Opinion
ase No. 98-1360-MLB
January 2001
MEMORANDUM AND ORDER
This matter is before the court on the City's motion for leave to supplement an expert report (Doc. 919). Defendant Wichita Eagle (Eagle) opposes the motion. For the reasons stated below, the City's motion shall be granted.
The Eagle requests oral argument on the motion. After carefully considering the briefing, the court concludes that oral argument would not be of material assistance.
Background
The background of this CERCLA action has been discussed in prior opinions and will not be revisited. (See, e.g., Doc. 732, filed July 28, 2000) The instant motion addresses the City's expert report and opinion that the Eagle was a source of groundwater contamination at 157 South Washington, a building which the Eagle used for photo-engraving from 1962 to 1971. The events which preceded the filing of the motion are described below.
The expert and author of the report is David Hendron, a hydrologist and civil engineer.
Pursuant to the scheduling order, the City served its expert witness disclosures on May 1, 2000. Defendants then sought an extension of their June 2 expert witness deadline which resulted in a lengthy case management conference with the court on May 8. After hearing the presentations of counsel, the court ordered mediation and extended defendants' deadline for expert disclosures. The deadline was extended to permit the parties to fully explore settlement options without incurring expenses associated with expert witnesses.
Fact discovery continued after the May expert disclosures. In June, July, and August, 2000, depositions were taken of former Eagle employees who had personal knowledge of the photo-engraving operations at 157 S. Washington. On August 21 and 22, the Eagle conducted soil and ground water tests around 157 S. Washington and provided "split samples" to the City. After fact discovery closed on August 31, the City and the Eagle received reports on the August samples which indicated that contamination existed north of 157 S. Washington. The City reviewed the history of the building immediately to the north of the Eagle property (149 S. Washington) and took additional soil and water samples in and around 157 S. Washington. Both the Eagle and the City conducted additional independent investigations, including mapping and video taping the waste disposal pipes for 157 S. Washington.
Because groundwater in the Gilbert and Mosley site generally flows northwest to southeast, contamination north of 157 S. Washington suggests that some business situated to the north of the Eagle facility might have caused or contributed to the contamination plume.
During its review of City records related to 149 S. Washington, the City found a building permit which suggested that Goodwill Industries, a charitable organization, may have had a dry cleaning operation at 149 S. Washington in 1966. Dry cleaners in the 1960's commonly used chemicals which could contribute to ground water contamination. The record was immediately provided to the Eagle and the court granted the City leave to conduct a Rule 30(b)(6) deposition of Goodwill Industries. The Rule 30(b)(6) witness was unable to provide testimony concerning Goodwill operations at 149 S. Washington but testified, in general, that Goodwill Industries does not engage in "dry cleaner" operations.
The City has moved to supplement Hendron's report to incorporate information developed after submission of his original report. The Eagle opposes the motion, arguing that Hendron has corrected, rather than supplemented, major omissions in his initial report. The Eagle also contends that it developed its defense based upon Hendron's May 1 report and that it would be unfair and prejudicial to allow the proposed supplementation. As explained below, the court is persuaded that the motion to supplement should be granted.
The scheduling order specifically provided for the City's filing of "rebuttal" expert reports after review of defendant's expert disclosures. Because the City's motion was filed before the Eagle's expert reports were due, it has been styled as a motion to supplement. The Eagle's expert disclosures were submitted after the motion was filed and the court has had the benefit of reviewing reports from both parties.
Analysis
The purpose of expert witness disclosures under Fed.R.Civ.P. 26(a)(2) is "primarily to require disclosure of expert testimony early enough before trial to allow parties and counsel adequate time to prepare cross-examination, confer with their own experts, and file any supplementation." Dixon v. Certainteed Corp., 168 F.R.D. 51, 54 (D.Kan. 1996). The parties are required to supplement these disclosures if they learn that in some material respect the information disclosed is incomplete or incorrect. . . . With respect to testimony of an expert from whom a report is required under subsection (a)(2)(B) the duty extends both to information contained in the report and information provided through a deposition of the expert, and any additions or changes to this information shall be disclosed by the time the party's disclosures under Rule 26(a)(3) are due.
Fed.R.Civ.P. 26(e)(1) (emphasis added). Supplemental disclosures must occur at least 30 days before trial unless otherwise ordered by the court. Rule 26(a)(3). The timing of the City's motion is not an issue because it was filed before the deadline for the defendants' expert disclosures and a trial date has yet to be established. Instead, the Eagle objects that Mr. Hendron's second report is (1) not "supplementation" but rather wholesale changes to his initial report and (2) highly prejudicial to the Eagle. The City argues that Hendron should be allowed to express opinions on facts which developed after he issued his original report. The arguments are discussed in greater detail below.
I. Proper "Supplementation"
The City contends that the supplemental report is appropriate and necessary to address 1) deposition testimony, 2) soil and water test results, and 3) sewer pipe evidence which became available after Hendron submitted his initial report. The Eagle does not dispute that significant factual information became available after Hendron's May 1 report. Rather, the Eagle argues that the information was always available and, if pertinent, should have been gathered and analyzed before Hendron issued his May 1 report. As illustrated below, the Eagle's argument is not persuasive.
Depositions of Eagle employees taken in June, July, and August 2000 revealed that, at some point in the 1960's, the Eagle began using pre-sensitized plates in its engraving process, and this information had not previously been disclosed to the City. Hendron's supplemental report references this deposition testimony and expresses the opinion that engravers typically use chlorinated solvents with pre-sensitized plates. The Eagle disputes that chlorinated solvents were used at its 157 S. Washington facility but that argument goes to the weight which should be given to the report rather than whether the addition is proper supplementation.
The Eagle also complains that the "supplemental" report contains a significant number of additional articles and publications to support Hendron's opinion that chlorinated solvents are used in the engraving process. Hendron's "supplemental" report that the engraving process generally uses chlorinated solvents is consistent with his original report and the citation of additional articles and publications constitutes supplementation.
The Eagle also contends that the building permit which suggested Edry cleaning at 149 S. Washington was in the City's system of records during the entirety of its investigation and litigation and that the City should have done a better job of investigating 149 S. Washington before issuing the May 1 report. The Eagle maintains that the belated discovery of the permit is no justification for Hendron's "supplemental" report and opinions concerning 149 S. Washington. The court does not agree. The 1966 "building permit record" is a three-by-five index card with minimal information. Hundreds of thousands of records have been reviewed and produced in this case and the failure to locate and produce this single record prior to September 2000 is entirely excusable. More importantly, the Eagle's own expert opinion is based on this very document. Fairness dictates that the City's expert should also have an opportunity to comment on that document and subsequent investigations concerning 149 S. Washington.
The Eagle also argues that the ground and soil test results which were received after the close of fact discovery are not sufficient justification for supplementation because the City could have taken similar test probes before Hendron issued his initial report. This argument fails to account for the fact that the Eagle's experts rely on factual information developed long after Hendron's May 1 report and two weeks after fact discovery closed. In essence, the Eagle seeks to prohibit any comment by the City's expert concerning new evidence, an approach that is patently unfair. Under the circumstances, the City is entitled to supplement its report concerning soil and groundwater test results received after the formal close of fact discovery.
After the close of fact discovery, both parties conducted additional investigation concerning the route of waste disposal pipes from 157 S. Washington to the City's sewer system. When the May 1 report was submitted, the City understood that the disposal line connects to the City's sewer system on the west side of 157 S. Washington. After fact discovery closed, the Eagle investigated and concluded that the disposal line actually connects to the sewer on the east side of the building. When presented with the Eagle's new information, the City investigated further and confirmed that 157 S. Washington has one disposal line which connects to the sewer on the east side of the building and two disposal lines which connect to the sewer on the west side. Hendron's initial report was inaccurate in this detail and supplementation concerning this new information is proper.
II. Prejudice
The Eagle argues that it spent significant time and money "preparing to respond to what it thought would be Mr. Hendron's expert opinion testimony" and those expenditures will be "wasted" if the supplementation is allowed. The court is not persuaded that the Eagle's efforts were "wasted." Review of Hendron's deposition and the Eagle's expert witness disclosures reveals numerous grounds for attacking the weight and credibility of Hendron's opinion based on the Eagle's background work. Further, while the court is sympathetic to the issue of litigation expenses, the rules of civil procedures require supplementation when an expert's report is incomplete or inaccurate; thus, supplementation should not come as a surprise.
The Eagle's expert report relies on facts which were not established when Herndon prepared his May 1 report. Unquestionably, portions of Herndon's supplemental report are proper rebuttal, a prospect the Eagle should have anticipated.
The Eagle also claims prejudice because fact discovery closed before receipt of the supplemental report. To ameliorate any prejudice claims, the court will allow the Eagle a limited opportunity to conduct additional fact discovery related to new or corrected topics discussed in the supplemental report and also require that Hendron present himself for deposition by the Eagle. The City shall pay Hendron's fees and expenses for appearing at the supplemental deposition.
Conclusion
The City's motion to supplement shall be granted. A trial date has not been established in this case and the Eagle therefore has sufficient time to address the matters and opinions expressed in the supplemental report. Many of the points raised in the Eagle's brief go to the evidentiary weight which should be given Herndon's report and supplemental report. The Eagle is not foreclosed from renewing those attacks at the time of trial. IT IS THEREFORE ORDERED that the City's motion to supplement (Doc. 919) is GRANTED.
This CERCLA action will be tried to the court and the trial judge will be in the best position to sift through the various expert reports.
IT IS FURTHER ORDERED that the Eagle may conduct fact discovery related to the topics discussed in the supplemental report, to be completed by February 15, 2001. The City shall produce Mr. Hendron for deposition by the Eagle on or before February 20, 2001. The deposition shall be limited to matters discussed in his supplemental report.