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

> District Court, D. New Jersey · March 17, 2022

URL: https://www.frixlaw.com/law-library/cases/10272737

## Case

- **Court:** District Court, D. New Jersey
- **Decided:** March 17, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10272737

## How later opinions describe it (automated extraction)

- stating a magistrate judge is “accorded wide discretion in addressing non-dispositive motions”

## Opinion text

NOT FOR PUBLICATION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.)

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10272737. Public record. Not legal advice.