Stephen A. Wannall v. Honeywell, Inc.

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 4, 2014 Decided December 30, 2014

No. 13-7185

STEPHEN A. WANNALL,

Personal Representative of the Estate of John M. Tyler

APPELLANT

v.

HONEYWELL, INC.,

APPELLEE

Appeal from the United States District Court

for the District of Columbia

(No. 1:10-cv-351)

David M. Lipman argued the cause for appellant. Daniel

A. Brown filed the briefs.

Michael R. Shebeleskie argued the cause for appellee.

With him on the brief were Michael A. Brown, Alicia N.

Ritchie, and John D. Epps.

Before: BROWN, Circuit Judge, and WILLIAMS and

SENTELLE, Senior Circuit Judges.

Opinion for the Court filed by Senior Circuit Judge

WILLIAMS.

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WILLIAMS, Senior Circuit Judge: After discovery closed

in this litigation, the Virginia Supreme Court issued an

opinion addressing a key aspect of the law at issue. The

development confronted the plaintiff with a strategic choice:

Acknowledge that the opinion changed the law and seek the

district court’s leave to respond appropriately with new

evidence? Or deny that any change had occurred and proceed

on the existing record? He selected the second alternative,

and the district court honored that choice in its opinion

granting defendant’s renewed motion for summary judgment.

Wannall v. Honeywell Int’l, Inc., 292 F.R.D. 26 (D.D.C.

2013). Although the plaintiff came to regret his decision, he

remains bound by it. We affirm.

* * *

Shortly after he was diagnosed with malignant pleural

mesothelioma, a form of lung cancer caused by asbestos, John

Tyler and his wife filed this action seeking damages from

various companies that manufactured products containing

asbestos that he had been exposed to. Tyler died. He was

replaced in the litigation by the representative of his estate,

Stephen Wannall; his wife, though initially a co-plaintiff,

dropped out of the case and does not join this appeal. (In this

opinion we refer to “plaintiff” in the singular throughout.)

Appellee Honeywell International, Inc. was named in the

lawsuit as the successor-in-interest to the Bendix Corporation,

which manufactured brake shoes that Tyler had used in

helping friends, family, and neighbors perform automobile

repairs over 50 years.

At the close of discovery set by the district court,

Honeywell moved for summary judgment, contending that the

plaintiff had failed to establish the causal link required under

Virginia law between Tyler’s exposure to Bendix brakes and

his disease. (The parties agree that Virginia law governs.)

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Honeywell argued that Tyler had also been exposed to

asbestos during his decades-long service in the United States

Navy and so could not show that the Bendix brake shoes

proximately caused him to contract mesothelioma. The

district court denied the motion, and found that the declaration

of the plaintiff’s expert, Dr. Steven Markowitz, raised a

genuine issue of fact by stating that Tyler’s exposure to

Bendix brakes was a “substantial” cause of his illness. In re

Asbestos Prods. Liab. Litig. (No. VI), 10-cv-67422, 2011 WL

5457546, at *1 (E.D. Pa. July 5, 2011).

While the parties were preparing for trial, the Supreme

Court of Virginia changed the legal landscape. In Ford Motor

Company v. Boomer, 736 S.E.2d 724 (Va. 2013), the court

rejected the “substantial” cause standard that the parties had

previously understood as controlling, and ruled instead that

plaintiffs must demonstrate that “exposure to the defendant’s

product alone must have been sufficient to have caused the

harm.” Id. at 731.

Honeywell promptly moved for reconsideration of its

motion for summary judgment, arguing that the plaintiff had

not satisfied the standard articulated in Boomer. The plaintiff

opposed the motion and attached to his opposition a new

declaration from Dr. Markowitz stating that the Bendix

asbestos exposure was, indeed, a “sufficient” cause of Tyler’s

mesothelioma. The plaintiff did not seek leave to file the new

declaration under Rule 26(e), which calls on a party to

“supplement or correct” certain disclosures previously made

in discovery, including experts’ reports, as needed to reflect

“additional or corrective information.” Nor did he move

under Rule 56(d) for permission to take additional discovery

in response to Honeywell’s motion. Instead, he argued that

Honeywell’s motion for reconsideration of the summary

judgment issue was not justified because “Boomer did not . . .

change Virginia law.”

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Honeywell moved to strike the new Markowitz

declaration as untimely under the scheduling order, Rule 26,

and Rule 37(c). The plaintiff filed an opposition, but once

again failed to argue that Rule 26(e) justified filing the new

declaration to “supplement or correct” his expert’s prior

report. Instead, he relied exclusively on his “right” under

Rule 56(c)(4) “to produce an affidavit or declaration to

support or oppose a summary judgment motion.”

The district court granted Honeywell’s motion to strike

the new Markowitz declaration and its renewed motion for

summary judgment in light of Boomer. Wannall, 292 F.R.D.

26. Exclusion of the new Markowitz declaration from

consideration on the merits proceeded in two steps: a finding

under Rule 26 that its proffer was untimely and a finding

under Rule 37(c) that the delay in submission was neither

“substantially justified” nor “harmless.” Id. at 33-37. We

take the issues in that order.

* * *

Untimely under Rule 26. The new Markowitz declaration

was submitted two years after the close of expert discovery as

set by the district court. The plaintiff now argues that the

declaration was, nonetheless, timely as a “supplemental”

declaration under Rule 26(e). The district court ruled that the

plaintiff had waived this argument.

The district court’s local rules provide that a court may

treat a motion as “conceded” if an opposing brief is not filed

within the prescribed time. D.D.C. R. 7(b). The rule is

understood to mean that if a party files an opposition to a

motion and therein addresses only some of the movant’s

arguments, the court may treat the unaddressed arguments as

conceded. Hopkins v. Women’s Div., Gen. Bd. of Global

Ministries, 284 F. Supp. 2d 15, 25 (D.D.C. 2003) (citing

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FDIC v. Bender, 127 F.3d 58, 67-68 (D.C. Cir. 1997) (in turn

citing the predecessor to Local Rule 7(b))). Such a concession

“acts as waiver,” such that a “party cannot raise [a] conceded

argument on appeal.” Geller v. Randi, 40 F.3d 1300, 1304

(D.C. Cir. 1994) (citing predecessor to Local Rule 7(b) and

Weil v. Seltzer, 873 F.2d 1453, 1459 (D.C. Cir. 1989)). We

review a district court’s finding of waiver under Local Rule

7(b) for abuse of discretion—though “we have yet to find that

a district court’s enforcement of this rule constituted [such] an

abuse.” FDIC v. Bender, 127 F.3d at 67; see also Twelve

John Does v. Dist. of Columbia, 117 F.3d 571, 577 (D.C. Cir.

1997) (“Where the district court relies on the absence of a

response as a basis for treating [a] motion as conceded, we

honor its enforcement of the rule.” (citing predecessor to

Local Rule 7(b))).

The district court held that the plaintiff waived Rule 26(e)

because he did not raise the argument “in his opposition to the

defendant’s motion to strike.” Wannall, 292 F.R.D. at 34.

The plaintiff’s decision not to invoke Rule 26(e) was

apparently part of his litigation strategy. He hoped to defeat

Honeywell’s motion for reconsideration of its summary

judgment motion by persuading the court that Boomer

effected no change to Virginia law. Invoking Rule 26(e)—or,

for that matter, Rule 56(d)—would have required admitting

that Boomer did effect such a change, so the plaintiff declined

to do so even in response to a motion to strike the new

declaration as untimely. At oral argument on the various

motions, plaintiff’s counsel hewed resolutely to that strategy

in the face of the district court’s apparent puzzlement:

The Court: And why do you fight it [the proposition

that Boomer changed Virginia law] so much? . . . I don’t

understand the litigation strategy. Explain that to me.

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Mr. D. Brown: You know, Judge, sometimes I have a

question myself.

The Court: I mean, emphatically, you’re fighting it,

putting yourself into a very difficult box.

Mr. D. Brown: A box. So I’m here trying to get out

of the box. I’m a jack-in-the-box, Judge.

So why do we say it? Well, we said it strategically

because we felt that under Your Honor’s standing order

that motions for reconsideration have to comport with

59(e) or 60(b), that they had to satisfy the case law that

goes along with that, which basically – they cast it as an

intervening change in the law, and we said, is it

technically?

The Court: So you’re blaming it on my standing

order.

Mr. D. Brown: No. No. I’m blaming it on myself,

my team, and how we interpret the law.

The plaintiff invokes the “plain language” of a

supplemental briefing order issued by the court and claims

that it somehow absolves him of any waiver in his filing in

opposition to Honeywell’s motion to strike the new

Markowitz declaration. The order for supplemental briefing

invited the parties to state their positions on four issues:

(1) why the plaintiff has submitted a supplementary

expert report if Boomer did not constitute an intervening

change in Virginia law; . . . (2) why the plaintiff’s

submission of a supplementary expert report, in the

absence of an intervening change in law and without

seeking leave of the Court, was “substantially justified”

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under Federal Rule of Civil Procedure 37(c)(1)[;] . . . (3)

whether the plaintiff concedes that, in the event that the

[new] Markowitz Declaration is stricken, the defendant’s

Motion for Reconsideration must be granted; and (4) if

the plaintiff does not so concede, what other legal basis or

bases would exist to deny the defendant’s Motion for

Reconsideration . . . .

Order, Wannall v. Honeywell Int’l, Inc., 10-cv-351 (D.D.C

Apr. 25, 2013), ECF No. 144. But the district judge

specifically confirmed that she “did not request any briefing

on whether the Markowitz Declaration was timely under

Federal Civil Rule of Procedure 26.” Wannall, 292 F.R.D. at

34 n.6. That reading of the order appears entirely correct.

In response to the judge’s call for supplemental briefing,

the plaintiff filed a brief which claimed—for the first time—

that the new Markowitz declaration was timely under Rule

26(e). But even then he continued to insist that Boomer did

“not constitute an intervening change in Virginia law.” Thus

he disabled himself from invoking Rule 26(e)’s mandate to

“supplement or correct” material that had become “incomplete

or incorrect.” He didn’t accompany his mention of Rule 26(e)

with any explanation of how it might be relevant, but claimed

that the new declaration was already “permitted by Fed. R.

Civ. P. 56” as a “response” to Honeywell’s renewed motion.

At no point did the plaintiff plead in the alternative: “If you

find that Boomer changed the law, then Rule 26(e)’s provision

for supplemental submissions would be applicable.”

Evidently he regarded such a contingent argument as

undermining his preferred position—that Boomer changed

nothing.

Untimely submission neither “substantially justified” nor

“harmless.” Rule 37(c) provides that “[i]f a party fails to

provide information . . . as required by Rule 26(a) or (e), the

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party is not allowed to use that information . . . to supply

evidence on a motion . . . unless the failure was substantially

justified or is harmless.” Having concluded that the new

Markowitz declaration was not timely under Rule 26, the

district court found it excluded from consideration, holding

that the plaintiff’s failure to meet Rule 26(e)’s requirements

was neither harmless nor substantially justified. Wannall, 292

F.R.D. at 35-36. We review this determination for abuse of

discretion. Kapche v. Holder, 677 F.3d 454, 468 (D.C. Cir.

2012).

We agree that the late submission was “harmful.”

Allowing the new declaration would have required either

reopening discovery (and possibly delaying trial) or denying

Honeywell the opportunity to cross-examine Dr. Markowitz

on his new opinions before trial and an adequate chance to

offer expert testimony in rebuttal. These are exactly the types

of “harms” that disclosure deadlines are intended to prevent.

See Fed. R. Civ. P. 26, Advisory Comm. Notes (1993)

(explaining that expert disclosure requirements allow an

opposing party “a reasonable opportunity to prepare for

effective cross examination and perhaps arrange for expert

testimony from other witnesses”).

We also agree that the late submission was not

“substantially justified.” As discussed above, the plaintiff

declined to properly invoke either of the (potentially) proper

procedural avenues to introduce the declaration—Rule 26(e)

or 56(d)—apparently because doing so would have

undermined his litigation strategy: he was determined to

persuade the district judge that Boomer had effected no

change to Virginia law that would open the door to

Honeywell’s renewed motion for summary judgment. As a

direct result of this strategic choice, the new Markowitz

declaration was not timely submitted. The district court did

not abuse its discretion by determining that a failure to timely

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submit a declaration that was the direct result of such a choice

was not “substantially justified.” Again, we note that the

plaintiff never hedged his bets by voicing an argument

addressing the contingency that the court might find that

Boomer justified consideration of Honeywell’s new motion

for summary judgment.

The plaintiff complains that the district court improperly

failed to consider lesser sanctions before ordering exclusion,

which here operated as “a de facto dismissal sanction.” But

the district court did consider (and reject) lesser sanctions

when it evaluated the harmfulness of admitting the late

declaration. The plaintiff also argues that exclusion was

“grossly disproportionate” to the violation, because there was

no finding of bad faith or extreme misconduct. But neither of

these is required under Rule 37(c).

In sum, the district court did not abuse its discretion by

excluding the new Markowitz declaration.

* * *

The plaintiff also seeks reversal of the court’s grant of

summary judgment. But his arguments all assume that the

new Markowitz declaration was or ought to have been

properly part of the record. Because the declaration was

appropriately excluded, we find that the plaintiff effectively

concedes summary judgment and we need not address these

arguments.

* * *

The judgment of the district court is

Affirmed.