IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA

Transcription

1 Case 5:13-cv M Document 122 Filed 07/29/15 Page 1 of 7 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA HELEN BRIGGS, LINDA HEILIG, JAMES WILSON, et al., v. Plaintiffs, FREEPORT-MCMORAN, INC. f/k/a FREEPORT-MCMORAN COPPER & GOLD INC., FREEPORT MINERALS CORPORATION f/k/a FREEPORT-MCMORAN CORPORATION f/k/a PHELPS DODGE CORPORATION, CYPRUS AMAX MINERALS COMPANY, BLACKWELL ZINC COMPANY, INC., Defendants. Case No. 13-CV-1157-M DEFENDANTS MOTION TO STRIKE SECOND REBUTTAL REPORT OF PLAINTIFFS EXPERT DEGRANDCHAMP AND BRIEF IN SUPPORT Defendants Freeport-McMoRan, Inc., Freeport Minerals Corporation, Cyprus Amax Minerals Company, and Blackwell Zinc Company, Inc. (collectively, Defendants ) move this Court to strike the second rebuttal report of Plaintiffs expert Richard DeGrandchamp dated July 6, 2015 (Doc ), which Plaintiffs filed on July 10, 2015 in connection with their Response to Defendants Motion to Exclude DeGrandchamp s opinions (Doc. 110). In support of Defendants motion to strike, they show the Court as follows: 1. Pursuant to the Court s Scheduling Order (Doc. 87), the deadline for Plaintiffs expert reports relating to class certification was February 23, 2015, the same date that Plaintiffs motion for class certification was due. Plaintiffs disclosed and filed expert declarations and/or reports from their experts J. Berton Fisher (Doc. 97-1), Mark 1

2 Case 5:13-cv M Document 122 Filed 07/29/15 Page 2 of 7 Berkman (Doc. 93-8), and Richard DeGrandchamp (Doc. 93-2, 93-3). In turn, Defendants expert reports relating to class certification were due on April 27, 2015, the same date the Defendants response to Plaintiffs class action motion was due. Doc. 99. In conjunction with their class action response, Defendants timely filed expert declarations from their experts After an extension granted by the Court, Plaintiffs filed their Reply in support of the class certification motion on June 25, Doc Defendants filed their class action Surreply on July 24, Doc The parties class certificationrelated Daubert motions were due on June 26 (Doc. 105), and on that date, Defendants filed motions to exclude certain opinions of Plaintiffs experts Fisher, DeGrandchamp, and Berkman (Docs. 109, 110, and 108, respectively), and Plaintiffs filed a motion to exclude opinions of Defendants expert Barbara Beck (Doc. 107). 3. On June 25, 2015, the day before the parties class certification-related Daubert motions were due, Plaintiffs without seeking leave from the Court filed three new expert reports in conjunction with their class certification Reply: a Rebuttal Declaration from Fisher (Doc ); a Rebuttal Report from DeGrandchamp (Doc ), and a Rebuttal Report from Berkman (Doc ). On July 10, 2015, Defendants moved to strike these reports as improper and untimely because, inter alia, (1) this Court s Scheduling Order (Doc. 87) does not provide for rebuttal reports and (2) the 1 The Defendants experts and the docket numbers for their declarations, all of which were filed on April 27, 2015, are: William Hall (Doc , 100-2); Barbara Beck (Doc ); Shahrokh Rouhani (Doc ); Stanley Hayes (Doc ); Mark Williamson (Doc ), Thomas Jackson (Doc ); and Susan Litherland (Doc ). 2

3 Case 5:13-cv M Document 122 Filed 07/29/15 Page 3 of 7 rebuttal reports were not timely filed under Federal Rule of Civil Procedure 26(a)(2)(D)(ii). Doc The same day, on July 10, 2015, in conjunction with their Response to Defendants motion to exclude DeGrandchamp s opinions from the class certification determination (Doc. 114), Plaintiffs filed a second rebuttal report by DeGrandchamp. DeGrandchamp s second rebuttal report is a 32-page document dated July 5, 2015, which in substance purports to respond to Defendants arguments and criticisms of DeGrandchamp s methodology as set forth in Defendants Motion to Exclude. 5. Because this July 5, 2015 DeGrandchamp report is also (and even more) untimely and improper, Defendants request that this Motion to Strike Second Rebuttal Report of Plaintiffs Expert Richard DeGrandchamp be granted and that Doc be stricken from the record and not considered in connection with Plaintiffs class certification motion. FED. R. CIV. P. 37(c). BRIEF IN SUPPORT I. This Court s Scheduling Order Does Not Contemplate Rebuttal Reports, Nor Was DeGrandchamp s Second Rebuttal Report Timely Filed. In their prior Motion to Strike, Defendants explained that neither Rule 26(a)(2)(D)(ii) nor this Court s Scheduling Order authorizes or permits either party to file rebuttal expert reports. See Doc. 112 at 4-5. That same reasoning, which Defendants incorporate herein by reference, applies to DeGrandchamp s second rebuttal report. Rebuttal reports, particularly a rebuttal report that is essentially a rebuttal report to Defendants legal arguments contained in their Motion to Exclude, is not permitted by the 3

4 Case 5:13-cv M Document 122 Filed 07/29/15 Page 4 of 7 Court s scheduling order. Furthermore, Plaintiffs served DeGrandchamp s second rebuttal report on July 10, 2015, more than 100 days after Defendants expert reports were served, and far beyond the 30 days permitted by Rule 26(a)(2)(D)(ii) even if the rebuttal were allowed by the Court s Scheduling Order (and it is not). DeGrandchamp s second rebuttal report (Doc ) should be stricken from the record and not considered as part of either the determination of the Motion to Exclude DeGrandchamp s opinions or the class certification determination. II. DeGrandchamp s July 5, 2015 Report Is Not True or Proper Rebuttal. DeGrandchamp s second rebuttal report should also be stricken because it is not a true rebuttal report as defined by Rule 26. A witness designated as a rebuttal expert witness is a witness intended solely to contradict or rebut evidence on the same subject matter identified in the expert report of another party. FED. R. CIV. P. 26(a)(2)(D)(ii) (emphasis added); E.E.O.C. v. JBS USA, LLC, 2013 WL , at *6 (D. Colo. July 1, 2013). Importantly, a rebuttal report cannot be used to advance new arguments or new evidence to support plaintiff s expert s initial opinions. Larson, 2012 WL , at *4; see also Paramount Media Group, 2015 WL , at *3-4 ( Rebuttal expert testimony is impermissible if its function is to provide additional support for a party s case-in-chief. ). DeGrandchamp s second rebuttal report does not meet the definition of rebuttal and should therefore be stricken. It is telling that DeGrandchamp titles his second rebuttal report Expert Rebuttal Report: Motion to Dismiss Testimony of Richard L. DeGrandchamp, Ph.D. Doc at 1. DeGrandchamp does not attempt to rebut any expert testimony presented by 4

5 Case 5:13-cv M Document 122 Filed 07/29/15 Page 5 of 7 Defendants. He even distinguishes this newest report from my rebuttal report to Dr. Beck. Doc at 9. The entire purpose of this second rebuttal report by DeGrandchamp is to offer an extended argument against Defendants motion to exclude his testimony and to bolster his opinions by trying to justify them in light of the criticisms lodged against his opinions in Defendants Motion to Exclude. In fact, the structure of DeGrandchamp s second rebuttal report even follows the arguments contained in Defendants Motion to Exclude. Compare Doc. 110 with Doc DeGrandchamp s second rebuttal report does not rebut expert opinions. Instead, it exists to bolster and explain DeGrandchamp s positions and to respond to the substance of Defendants Motion to Exclude his opinions. That is not a proper rebuttal report under the Federal Rules. While couched as a rebuttal report, Doc is, at bottom, just an extension of Plaintiffs response to the Daubert motion filed against DeGrandchamp (Doc. 114), albeit from DeGrandchamp s first-person view of an expert whose opinions have been challenged on grounds of lack of reliability and relevance. Neither Rule 26 nor the Court s Scheduling Order envision or permit this kind of expert rebuttal response to a Daubert Motion to Exclude. Nor should Plaintiffs be permitted to, in effect, skirt the 25 page limit imposed by LCvR7.1(e) by attaching a 32-page exhibit in the form of an expert rebuttal report that directly responds to the arguments made in Defendants Motion to Exclude. Because it is improper and untimely, DeGrandchamp s July 5, 2015 rebuttal report should be stricken from the record. 5

6 Case 5:13-cv M Document 122 Filed 07/29/15 Page 6 of 7 CONCLUSION Defendants respectfully request that the Court grant this Motion and strike Richard DeGrandchamp s second rebuttal report dated July 5, 2015 (Doc. # 114-1) from the record and exclude it from consideration in connection with Defendants Motion to Exclude DeGrandchamp s opinions and the class certification determination. Respectfully submitted, Kevin A. Gaynor VINSON & ELKINS LLP 2200 Pennsylvania Avenue NW Suite 500 West Washington, DC Telephone: Facsimile: kgaynor@velaw.com Lewis C. Sutherland Sandra G. Rodriguez VINSON & ELKINS LLP 1001 Fannin Street, Suite 2500 Houston, Texas Telephone: Facsimile: lsutherland@velaw.com srodriguez@velaw.com By: /s/ Morgan L. Copeland, Jr. Reid E. Robison Oklahoma State Bar No Timothy J. Bomhoff Oklahoma State Bar No MCAFEE & TAFT A PROFESSIONAL CORPORATION Two Leadership Square 211 North Robinson Avenue, Suite 1000 Oklahoma City, Oklahoma Telephone: Facsimile: reid.robison@mcafeetaft.com tim.bomhoff@mcafeetaft.com Morgan L. Copeland, Jr. Robert M. Schick Tracey K. Rice SCHICK & COPELAND LLP 3700 Buffalo Speedway, Suite 960 Houston, Texas Telephone: Facsimile: rschick@schickcopeland.com mcopeland@schickcopeland.com trice@schickcopeland.com ATTORNEYS FOR DEFENDANTS 6

7 Case 5:13-cv M Document 122 Filed 07/29/15 Page 7 of 7 CERTIFICATE OF SERVICE I hereby certify that on July 29, 2015, I electronically transmitted the attached document to the Clerk of Court using the ECF System for filing and transmittal of a Notice of Electronic Filing to the following ECF registrants: Jason Aamodt (jason@aamodt.biz) Krystina E. Phillips (krystina@aamodt.biz) Deanna L. Hartley-Kelso (deanna@aamodt.biz) Dallas L.D. Strimple (dallas@aamodt.biz) Trae Gray (tg@landownerfirm.com) Ryan Ellis (ryanellis@landownerfirm.com) /s/ Morgan L. Copeland, Jr. Morgan L. Copeland, Jr. 7