The opinion
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
BLACK WARRIOR RIVER- )
KEEPER, INC., )
)
Plaintiff, ) Civil Action Number
) 2:16-CV-01443-AKK
v. )
)
DRUMMOND COMPANY, INC., )
)
Defendant.
MEMORANDUM OPINION AND ORDER
After Black Warrior River-Keeper invited the court to treat its brief on Cty. of
Maui v. Hawai’i Wildlife Fund, 140 S. Ct. 1462 (2020), as a renewed motion for
summary judgment on its groundwater CWA claims, see doc. 106, the court
accepted this invitation and ordered briefing. See doc. 111. BWR appended a
declaration from Anthony Brown, one of its experts, to its renewed motion,
characterizing the declaration as a supplemental report in light of factors announced
in Maui. See doc. 106-1. Drummond Company filed a motion to strike this
declaration. Doc. 113. The motion is briefed, docs. 115–16, and due to be denied.
I.
Drummond contends that (1) Brown’s declaration is untimely, doc. 113 at 2–
3; (2) to the extent that the declaration attempts to supplement Brown’s prior report,
it improperly relies on previously uncited data, id. at 5–6; (3) the opinions are
inadmissible under Rule 702 of the Federal Rules of Evidence and Daubert v.
Merrell Dow Pharm., Inc., 509 U.S. 579 (1993), id. at 6–7; (4) the report is barred
by Rule 703 of the Federal Rules of Evidence, id. at 7; (5) the report is irrelevant
and/or prejudicial under Rules 401 and 403 of the Federal Rules of Evidence, id.;
and (6) “briefs are not the appropriate vehicle for submitting evidence,” id.
A.
The court disposes of the first two of these arguments because Brown’s 2021
declaration timely supplements Brown’s 2017 report, and Drummond largely fails
to specify which statements in Brown’s testimony constitute previously uncited data
or information. See FED. R. CIV. P. 26(e)(1)(A); id. 37(c)(1).1 Moreover, as a
general matter, the court can allow the supplementation of an expert report where,
as here, there was an important change in law upon which the expert previously
based the report, the supplemental report is consistent with the earlier one, and there
is no substantial prejudice to the parties. See Miele v. Certain Underwriters at
Lloyd’s of London, 559 F. App’x 858, 861–62 (11th Cir. 2014); Rockhill-Anderson
v. Deere & Co., 994 F. Supp. 2d 1224, 1239 (M.D. Ala. 2014); Aylus Networks, Inc.
1 A party who has made a disclosure under Rule 26(a) must “supplement or correct its disclosure
or response” in a timely manner if the party “learns that in some material respect the disclosure or
response is incomplete or incorrect, and if the additional or corrective information has not
otherwise been made known to the other parties during the discovery process or in writing.” FED.
R. CIV. P. 26(e)(1)(A). Under Rule 37(c), if a party fails to provide information as required by
Rule 26(a) or 26(e), the party may not use that information to supply evidence on a motion, at a
hearing, or at a trial unless the failure was “substantially justified” or “harmless.” FED. R. CIV. P.
37(c)(1); Nance v. Ricoh Elecs., Inc., 381 F. App’x 919, 922 (11th Cir. 2010).
v. Apple Inc., No. 13-cv-04700-EMC (KAW), 2015 WL 6559577, at *2 (N.D. Cal.
Oct. 30, 2015).
Further, when BWR sought previously to strike components of Drummond’s
experts’ opinions, it made line-by-line objections, enabling the court to parse with
specificity the statements with which BWR took issue, and, in some instances, to
reject certain claims as failing to show they warranted exclusion. See, e.g., docs. 66
at 2; 66-1 at 4. See also doc. 115 at 8 (citing doc. 92 at 19 n.7, 25 n.11). By contrast,
Drummond does not provide objections by line or paragraph and instead suggests
that the entire declaration constitutes “new opinions and analysis.”2 See, e.g., doc.
113 at 3. This blanket contention is belied by a review of the supplemental 2021
declaration, as compared with the 2017 report. In the declaration at issue, Brown
states that he “focus[es] on the discharge of polluted groundwater at the Lower Dam,
where such an estimate was provided in [his 2017] expert report” and “revisit[s]” his
2017 report to analyze the groundwater data under the Maui factors. Doc. 106-1 at
4–5. Indeed, statements and paragraphs in the challenged declaration expressly cite
the 2017 report and purport to utilize previously known data and information to
calculate factors emphasized by the Maui Court (e.g., pollutant transit time). See id.
2 There is one aspect of Brown’s 2021 declaration that Drummond calls out specifically in its
motion: Brown’s illustration, Attachment 2. See doc. 113 at 5. See also doc. 112 at 9. However,
as BWR asserts, this illustration is based on Brown’s 2017 report and demonstrates the
groundwater discharge paths that Brown described in narrative form in the 2017 report. See doc.
53-6 at 76–78. Regardless, the court has chosen not to rely on this illustration in ruling on BWR’s
renewed motion for summary judgment.
at 4–6. Thus, it is not obvious to the court that it should strike the entirety of Brown’s
2021 declaration as new and untimely.
While the motion to strike lacks specifics, the court does not review it in a
vacuum. In that respect, while reviewing Drummond’s response to BWR’s motion
for summary judgment, see docs. 106; 112, the court observed that Drummond
specifically describes several calculations in Brown’s current declaration as “new
and previously undisclosed” or “speculative and new” while referencing its motion
to strike. See docs. 112 at 1 n.1, 10; 113. In particular, Drummond refers to
“Brown’s time calculation,” doc. 106-1 at 7, and “Brown’s assertions regarding how
‘pollutants’ travel,” id. at 7–8, as new or previously undisclosed before concluding
that “[t]he same is also true of the remainder of Brown’s efforts to offer his ‘legal’
opinion regarding the application of the Maui factors to portions of the existing
record and his untimely, previously undisclosed, and new opinions.” Doc. 112 at
10–11 (citing doc. 106-1 at 8–15).
Given Drummond’s explicit references to Brown’s “time calculation” and
description of “how ‘pollutants’ travel” in its response to BWR’s motion for
summary judgment, id. at 10 (citing doc. 106-1 at ¶¶ 16–19), the court has assessed
whether it should strike these particular statements from the record. However, these
calculations purport to draw on preexisting data and site visits described in Brown’s
2017 report, and they appear to supplement the 2017 report in order to illuminate
facts bearing on the previously irrelevant (or, at least, less significant) factors made
significant in 2020 in Maui. The court is therefore unpersuaded by the arguments in
Drummond’s motion to strike briefing and in its response to BWR’s motion for
summary judgment, see docs. 112; 113; 116, that these calculations and statements
are derived from previously undisclosed sources. And, regardless, the calculations
are consistent with the findings outlined in Brown’s 2017 report.
In addition, without more specific direction from Drummond, the court will
not take a fine-toothed comb to the entirety of Brown’s 2021 declaration to assess
whether other statements, if any, may require exclusion. At this juncture, the court
agrees with BWR that the bulk of the 2021 declaration sharpens and condenses the
2017 report and provides new information only to the extent that Maui made this
information relevant, rendering it a timely and proper supplementation. Thus, the
motion to strike is not due to be granted on these grounds.
B.
The court is similarly unpersuaded by Drummond’s contentions regarding the
alleged inadmissibility of Brown’s declaration under Rules 702 and 703 and Daubert
v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993). See doc. 113 at 6–7. Drummond
asserts that Brown’s testimony is inadmissible under Rule 7023 and Daubert because
3 Rule 702 “provides that expert testimony is admissible if (1) the expert’s scientific, technical, or
other specialized knowledge will help the trier of fact to understand the evidence or determine a
fact in issue; (2) the testimony is based on sufficient facts or data; (3) the testimony is the product
it “is not based on sufficient facts or data,” “is not the product of reliable principles
and methods,” and “[does] not reliably appl[y] reliable principles and methods to the
facts of the case.” Id. And, as to Rule 703,4 Drummond states that the testimony is
“speculation based on an absence of data [and] is not a proper basis for an admissible
‘expert’ opinion.” Id.
But Drummond makes no further arguments on these points, leaving it unclear
which statements violate these aspects of Rules 702 and 703. For example,
Drummond does not explain which facts or data are insufficient to support Brown’s
2021 declaration—or which facts or data in his 2017 report underlying the
declaration are insufficient—and fails to state why the methods Brown utilized or
utilizes cannot constitute reliable means for reaching sound conclusions on the basis
of that data. In its response to BWR’s motion for summary judgment, Drummond
highlights this point again and specifically states that Brown’s estimates regarding
hydraulic conductivity, hydraulic gradient, total GOB porosity, and average linear
groundwater velocity are “based on insufficient actual data and are speculative
assertions about phenomena that cannot be seen and have not been the subject of
of reliable principles and methods; and (4) the expert has reliably applied the principles and
methods to the facts of the case.” St. Louis Condo. Ass’n, Inc. v. Rockhill Ins. Co., 5 F.4th 1235,
1244 n.7 (11th Cir. 2021) (citing FED. R. EVID. 702).
4 Under Rule 703, “experts can base their opinion on facts or data in the case ‘that the expert has
been made aware of.’” St. Louis Condo. Ass’n, Inc., 5 F.4th at 1245 n.8 (citing FED. R. EVID. 703).
testing.” Doc. 112 at 10 (citing doc. 106-1 at ¶¶ 12–14). Yet Drummond does not
provide why these calculations are predicated on insufficient data or testing, such as
by rebutting BWR’s expert with opposing expert opinions.5 These conclusory
arguments are insufficient to strike the specific statements from Brown’s declaration
on the basis of Rule 702 or 703.
C.
Similar reasons endorse the rejection of Drummond’s argument that Brown’s
report is irrelevant and/or prejudicial under Rules 4016 and 4037 of the Federal Rules
of Evidence. See doc. 113 at 7. Again, there are no specifics—the motion to strike
restates the general gist of these provisions but does not refer to the statements or
paragraphs in Brown’s declaration that are irrelevant or unfairly prejudicial. And in
5 Drummond states that “Brown acknowledges that he has no hydraulic head data on which to base
his opinion about the elevation of groundwater beneath the GOB pile, or its allegedly ‘radially
outward groundwater flow.’” Doc. 112 at 9. Drummond proceeds to conclude that “[w]ithout
such data, flow cannot be calculated, and any estimations would be merely speculative and,
therefore, inadmissible.” Id. at 10. However, Drummond does not support this contention with
citations to its own experts, in prior reports or otherwise, leaving the court unable to conclude that
Brown’s 2021 declaration is predicated on insufficient data or estimations. Though Drummond’s
opposition to BWR’s renewed motion for summary judgment cites several pages from AMEC
Foster Wheeler’s 2017 report that arguably address these points, these portions do not sufficiently
raise a genuine dispute as to Brown’s groundwater-related opinions.
6 “Evidence is relevant if (a) it has the tendency to make a fact more or less probable than it would
be without the evidence; and (b) the fact is of consequence in determining the action.” FED. R.
EVID. 401.
7 “The court may exclude relevant evidence if its probative value is substantially outweighed by a
danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury,
undue delay, wasting time, or needlessly presenting cumulative evidence.” FED. R. EVID. 403.
its response to BWR’s motion for summary judgment, Drummond merely states that
“Brown’s assertions regarding how ‘pollutants’ travel are either irrelevant or
speculative and new” and that “[t]he same is also true of the remainder of Brown’s
efforts to offer his ‘legal’ opinion.” See doc. 112 at 10.
Based on these assertions, only one of which pinpoints a particular statement
in Brown’s 2021 declaration, the court is not convinced that the declaration is
irrelevant under Rule 401. To the contrary, Brown’s declaration provides an analysis
of data regarding groundwater flows and pollution at the site in question in light of
seven “factors that may prove relevant” under the Supreme Court’s recently
announced “functional equivalent” test for groundwater CWA claims. See doc. 106-
1 at 4–6; Maui, 140 S. Ct. at 1476. Facts potentially bearing on the application of
Maui to the instant case are certainly relevant to the resolution of the motion for
summary judgment as to BWR’s groundwater CWA claims.
Moreover, it is not clear on the briefing before the court why permitting
Brown’s declaration would be unfairly prejudicial to Drummond. Drummond asked
the court for a stay in February 2019 due to the Maui case then pending before the
Supreme Court and noted correctly that Maui involved “a key issue that is also
presented in this case.” Doc. 82 at 1. Over BWR’s opposition, the court granted the
stay. See docs. 88; 93. Drummond cannot inject this issue—which rightly warranted
a stay—and then move to block BWR from addressing the relevant subsequent
ruling through a supplemental expert report it could not have produced prior to Maui.
Further still, Drummond also had time to submit its own revised expert report or to
challenge BWR’s expert report more substantively.8 Thus, the motion to strike is
due to be denied on these grounds.
D.
Finally, Drummond claims that Brown’s declaration “[is] not the appropriate
vehicle for submitting evidence,” especially “by having Brown make further
inappropriate legal arguments as well.” Doc. 113 at 7. Drummond does not support
this assertion with citations to Brown’s declaration to indicate where he improperly
ventured into legal analysis. Drummond acknowledges that Brown’s calculations
are derived from the “standard elements of the science of groundwater analysis,”
doc. 116 at 4, and it is unclear where Drummond draws the line between
supplemental scientific analysis and inappropriate legal argumentation. As noted,
Drummond could have submitted its own updated expert report in light of Maui.
8 This case has been ready for trial since 2019. Though Drummond asserts that “BWR chose to
wait for well over a year [after Maui] until it moved for a ‘renewed’ partial summary judgment on
its groundwater claims for Brown to ‘supplement,’” doc. 116 at 1, Drummond ignores that it sought
a stay in February 2019 in light of Maui, doc. 82, the court granted the motion to stay, doc. 93, and
then both parties moved to lift the stay in July 2020, doc. 98. The court granted this motion, doc.
99, and, in February 2021, the parties jointly sought to delay the April 2021 trial in light of
Drummond’s remedial site work and the need for a “generous briefing schedule” regarding the
applicability of Maui to BWR’s groundwater CWA claims. See doc. 104. The court granted this
motion as well, resetting the trial for October 2021. Doc. 105. Afterward, Drummond moved to
delay the October 2021 trial in light of its remedial activities, doc. 108, and the court granted this
motion over BWR’s objection, docs. 109; 111. It is therefore inaccurate to suggest that BWR
delayed the Maui-related groundwater CWA issue on its own or that BWR inexcusably delayed
reasserting the motion for summary judgment on its groundwater CWA claims.
That Drummond did not do so does not foreclose BWR’s supplementation of its
earlier expert report with a consistent declaration from the same expert, highlighting
facts that support BWR’s argument that it has apparently satisfied the test announced
in Maui. The motion to strike is due to be denied on this ground as well.
II.
To close, Drummond cannot rightly inject an important issue related to
BWR’s claims—Maui’s application to groundwater under the CWA—and then
attempt to block a supplemental report on this issue without more particularized,
substantiated objections. Drummond’s motion to strike, doc. 113, is DENIED.
DONE the 12th day of January, 2022.
— Apa bho te
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE
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