The opinion
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
MIAMI PRODUCTS & CHEMICAL CO.,
On Behalf of Itself and All Others Similarly
Situated, et al.,
DECISION AND ORDER
Plaintiff,
1:19-CV-00385 EAW
v.
OLIN CORPORATION, et al.,
Defendants.
_____________________________________
AMREX CHEMICAL CO., INC.,
On Behalf of Itself and All Others Similarly
Situated,
Plaintiff,
1:19-CV-00386 EAW
v.
OLIN CORPORATION, et al.,
Defendants.
_____________________________________
MIDWEST RENEWABLE ENERGY, LLC,
On Behalf of Itself and All Others Similarly
Situated,
Plaintiff,
1:19-CV-00392 EAW
v.
OLIN CORPORATION, et al.,
Defendants.
_____________________________________
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_____________________________________
MAIN POOL AND CHEMICAL CO., INC.,
On Behalf of Itself and All Others Similarly
Situated,
Plaintiff,
1:19-CV-00393 EAW
v.
OLIN CORPORATION, et al.,
Defendants.
_____________________________________
PERRY’S ICE CREAM COMPANY, INC.,
On Behalf of Itself and All Others Similarly
Situated,
Plaintiff,
1:19-CV-00403 EAW
v.
OLIN CORPORATION, et al.,
Defendants.
_____________________________________
THE TRIPP PLATING WORKS, INC., On
Behalf of Itself and All Others Similarly
Situated, et al.,
Plaintiffs,
1:19-CV-00975 EAW
v.
OLIN CORPORATION, et al.,
Defendants.
_____________________________________
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In these consolidated actions,1 Defendants seek leave to file a sur-reply expert report
by economic expert Dr. John Johnson. (Dkt. 522). Defendants contend that a second report
by Dr. Johnson is necessary to respond to new analyses contained in the reply report of
Direct Purchaser Plaintiffs’ economic expert Dr. Russell Lamb. Direct Purchaser Plaintiffs
argue in opposition that the analyses at issue were properly included in Dr. Lamb’s reply
report and that there was in any event no prejudice because Defendants had the opportunity
to depose Dr. Lamb subsequent to issuance of his reply report. (Dkt. 528).
“Federal Rule of Procedure 26 permits parties to submit expert testimony that is
‘intended solely to contradict or rebut evidence on the same subject matter identified by
another party.’” Scott v. Chipotle Mexican Grill, Inc., 315 F.R.D. 33, 44 (S.D.N.Y.
2016)(quoting Fed. R. Civ. P. 26(a)(2)(D)(ii)). “Rebuttal evidence is properly admissible
when it will explain, repel, counteract or disprove the evidence of the adverse party.” Sci.
Components Corp. v. Sirenza Microdevices, Inc., 03 Civ. 1851 (NGG) (RML), 2008 WL
4911440, at *2 (E.D.N.Y. Nov. 13, 2008) (citation omitted). “A rebuttal expert report is not
the proper place for presenting new arguments, unless presenting those arguments is
substantially justified and causes no prejudice,” and a rebuttal expert report is also not “an
opportunity for the correction of any oversights in the plaintiff's case in chief.” Id. (citations
omitted). The Court “has wide discretion in determining whether to permit evidence on
rebuttal.” Scott, 315 F.R.D. at 44 (citation omitted). “[C]ourts routinely resolve disputes
1 Unless otherwise noted, all docket references herein refer to Civil Action No. 19-
cv-00385, which is the lead action.
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concerning improperly served expert reports by affording the aggrieved party the
opportunity to serve surrebuttal reports.” In re Specialist & Other Vessel Owner Limitation
Actions, No. 16 CIV. 5010, 2020 WL 8665287, at *2 (S.D.N.Y. June 30, 2020).
Here, having considered the parties’ submissions, the Court concludes that Dr.
Johnson should be afforded an opportunity to address the new analyses contained in Dr.
Lamb’s reply report and it would be prejudicial not to allow Dr. Johnson to address the new
material because he would then potentially be precluded from doing so at trial or otherwise.
Therefore, Defendants’ motion for leave to file a sur-reply expert report (Dkt. 522) is
granted.
Turning to the pertinent schedule, the Court further sets the following deadlines with
respect to the Direct Purchaser Plaintiffs: (1) Defendants shall file their sur-reply expert
report by no later than December 27, 2022; (2) any additional deposition of Dr. Johnson
shall be completed by no later than January 20, 2023; (3) Plaintiffs shall file any sur-rebuttal
expert report by no later than February 10, 2023; (4) the parties shall file Daubert motions
by no later than March 3, 2023; (5) the parties shall file responses to Daubert motions by no
later than March 31, 2023; and (6) the parties shall file replies in support of Daubert motions
by no later than April 21, 2023. ABSENT EXTRAORDINARY CIRCUMSTANCES,
NO FURTHER EXTENSIONS OF THESE DEADLINES WILL BE GRANTED, and
the Court will not look favorably on any attempts to circumvent this ruling.
The Court further sets the following schedule with respect to Defendants’ motion for
an evidentiary hearing regarding class certification (Dkt. 517): (1) Direct Purchaser
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Plaintiffs shall file their response on or before March 17, 2023; and (2) Defendants shall file
any reply on or before March 31, 2023.
Because of the potential that an evidentiary hearing will be held and due to the
congestion of the Court’s calendar, the Court intends to schedule the evidentiary hearing
before it has made a decision on the need for and scope of any such hearing. In other words,
the Court will set aside time now that accounts for the greatest length of time that may be
required for an evidentiary hearing, and counsel, the parties, and any potential witnesses will
be required to be available during this time period. A telephonic status conference is hereby
scheduled for Tuesday, December 20, 2022, at 1:00 p.m., for purposes of scheduling a date
and time for an evidentiary hearing, should the Court ultimately determine that one is
necessary. Counsel should be prepared to schedule an evidentiary hearing in the spring or
summer of 2023 and must be aware of their expert witnesses’ availability during that time
frame, as well as a reasonable estimate of the potential greatest length of time that will be
required for any evidentiary hearing. This is a public telephonic proceeding. To access the
conference, dial (866) 434-5269 and enter access code 8632566# sufficiently in advance of
the start time.
SO ORDERED.
_________________________________
ELIZABETH A. WOLFORD
Chief Judge
United States District Court
Dated: December 6, 2022
Rochester, New York
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