NOEL v. BP EXPLORATION PRODUCTION INC (2024)

ORDER

This matter is before the Court on Defendants, BP Exploration & Production Inc. and BP America Production Company's Motion to Exclude and Strike Plaintiff's Untimely Expert Disclosures. (Doc. 177). Defendants’ Motion is directed to Plaintiff's Notice of Filing (“Notice”). (Doc. 174). Plaintiff filed a Memorandum in Opposition to the Motion (Doc. 182), and Defendants filed a Reply (Doc. 183). Upon careful consideration of all material filings, the Court finds and concludes Defendants’ Motion is due to be GRANTED.

I. BACKGROUND

This is a Back-End Litigation Option (“BELO”) action arising out of the 2010 Deepwater Horizon oil spill. (Doc. 1). Plaintiff alleges personal injury caused by exposure to “oil, dispersants, and other harmful chemicals” during his performance of oil spill clean-up work. (Id.).

In the instant Motion, Defendants seek to exclude what they characterize as untimely expert disclosures proffered in Plaintiff's Notice. According to Defendants, Plaintiff's Notice is an “attempt to sneak untimely expert reports and affidavits” after expiration of the discovery deadline. (Doc. 177). Plaintiff, for his part, characterizes the Notice as proffering “anticipated evidence and authority for the Court's forthcoming consideration of dispositive motions related to expert and data admissibility issues.” (Doc. 174).

The Court's BELO Case Management Order required Plaintiff to disclose all expert witnesses to be called at trial by April 15, 2020. (Doc. 8). That deadline was ultimately extended to May 11, 2021.¹ On that date, Plaintiff disclosed and produced expert reports for retained experts, including:

1. Gina Solomon

2. Sanjay Adhia

3. Christine Pittaluga

4. Bernard Pettingill

5. David Green

6. Ranajit Sahu

7. James Clark

Defendants contend none of these experts opined as to the sufficiency and quality of environmental sampling and monitoring conducted during the oil spill response, and Plaintiff does not dispute that. Defendants timely disclosed experts and reports on November 15, 2021.

Rebuttal reports were due not later than January 20, 2022, which was an extended deadline. (Doc. 112). In its order allowing the extension, the Court cautioned: “To pretermit any further litigation on expert discovery in this case, the parties are here INFORMED/FORWARNED that the undersigned WILL NOT ALLOW any sur-rebuttal expert reports.” (Id. (emphasis in original)). Plaintiff produced rebuttal expert reports from his retained experts James Clark, Ranajit Sahu, and Gina Solomon. The parties completed expert depositions on October 28, 2022.

Plaintiff filed the subject Notice on January 26, 2023, some 20 months after the initial expert disclosure deadline and more than a year after the extended deadline to produce rebuttal expert reports. (174). Plaintiff's Notice includes new experts, new expert declarations and affidavits, and new expert material. (Id.). The Notice includes declarations and “supplemental” declarations from two of Plaintiff's previously disclosed experts, Drs. Sahu and Solomon. Plaintiff's Notice also includes four new experts, who submit new affidavits and declarations: Dr. Albert Robbat, Dr. Michael Freeman, Dr. Linda S. Birnbaum, and Dr. David Michaels. The new declarations and affidavits were previously filed in other actions in other states.

A. New Opinions from Previously Disclosed Experts:

Drs. Sahu and Solomon are included in Plaintiff's Notice. They were disclosed during expert discovery in this case. Plaintiff's Notice proffers new opinions from Drs. Sahu and Solomon that they gave in other actions in other states.

Plaintiff's Notice attaches an affidavit of Dr. Sahu, which was previously filed in a separate action in the Southern District of Mississippi (Dufour v. BP Exploration & Production, 19-591 (S.D. Miss)). (“Dufour affidavit”). (Doc. 174-2). Dr. Sahu's Dufour affidavit challenges opinions of defense expert Dr. Damian Shea which he made in the Dufour action. Dr. Shea is also one of Defendants’ experts in this action. The opinions in Dr. Sahu's Dufour affidavit were not previously disclosed in this case.

Similarly, Plaintiff's Notice includes an affidavit and “Supplemental Declaration” filed by Dr. Solomon in BELO actions pending in the Northern District of Florida, 3:19-cv-963. Dr. Solomon's Florida affidavit was submitted in Daubert motion practice conducted in those Florida actions. Specifically, Dr. Solomon had challenged Defendant's Daubert motion in the Florida BELO cases as being based on inapplicable testimony. Dr. Solomon's seven-page “Supplemental Declaration” submitted in the Florida BELO cases responded to opinions of defense experts. None of the opinions in Dr. Solomon's affidavit or “Supplemental Declaration” in the Florida BELO cases were disclosed in this case.

B. New Opinions from New Experts:

Plaintiff's Notice discloses four new experts, who offer new opinions. These opinions were previously filed in other actions in other states.

Plaintiff proffers a declaration of Dr. Albert Robbat, which was filed in a separate action in the Northern District of Florida (Culliver v. BP Exploration & Production, 3:21-cv-4942 (N.D. Fla.)). (“Culliver declaration”). (Doc. 174-1). Dr. Robbat's Culliver declaration criticized various data sets collected by the defense, and stated he required additional data to prepare an expert report for the plaintiff in that action. Neither Dr. Robbat nor the opinions in his Culliver declaration were disclosed in this case. He is a new expert expressing new opinions in this action.

Plaintiff next offers a declaration of Dr. Michael Freeman, which was filed in BELO cases pending in the Northern District of Florida (3:19-cv-963 (N.D. Fla.)). (Doc. 174-3). Dr. Freeman's declaration addressed general causation. He also challenged a motion to exclude him in those Florida cases, arguing the motion was based on misinterpretations of his testimony. Dr. Freeman vouched for his opinions in the Florida cases. Neither Dr. Freeman nor the opinions in his Florida declaration were disclosed in this case. He is a new expert expressing new opinions in this action.

Plaintiff next proffers an affidavit of Dr. Linda Birnbaum, which was executed on November 8, 2022, in the State of North Carolina. (Doc. 174-5). Dr. Birnbaum's affidavit addresses biological monitoring and vouches for an institutional review and approval which she oversaw. She declares it to be the best scientific evidence of clean-up worker exposure. Neither Dr. Birnbaum nor the opinions in her affidavit were disclosed in this case. She is a new expert expressing new opinions in this action.

Finally, Plaintiff proffers an affidavit of Dr. David Michaels, which he executed in the District of Columbia on October 6, 2022. (Doc. 174-6). Dr. Michaels attests he has no recollection of discussing biomonitoring with defense lead medical personnel, and that he would not have recommended against biomonitoring clean-up workers. Neither Dr. Michaels nor the opinions in his affidavit were disclosed in this case. He is a new expert expressing new opinions in this action.

None of the witnesses proffered in the Notice, including Drs. Michaels and Birnbaum who Plaintiff describes as “fact” witnesses, were disclosed in Plaintiff's Rule 26(a)(1) initial disclosures. (Doc. 183-1). Plaintiff likewise did not disclose these experts or materials in response to Defendants’ interrogatory:

Please identify all persons known to you who may have knowledge concerning the facts and circumstances surrounding or related to your claims against BP, whether that knowledge relates to causation or damages, and provide a description of the facts known by such persons.

(Doc. 183-2).

II. ANALYSIS

Plaintiff contends subsection (a)(2)(A) of Rule 26, regarding expert disclosures, governs the Motion to Strike. He quotes subsection (a)(2)(A), partially, as follows: “a party must disclose to the other parties the identity of any witness it may use at trial to present evidence under Federal Rule of Evidence 702, 703, or 705.” (Id. (emphasis by Plaintiff)). The preface to subsection (a)(2)(A) states: “In addition to the disclosures required by Rule 26(a)(1)[.]” Plaintiff does not address initial disclosure requirements under subsection 26(a)(1) or discovery propounded to him by Defendants.

Plaintiff argues the experts and material proffered in his Notice were not required to be disclosed under subsection 26(a)(2)(A), because he does not intend to use them at trial. (Doc. 182). Rather, he contends they are offered for the limited purpose of anticipated Daubert motions. Plaintiff states he intends to use the experts and materials to “rebut[ ],” “explain,” “clarify,” and “provid[e] additional context” to what he anticipates will be Daubert arguments.² According to Plaintiff, this “additional context” will demonstrate the reliability of his experts’ methodologies as well as the un-scientific nature of Defendants’ arguments.

The parties have cited no binding authority on the issue presented by Defendant's Motion to Strike or Plaintiff's opposition. However, the Court is persuaded by the opinions in De Fernandez v. Seaboard Marine, Ltd., 2022 U.S. Dist. LEXIS 129829 (S.D. Fla. July 21, 2022) and in U.S. ex rel. TVA v. Easements & Rights-of-Way over 3.94 Acres of Land, 2023 U.S. Dist. LEXIS 201541 (N.D. Miss. 2023). The courts in these cases reject the argument Plaintiff makes here. In Seaboard Marine, Ltd., the defendant moved to strike expert declarations submitted by plaintiff in opposition to a Daubert motion challenging the methodology of two of plaintiff's disclosed experts. Plaintiff intended to use the declarations to “supplement” plaintiff's disclosed experts’ methodology. Defendant argued the declarations were improper attempts to bolster defective expert reports, and further that they were not timely disclosed. In response, plaintiff argued the declarations were “not being offered to the jury, but rather to assist the Court in deciding Defendant's Daubert Motion [and as] such Rule 26 disclosure requirements [did] not apply.” Seaboard Marine, Ltd., 2022 U.S. Dist. LEXIS 129829 at *21. The Court struck the declarations. It found the authors of the declarations to be “undisclosed experts who seek to bolster the reliability of [disclosed experts’] methodology,” and concluded the “Rules do not provide for such declarations.” Id. at *22. Also, the court noted affidavits intended to supplement or “bolster” disclosed expert reports are improper. Id. at *22 – 23 (quoting In re Denture Cream Prods. Liab., 2012 U.S. Dist. LEXIS 119939 (S.D. Fla. Aug. 23, 2012) (“supplementation is not appropriate whenever a party wants to bolster or submit additional expert opinions because to permit such supplementation would reek [sic] havoc in docket control and amount to unlimited expert opinion preparation.”), and Riley v. Tesla, Inc., 2022 U.S. Dist. LEXIS 85212 (S.D. Fla. May 11, 2022) (“[c]learly, a party cannot use a supplemental expert report to merely bolster an expert opinion.”). The court also relied on Cochran v. Brinkmann Corp., stating “supplementation of an expert report ‘is not a device to allow a party's expert to engage in additional work, or to annul opinions or offer new ones to perfect a litigating strategy’ ”). 2009 U.S. Dist. LEXIS 114895 at *24 (N.D. Ga. 2009) aff'd, 381 F. App'x 968 (11th Cir. 2010).

U.S. ex rel. TVA was a condemnation action in which the parties disputed the amount of just compensation. 2023 U.S. Dist. LEXIS 201541 at *2. Defendant disclosed an expert and report to support its valuation. After discovery was concluded, the plaintiff moved to exclude defendant's expert. Id. at *3. In opposition to the motion to exclude, defendant submitted an affidavit of an undisclosed expert. Id. at *4. Plaintiff then moved to strike the affidavit based on defendant's failure to disclose the identity or opinions of the affiant during discovery. Id. The defendant offered the same arguments Plaintiff offers here. The only purpose of defendant's affidavit in U.S. ex rel. TVA was to respond to a Daubert motion. According to the defendant, because he did not intend to call the affiant as a witness at trial, he was not required to disclose under Rule 26(a)(2)(A). Id. at *5 - 6.

The court rejected defendant's argument, noting the rules of admissibility governing expert testimony at trial govern the admissibility of expert testimony in Daubert motions. Id. at *6. Further, the court found the issue before it was “squarely addressed” in Seaboard Marine, Ltd., supra. The court distinguished cases cited by defendant, on grounds they did not address new experts and opinions. Id. at *8. The court concluded defendant's failure to timely disclose the identity and opinions of the affiant required that his affidavit be struck, unless the failure was substantially justified or harmless under Rule 37.

The submissions in Plaintiff's Notice involve new experts, new opinions, or efforts to bolster or undermine disclosed experts and reports. Moreover, Plaintiff's failure to disclose the submissions in his Notice runs afoul of his obligations under Rule 26(a)(1) and discovery propounded to him by Defendants. The Court will not condone this practice.

The Court is not persuaded by Plaintiff's reliance on Drake v. United States, 2009 U.S. Dist. LEXIS 153326 (N.D. Ala. 2009). The facts and procedural circumstances of Drake are distinguishable. Concerning previously disclosed experts, the court in Drake distinguished an Eleventh Circuit opinion which affirmed the striking of an expert affidavit, because there was “no such similar degree of delay warranting the exclusion of [the subject] supplementary affidavit” before it. 2009 U.S. Dist. LEXIS 153326 at *15 (emphasis added) (distinguishing Reese v. Herbert, 527 F.3d 1253 (11th Cir. 2008)). The “degree of delay” here is great. Based on the conduct of discovery and on the record in this case, the Court finds Plaintiff's delay too great to permit the introduction of the submissions in his Notice now. Additionally, in Drake, the party seeking to exclude the supplemental reports did not argue they included new opinions or material changes, as Defendants argue here. Finally, with respect to previously undisclosed experts, the court in Drake was guided in part by Nightlight Sys. v. Nitelites Franchise Sys., 2007 U.S. Dist. LEXIS 95538 (N.D. Ga. May 11, 2007). In Nightlight Sys., although the court allowed undisclosed expert testimony for purposes of a Daubert hearing, the allowance was conditioned on the issuance of a report and on the expert sitting for deposition. 2007 U.S. Dist. LEXIS 95538 at *26.

Plaintiff also argues the experts and material proffered in his Notice were disclosed in other BELO actions in which Defendants are party. Therefore, according to Plaintiff, his Notice is merely a disclosure of “public record,” to which Defendants cannot claim “surprise.” (Doc. 182). Plaintiff offers no authority to support this argument. The Court rejects it. The parties’ obligations to litigate this action are not satisfied by filings in other actions. There is not a “public records” exception applicable to the issues presented by Defendants’ Motion to Strike. See Au New Haven, LLC v. YYK Corp., 2023 U.S. Dist. LEXIS 49913, at *37 (S.D.N.Y. March 23, 2023) (“There is no carve out from the discovery rules that permits a party to fail to produce responsive information merely because the information has been filed publicly.”), Shatsky v. Syrian Arab Republic, 312 F.R.D. 219, 221 (D.D.C. 2015) (“The Federal Rules do not shield publicly available documents from discovery merely because of their accessibility.”)

Plaintiff next argues Defendants are not prejudiced because they have deposed the retained experts disclosed in the Notice, other than Dr. Robbat, either in other BELO actions or in this one. However, such depositions, whether conducted in this action or the others on which Plaintiff relies, were taken prior to the filing of Plaintiff's Notice. The parties had the opportunity and obligation to challenge or bolster experts, expert data, expert methodologies, and expert opinions during expert discovery in this action.

Plaintiff also cites Rule 26(a)(3), which provides for the submission of final witness and exhibit lists at least 30 days before trial. (Doc. 182). As trial has not been set in this matter, Plaintiff contends he may still timely disclose “scientist fact witnesses” for trial. However, Plaintiff does not explain how Rule 26(a)(3) obviates other discovery and disclosure requirements. Plaintiff cites no authority that Rule 26(a)(3) provides for the introduction of trial witnesses and exhibits that were not previously disclosed under those requirements.

Based on Plaintiff's failure to timely disclose the submissions in his Notice, it is due to be stricken, unless Plaintiff's failure was “substantially justified or harmless.” His failure was neither. “In determining whether the failure to disclose is substantially justified or harmless, the Court considers four factors: ‘(1) the importance of the excluded testimony; (2) the explanation of the party for its failure to comply with the required disclosure; (3) the potential prejudice that would arise from allowing the testimony; and (4) the availability of a continuance to cure such prejudice.’ ” Scott v. BP Exploration & Prod., Inc., 2021 U.S. Dist. LEXIS 65640 at *n.5 (S.D. Ala. April 5, 2021) (quoting Torres v. First Transit, Inc., 2018 U.S. Dist. LEXIS 131565 (S.D. Fla. Aug. 6, 2018)).

Both parties acknowledge the importance of the submissions in Plaintiff's Notice. As for Plaintiff's “explanation” of his failure to disclose, the Court is unpersuaded. Plaintiff explains he did not disclose the submissions during discovery based on his belief disclosure was not required under Rule 26(a)(2). Plaintiff does not address the separate disclosure obligations under Rule 26(a)(1) or the discovery propounded by Defendants. Furthermore, Plaintiff cannot reconcile his admitted awareness and anticipation of the subjects of what he believes will surely be Daubert motions with his delayed disclosures. Finally, for the reasons stated above, filings and litigation conducted in other actions do not satisfy Plaintiff's filing and litigation obligations in this action. Plaintiff offers no reasonable explanation for delaying disclosure 20 months after the initial expert disclosure deadline and more than a year after the rebuttal expert report deadline.

When, on December 16, 2021 (more than a year before Plaintiff filed his Notice), the Court afforded Plaintiff an extension to submit rebuttal expert reports, he was warned that expert discovery was at an end. (Doc. 112) (“To pretermit any further litigation on expert discovery in this case, the parties are here INFORMED/FORWARNED that the undersigned WILL NOT ALLOW any sur-rebuttal expert reports.” (emphasis in original)). Any issues that may be raised in Daubert motions were apparent prior to the conclusion of discovery. Plaintiff acknowledges as much by his repeated assertions that he has known what issues BP will raise in Daubert motions. Plaintiff may well be correct, but the time to address those issues was during expert discovery. The parties have been afforded more than adequate time to prepare their cases for Daubert motions.

Plaintiff's exceedingly untimely Notice is not harmless. Defendants would be unduly prejudiced if Plaintiff were allowed to submit the voluminous proffers in his Notice, especially at this late hour. On this record, it is clear the parties have expended considerable time and expense in retaining, developing, and preparing experts and expert reports. A continuance would not cure that prejudice. A continuance would have to be conditioned on the reopening of expert discovery. The Court will not re-open discovery and require Defendants to analyze additional expert reports and conduct additional expert depositions.

CONCLUSION

Defendants’ Motion to Strike is GRANTED. This matter is referred to the Magistrate Judge to reset deadlines for filing dispositive motions and to mediate, which were stayed by Order dated March 25, 2023 (Doc. 181).³

DONE and ORDERED this 28th day of March, 2024.

FOOTNOTES

1.   The Court permitted Plaintiff to submit a supplemental report from his expert ENT, Dr. Green, on July 17, 2021.

2.   Daubert motions have not yet been filed, and the deadline for doing so has been stayed. (Doc. 181).

3.   The Court denies all requests for reimbursement or other costs.

JEFFREY U. BEAVERSTOCK, CHIEF UNITED STATES DISTRICT JUDGE