Maney v. Brown

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

PAUL MANEY; GARY CLIFT; GEORGE Case No. 6:20-cv-00570-SB

NULPH; THERON HALL; DAVID HART;

SHERYL LYNN SUBLET; and FELISHIA OPINION AND ORDER

RAMIREZ, a personal representative for the

ESTATE OF JUAN TRISTAN, individually,

on behalf of a class of others similarly

situated,

Plaintiffs,

v.

STATE OF OREGON; KATE BROWN;

COLETTE PETERS; HEIDI STEWARD;

MIKE GOWER; MARK NOOTH; ROB

PERSSON; KEN JESKE; PATRICK

ALLEN; JOE BUGHER; and GARRY

RUSSELL,

Defendants.

BECKERMAN, U.S. Magistrate Judge.

Plaintiffs Paul Maney, Gary Clift, Theron Hall, David Hart, and Sheryl Lynn Sublet,

adults in custody (“AIC”) at Oregon Department of Corrections (“ODOC”) institutions, along

with Felishia Ramirez, the personal representative for the Estate of Juan Tristan (together,

“Plaintiffs”), filed this civil rights class action against the State of Oregon, Colette Peters, Heidi

Steward, Mike Gower, Mark Nooth, Rob Persson, Joe Bugher, and Garry Russell (together,

“Defendants”).

Before the Court are two motions: (1) Plaintiffs’ motion to limit the expert testimony of

Lawrence J. Schoen, PE (“Schoen”) (Pls.’ Mot. Exclude Expert Op. (“Pls.’ Mot.”), ECF

No. 649) and (2) Defendants’ motion to strike Plaintiffs’ subsequent expert report by Dr. David

Fleming (“Fleming”) (Defs.’ Mot. Strike Pls.’ Supp. Expert Report (“Defs.’ Mot.”), ECF No.

651). All parties have consented to the jurisdiction of a magistrate judge pursuant to

28 U.S.C. § 636. For the following reasons, the Court denies both motions.

BACKGROUND

This is a class action against the State of Oregon and various high-level ODOC officials

related to Defendants’ response to the COVID-19 (“COVID”) pandemic in ODOC institutions.

Plaintiffs allege that Defendants violated the Eighth Amendment by subjecting AICs to cruel and

unusual punishment by failing to protect them from heightened exposure to COVID. (See

Seventh Am. Compl. at 36-40, ECF No. 482.) Plaintiffs also allege negligence and wrongful

death claims. (See id. at 40-42.) The Court discussed the relevant facts in its summary judgment

opinion. See Maney v. Oregon, No. 6:20-cv-00570-SB, 2024 WL 2288807, at *2-4, *17-25 (D.

Or. Apr. 10, 2024).

I. FLEMING’S INITIAL REPORT

In July 2023, the parties exchanged expert reports. (See Scheduling Order, ECF No. 467.)

Plaintiffs retained Fleming to answer three questions: (1) “Did ODOC follow national

recommendations and standards in the measures it implemented to prevent COVID-19?”;

(2) “Did the prevention measures ODOC implemented work to prevent the introduction and

spread of COVID-19?”; and (3) “Was there more ODOC could have done to prevent COVID-19

infections, hospitalizations, and deaths?” (See Decl. Allison Rothgeb (“Rothgeb Decl.”) Supp.

Defs.’ Mot. Ex. 1, David Fleming Expert Report (“Fleming Initial Report”) at 2, ECF No. 652-

1.)

In his initial report, Fleming opined on issues related to heating, ventilation, and air

conditioning systems (“HVAC”), one of the non-pharmaceutical interventions available to

ODOC before the COVID vaccine rollout, among other topics. (See, e.g., id. at 3.) Specifically,

when answering question one (did ODOC follow national recommendations and standards in the

measures it implemented to prevent COVID), Fleming opined that ODOC “completely ignored

national [Centers for Disease Control and Prevention (“CDC”)] recommendations” in various

areas, including building ventilation. (Id.)

In chronological order, Fleming reviewed CDC guidance from March 2020, the Oregon

Health Authority’s (“OHA”) initial guidance from April 2020, and ODOC’s initial response in

late April 2020. (Id. at 6-9.) Fleming then laid out the “[e]volution of [p]ublic [h]ealth

[u]nderstanding of COVID” followed by July 2020 CDC guidance and August 2020 OHA

guidance. (Id. at 9-10.)

As part of the evolution of public health understanding of COVID, Fleming described the

accumulating evidence of COVID’s “airborne transmission.” (Id. at 10.) He described a May

2020 publication in the Journal of the American Society of Heating, Refrigerating, and Air-

Conditioning Engineers (“ASHRAE”), authored by Schoen and entitled Guidance for Building

Operations During the COVID-19 Pandemic. (Id.) Fleming explained that the article’s “[c]ore

recommendations” included (1) improving central air filtration to the minimum efficiency

reporting value thirteen (“MERV-13”) standard, (2) keeping systems running as long as possible,

(3) considering portable room air cleaners with high efficiency particulate air (“HEPA”) filters,

and (4) considering ultra-violet germicidal irradiation (“UVGI”), particularly in high-risk spaces

such as prisons. (Id.; see also id. at 27, reiterating the four recommendations.) Fleming stated

that the “CDC began referencing this document and its recommendations in its COVID-19

guidance Ventilation in Buildings.” (Id. at 10.) Fleming then observed that ODOC’s internal

audit tool, developed in May 2020, for assessing its facilities’ responses and management of

COVID, did not include a review of building ventilation. (Id. at 15-16.) Fleming further opined

that ODOC did not adopt the “new ventilation guidance” in its July 2020 guidance. (Id. at 12-

14.)

Fleming reviewed November 2020 regulations from the Oregon Occupational Safety and

Health Division (“Oregon OSHA”), including a ventilation-related rule. (Id. at 17.) The rule

required worksites to optimize the amount of outside air circulating through HVAC systems and

create Infection Control Plans addressing issues including ventilation. (Id.) Fleming surveyed

individual ODOC facilities’ Infection Control Plans, many of which “ignored” Oregon OSHA’s

HVAC rule “and were silent on ventilation[.]” (Id. at 20.) Fleming acknowledged that three

Infection Control Plans mentioned MERV-13 filters, but noted, for example, a delay of up to

ninety days for the filters’ arrival after their order. (Id. at 20-21.) He further noted that ODOC

did not incorporate any mention of building ventilation into its centralized plan. (Id. at 20; see

also id. at 27.)

When answering question three (was there more ODOC could have done to prevent

COVID infections, hospitalizations, and deaths), Fleming observed that the “2020 CDC

recommendations suggest the use of portable HEPA filters and UVGI.” (Id. at 48.) He

documented “[s]ignificant scientific evidence supporting the importance of these recommended

ventilation improvements[.]” (Id.) He cited articles from the American Journal of Public Health,

the Pubmed National Library of Medicine, and the Department of Energy and surveyed

ventilation upgrades in other states. (Id.) Fleming again opined that ODOC “did not adopt the

national recommendations regarding MERV-13 filtration standards for H[VA]C or HEPA filters

and UVGI approaches, and instead remained silent on ventilation issues in their Covid-19 in

Correctional Facilities policy documents.” (Id.) He further opined that other states “install[ed]

more effective building ventilation” but that ODOC did “not invest in HEPA portable air filters

or [UVGI], even in their highest risk congregate living settings.” (Id. at 4, 49.)

Finally, Fleming observed that, many months later, ODOC’s 2022 plan did include

several references to ventilation but continued to remain silent on adoption of the MERV-13

standard in correctional facility HVAC systems and noted that “there is no mention of potential

benefits of either HEPA filters or UVGI.” (Id. at 52.)

In support of his opinions, Fleming cited, inter alia, various iterations of CDC policies,

including the CDC’s Ventilation in Buildings publication—dated December 7, 2020;

December 21, 2020; March 2021; June 2021; and 2021 generally—and the Interim Guidance on

Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention

Facilities. (Id. at 6, 10, 136-37, Appx. 2.)

II. THE COURT’S ORDER

In September 2023, Plaintiffs moved for leave to file a Seventh Amended Complaint.

(See Pls.’ Mot. Leave File Seventh Am. Compl., ECF No. 473.) Defendants opposed Plaintiffs’

motion, arguing that the proposed amendments raised new theories of liability after the close of

discovery. (See Defs.’ Resp. Pls.’ Mot. Leave File Seventh Am. Compl., ECF No. 475.)

In November 2023, the Court held a hearing on the motion. (See Minutes of Proceedings,

ECF No. 481.) The Court concluded that the proposed amended complaint included more

specific factual allegations about, inter alia, HVAC in support of Plaintiffs’ existing claims. (See

Tr. 32:4-8, 38:23, ECF No. 483.)1 The Court granted Plaintiffs’ motion for leave to file the

Seventh Amended Complaint. (See id. 31:9-10; see also Order, ECF No. 481.)

At the hearing, the Court discussed Defendants’ request for additional expert designations

and expert reports. (See Tr. 14:1-31:2, 34:15-38:22.) The Court asked Defendants whether they

would need a new expert to opine on HVAC topics. (Id. 21:8-15.) Defendants responded that,

although they retained experts “well versed in correctional facilities and correctional health

care,” because Plaintiffs did not include any facts related to HVAC in their Sixth Amended

Complaint, Defendants had not retained “someone who could explain the technical aspects of an

HVAC system.” (Id. 21:18-22.) Defendants further explained that their retained experts could

not opine on “the feasibility” of different options for air filtration “given supply chain issues

during the time frame” and the amount of time it would have taken to make the changes. (Id.

29:9-21.) The Court permitted Defendants to designate a new expert on the topic of HVAC.

(Id. 36:9-11.)

Plaintiffs’ counsel asked, “is the Court allowing defense an initial expert report on HVAC

or a rebuttal expert report on HVAC issues?” (Id. 36:25-37:2.) Plaintiffs’ counsel explained, “I

don’t want to misquote the scope of our expert’s testimony, but there are certain aspects of what

[Defendants’ counsel] mentioned earlier, which is the feasibility and the cost or the supply

chains that are not within the scope of our expert’s initial opinions.” (Id. 37:7-11.) Plaintiffs’

counsel clarified that Plaintiffs’ “experts do address the failure to develop written policies and

respond to the requirements from [Oregon] OSHA and elsewhere to upgrade facility HVAC

1 Excerpts of the hearing transcript are also available at Rothgeb Decl. Ex. 2, ECF No.

652-2.

systems to help protect against COVID transmission.” (Id. 37:11-14.) The Court then engaged in

the following exchange with Plaintiffs’ counsel about a potential rebuttal report from Plaintiffs:

THE COURT: So if the defense to [the failure to develop

written policies, follow Oregon OSHA’s requirements, and

upgrade systems] theory of the case is we didn’t do it because it

was too expensive, would you consider that to be a rebuttal expert

or another expert?

[PLAINTIFFS’ COUNSEL]: I think that would probably

be a rebuttal expert, although if it addresses new issues that we

could not address, I wonder if we could also get an opportunity to

rebut any of . . . their expert’s report. I want to make sure that we

have an opportunity to respond if it’s new issues we haven’t

already addressed.

THE COURT: [I will] allow defendants to designate an

expert on HVAC. . . . [I]t sounds to me like it’s not a rebuttal, in

the sense that it will be constrained to the plaintiffs’ HVAC issues,

because [the] defense has . . . different, maybe unrelated issues on

why this didn’t happen. To the extent you raise issues that are

outside the scope of the HVAC issues in plaintiffs’ report,

plaintiffs will have a chance to file a rebuttal report to any new

expert report, or I guess supplement whatever expert report you

already have to respond to any new expert issues.

(Id. 37:15-38:10; see also Order, ECF No. 481, “Defendants’ new expert report (HVAC) . . . [is]

due by 1/16/2024. Plaintiffs’ expert rebuttal report(s) in response are due by 2/16/2024.”) The

Court also explained that the parties could file Daubert motions related to the new experts

beyond the Court’s original Daubert motion deadline. (Id. 36:19-22.)

Following the Court’s order, Defendants produced an expert report prepared by Schoen,

and Plaintiffs responded with a report by Fleming.

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///

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III. SCHOEN’S REPORT

Following the Court’s November 2023 order, Defendants retained Schoen to provide an

overview of ventilation in indoor spaces and to respond to Fleming’s assertions and opinions on

ventilation. (See Lawrence Schoen Expert Report (“Schoen Report”) at 1.)2

Schoen is a licensed professional engineer with over forty years of experience with

HVAC systems. (Id. at 1, 29-31.) He is an ASHRAE fellow, was the chair of ASHRAE’s

Environmental Health Committee in 2010 and 2011, and published the article Guidance for

Building Operations During the COVID-19 Pandemic in the May 2020 ASHRAE Journal. (Id. at

1-2, 31-34.)

Schoen provided numerous HVAC-related opinions, explaining that (1) “Fleming

mischaracterize[d his] ASHRAE article by overstating the utility and ability of HVAC systems

to mitigate disease spread in mechanically or naturally ventilated buildings[;]” (2) “Fleming

misinterpret[ed] the timeline of the [CDC] guidance for ventilation in buildings[;]” (3) neither

Schoen’s “ASHRAE article nor the CDC guidance document entitled ‘Ventilation in Buildings’

characterized ventilation as a key non-pharmaceutical intervention to prevent the spread of

COVID[;]” (4) “ODOC purchased MERV-13 filters for the health care areas at its facilities in

late 2020 and early 2021” and took other action to address ventilation concerns related to

COVID; (5) “[d]ilution ventilation provided by HVAC cannot significantly mitigate close

personal exposure . . . to a person infected with COVID[;]” (6) “indoor spaces like those in

ODOC facilities already achieve a significant level of dilution ventilation and there are

diminishing returns to additional ventilation measures[;]” (7) “HVAC systems have not been

2 Schoen’s Report is available at Decl. Nadia Dahab (“Dahab Decl.”) Ex. A, ECF No.

650-1, and Rothgeb Decl. Ex. 3, ECF No. 652-3.

shown to spread COVID-19 infections from one room to another[;]” (8) “[i]n HVAC systems

that utilize 100% outdoor air and do not recirculate air through the system, filters provide no

additional utility in preventing or mitigating spread of airborne contaminants within a ventilated

space, including viruses[;]” (9) “[r]ecommendations to open system dampers to increase the

volume of outside air in an HVAC system generally provide little utility in HVAC systems that

utilize 100% outdoor air since no mixing of fresh air and recirculated air occurs within these

systems[;]” and (10) “[s]upply chain disruptions and increased demand created difficulty in

obtaining MERV-13 filters during much of 2020 and beyond.” (Id. at 2-4.)

Schoen began with an overview of the two kinds of “dilution ventilation”: the use of fans

to (1) supply outdoor air or (2) recirculate filtered air that contains less or no contaminants or

odors. (Id. at 5-6.) He then provided an overview of the role of HVAC and dilution ventilation in

mitigating the spread of airborne contaminants. (Id. at 7-9.) He explained that dilution ventilation

has little ability to mitigate exposure to a person who is between three to six feet from a person

infected with COVID “because the manner in which HVAC systems move air through indoor

spaces, often from the ceiling, is too remote and too slow to significantly impact aerosol

transmission at the close range.” (Id. at 7.) Beyond the close range, ventilation can assist in

mitigating exposure, but with diminishing returns, and ventilation could be part of an infection

control bundle but should not solely be relied upon significantly to reduce the risk of infection.

(Id. at 7-8.) According to Schoen, “there is no scientific consensus quantifying the extent to

which increases in outdoor air exchange rates or increased levels of air filtration in HVAC

systems reduces the transmission of infectious aerosols.” (Id. at 9.)

Next, Schoen reviewed the differences between infectious aerosols in recirculating

HVAC systems versus fresh air systems. (Id.) Schoen explained that systems that introduce one

hundred percent outdoor air do not require high level filtration such as MERV-13 because the

system is not recirculating air from the occupied space but is merely drawing in outdoor air. (Id.)

Further, “conditioning” outdoor air requires energy, such as to moderate the temperature of the

air coming in to match the indoor temperature. (Id. at 10.) Accordingly, the strategy of increasing

outdoor air intake has limits. (Id.)

Schoen described particle filtration—the most common type of air cleaning used in

HVAC systems. (Id.) Filters are tested for removal efficiency by particle size, ranging from

MERV-1 to MERV-16. (Id.) Before April 2020, MERV-13 filters were less widely known and

less commonly used. (Id. at 10-11.) According to Schoen, because the COVID virus commonly

traveled “in a particle with salts, moisture[,] and mucous[,]” MERV-7 to MERV-12 filters also

provide some COVID-related benefit in filtering. (Id. at 11.) Further, “facilities had difficulties

obtaining MERV-13 filters, due to their limited availability, which was exacerbated in 2020 and

beyond by supply chain disruption and higher demand due to the pandemic.” (Id.)

Schoen then summarized his May 2020 ASHRAE Journal article. (Id. at 11-13.) The

article acknowledged other non-ventilation methods to mitigate disease spread (such as social

distancing, disinfecting, and good hygiene), and suggested HVAC-related actions secondarily to

other strategies. (Id. at 12.)

Next, Schoen reviewed the CDC’s guidance entitled Ventilation in Buildings and

discussed the chronology of COVID guidance mentioned “in Dr. Fleming’s report.” (Id. at 13-

18.) Schoen ultimately concluded that “Fleming misidentifie[d] the timing of [the] CDC’s

guidance on ‘Ventilation in Buildings’ relative to the other sources of guidance discussed in his

report.” (Id. at 15.)

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Finally, Schoen offered his opinions disagreeing with several of Fleming’s other

ventilation opinions. (Id. at 18-27.) Schoen disagreed that ventilation is a key, non-

pharmaceutical intervention for preventing the spread of COVID; opined that the record shows

ODOC’s diligence in achieving ventilation recommendations; explained that ODOC personnel

worked to comply with the Oregon OSHA ventilation rule; explained that Fleming

misunderstood the utility of MERV-13 rated filters in non-recirculating HVAC systems; and

disputed Fleming’s statement that the use of MERV-13 filters was a nationally recognized

standard. (Id.) For example, Schoen explained that his article included other suggestions related

to ventilation beyond the four on which Fleming focused (improving central air filtration to the

MERV-13 standard, keeping systems running as long as possible, considering portable room air

cleaners with HEPA filters, and considering UVG particularly in high-risk spaces such as

prisons). (Id. at 20.) Schoen’s article also suggested opening minimum outdoor dampers, and

Schoen explained that the record reveals that a Facility Energy Technician at Oregon State

Penitentiary had noted that the facility was doing just that but that “with the cold nights our

heating system may not keep up[.]” (Id. at 20-21.) Schoen noted that some of ODOC’s facilities

use one hundred percent fresh air systems and do not recirculate air, so implementing MERV-13

filters would not have meaningfully impacted the spread of COVID in those facilities. (Id. at 21,

25.) Finally, Schoen responded to Fleming’s observation that at least one ODOC facility ordered

MERV-13 filters but that the orders were delayed, explaining that the filters were in high

demand and there were supply chain disruptions in late 2020 and early 2021. (Id. at 25.)

IV. FLEMING’S SUBSEQUENT REPORT

Fleming subsequently authored a report in response to Schoen’s. (See Rothgeb Decl.

Ex. 4, David Fleming Subsequent Expert Report (“Fleming Subsequent Report”), ECF No. 652-

4.)

Fleming critiqued Schoen for not linking the information in his report “in a systemic and

comprehensive way back to the actual ventilation systems in operation at all ODOC facilities in

2020.” (Id. at 3.) Fleming asserted that Schoen appeared to agree that, after the CDC issued

guidance, OHA and ODOC “should be held accountable for recognizing and incorporating . . .

ventilation interventions as a COVID prevention strategy[.]” (Id.) Fleming then pointed to a May

2020 publication from the CDC titled Interim Guidance for Businesses and Employers

Responding to Coronavirus Disease 2019 (COVID-19), May 2020, which recommended

improving engineering controls such as by increasing ventilation rates, ensuring ventilation

systems operate properly, increasing outdoor air ventilation, improving central air filtration to the

MERV-13 or the highest compatible with the filter rack, and keeping systems running longer

hours. (Id. at 4.) Fleming explained that the May 2020 publication was a precursor to the CDC’s

Ventilation in Buildings guidance. (Id.) Fleming further observed that even after the CDC’s

December 7, 2020, guidance titled Ventilation in Buildings, OHA’s December 16, 2020, interim

guidance on management of COVID in correctional facilities failed to address HVAC

operations. (Id. at 5-6.)

Fleming reiterated that Oregon OSHA’s rule mandated that ODOC “establish and

implement infection control plans that implemented controls including ventilation[,]” which

most facilities did not do. (Id. at 6, emphasis omitted.) Fleming asserted that Schoen’s report is

“internally inconsistent” where it “objects to describing COVID-19 building ventilation

interventions as ‘key non-pharmaceutical interventions’” while also “validat[ing] their routine

consideration and use as a necessary part of any overall strategy for COVID-19 prevention[.]”

(Id. at 7.) Fleming pointed out that even before Schoen’s ASHRAE Journal article, “ASHRAE as

an organization had already affirmed the importance of including building ventilation as an

element of a COVID-19 control strategy” with an April 2020 statement from ASHRAE’s

COVID Epidemic Task Force. (Id. at 8.)

Finally, Fleming disputed Schoen’s conclusion that “ODOC leadership was consistently

taking the appropriate steps regarding building ventilation to decrease the risk of COVID-19

transmission in ODOC facilities.” Fleming instead concluded that ODOC’s leadership was

ineffective. (Id. at 9-11.) He opined that “Schoen provide[d] no evidence that any systematic

analysis of COVID-19 risk reduction and HVAC system operation was ever ordered, conducted,

or acted upon by ODOC leadership in real time during the critical first year of the COVID-19

pandemic.” (Id. at 10, emphasis omitted.)

V. PROCEDURAL HISTORY

In April 2024, the Court denied Defendants’ motion to exclude Fleming’s initial report

and Defendants’ narrower request to exclude Fleming’s testimony related to building ventilation

contained therein. See Maney v. Oregon, No. 6:20-cv-00570-SB, 2024 WL 1695083, at *6-10

(D. Or. Apr. 19, 2024). The Court concluded that Defendants’ arguments about the national

standards—including that Fleming did not acknowledge that Schoen’s article also stated that

HVAC upgrades were an unproven COVID mitigation strategy, that Fleming did not

acknowledge that the article indicated that MERV-13 filters are not compatible with every

HVAC system, and that the CDC did not publish its guidance on building ventilation until

December 7, 2020—are not grounds for exclusion. Id. at *10. However, the Court noted that

there is an inadequate basis for Fleming’s opinion that ODOC did “not invest in HEPA portable

air filters” at all because the record reveals some HEPA filter purchases, explaining that the

Court will resolve through pretrial motions in limine the precise contours of Fleming’s

permissible ventilation-related testimony, specifically addressing Defendants’ objection to

Fleming’s testimony that ODOC did not invest in any HEPA portable air filters. Id.

Also in April 2024, the Court stayed proceedings in this case pending resolution of

Defendants’ appeal of the Court’s summary judgment opinion, which, inter alia, denied

Defendants qualified immunity. (See Order, ECF No. 647); Maney, 2024 WL 2288807, at *31-

33. The Court permitted the parties to file discovery-related motions to the extent they would

otherwise be permitted under the Federal Rules of Civil Procedure, and to the extent that they

relate to the claims over which the Court retains jurisdiction pending the appeal. (See Order, ECF

No. 647.)

Plaintiffs now move to limit Schoen’s testimony (see Pls.’ Mot.), and Defendants move

to strike Fleming’s subsequent report (see Defs.’ Mot.).

DISCUSSION

Plaintiffs move to limit Schoen’s testimony related to the timeline of CDC guidance for

ventilation in buildings, arguing that he is not qualified, his opinions lack any basis in reliable

principles and methods, and his opinions will not assist the trier of fact. (See Pls.’ Mot. at 1, 4-6.)

Defendants move to strike Fleming’s subsequent report as an improper surrebuttal report or a

supplemental report following Schoen’s rebuttal report. (See Defs.’ Mot. at 13-22.)

I. JURISDICTION

As a preliminary matter, the Court considers whether it has jurisdiction to decide the

parties’ motions during the pendency of Defendants’ appeal. The parties do not directly brief the

issue, but Defendants suggest that “it is not clear that this Court has jurisdiction to resolve these

motions to strike and order additional discovery regarding a claim that is currently on appeal.”

(Defs.’ Reply Defs.’ Mot. (“Defs.’ Reply”) at 12 n.2, ECF No. 661.)

“Ordinarily, a notice of appeal divests the district court of jurisdiction ‘over those aspects

of the case involved in the appeal.’” Christian v. Rhode, 41 F.3d 461, 470 (9th Cir. 1994)

(quoting Griggs v. Provident Consumer Disc. Co., 459 U.S. 56, 58 (1982)). “An order denying a

motion for summary judgment is usually not an immediately appealable final decision.” Est. of

Anderson v. Marsh, 985 F.3d 726, 730 (9th Cir. 2021) (citing, inter alia, Plumhoff v. Rickard,

572 U.S. 765, 771 (2014)). “But that general rule does not apply when the summary judgment

motion is based on a claim of qualified immunity, because pretrial orders denying qualified

immunity generally fall within the collateral order doctrine.” Id. (simplified).

Here, the Court granted in part and denied in part Defendants’ various motions for

summary judgment. See Maney, 2024 WL 2288807, at *65. Defendants have appealed the

Court’s denial of qualified immunity pursuant to the collateral order doctrine. (See Notice of

Appeal, ECF No. 640.) Because Plaintiffs have alleged Eighth Amendment, negligence, and

wrongful death claims (see Seventh Am. Compl. at 36-42) and qualified immunity applies only

to Plaintiffs’ Eighth Amendment claim, the Court retains jurisdiction over Plaintiffs’ negligence

and wrongful death claims. See Johnson v. Bay Area Rapid Transit Dist., 724 F.3d 1159, 1171

(9th Cir. 2013) (“[T]he doctrine of qualified immunity does not shield defendants from state law

claims.”) (citations omitted); Shen v. Albany Unified Sch. Dist., 436 F. Supp. 3d 1305, 1309

(N.D. Cal. 2020) (“Because qualified immunity is a federal doctrine, it does not bar potential

state law liability.”) (citations omitted). Schoen’s and Fleming’s testimony relate to Plaintiffs’

state law claims—over which the Court retains jurisdiction—and therefore the Court may decide

the instant motions. See Castaneda v. Molinar, No. 07-cv-07241 DDP JCX, 2008 WL 9449576,

at *1 (C.D. Cal. May 20, 2008) (“‘Because discovery and other pretrial matters are not relevant

to the subject of the appeal—[the defendants’] claim of immunity,’ the Court may continue to

oversee discovery in this case.” (quoting Schering Corp. v. First DataBank, Inc., No. C 07-

01142 WHA, 2007 WL 1747115, at *4 (N.D. Cal. June 18, 2007))); cf. Nat. Res. Def. Council,

Inc. v. Sw. Marine Inc., 242 F.3d 1163, 1166 (9th Cir. 2001) (“We conclude that the district court

possessed jurisdiction to modify the injunction while the consolidated appeal was pending,

because the changes preserved the status quo and did not materially alter the status of the case on

appeal.”); J. P. by & through Villanueva v. County of Alameda, No. 17-cv-05679-YGR, 2018

WL 3845890, at *3 (N.D. Cal. Aug. 13, 2018) (rejecting the defendants’ motion to stay

discovery during the pendency of the appeal of the court’s denial of qualified immunity).

II. PLAINTIFFS’ MOTION

Plaintiffs argue that Schoen is not qualified to opine on the timing of the CDC’s HVAC-

related COVID guidance, that Schoen’s opinions lack any basis in reliable principles and

methods, and that his opinions will not assist the trier of fact. (See Pls.’ Mot. at 1, 3-6.)

A. Applicable Law

Federal Rule of Evidence 702 provides the standards for expert testimony:

A witness who is qualified as an expert by knowledge,

skill, experience, training, or education may testify in the form of

an opinion or otherwise if the proponent demonstrates to the court

that it is more likely than not that:

(a) the expert’s scientific, technical, or other specialized

knowledge will help the trier of fact to understand the

evidence or to determine a fact in issue;

(b) the testimony is based on sufficient facts or data;

(c) the testimony is the product of reliable principles and

methods; and

(d) the expert’s opinion reflects a reliable application of the

principles and methods to the facts of the case.

FED. R. EVID. 702 (as amended Dec. 1, 2023). In other words, an expert must be qualified, and

expert testimony must be both relevant and reliable. See Daubert v. Merrell Dow Pharm., Inc.,

509 U.S. 579, 589 (1993).

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First, expert testimony must be relevant. “Expert testimony which does not relate to any

issue in the case is not relevant and, ergo, non-helpful.” Id. at 591 (quoting 3 Weinstein & Berger

¶ 702[02], p. 702-18); see also City of Pomona v. SQM N. Am. Corp., 750 F.3d 1036, 1044 (9th

Cir. 2014) (“Expert opinion testimony is relevant if the knowledge underlying it has a valid

connection to the pertinent inquiry.” (quoting Primiano v. Cook, 598 F.3d 558, 565 (9th Cir.

2010), as amended (Apr. 27, 2010))).

Second, the testimony must be reliable. The Ninth Circuit applies a flexible test:

The test of reliability is flexible. The court must assess the expert’s

reasoning or methodology, using as appropriate criteria such as

testability, publication in peer-reviewed literature, known or

potential error rate, and general acceptance. But these factors are

meant to be helpful, not definitive, and the trial court has discretion

to decide how to test an expert’s reliability as well as whether the

testimony is reliable, based on the particular circumstances of the

particular case. The test is not the correctness of the expert’s

conclusions but the soundness of [the expert’s] methodology, and

when an expert meets the threshold established by Rule 702, the

expert may testify and the fact finder decides how much weight to

give that testimony. Challenges that go to the weight of the

evidence are within the province of a fact finder, not a trial court

judge. A district court should not make credibility determinations

that are reserved for the jury.

City of Pomona, 750 F.3d at 1044 (simplified). The Supreme Court has explained that, when

considering non-scientific testimony, courts may consider whether the expert’s “preparation is of

a kind that others in the field would recognize as acceptable.” Kumho Tire Co. v. Carmichael,

526 U.S. 137, 151 (1999); see also FED. R. EVID. 703 (“An expert may base an opinion on facts

or data in the case that the expert has been made aware of or personally observed. If experts in

the particular field would reasonably rely on those kinds of facts or data in forming an opinion

on the subject, they need not be admissible for the opinion to be admitted.”). “It is the proponent

of the expert who has the burden of proving admissibility.” Lust v. Merrell Dow Pharms., Inc.,

89 F.3d 594, 598 (9th Cir. 1996).

Rule 702 was recently amended. “Effective December 1, 2023, Rule 702 clarified [that]

the proponent of expert testimony must meet all of Rule 702’s substantive standards for

admissibility by a preponderance of evidence.” Cleaver v. Transnation Title & Escrow, Inc., No.

1:21-cv-00031-AKB, 2024 WL 326848, at *2 (D. Idaho Jan. 29, 2024); see also FED. R.

EVID. 702 (explaining that the proponent of the evidence must demonstrate that it is more likely

than not that the expert satisfies the admissibility requirements). The advisory committee

cautions that courts had incorrectly “held that the critical questions of the sufficiency of an

expert’s basis, and the application of the expert’s methodology, are questions of weight and not

admissibility.” FED. R. EVID. 702 advisory committee’s note to 2023 amendment; see also id.

(explaining that the admissibility standard “does not mean, as certain courts have held, that

arguments about the sufficiency of an expert’s basis always go to weight and not admissibility”)

(emphasis added). Instead, “[t]he amendment clarifies that the preponderance standard applies to

the three reliability-based requirements[.]” Id. “[O]nce the court has found it more likely than not

that the admissibility requirement has been met, any attack by the opponent will go only to the

weight of the evidence.” Id. “Because the rule change was a clarification, and not a change in the

standard, the new language does not materially alter the admissibility of expert testimony.”

Alivecor, Inc. v. Apple, Inc., No. 21-cv-03958-JSW, 2024 WL 591864, at *3 n.2 (N.D. Cal. Feb.

13, 2024) (citation omitted).

B. Analysis

1. Qualifications

Plaintiffs suggest in passing that Schoen is not qualified to opine on the timing of the

CDC’s HVAC-related COVID guidance but do not further support their argument. (See Pls.’

Mot. at 1.)

///

Schoen is a licensed professional engineer with over forty years of experience with

HVAC systems, and he has health-related experience such as serving on ASHRAE’s

Environmental Health Committee. (See Schoen Report at 1, 29-30.) Schoen is clearly an expert

in ventilation and HVAC. The Court concludes that Schoen need not demonstrate a more

granular level of expertise in a combination of CDC, HVAC, and COVID knowledge, skill,

experience, training, or education. See Moribe v. Am. Water Heater Co., No. 21-cv-00254 HG-

WRP, 2023 WL 8998745, at *6 (D. Haw. Dec. 28, 2023) (“Lack of detailed experience affects

credibility rather than admissibility.”) (citation omitted); Shafer v. C.R. Bard, Inc., No. 20-cv-

1056RSM, 2021 WL 4305216, at *3 (W.D. Wash. Sept. 22, 2021) (concluding that the expert

was qualified and explaining that “Defendants are splitting hairs as to the particularized expertise

required for an expert to opine on this issue, and a lack of particularized expertise goes to the

weight of the testimony, not its admissibility”); Bixby v. KBR, Inc., No. 3:09-cv-632-PK, 2012

WL 12952722, at *2 (D. Or. Aug. 29, 2012) (“Where a witness’ credentials are minimally

sufficient to permit the witness to be qualified as an expert, the courts lack discretion to exclude

the witness’ proffered expert opinion on the grounds that the witness is not the best-qualified

expert in the area or that other witnesses had credentials of greater relevance or prestigiousness.”

(citing Pages-Ramirez v. Ramirez-Gonzalez, 605 F.3d 109, 114, 115-117 (1st Cir. 2010))); In re

Silicone Gel Breast Implants Prod. Liab. Litig., 318 F. Supp. 2d 879, 889 (C.D. Cal. 2004)

(explaining that “[a] court abuses its discretion when it excludes expert testimony solely on the

ground that the witness’s qualifications are not sufficiently specific if the witness is generally

qualified”) (citation omitted).

2. Reliability

Plaintiffs argue that Schoen’s testimony related to the timing of CDC guidance is

unreliable because he does not know when the CDC first referred to his ASHRAE Journal article

in its COVID guidance, does not know when the CDC first addressed building ventilation in its

COVID guidance, and did not conduct any independent research to understand when the CDC

first issued guidance related to building ventilation in response to COVID. (See Pls.’ Mot. at 5-

6.) Plaintiffs cite Schoen’s deposition as support, where Schoen testified that he did not “have

any understanding as to when the CDC first referred to [his article,]” “have any understanding of

when the CDC first addressed building ventilation in its COVID-19 guidelines[,]” nor

“conduct[ed] any independent research . . . of when the CDC initially issued guidance relating to

building ventilation in response to COVID-19[.]” (Dahab Decl. Ex. B, Lawrence Schoen Depo.

(“Schoen Depo.”) 48:19-23, 49:8-23, 52:1-6, ECF No. 650-2.)

Defendants respond that Schoen merely points out a discrepancy in Fleming’s own

testimony. (See Defs.’ Resp. Pls.’ Mot. at 2-6, ECF No. 658.) Schoen’s report documents that, in

Fleming’s initial report, Fleming did not cite to any CDC guidance about building ventilation

authored prior to December 2020. (See id.)

The Court agrees with Defendants. Schoen opines that “Fleming mischaracterize[d] the

timeline of CDC’s guidance for ventilation in buildings” and, specifically, that “Fleming

misidentifie[d] the timing of CDC’s guidance on ‘Ventilation in Buildings’ relative to the other

sources of guidance discussed in his report.” (Schoen Report at 15, 21.) Schoen explains that the

“CDC did not issue its guidance entitled ‘Ventilation’ or ‘Ventilation in Buildings’ until

December 7, 2020.” (Id. at 21.) Schoen does not opine as to when the CDC first referred to his

ASHRAE Journal article or first addressed building ventilation in any of its guidance.

Accordingly, Schoen’s opinion is more narrow than Plaintiffs construe it to be.3

3 Accordingly, Plaintiffs’ argument that Defendants cannot offer opinions from a

purported expert on matters to which the expert disclaims expertise are unavailing. (See Pls.’

Reply Pls.’ Mot. at 2-3, ECF No. 663, citing, inter alia, Droplets, Inc. v. Yahoo! Inc., No. 12-

The Court concludes that Schoen’s testimony has a reliable basis, and Plaintiffs’

challenges go to the weight of Schoen’s opinion, not its admissibility.4 See Wendell v.

GlaxoSmithKline LLC, 858 F.3d 1227, 1237 (9th Cir. 2017) (“Where, as here, the experts’

opinions are not the ‘junk science’ Rule 702 was meant to exclude, the interests of justice favor

leaving difficult issues in the hands of the jury and relying on the safeguards of the adversary

system—vigorous cross-examination, presentation of contrary evidence, and careful instruction

on the burden of proof[.]”) (simplified); Hangarter v. Provident Life & Acc. Ins. Co., 373 F.3d

998, 1017 n.14 (9th Cir. 2004) (“Although Defendants . . . argued that [the expert]’s selection of

documents to review went to the reliability of his ‘methodology’ as an expert, the district court

correctly surmised that questions regarding the nature of [the expert]’s evidence went more to the

‘weight’ of his testimony—an issue properly explored during direct and cross-examination.”

(citing Children’s Broad. Corp. v. Walt Disney Co., 357 F.3d 860, 865 (8th Cir. 2004)));

OWLink Tech., Inc. v. Cypress Tech. Co., No. 8:21-cv-00717-SPG-KESX, 2023 WL 4291486, at

*1-2 (C.D. Cal. Feb. 16, 2023) (rejecting the defendant’s argument that expert testimony should

CV-03733-JST, 2021 WL 11701485, at *5 (N.D. Cal. Nov. 29, 2021).) Here, Schoen’s

disclaimer of the limits of his expertise merely clarified the narrow scope of his testimony. (See

Schoen Depo. 50:20-51:11, “I’m not an expert in what [the] CDC said and when they said it. . . .

I was asked as an expert in this case to do several things . . . and one of them was to respond to

Flem[]ing’s assertions . . . that ODOC and OHA ignored advice. And I used the documents that

Flem[]ing listed in his report. And so when I make a statement, [the] CDC issued its guidance

entitled ‘Ventilation in buildings in the year 2020,’ that should be viewed in the context of the

whole of this particular bullet which is talking about Flem[]ing’s report.”)

4 Plaintiffs also state that Schoen’s testimony is based in part on declarations that

Plaintiffs “have never seen before.” (Pls.’ Resp. Defs.’ Mot. (“Pls.’ Resp.”) at 5, ECF No. 659,

citing Schoen Report Appx. C, listing declarations from Hammonds, Davis, Bruns, and Stark;

see also Schoen Report at 21 n.73.) It is unclear whether Plaintiffs imply that Defendants should

have disclosed the names and testimony of those individuals as part of discovery or whether

Plaintiffs believe that Rule 37’s exclusionary sanction should apply to any testimony from

Schoen that relies on those declarations. The Court concludes that Plaintiffs’ passing critique of

Schoen’s reliance on those declarations is too vague for the Court to resolve the objection.

be excluded because the expert “failed to conduct an adequate independent investigation because

he relied on summaries of data provided by the parties[,]” and concluding that the defendant’s

argument goes to the weight of the testimony not its admissibility).

3. Relevance

To the extent Plaintiffs argue that Schoen’s testimony will be of limited assistance to the

trier of fact because the CDC did promulgate guidance related to building ventilation before

December 2020, or because Fleming based his opinion about national standards not just on CDC

guidance but also on Schoen’s article, other publications, and actions taken by other states, those

arguments go to the weight of the evidence, not its admissibility.

For all of these reasons, the Court denies Plaintiffs’ motion to limit Schoen’s testimony.

III. DEFENDANTS’ MOTION

Defendants argue that Schoen’s report was a rebuttal report to Fleming’s initial report

and that Fleming’s subsequent report is an improper surrebuttal or supplemental report. (See

Defs.’ Mot. at 13-22.)

A. Applicable Law

“Rule 26’s only constraint on [a] rebuttal expert . . . defines a rebuttal report as one

‘intended solely to contradict or rebut evidence on the same subject matter identified by another

party under Rule 26(a)(2)(B) or (C)[.]’” Century Indem. Co. v. Marine Grp., LLC, No. 3:08-cv-

1375-AC, 2015 WL 5521986, at *2 (D. Or. Sept. 16, 2015) (quoting FED. R. CIV. P.

26(a)(2)(D)(ii)). “Rebuttal expert reports necessitate a showing of facts supporting the opposite

conclusion of those at which the opposing party’s experts arrived in their responsive reports.”

Meyer v. Mittal, No. 3:21-cv-00621-HZ, 2024 WL 378743, at *1 (D. Or. Feb. 1, 2024) (quoting

Century Indem. Co., 2015 WL 5521986, at *3). “They may be used to ‘explain, repel, counteract

or disprove evidence of the adverse party,’ but should not be used to present new arguments.” Id.

(quoting Century Indem. Co., 2015 WL 5521986, at *3).

“The phrase ‘same subject matter’ should be read narrowly because a broad reading that

encompasses any possible topic that relates to the subject matter at issue will blur the distinction

between affirmative expert and rebuttal expert.” Diamond Resorts U.S. Collection Dev., LLC v.

Pandora Mktg., LLC, No. 20-cv-5486-DSF-ADSX, 2023 WL 9659943, at *8 (C.D. Cal. July 26,

2023) (simplified). “The court must carefully analyze the initial expert’s proposed testimony and

the corresponding expert’s rebuttal testimony to determine the propriety of the rebuttal

testimony.” Obesity Rsch. Inst., LLC v. Fiber Rsch. Int’l, LLC, No. 15-cv-0595-BAS-MDD,

2016 WL 795888, at *1 (S.D. Cal. Mar. 1, 2016) (citing HM Elecs., Inc. v. R.F. Techs., Inc., No.

12-cv-2884-BAS-MDD, 2015 WL 1879428, at *1 (S.D. Cal. Apr. 17, 2015)).

Federal Rule of Civil Procedure 26(e) mandates that, where an expert provides a written

report, the party has a duty to supplement incorrect information included in the report and

information given during the expert’s deposition. See FED. R. CIV. P. 26(e). “A supplemental

report that seeks to strengthen or deepen opinions expressed in the original expert report is

improper under Rule 26(e) and subject to exclusion under Rule 37(c).” Andrews v. Plains All

Am. Pipeline, L.P, No. 15-cv-4113-PSG-JEMX, 2019 WL 6647928, at *4 (C.D. Cal. Nov. 22,

2019) (simplified).

Rule 26 requires parties to make expert “disclosures at the times and in the sequence that

the court orders.” FED. R. CIV. P. 26(a)(2)(D). “If a party fails to provide information or identify

a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or

witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was

substantially justified or is harmless.” FED. R. CIV. P. 37(c)(1). A court has “particularly wide

latitude” when exercising its “discretion to issue sanctions under Rule 37(c)(1).” Yeti by Molly,

Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 1106 (9th Cir. 2001) (citing Ortiz–Lopez v.

Sociedad Espanola de Auxilio Mutuo y Beneficiencia de Puerto Rico, 248 F.3d 29, 34 (1st Cir.

2001)). District courts consider “[s]everal factors to guide the determination of whether

substantial justification and harmlessness exist, including (1) prejudice or surprise to the party

against whom the evidence is offered; (2) the ability of that party to cure the prejudice; (3) the

likelihood of disruption of trial; and (4) bad faith or willfulness in not timely disclosing the

evidence.” Liberty Ins. Corp. v. Brodeur, 41 F.4th 1185, 1192 (9th Cir. 2022) (quoting Silvagni

v. Wal-Mart Stores, Inc., 320 F.R.D. 237, 242 (D. Nev. 2017)). Plaintiffs bear the burden of

proving that the delay was substantially justified or harmless. See R&R Sails, Inc. v. Ins. Co. of

Penn., 673 F.3d 1240, 1246 (9th Cir. 2012); Yeti, 259 F.3d at 1107; Amos v. Makita U.S.A., Inc.,

No. 2:09-cv-01304-GMN, 2011 WL 43092, at *3 (D. Nev. Jan. 6, 2011).

B. Analysis

Defendants argue that Schoen’s report is a rebuttal to Fleming’s initial report because it

responds exclusively to Fleming’s HVAC opinions. (See Defs.’ Mot. at 13, 16-18.) Relatedly,

Defendants argue that Fleming’s subsequent report is an improper attempt to buttress his

opinions in his initial report and is not a proper surrebuttal or supplemental expert report. (See id.

at 18-19.) Plaintiffs agree that Fleming’s subsequent report is proper under the Court’s

November 2023 order only if Schoen’s report raises new issues, but Plaintiffs respond that

Schoen’s report did just that. (See Pls.’ Resp. at 4-8.) Plaintiffs argue that Schoen’s report opines

on the different types of HVAC systems, compares the mitigation effects of ventilation efforts

for close personal exposure compared to exposure beyond the close range, discusses limitations

on systems that maximize outside air based on the capacity of the system to heat or cool the air,

opines about the effectiveness of differently rated filters, mentions supply chain limitations, and

discusses his ASHRAE article. (See id. at 4-5.)

Defendants argue that the Court should strike Fleming’s subsequent report because the

failure to comply with Rule 26 is neither substantially justified nor harmless. (See Defs.’ Mot. at

20-22.) Defendants argue that the opinions expressed in Fleming’s subsequent report could have

been expressed in his initial report, and thus the subsequent report is not substantially justified.

(Id. at 21.) Defendants also argue that the opinions are not harmless because it gives Plaintiffs an

opportunity to attempt to rehabilitate an expert. (Id.) Plaintiffs respond that even if Fleming’s

subsequent report is not a proper rebuttal report, Rule 37 sanctions are not warranted here

because the report is substantially justified and harmless. (See Pls.’ Resp. at 8-10.) Plaintiffs

argue that the Court authorized a supplemental report and that the report is harmless because

there was sufficient notice and time before trial given that there is currently no scheduled trial

date. (Id.)

The Court concludes that even if Schoen’s report qualifies as a rebuttal report only,

Fleming’s subsequent report is substantially justified and harmless. The Court’s order specified

Plaintiffs’ ability to file a rebuttal report should Defendants’ expert opine on any new issues.

Schoen’s report touches on some of the precise issues that the Court discussed with the parties in

November 2023 that may constitute new issues to which Plaintiffs could have an opportunity to

respond, such as the technical aspects of HVAC systems and the feasibility of different options

for air filtration considering, for example, supply chain issues. (See, e.g., Schoen Report at 2-

111, discussing specific technical aspects of HVAC systems and supply chain issues.) Further,

Defendants did not label Schoen’s report as a rebuttal report. Although Fleming’s subsequent

report does not directly respond to those new issues but instead responds to Schoen’s critiques of

his initial report, Schoen’s testimony beyond the scope of Fleming’s initial report is only

admissible to the extent that Schoen’s report is an affirmative expert report.

The majority of Fleming’s subsequent report reflects Fleming’s opinions set out in his

original report, and the Court has already decided the parties’ motions for summary judgment. In

other words, regardless of the Court’s ruling on Defendants’ current motion, Fleming will be

allowed to testify at trial to his opinion that building ventilation is a key, non-pharmaceutical

COVID prevention measure, that ODOC did not timely adopt ventilation guidelines, and that

ODOC leadership did not take appropriate steps to address ventilation concerns during the first

year of the pandemic.5 The parties’ key dispute appears to be whether Fleming may reference a

May 2020 CDC publication that he did not cite in his initial report.

Defendants argue that Plaintiffs have consistently identified the CDC’s Guidance on

Management of COVID in Correctional and Detention Facilities as the basis for their claims.

(See Defs.’ Reply at 3-9; see also Decl. Anit Jindal Supp. Defs.’ Reply Ex. 1, ECF No. 662-1,

attaching Plaintiffs’ amended and supplemental response to Defendants’ interrogatory asking

Plaintiffs to “[i]dentify and describe all [CDC] guidelines that You contend [D]efendants failed

to follow, . . . including the date any guideline was first published by the CDC” to which

Plaintiffs responded that “Defendants consistently and routinely failed to comply with the CDC’s

Guidance on Management of COVID-19 in Correctional and Detention Facilities[.]”)

Defendants argue that Fleming’s delayed reliance on an entirely different guidance applicable to

businesses and employers is harmful because Defendants’ expert did not get an opportunity to

5 Defendants argue that Fleming raises a new opinion by critiquing Schoen’s failure to

point to any evidence or documentation of a systematic analysis of HVAC-related COVID risk

reduction throughout ODOC in 2020. (See Defs.’ Mot. at 12.) However, the thrust of Fleming’s

initial report is just that. (See Fleming Initial Report at 12-16, explaining that Defendants did not

adopt ventilation guidance into its centralized plan nor into its internal audit tool.)

respond to the document, Defendants “would have made additional arguments at summary

judgment if they understood that [P]laintiffs’ ventilation theories were based on a document that

makes no mention of correctional facilities[,]” and Defendants expended time and energy

deposing Fleming and tailoring their questions to the materials in Fleming’s initial report. (Defs.’

Reply at 8.) In the alternative to striking Fleming’s subsequent report, Defendants request that

the Court permit Defendants to take an additional deposition of Fleming on his ventilation

opinions and permit Defendants’ experts to provide testimony at trial regarding ventilation

without limiting their testimony to the contents of their expert reports. (Id. at 12.)

Defendants have known about Fleming and the substance (although not this one

particular source) of his testimony since July 2023. They also appear to have known about the

weakness of this aspect of his testimony for many months (see id. at 5, arguing that Defendants’

expert pointed out the factual error in September 2023), and they have already deposed Fleming

about his testimony. Defendants have known about the May 2020 CDC publication since at least

February 2024 (although Plaintiffs point out that Defendants should have known about it much

earlier given their litigation position that they implemented all relevant CDC guidance since the

beginning of the pandemic (see Pls.’ Reply at 3)), there is little likelihood of disruption of trial

because no trial date has yet been set because of Defendants’ appeal, and there is no indication of

Plaintiffs’ willfulness or bad faith.6 In sum, the Court finds that there is little surprise to

6 Defendants argue that Plaintiffs willfully made the delayed disclosure as a tactical

decision to minimize Fleming’s omission at summary judgment and to survive Defendants’

Daubert challenge to Fleming’s initial report. (See Defs.’ Reply at 9.) However, as Defendants

acknowledge, Plaintiffs cited and disclosed the Interim Guidance for Businesses and Employers

Responding to Coronavirus Disease 2019 (COVID-19), May 2020 in advance of oral argument

and before this Court’s decision on Defendants’ summary judgment and Daubert motions. (See

Defs.’ Mot. at 12; Notice in Advance of Oral Argument, ECF No. 618.)

Defendants, no likelihood of disruption of trial, and no bad faith or willfulness in not citing the

May 2020 CDC guidance in Fleming’s initial report.

However, the Court agrees with Defendants that taking steps to mitigate any potential

prejudice is appropriate here. Accordingly, Schoen may testify at trial about the /nterim

Guidance for Businesses and Employers Responding to Coronavirus Disease 2019 (COVID-19),

May 2020 and rebut Fleming’s related testimony without limiting his testimony to the contents of

Schoen’s report.

For these reasons, the Court concludes that Plaintiffs have satisfied their burden of

demonstrating that any Rule 26 violation was harmless and denies Defendants’ motion to strike.

See Lanard Toys Ltd. v. Novelty, Inc., 375 F. App’x 705, 713 (9th Cir. 2010) (“Not only was [the

expert]’s anticipated testimony not a ‘surprise’ to appellants, they were obviously able to take

steps they thought necessary to contend with his testimony at trial.”); Amos, 2011 WL 43092, at

*4 (“A party is not harmed where, even though an expert disclosure fails to satisfy [Rule] 26, the

party knew about the expert, knew about the content of the expert’s testimony, and had an

opportunity to depose the expert.” (citing Ricks v. BMEzine.com, L.L.C., 727 F. Supp. 2d 936,

950 (D. Nev. 2010) and Frontline Med. Assocs. v. Coventry Health Care, 263 F.R.D. 567, 570

(C.D. Cal. 2009))).

CONCLUSION

For the reasons stated, the Court DENIES Plaintiffs’ motion (ECF No. 649) and DENIES

Defendants’ motion (ECF No. 651).

IT ISSO ORDERED.

DATED this 5th day of September, 2024.

SF Vrivd / eater 7

HON. STACIE F. BECKERMAN

United States Magistrate Judge

PAGE 28 — OPINION AND ORDER