RARITAN BAYKEEPER, INC. v. NL INDUSTRIES, INC.

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

RARITAN BAYKEEPER, INC., ef al.,

Plaintiff: .

aims. Civil Action No. 09-4117 (MAS) (DEA)

□ MEMORANDUM OPINION

NL INDUSTRIES, INC., ef al.,

Defendants.

SHIPP, District Judge

This matter comes before the Court on Plaintiffs Raritan Baykeepers, Inc., and Edison

Wetlands Association, Inc.’s (“Plaintiffs”) appeal from a discovery order issued by the Honorable

Douglas E. Arpert, U.S.M.J. (the “Order’’). (ECF No. 589.) Defendants NL Industries, Inc., and

NL Management Services, Inc., (“Defendants”) opposed (ECF No. 590), and Plaintiffs replied

(ECF No. 591). Having carefully considered the parties’ submissions, the Court decides this matter

without oral argument under Local Civil Rule 78.1. For the reasons below, the Court affirms Judge

Arpert’s Order.

BACKGROUND

This case is almost twelve years old. Fact discovery ended in 2014. (ECF No. 292.) Expert

discovery closed in 2015. (ECF No. 324.) Summary judgment and Daubert motions have come

and gone, with the Court last denying cross motions for summary judgment in 2019. (ECF No.

548.) By all counts, this case is trial ready.

Notwithstanding twelve years of litigation, the parties still raise discovery disputes. This

one arises from a January 2020 request to supplement longstanding expert reports. Plaintiffs

produced their expert reports in December 2014. They further defended those expert reports in

numerous Daubert and summary judgment motions through 2019. (See generally Pls.’ Summary

Judgment Moving Br., ECF No. 526-2; Pls.’ Summary Judgment Opp’n Br., ECF No. 532; Pls.’

Daubert Opp’n Br., ECF No. 533; Pls.’ Summary Judgment Reply Br., ECF No. 538.) Afier this

Court denied both parties’ summary judgment motions in September 2019 (see Mem. Order, ECF

No. 548), the parties prepared for a trial set for May 2020. Then on January 8, 2020, nine days

before the Final Pretrial Order deadline and thirteen before the Final Pretrial Conference, Plaintiffs

informed Judge Arpert, through correspondence, that their experts were conducting additional tests

that would impact their expert reports. (Order 1, ECF No. 588.) Those tests relied on new sources

of data unavailable to Plaintiffs’ experts at the time they filed their expert reports. Specifically, the

new sources included (among others) a 2017 EPA report, 2017 and 2018 sediment data, and 2019

planning board documents. (Pls.’ Moving Br. 20.) At a January 21, 2020 telephone conference,

Judge Arpert heard the parties on this dispute and denied Plaintiffs’ informal request to supplement

their expert reports. (Order 1-2.)

Undeterred, Plaintiffs then formally moved to supplement under Federal Rule of Civil

Procedure 26(e) or alternatively for Judge Arpert to reconsider his prior denial. (/d. at 2.) After

rounds of briefing, Judge Arpert denied Plaintiffs’ motion. (/d. at 2.) In his written Order, Judge

Arpert analyzed Plaintiffs’ motion as one for reconsideration and concluded that “[rJeconsideration

is an extremely limited procedural vehicle, and Plaintiffs simply have not met the high standard

required for such relief.” Ud. at 7; see also id. (further noting that Plaintiffs’ informal

correspondence “did not previously cite Rule 26(e) or raise other facts that Plaintiffs have raised

in this motion”).) Judge Arpert also considered the merits of Plaintiffs’ motion. He determined that

“Rule 26(e) does not permit the supplementation Plaintiffs seek” because “the record belies

Plaintiffs’ contention that they seek merely to correct disclosures that are materially incomplete or

incorrect rather than bolster their experts’ opinions.” (Order 8.) To that end, the Order offered as

an example that “Plaintiffs relied on their unsupplemented expert reports for all dispositive

motions and motions in limine filed to date, including the most recent round of summary judgment

motions and motions in limine, filed in 2019.” Ud.)

Plaintiffs now appeal Judge Arpert’s Order.

Il. LEGAL STANDARD

A court may set aside a magistrate judge’s resolution of a non-dispositive matter only if

the order is “clearly erroneous or contrary to law.” Marks v. Struble, 347 F. Supp. 2d 136, 149

(D.N.J. 2004) (citations omitted); Fed. R. Civ. P. 72(a); L. Civ. R. 72.1(c)(1)(A). “A finding is

clearly erroneous only ‘when although there is evidence to support it, the reviewing court on the

entire evidence is left with the definite and firm conviction that a mistake has been committed.’”

Cooper Hosp. Univ. Med. Ctr. v. Sullivan, 183 F.R.D. 119, 127 (D.N.J. 1998) (quoting United

States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)). A decision is contrary to law where the

magistrate judge “misinterpreted or misapplied [the] applicable law.” Gunter v. Ridgewood Energy

Corp., 32 F. Supp. 2d 162, 164 (D.N.J. 1998).

The burden of demonstrating that the magistrate judge’s order is clearly erroneous or

contrary to law lies with the party filing the appeal. Marks, 347 F. Supp. 2d at 149 (citing Cardona

v. Gen. Motors Corp., 942 F. Supp. 968, 971 (D.N.J. 1996)). When, “as here, the magistrate [judge]

has ruled on a non[-]dispositive matter such as a discovery motion, his [or her] ruling is entitled to

great deference and is reversible only for abuse of discretion.” Frank vy. County of Hudson, 924 F.

Supp. 620, 623 (D.N.J. 1996) (citations omitted); see also Marks, 347 F. Supp. 2d at 149 (stating

a magistrate judge is “accorded wide discretion in addressing non-dispositive motions”). Courts

find abuse of discretion “when the judicial action is arbitrary, fanciful or unreasonable, which is

another way of saying that discretion is abused only where no reasonable man [or woman] would

take the view adopted by the [deciding] court.” Fagan v. Fischer, No. 14-7013, 2018 WL 2859541,

at *3 (D.N.J. June 11, 2018) (quoting Lindy Bros. Builders, Inc. v. Am. Radiator & Standard

Sanitary Corp., 540 F.2d 102, 115 (Gd Cir. 1976)).

Tl. DISCUSSION

As Judge Arpert ruled on a non-dispositive discovery dispute, the Court reviews his Order

for abuse of discretion. The Court concludes that Plaintiffs have failed to carry their burden to

show that the Order was arbitrary, fanciful, or unreasonable.

A. Plaintiffs Have Not Shown That Judge Arpert Abused His Discretion.

Judge Arpert’s Order was well-reasoned and well-supported. Under Federal Rule of Civil

Procedure 26(e), a party must supplement an expert disclosure “in a timely manner” where “the

disclosure or response is incomplete or incorrect.” Fed. R. Civ. P. 26(e)(1)(A). Not every error and

omission qualify for supplementation under the Federal Rules; rather, the expert reports must be

incomplete or incorrect in a “material respect.” Jd. Nor do the Federal Rules countenance endless

supplementation. As several courts have reasoned, common sense dictates when parties may

supplement. For example, Rule 26(e) does not necessarily envision supplementing documents

generated after the fact discovery deadline. See Our Child.’s Earth v. Leland Stanford Junior

Univ., No. 13-402, 2015 WL 12964638, at *3 (N.D. Cal. Oct. 29, 2015) (“[T]he duty to supplement

under Rule 26(e) does not automatically supersede the fact discovery cutoff as to developments

thereafter that relate to prior requests for discovery made before the cutoff.”). That’s especially so

because a rule that allows limitless ongoing supplementation would not only erode the court’s

ability to control discovery but also “invite rolling discovery in a way that would unfairly burden

one party in a suit and indefinitely postpone trial.” Kuhns v. City of Allentown, No. 08-2606, 2010

WL 4236873, at *3 (E.D. Pa. Oct. 26, 2010); see also S. Elec. Supply Co. v. Lienguard, Inc., No.

05-442, 2007 WL 2156658, at *2 (S.D. Ohio July 25, 2007) (“Prolonging the litigation process

with endless updates or discovery revelations is antithetical to the purpose of Rule 26 and detracts

from the public policy goal of efficient litigation.”). Courts also deny requests to supplement when

experts seek to “add new opinions” or “deepen or strengthen existing opinions.” Ezaki Glico

Kabushiki Kaisha v. Lotte Int’l Am. Corp., No. 15-5477, 2019 WL 581544, at *3 (D.N.J. Feb. 13,

2019) (quoting Jn re Asbestos Prods. Liab. Litig., 289 F.R.D. 424, 425 (E.D. Pa. 2013)). Also

excluded are expert supplements that seek to add “new data or evidence.” Paris v. R.P. Scherer

Corp., No. 02-1044, 2006 WL 2177253, at *2 (D.N.J. July 31, 2006). Indeed, these limitations

serve to prevent another hazard of boundless supplementation—that “a party [may] serve a

deficient opening report and then remedy the deficiency through the expedience of a

‘supplemental’ report.” Lidle v. Cirrus Design Corp., No. 08-1253, 2009 WL 4907201, at *5

(S.D.N.Y. Dec. 18, 2009).

AJI told, proper expert supplementation under Rule 26(e) requires timely corrections of

material errors or omissions. Courts do not abuse their discretion when they deny supplementation

based on documents discovered after the close of fact discovery or new opinions and evidence.

Judge Arpert’s Order aligns with these established rules. For one, it reasoned that Plaintiffs’ past

practices belied the purported materiality and timeliness of the supplementation. (Order 8.) Let’s

break that down. Plaintiffs claim that, after submitting their reports, their experts received new

sources of data such as a December 2017 EPA report, 2017 and 2018 sediment data, and certain

2019 planning board documents. (Pls.’? Moving Br. 20-21, ECF No. 589-1.) Yet, Plaintiffs did not

seek to alter or supplement their expert reports at the time their experts received these new sources.

To the contrary, Plaintiffs vigorously defended their extant expert reports in the face of years of

opposing Daubert and summary judgment motions. In fact, Plaintiffs did not bring these new

sources to the Court’s attention until January 2020—days before the deadline for the Final Pretrial

Conference. Had Plaintiffs believed these new data sources rendered their expert reports materially

misleading, Plaintiffs would have supplemented sooner and, in all events, before summary

judgment resolution. That they did not furnishes strong evidence that these new sources were

neither material nor timely supplemented. See Campos-Eibeck v. C R Bard Inc., No. 19-2026, 2020

WL 835305, at *5 (S.D. Cal. Feb. 20, 2020) (“Subsequent studies do not render [d]efendants’

analyses incorrect or incomplete as the analyses were dictated by the studies available at the time

the analyses were made.”).

The Order also recognized that Rule 26(e) is not a vehicle for recursive discovery. As the

Order reasoned, “[a] revision of Plaintiffs’ expert reports will require that Defendants’ experts

review and respond to the new reports, and it will result in the need to reopen expert discovery.”

(Order 8.) That result is precisely what the Federal Rules seek to avoid. See Fed. R. Civ. P. 1

(“[The Federal Rules] should be construed, administered, and employed by the court and the

parties to secure the just, speedy, and inexpensive determination of every action and proceeding.”);

Hioutakos y. SimplexGrinnell LP, No. 10-4505, 2014 WL 1255197, at *3 (D.N.J. Mar. 26, 2014)

(“Counsel’s duty under Fed. R. Civ. P. 26(e)(2) to correct materially incomplete or erroneous

information should not be misused to circumvent deadlines or turn an expert report into a moving

target.”). To be sure, Plaintiffs confirm that their position could “indefinitely postpone trial.”

Kuhns, 2010 WL 4236873, at *3. In August 2021 briefing, for example, Plaintiffs requested

supplementation based on May 2021 regulatory changes by federal and state agencies. (Pls.’

Supplemental Br. 2, ECF No. 583.) This request validates Judge Arpert’s concern about reopening

expert discovery: if every arguably relevant regulatory change and study required supplementing

expert reports, the parties could drag out expert discovery indefinitely. That absurd consequence

flouts the basic command of just, speedy, and inexpensive resolution of civil proceedings. See

Beller ex rel. Beller v. United States, 221 F.R.D. 696, 701-02 (D.N.M. 2003) (“This practice

[buttressing expert reports with new data] would . . . interfere with the [c]ourt’s ability to set case

management deadlines, because new reports and opinions would warrant a new round of

consultation with one’s own expert and virtually require new rounds of depositions. That process

would hinder rather than facilitate settlement and the final disposition of the case.”).

B. Plaintiffs’ Arguments to the Contrary Fail.

Plaintiffs’ counterarguments do not convince the Court that Judge Arpert abused his

discretion. First, Plaintiffs take issue with the procedure employed by Judge Arpert in denying

their motion to supplement, arguing that Judge Arpert should not have treated Plaintiffs’ motion

under the reconsideration standard. (Pls.’ Moving Br. 16-17.) The Court disagrees. Plaintiffs

informally raised the issue of expert supplementation through correspondence on January 8, 2020.

(ECF No. 554-4.) Thirteen days later, Judge Arpert heard the parties on this issue and denied the

informal request. (ECF No. 553.) Plaintiffs then formally moved the Court to supplement their

expert reports or alternatively reconsider its earlier denial. (See Pls.” Mot., ECF No. 554.) After

seventy-five pages of briefing on expert supplementation, Judge Arpert denied Plaintiffs’ motion.

Although Judge Arpert analyzed Plaintiffs’ motion as one for reconsideration, he also analyzed

the merits of Plaintiffs’ arguments outside the reconsideration realm. (See Order 8-9.) The Court

finds nothing arbitrary about Judge Arpert’s procedure.

Second, Plaintiffs assail Judge Arpert for making two findings they consider erroneous:

first, that the record belied the supplementation’s materiality and timeliness, and second, that

Plaintiffs have known about the supplemental sources since 2018. (Pls.’ Moving Br. 17-21.) For

the reasons stated above, Judge Arpert did not err. Both findings support that Plaintiffs did not find

the supplementation significant enough to render their expert reports misleading. Indeed, Plaintiffs

recognize that their expert reports were never materially incomplete or incorrect. (See Pls.’ Moving

Br. 29 n.7 (“Plaintiffs did not need to supplement their expert reports in order to defeat NL’s

summary judgment motion, so whether they supplemented their reports before summary judgment

would have made no difference. . . . [H]ad Plaintiffs supplemented their expert reports before

moving for summary judgment, their arguments would have been identical to the summary

judgment motion which relied on un-supplemented reports, and nothing would have changed the

Court’s disposition of the motion.” (emphasis added)). Further, as stated above, in all events, courts

have discretion to limit supplementing expert reports to avoid lengthy and costly delays in

litigation. See Fed. R. Civ. P. 1; Akeva L.L.C. v. Mizuno Corp., 212 F.R.D. 306, 310 (M.D.N.C.

2002) (“To construe supplementation to apply whenever a party wants to bolster or submit

additional expert opinions would [wreak] havoc [on] docket control and amount to unlimited

expert opinion preparation.”); cf Tucker v. Ohtsu Tire & Rubber Co., 49 F. Supp. 2d 456, 460 (D.

Md, 1999) (“[A] party who delays supplementing Rule 26(a)(2)(B) expert disclosures until the

filing of its pretrial submissions, absent compelling reasons for doing so, should not expect the

Court automatically to permit the expert to testify at trial about the newly disclosed information,

for such action would condone ‘trial by ambush.’”).

Finally, Plaintiffs charge that Judge Arpert struck Plaintiffs’ supplemental expert evidence

and therefore failed to analyze Plaintiffs’ motion under Rule 37(c). (Pls.” Moving Br. 30-36.) The

Court struggles to make sense of this argument. Judge Arpert did not strike Plaintiffs’ evidence—

in fact, he did not make an evidentiary ruling at all. Further, Judge Arpert noted that Plaintiffs have

produced the new expert sources to Defendants, thereby mitigating sanctions for failure to

supplement under Rule 37. (Order 8-9.) To the extent the parties wish to litigate over the

admissibility of evidence, the Court will consider that dispute through proper motions in limine or

at trial, not through this appeal.!

IV. CONCLUSION

The Court affirms Judge Arpert’s Order and denies Plaintiffs’ appeal. It will issue an order

consistent with this Memorandum Opinion.

,

MICHAEL A. SHIPP ]

UNITED STATES DISTRICT JUDGE

' For similar reasons, the Court rejects at this stage Plaintiffs’ invitation to prematurely rule on the

admissibility of the supplemental sources at trial. (See Pls.’ Moving Br. 36-37.)