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Rowe v. E.I. Du Pont De Nemours and Co.

February 24, 2010

RICHARD A. ROWE, ET AL., PLAINTIFFS,
v.
E.I. DU PONT DE NEMOURS AND COMPANY, DEFENDANT.
MISTY SCOTT, ON BEHALF OF HERSELF AND ALL OTHERS SIMILARLY SITUATED, PLAINTIFF,
v.
E.I. DU PONT DE NEMOURS AND COMPANY, DEFENDANT.



The opinion of the court was delivered by: Ann Marie Donio United States Magistrate Judge

[Rowe Doc. Nos. 317, 318, 328]

[Scott Doc. Nos. 272, 273, 283]

MEMORANDUM OPINION AND ORDER

Presently before the Court are a number of motions by Plaintiffs in the above-captioned matters. Specifically, Plaintiffs request an extension of the merits-related expert disclosure deadline for non-medical monitoring experts so that Plaintiffs may rely on their expert reports and disclosures for medical monitoring claims in further support of their non-medical monitoring claims. Plaintiffs also seek leave to amend the second amended complaint and to strike Defendant's brief in opposition to Plaintiffs' motions to amend the complaints. The Court has considered the submissions of the parties, as well as the arguments of counsel,*fn1 and for the reasons that follow, Rowe Plaintiffs' and Scott Plaintiff's motions for an extension of time and for leave to amend the second amended complaint are granted, and their motion to strike Defendant's brief in opposition to Plaintiffs' motions to amend is denied.

The facts of both the Rowe and Scott cases were set forth in the District Court's Opinion dated December 23, 2008, and the Court shall therefore set forth herein only those facts relevant to the present motions. By Order dated December 12, 2008, the Court extended the deadline for submission of all merits-related expert reports and disclosures pursuant to FED. R. CIV. P. 26(a)(2) on behalf of Rowe and Scott Plaintiffs to "thirty (30) days after the filing of the decision by the District Court on the pending motions for class certification." (Order 2, Dec. 12, 2008.) On December 23, 2008, the District Court entered an Opinion and Order denying without prejudice the motions of Rowe Plaintiffs and Scott Plaintiff for class certification, and permitted Plaintiffs in both actions to "seek leave of the Court to file a motion for class certification (with respect to their claims based on negligence, nuisance, trespass, battery, strict liability, and the New Jersey Environmental Rights Act) out of time," and to file within thirty days "a brief submission . . . identifying the precise issues relevant to medical monitoring that they believe are appropriate for class treatment, consistent with the Court's Opinion" of December 23, 2008. (Order 2, Dec. 23, 2008.)

In light of the District Court's Order permitting additional briefing on class certification issues, Rowe Plaintiffs filed a motion seeking clarification of this Court's December 12, 2008 Order requiring merits-related expert reports and disclosures to be submitted within thirty days of the District Court's decision on the class certification motion. Rowe Plaintiffs alternatively sought an extension of time to file the merits-related expert reports and disclosures. Scott Plaintiff joined in Rowe Plaintiffs' motion. By Order dated March 6, 2009, the Court granted Plaintiffs' request for an extension of time. Rowe Plaintiffs were directed to serve merits-related expert reports and disclosures with regard to medical monitoring-related claims within thirty days of the filing of the District Court's decision on the supplemental briefs on class certification issues, and Scott Plaintiff was directed to serve such discovery within sixty days or by no later than April 20, 2009. (Order 2, Mar. 6, 2009.) Plaintiffs in both Rowe and Scott were also directed to serve all other merits-related expert reports and disclosures by no later than April 20, 2009. (Id.) On April 10, 2009, Scott Plaintiff filed a motion [Doc. No. 255 in No. Civ. A. 06-3080] to further extend the time to submit her merits-related expert reports and disclosures on medical monitoring issues, such that Rowe Plaintiffs' and Scott Plaintiff's reports would be due on the same date. The parties consented to such extension, and the Court entered an Order directing Plaintiff Scott to submit all merits-related expert reports and disclosures on medical monitoring issues within thirty days of the filing of the District Court's decision on the supplemental briefs on medical monitoring class certification issues. (Order 3, July 2, 2009.)*fn2

In addition to seeking an extension of time for Scott Plaintiff to submit her merits-related expert reports and disclosures on medical monitoring issues, Plaintiffs also requested in the motion filed on April 10, 2009 clarification as to "whether the merits-related expert reports and disclosures concerning medical monitoring issues can also be used in further support of Plaintiffs' non-medical monitoring claims." (Pls.' Mem. in Supp. of Mot. for Extension of Deadlines for Submission of Scott Pl.'s Medical Monitoring Experts Disclosures until after a Ruling on Rowe Pls.' Mot. for Class Certification has been Made [Doc. No. 255-2 in No. Civ. A. 06-3080], at 6.) The Court denied this request, without prejudice to Plaintiffs' right to bring a motion to extend the time to serve expert reports "to the extent [Plaintiffs] wish[] to utilize the medical monitoring report for the other claims." (Order 3, July 2, 2009; Transcript of Hearing on June 30, 2009, at 45:4-8.)

As previously noted, Plaintiffs have now filed a motion seeking an extension of the merits-related expert disclosure deadline for non-medical monitoring experts. Plaintiffs assert that although they served all of their non-medical monitoring expert reports prior to the court-ordered deadline of April 20, 2009, the expert reports and disclosures on medical monitoring issues, which were served on August 28, 2009, purportedly also contain "key, merits-related information" that is allegedly "necessary proof" for Plaintiffs' non-medical monitoring claims. (Pls.' Mem. in Supp. of Mot. for Extension of Deadlines for Submission of Rowe Pls.' and Pl. Scott's Non-Medical Monitoring Experts Disclosures for the Limited Purpose of Relying on the Medical Monitoring Experts Disclosures in Further Supp. of their Non-Medical Monitoring Claims [Doc. No. 317-2 in No. Civ. A. 06-1810; Doc. No. 272-2 in No. Civ. A. 06-3080] (hereinafter, "Pls. Br.") 3, 5.) Thus, Plaintiffs seek to utilize their expert reports and disclosures on medical monitoring issues in further support of their non-medical monitoring claims, even though such expert reports and disclosures were not served prior to the court-ordered April 20, 2009 deadline. (Id. at 4.) Plaintiffs specifically note that they are not seeking to submit additional non-medical monitoring expert disclosures and reports, and that they only seek to utilize their medical monitoring reports and disclosures in connection with their non-medical monitoring claims to the extent there are "overlapping elements of proof." (Pls.' Reply Mem. in Further Supp. of Mot. for Extension of Deadlines for Submission of Rowe Pls.' and Pl. Scott's Non-Medical Monitoring Expert Disclosures for the Limited Purpose of Relying on the Medical Monitoring Experts Disclosures in Further Supp. of their Non-Medical Monitoring Claims [Doc. No. 323 in No. Civ. A. 06-1810; Doc. No. 278 in No. Civ. A. 06-3080] (hereinafter, "Pls. Reply Br.") 4, 5.)

In support of the motion for an extension of time, Plaintiffs argue that the factors set forth in Meyers v. Pennypack Woods Home Ownership Ass'n, 559 F.2d 894, 904-05 (3d Cir. 1977), overruled on other grounds, Goodman v. Lukens Steel Co., 777 F.2d 113 (3d Cir. 1985), aff'd, 482 U.S. 656, 107 S.Ct. 2617, 96 L.Ed. 2d 572 (1987), weigh in favor of granting the requested extension. (Pls. Br. 5-6.) Specifically, Plaintiffs contend that if the extension is not granted and they are not permitted to rely on their medical monitoring related expert reports and disclosures to support their non-medical monitoring claims, their "non-medical monitoring causes of action could be jeopardized." (Id. at 6.) Plaintiffs cite as an example their nuisance claims, which they assert involve "proof of an unreasonable interference with the use or enjoyment of one's property or with a public right, such as the right to clean drinking water." (Id.) Plaintiffs' medical monitoring experts allegedly will state that the PFOA released from du Pont's Chambers Works Plant and allegedly contaminated Plaintiffs' drinking water "can enter their bodies and contaminate their blood when they drink the water and can result in their facing an increased risk of certain latent diseases." (Id.) Such evidence is purportedly "important" to establishing that the alleged PFOA contamination of Plaintiffs' drinking water "poses an unreasonable interference with the use and enjoyment of their property and with their public right to clean drinking water." (Id.) (emphasis in original). Further, Plaintiffs contend that the requested extension will not extend the "overall" expert disclosure deadlines. (Id. at 7.) Moreover, Plaintiffs assert that Defendant would not be prejudiced by the requested extension because Defendant will have forty-five days to respond to Plaintiffs' expert reports and disclosures, and because Defendant, prior to submission of its expert reports on non-medical monitoring issues in the present cases, was served in a matter filed in the United States District Court for the District of West Virginia captioned Rhodes v. E.I. du Pont de Nemours and Company, Civil Action No. 6:06-0530, with reports on medical monitoring issues from the same experts who are being utilized in the present cases. (Id. at 7; Pls. Reply Br. 6-8.)*fn3 Plaintiffs represent that they are not acting in bad faith or willfully, because they believe that use of the medical monitoring expert disclosures in support of their non-medical monitoring claims would not "be at odds" with the Court's orders. (Pls. Br. 7.) Plaintiffs also note that they raised the issue to the Court on April 10, 2009, before the deadline for submission of their non-medical monitoring expert reports and disclosures. (Id. at 8.)

In opposition to the motion for an extension of time, Defendant argues that Plaintiffs fail to satisfy the standards required under Federal Rules of Civil Procedure 16(b)(4), 6(b)(1)(A), or 6(b)(1)(B) to obtain an extension of the April 20, 2009 deadline for submission of their non-medical monitoring expert reports and disclosures. (Def. E.I. du Pont de Nemours and Company's Br. in Opp. to Pls.' Mot. to Extend the Time for Submission of their Common Law/Non-Medical Monitoring Expert Reports to Coincide with Submission of their Medical Monitoring Reports [Doc. No. 321 in 06-1810; Doc. No. 276 in 06-3080] (hereinafter, "Def. Br.") 15-16.) Defendant argues that Plaintiffs have had ample opportunity to obtain expert reports in this litigation, and that they "unilaterally decided" to withhold certain reports in violation of the March 6, 2009 Order as part of a "calculated strategy to delay the submission of expert reports[.]" (Id. at 17-18, 21.) Defendant also argues that the Court already rejected a prior request by Plaintiffs' counsel to serve expert reports for the medical monitoring and non-medical monitoring claims at the same time, and that Plaintiffs provide no basis for the Court to reconsider its prior decision. (Id. at 17.) Moreover, Defendant asserts that because Plaintiffs did not file the present motion until July 24, 2009, more than three months after the April 20, 2009 deadline, Plaintiffs must demonstrate "excusable neglect" for their failure to timely comply with the Court's scheduling order. (Id. at 19.) Defendant further contends that the Meyers v. Pennypack factors do not support Plaintiffs' requested extension, particularly in light of the alleged "strategic advantage" gained by Plaintiffs in having already been served with eight defense expert reports and Plaintiffs' purported "intentional" decision not to comply with the March 6, 2009 discovery order. (Id. at 18, 23.)

The Federal Rules of Civil Procedure provide the Court with broad authority to manage the schedule of litigation. See generally FED. R. CIV. P. 16. Rule 16 provides that the Court shall enter a scheduling order that limits the time to file motions and complete discovery. FED. R. CIV. P. 16(b). The rule further provides that a scheduling order may be modified "only for good cause and with the judge's consent." Id. To establish good cause under Rule 16, the party seeking the extension must show that the deadlines set forth in the scheduling order "cannot reasonably be met despite the diligence of the party seeking the extension." FED. R. CIV. P. 16(b) Advisory Committee Notes to 1983 Amendments; see also Harrison Beverage Co. v. Dribeck Importers, Inc., 133 F.R.D. 463, 469 (D.N.J. 1990); McElyea v. Navistar Int'l Transp. Corp., 788 F. Supp. 1366, 1371 (E.D. Pa. 1991), aff'd without opinion, 950 F.2d 723 (3d Cir. 1991). Good cause may also be satisfied if the movant shows that the inability to comply with a scheduling order is "'due to any mistake, excusable neglect or any other factor which might understandably account for failure of counsel to undertake to comply with the Scheduling Order.'" Newton v. Dana Corp., Parish Div., Civ. No. 94-4958, 1995 U.S. Dist. LEXIS 8473, at *3 (E.D. Pa. June 21, 1995) (quoting Gestetner Corp. v. Case Equipment Co., 108 F.R.D. 138, 141 (D. Me. 1985)). "In the absence of proof of good cause, 'the scheduling order shall control.'" Id. at *2 (quoting 6A CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 1522.1 (2d ed. 1997)).

In the motion papers, the parties cite the standards set forth in FED. R. CIV. P. 6(b)(1) for obtaining extensions of time. Rule 6(b)(1) provides that "[w]hen an act may or must be done within a specified time, the court may, for good cause, extend the time[.] . . ." FED. R. CIV. P. 6(b)(1). Thus, under either Rule 6 or Rule 16, a party must demonstrate "good cause" in seeking to obtain an extension of time. Moreover, when a motion for an extension of time is made "after the time has expired," the court must also find that "the party failed to act because of excusable neglect." FED. R. CIV. P. 6(b)(1)(B).

In deciding the present motion for an extension of time, the Court further considers the factors set forth in applicable case law regarding exclusion of experts, because the denial of Plaintiffs' request may have the practical effect of excluding at trial the testimony of certain experts in connection with Plaintiffs' non-medical monitoring claims. See Spring Creek Holding Co. v. Keith, No. Civ. A. 02-376, 2006 WL 2403958, at *3 n.2 (D.N.J. Aug 18, 2006) (four-prong standard used when determining whether to allow admission of expert testimony after discovery period has ended); Potomac Elec. Power Co. v. Elec. Motor Supply, Inc., 190 F.R.D. 372, 376-77 (D. Md. 1999) ("Because the practical effect of this conclusion would be the exclusion of plaintiff's expert from the trial of this case, the court must also focus on the law applicable to the question of whether to exclude an expert witness who has not been disclosed in accordance with a scheduling order."); Seymour v. Consolidated Freightways, 187 F.R.D. 541, 542 (S.D. Miss. 1999) ("Exclusion of expert testimony based on a party's failure to properly and timely designate experts is governed by four factors[.] . . ."). The Third Circuit, in Meyers v. Pennypack Woods Home Ownership Ass'n, set forth four factors that must be considered before excluding evidence: (1) the prejudice or surprise to the party against whom the evidence would be presented; (2) the ability to cure the prejudice; (3) the extent to which the evidence, if admitted, would disrupt trial of the case; and (4) bad faith or willfulness in failing to comply with the Court's Order. Meyers v. Pennypack Woods Home Ownership Ass'n, 559 F.2d 894, 904-05 (3d Cir. 1977), overruled on other grounds, Goodman v. Lukens Steel Co., 777 F.2d 113 (3d Cir. 1985), aff'd, 482 U.S. 656, 107 S.Ct. 2617, 96 L.Ed.2d 572 (1987); see also In re Mercedes-Benz Antitrust Litig., 225 F.R.D. 498, 506 (D.N.J. 2005). "'The Third Circuit has, on several occasions, manifested a distinct aversion to the exclusion of important testimony absent evidence of extreme neglect or bad faith on the part of the proponent of the testimony.'" Mercedes-Benz, 225 F.R.D. at 504-05 (internal quotation omitted).

The Court finds that Plaintiffs have demonstrated good cause to extend the April 20, 2009 deadline for submission of their merits-related expert reports and disclosures for non-medical monitoring claims, such that Plaintiffs may rely on their medical monitoring expert reports in connection with their non-medical monitoring claims. Counsel for Plaintiffs represents that although the medical monitoring expert reports bear on the non-medical monitoring claims, they were not produced by the April 20, 2009 deadline for submission of expert reports and disclosures on the non-medical monitoring claims because they are primarily medical monitoring reports and only "tangentially" bear on some of the elements of the non-medical monitoring claims. (Transcript of Hearing on Aug. 17, 2009, at 29:23-30:1.)*fn4 Furthermore, Plaintiffs' counsel represented at oral argument that Plaintiffs' medical monitoring experts -- Dr. Gray and Dr. Levy -- were still conducting their analyses of the plaintiffs at the time the non-medical monitoring disclosures were made, and, consequently, Plaintiffs were not in a position to disclose those reports on April 20, 2009. (Id. at 29:13-22.) Moreover, when the expert report and disclosure deadlines for medical monitoring and non-medical monitoring claims were set, there was no discussion on the record as to whether the elements of proof for the medical monitoring claims would, in part, overlap with the elements of proof for the non-medical monitoring claims. (Id. at 30:25-31:21.) Counsel therefore did not address at the time the March 6, 2009 Order was entered whether Plaintiffs would be required to obtain their medical monitoring reports by the April 20, 2009 deadline insofar as such reports would tangentially bear on the non-medical monitoring claims. Plaintiffs' counsel states that Plaintiffs only "came to the realization" that some portions of the medical monitoring experts' reports may be necessary in connection with the non-medical monitoring claims at the time Plaintiffs were preparing their non-medical monitoring expert disclosures, which was after the hearing at which the expert deadlines were set. (Id. at 31:22-24.) Plaintiffs raised the issue by motion on April 10, 2009, which the Court notes was prior to the April 20, 2009 deadline for submission of non-medical monitoring expert reports and disclosures. Furthermore, Plaintiffs timely submitted the ...


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