Sullivan et al v. Saint-Gobain Performance Plastics Corporation

REPLY to Response to 245 MOTION to Strike Plaintiffs' Untimely Expert Disclosures

D. Vt.March 4, 2019

UNITED STATES DISTRICT COURT DISTRICT OF VERMONT JAMES D. SULLIVAN et al., individually, and on behalf of a Class of persons similarly situated, Plaintiffs, v. SAINT-GOBAIN PERFORMANCE PLASTICS CORPORATION, Defendant. Case No. 5:16-cv-00125-GWC Hon. Geoffrey W. Crawford REPLY IN FURTHER SUPPORT OF SAINT-GOBAIN’S MOTION TO STRIKE PLAINTIFFS’ UNTIMELY EXPERT DISCLOSURES Saint-Gobain respectfully submits this reply to briefly respond to certain arguments made in Plaintiffs’ opposition to Saint-Gobain’s motion to strike their untimely expert declarations. Plaintiffs Rely on New Opinions in New Declarations in Their Daubert Brief Plaintiffs say that “[t]he second declarations of Dr. Hopke, Mr. Yoder, Dr. Siegel, and Mr. Unsworth simply summarize and incorporate their rebuttal reports” and “contain no new opinions whatsoever.” (Dkt. 248 at 1.) Initially, Saint-Gobain questions the utility of proffering a new, untimely declaration that just summarizes old opinions. Nor is an additional report authorized simply because a “plaintiff seeks to bolster its earlier submission.” Allen v. Dairy Farmers of Am., Inc., 2014 WL 2040133, at *5 (D. Vt. May 16, 2014). But more important, Plaintiffs’ position is belied by their opposition to Saint-Gobain’s Daubert motion. That brief refers to new matters stated—for the first time—in the belated second declarations of Mr. Yoder, Dr. Hopke, and Dr. Siegel. First, Plaintiffs rely significantly on Mr. Yoder’s new declaration in response to Saint- Gobain’s challenges over his acknowledged inability to determine the presence, amount, or source Case 5:16-cv-00125-gwc Document 251 Filed 03/04/19 Page 1 of 8 2 of PFOA at any location in the proposed class area. (Dkt. 218-1 at 24-25.) Mr. Yoder admitted that his model “wasn’t designed to tell us how much PFOA was deposited on property owned by a particular individual at a particular time.” (Yoder Tr. at 160:16-162:22.) But Plaintiffs now advance his new declaration to contend, for the first time, that “[a]lthough Mr. Yoder’s model has not yet been used for this purpose, it can be.” (Dkt. 246 at 28 (emphasis added).) Plaintiffs then go on to quote Mr. Yoder’s new second declaration, which now contends that “[f]or any emissions level chosen, my model can be used to determine, to a reasonable degree of scientific certainty, the amount of PFOA deposited on a given parcel of property as an annual rate of deposition (grams per square meter per year) or cumulatively through the years. When I was asked the questions in my deposition about whether my model could tell us exactly how much PFOA was deposited over time or in any given year at any specific property within the class area, I answered “no” because we were primarily focused at the time on determining whether the pattern of deposition matched the pattern of groundwater contamination and were using different emissions scenarios for this purpose.” (Id. (emphasis added).) This is admittedly a new opinion, and a new opinion on a critical issue. Mr. Yoder now says, in the midst of class certification briefing, that he has a previously undisclosed method for determining presence and amount of PFOA throughout the class area. Mr. Yoder still has not conducted the analysis that he now says is possible, though he had every opportunity to do so during the expert disclosure period. Saint-Gobain is prejudiced by the introduction of this new opinion, long after initial expert reports were due, long after rebuttal expert reports were due, and long after Mr. Yoder’s deposition. His late-breaking proposal for a new method in his new declaration is a quintessential “moving target” expert opinion and should be stricken as such. Haller v. AstraZeneca Pharms. LP, 598 F. Supp. 2d 1271, 1296-97 (M.D. Fla. 2009). Case 5:16-cv-00125-gwc Document 251 Filed 03/04/19 Page 2 of 8 3 Second, Plaintiffs rely on Dr. Hopke’s new opinions regarding the AMEC Foster Wheeler Report to try to defend against Saint-Gobain’s challenge to his lack of basis for his estimates of emissions from the Chemfab facilities. (See Dkt. 218-1 at 40-44.) In stating that Dr. Hopke used a “5,000 ppm number in his calculations” for one emissions model, they note that AMEC Foster Wheeler “used 3,000 ppm in its most recent calculations.” (Dkt. 246 at 27 n.24.) Dr. Hopke further explains in his new declaration that the AMEC emissions estimate is “significantly higher than Barr’s estimates, but lower than mine,” attempting to bolster his opinion with a source he did not rely on in forming it. (Dkt. 237-6 ¶ 8.) Saint-Gobain had no opportunity to investigate these new opinions about the AMEC Foster Wheeler Report or to depose Dr. Hopke or Plaintiffs’ other experts regarding it. Plaintiffs argue that their experts’ reliance on the AMEC Foster Wheeler Report in their new declarations is proper because they first received that report six days after they submitted a January 10, 2019 public records request to Vermont’s DEC. (Dkt. 248 at 2.) But to the extent that Plaintiffs wished to rely on this information, they could have requested it months ago. The AMEC Foster Wheeler Report is dated May 2018. Plaintiffs did not serve rebuttal expert disclosures until August 2018. Their experts’ retroactive reliance on information that Plaintiffs did not even request until nearly two months after Saint-Gobain filed its Daubert motions is highly prejudicial to Saint-Gobain. Third, Plaintiffs rely extensively on Dr. Siegel’s second declaration in an effort to rebut Saint-Gobain’s challenges to the reliability of his methodology. They state that “Dr. Siegel explained his methodology” in a variety of places, including “his Second Declaration filed with Plaintiffs’ Class Certification Reply Brief.” (Dkt. 246 at 21.) They accuse Saint-Gobain of paying “no heed to these explanations,” though they proffered this latest explanation little more than a week ago. (Id.) Moreover, Plaintiffs say Dr. Siegel “further elaborated” on his source attribution Case 5:16-cv-00125-gwc Document 251 Filed 03/04/19 Page 3 of 8 4 analysis with two new paragraphs of opinions stated for the first time in his new declaration, which Plaintiffs present in full in their brief. (Dkt. 246 at 23-24.) Further, Plaintiffs rely on Dr. Siegel’s second declaration as their sole support for the proposition that “Dr. Siegel compared the results based on the air deposition modeling and his calculations on the migration of the PFOA in representative soils and groundwater to the primary data on groundwater contamination.” (Id. at 29-30.) Plaintiffs cannot backfill deficiencies in Dr. Siegel’s opinions with a new declaration submitted after the filing of briefing, immunized from deposition scrutiny by Saint-Gobain. “A scheduling order is not a frivolous piece of paper, idly entered, which can be cavalierly disregarded by counsel without peril.” Cruz v. Bristol-Myers Squibb Co., PR, 699 F.3d 563, 570 (1st Cir. 2012) (quotation omitted). In addition to the prejudice to Saint-Gobain outlined above, allowing Plaintiffs to serve new expert opinions out of time and in the midst of critical briefing “would undermine the court’s ability to control its docket” and “disrupt the agreed-upon course of the litigation.” Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 610 (9th Cir. 1992). The initial reports, rebuttal reports, and depositions of Plaintiffs’ experts were completed over the course of months, all in accordance with this Court’s scheduling orders. The new declarations, which proffer new opinions, thus explaining the time and expense Plaintiffs incurred in assembling them, frustrate this Court’s scheduling orders. The new declarations should be stricken. Plaintiffs Attempt to Leverage Mr. Spiese’s Expert Opinion to Bolster Their Own Plaintiffs claim that their proffer of a declaration from Richard Spiese, an employee of Vermont’s DEC, “contains only factual information, and no opinion testimony whatsoever, expert or otherwise.” (Dkt. 248 at 9.) They say it was proffered simply to convey the fact of Vermont DEC’s “‘expressed position’” that the historical operations of the Chemfab plant “‘distributed PFOA throughout the PFOA Area of Interest, including both Corrective Action Area I and Case 5:16-cv-00125-gwc Document 251 Filed 03/04/19 Page 4 of 8 5 Corrective Action Area II.’” (Id. (quoting Dtkt. 237-1).) This contention is belied by Plaintiffs’ opposition to Saint-Gobain’s Daubert motion. There, Plaintiffs quote this statement by Mr. Spiese in an attempt to support Dr. Siegel’s expert testimony. In that brief, rather, they quote this language in support of their statement that “[t]he Vermont Agency for Natural Resources tested the same opinion with air modeling and came to the same conclusion.” (Dkt. 246 at 24 (emphasis added).) This language—tests, modeling, opinions, and conclusions—do not connote “factual information,” as Plaintiffs say, but are all the hallmarks of expert testimony. If Plaintiffs were offering Mr. Spiese’s declaration solely for factual information, they would have no reason to highlight his qualifications, as they do. (Dkt. 237-1 at 4.) Plaintiffs cannot submit untimely expert opinion under the guise of fact testimony1 to bolster deficiencies in their retained experts’ testimony. Plaintiffs Filed Dr. Shepard and Mr. Brandt’s Reports to Support Class Certification Plaintiffs say that they did not file Dr. Shepard and Mr. Brandt’s supplemental reports to support class certification, but simply to complete the record after Saint-Gobain “filed these two experts’ original expert reports as part of its Response in Opposition to Plaintiffs’ Motion for Class Certification.” (Dkt. 248 at 2.) None of this explanation is stated in Plaintiffs’ reply in support of class certification. To the contrary, that reply emphasizes these experts’ opinions as supporting class certification on medical monitoring. They proffer Dr. Shepard’s opinion because, they say, he “has developed a class-wide methodology to derive the present value calculation of the medical 1 Plaintiffs claim that Saint-Gobain’s service of a subpoena on Mr. Spiese last week is a tacit acknowledgement that he offers only fact testimony. To the contrary, Saint-Gobain served that subpoena in an abundance of caution to prevent any arguable waiver as to factual aspects of Mr. Spiese’s opinion by failing to serve before the March 1 fact discovery cut-off. Saint-Gobain specifically acknowledged this in its service email transmitting the subpoena, and it noted that its pending motion to strike Mr. Spiese’s declaration may render his deposition unnecessary. Case 5:16-cv-00125-gwc Document 251 Filed 03/04/19 Page 5 of 8 6 monitoring program.” (Dkt. 237 at 22 n.24.) And they explain that Mr. Brandt will “negotiate and contract for all medical monitoring services at costs comparable to lowest group insurance rates, and to provide claims administration auditing” in order “[t]o manage the program as economically as possible.” (Dkt. 237 at 22.) It is thus plain that Plaintiffs are now proffering these experts’ opinions to support class certification, more than a year after their deadline to do so. Yet Saint-Gobain has been deprived of its opportunity to depose these experts with regard to class certification opinions or to move to exclude them based on insufficient fit to class certification. That great prejudice requires excluding the use of these reports in support of class certification. CONCLUSION For the foregoing reasons and those set forth in its opening brief, Saint-Gobain respectfully requests the Court (1) strike Plaintiffs’ untimely and improper expert disclosures and direct the refiling of a compliant reply brief that does not rely on those disclosures; or (2) allow additional depositions and Daubert challenges to those disclosures with corresponding changes to the schedule. Dated: March 4, 2019 Respectfully submitted, /s/ R. Bradford Fawley R. Bradford Fawley DOWNS RACHLIN MARTIN PLLC 28 Vernon Street, Suite 501 Brattleboro, VT 05301-3668 Telephone: (802) 258-3070 Facsimile: (802) 258-4875 bfawley@drm.com Sheila L. Birnbaum (pro hac vice) Mark S. Cheffo (pro hac vice) Douglas Fleming (pro hac vice) Bert L. Wolff (pro hac vice) Lincoln Davis Wilson (pro hac vice) DECHERT LLP Three Bryant Park 1095 Sixth Avenue Case 5:16-cv-00125-gwc Document 251 Filed 03/04/19 Page 6 of 8 7 New York, NY 10010 Tel: (212) 698-3500 Fax: (212) 698-3599 sheila.birnbaum@dechert.com mark.cheffo@dechert.com douglas.fleming@dechert.com bert.wolff@dechert.com lincoln.wilson@dechert.com Attorneys for Saint-Gobain Performance Plastics Corp. Case 5:16-cv-00125-gwc Document 251 Filed 03/04/19 Page 7 of 8 8 CERTIFICATE OF SERVICE I hereby certify that, on March 4, 2019, I served the foregoing REPLY IN FURTHER SUPPORT OF SAINT-GOBAIN’S MOTION TO STRIKE PLAINTIFFS’ UNTIMELY EXPERT DISCLOSURES on the following counsel by electronic case filing: Gary A. Davis James S. Whitlock DAVIS & WHITLOCK, P.C. 21 Battery Park Ave., Suite 206 Asheville, NC 28801 Telephone: (828) 622-0044 Facsimile: (828) 398-0435 jwhitlock@enviroattorney.com gadavis@enviroattorney.com Emily J. Joselson, Esq. James W. Swift, Esq. LANGROCK SPERRY & WOOL, L.L.P. P.O. Drawer 351 Middlebury, VT 05753 Telephone: (802) 388-6356 Facsimile: (802) 388-6149 ejoselson@langrock.com jswift@langrock.com David F. Silver, Esq. Timothy M. Andrews, Esq. BARR STERNBERG MOSS SILVER & MUNSON, P.C. 507 Main Street Bennington, VT 05201 Telephone: (802) 442-6341 Facsimile: (802) 442-1151 tandrews@barrsternberg.com dsilver@barrsternberg.com DATED: March 4, 2019 /s/ R. Bradford Fawley R. Bradford Fawley Case 5:16-cv-00125-gwc Document 251 Filed 03/04/19 Page 8 of 8