United States District Court, D. New Jersey
VIRGINIA STREET FIDELCO, L.L.C., and THE CITY OF NEWARK, Plaintiffs,
ORBIS PRODUCTS CORPORATION; NORDA, INC.; PPF NORDA, INC.; PPF INTERNATIONAL, INC.; ADRON, INC.; QUEST INTERNATIONAL, INC.; INDOPCO, INC.; NATIONAL STARCH AND CHEMICAL CORPORATION; JOHN DOE CORPORATIONS #1-50; JOHN DOES #1-50; JOHN DOE INSURANCE COMPANIES #1-100; ESTATE OF ELENA DUKE BENEDICT; ESTATE OF LOUIS AMADUCCI; FLAROMA, INC.; ROBERT L. AMADUCCI; and WILLIAM R. AMADUCCI; Defendants.
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.
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,
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).
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).
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
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
(ECF No. 186}.
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. ...