Virginia Street Fidelco, L.L.C. v. Orbis Products Corp.

          OPINION

          KEVIN MCNULTY. U.S.D.J.

         Plaintiffs Virginia Street Fidelco ("Virginia Street") and the City of Newark ("Newark") appeal Magistrate Judge Clark's November 15, 2017 and November 21, 2017 orders barring the use of plaintiffs' supplemental expert opinion of Richard Greenberg and the new expert opinion of John H. Crow.

         I. BACKGROUND

         Plaintiffs Virginia Street and Newark initiated this action on April 11, 2011 regarding alleged environmental contamination on property located at 55 Virginia Street in Newark, New Jersey (the "Orbis site"). (ECF No. 1). Fact discovery in this case concluded on July 14, 2014. (ECF No. 90). The exchange of expert reports was due by March 21, 2016. (ECF No. 153). All reports were exchanged by this deadline, including Dr. Greenberg's initial report. (ECF Nos. 166, 168, 171).

         In litigation in the Middle District of Florida that concerned the same subject matter, plaintiffs also used Dr. Greenberg as an expert. (ECF Nos. 188-1, 189). They lost. Plaintiffs thereafter petitioned Magistrate Judge Clark for relief from a scheduling order so that they could rehabilitate Dr. Greenberg's expert report. In May 2017, Magistrate Judge Clark granted plaintiffs' motion "to reopen discovery for the limited purpose of supplementing the Greenberg report" with updated testing from the Orbis site. (ECF No. 171). The order stated that "this period of discovery will be limited in an effort to minimize any further delay in the final resolution of this matter." (ECF No. 171). The order also stated that "[t]here will be no extensions of these deadlines." (ECF No. 171).

         On July 17, 2017, plaintiffs filed a motion seeking to proceed on a declaratory judgment claim or, in the alternative, to bifurcate the case and stay the filing of the Greenberg supplemental report. (ECF No. 172). Magistrate Judge Clark denied this motion but, despite the warning that there would be no further extensions, granted an extension of time for plaintiffs to file the supplemental report. (ECF No. 179). Plaintiffs submitted Greenberg's supplemental expert report in September 2017. As it turned out, this supplemental report did not include additional testing of the Orbis site, the basis for the motion to supplement. Instead it relied on a 2002 environmental report that had never been produced in discovery. (ECF No. 180). Plaintiffs also submitted a new expert report from John H. Crow. (ECF No. 180).

         Magistrate Judge Clark barred Mr. Crow's expert report and Mr. Greenberg's supplemental report. (ECF Nos. 184, 186, 187). In a November 17, 2017 telephone conference, Magistrate Judge Clark stated the basis for that decision;

I was rather forgiving back in May, and as I said, rather reluctant to yet again permit an amendment to the Greenberg report. And I think it was very clear to everyone that it was very limited. I didn't say, Greenberg can amend his report and, you know, we can amend it by using other experts to amend. That's ridiculous. That's not what I meant in any - in any honest appraisal of what went on back in May.

So I'm a little troubled by fact that we have got new experts submitting reports at this late date when I, you know, at very least communicated to everybody that I was allowing the Greenberg report to be amended for very limited purposes. And I think it was pretty clear [that...] I did not expect all of this new stuff to crop up and all of these new reports to pop up with new issues and new documents and new facts....

I think enough is enough. I am not going to allow the supplement to Mr. Greenberg's report. I did that almost as an actuality or mercy or charity, because the plaintiff, you know, based on the results of the Florida litigation, insisted, oh, we've - you know, we've got to go revisit the sampling.

If the sampling's not possible now, well, then it's not possible. We'll have to go with what we've got. And if you can't supplement the Greenberg report -- Mr. Greenberg can't supplement it himself, because he doesn't have samples, well, then, that's the end of it. He can't supplement the report. We're not going to rely on new documents that were never produced before. We're not going to rely on new experts, you know, and new expert reports.

(ECF No. 186}.

         The plaintiffs appealed Magistrate Judge Clark's decision on November 28, 2017. (ECF No. 188). According to them, Magistrate Judge Clark erred in barring the reports because "a) Defendants could show no prejudice from admitting the reports; b) the experts' reports plainly did not violate the Court's previous orders allowing for the same; and c) barring expert reports should be done only as a last resort." (ECF No. ...