goodwine (Attorney-in-Charge) LA Bar No. 23757; SDTX ID No. 437800 Holly O. Thompson LA Bar No. 31277; SDTX ID No. 2953818 Taylor P. Mouledoux LA Bar No. 31889; SDTX ID No. 1581156 650 Poydras Street, Suite 2400 New Orleans, Louisiana 70130 Telephone: (504) 503-1500 Telecopier: (504) 503-1501 pgoodwine@loopergoodwine.com hthompson@loopergoodwine.com tmouledoux@loopergoodwine.com -and- Case 4:16-cv-02674 Document 162 Filed in TXSD on 01/12/18 Page 9 of 11 10 SCHONEKAS, EVANS, McGOEY & McEACHIN, LLC Kyle Schonekas LA Bar No. 11817; SDTX ID No. 305350 Joelle F. Evans LA Bar No. 23730; SDTX ID No. 436275 909 Poydras Street, Suite 1600 New Orleans, LA 70112 Telephone: (504) 680-6050 Telecopier: (504) 680-6051 kyle@semmlaw.com joelle@semmlaw.com Attorneys for Marubeni Oil & Gas (USA) LLC Case 4:16-cv-02674 Document 162 Filed in TXSD on 01/12/18 Page 10 of 11 11 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the above and foregoing pleading has been served on all counsel of record for the parties via e-mail, FedEx and/or by electronic filing in the Court’s electronic filing system on this 12th day of January, 2018. /s / Paul J. Goodwine Case 4:16-cv-02674 Document 162 Filed in TXSD on 01/12/18 Page 11 of 11