United States District Court, D. Rhode Island
REPORT AND RECOMMENDATION
PATRICIA A. SULLIVAN, Magistrate Judge.
This case juxtaposes neighbors that own adjoining land on the industrial-zoned Providence waterfront; Plaintiff Providence Piers, LLC, ("Providence Piers") claims that the scrap operations of SMM New England, Inc. ("SMM") have caused contaminated particulates to migrate onto its property, catastrophically damaging its restored historic building and contiguous outbuildings. Before the Court for report and recommendation (28 U.S.C. § 636(b)(1)(B)) is Defendant SMM's motion to strike the second report of Providence Piers' expert, Robert Tuomanen ("Tuomanen Report II"). ECF No. 133. This is the seventh motion this Court has entertained arising from the parties' disputes regarding Providence Piers' Fed.R.Civ.P. 26(a)(2) compliance with requirements to make timely and compliant expert disclosures. SMM challenges Providence Piers' purported supplementation of the first report of its soil expert, Robert W. Tuomanen, of Occupational Health & Safety, with Tuomanen Report II (ECF No. 133-5), arguing that the new report impermissibly adds new opinions and is at variance with this Court's report and recommendation of May 13, 2015. ECF No. 120 ("May 13, 2015 R"). Because it contends that this noncompliance is neither substantially justified nor harmless, SMM contends that Tuomanen Report II should be stricken.
Mr. Tuomanen's first report was timely disclosed on January 27, 2014. ECF No. 133-2. ("Tuomanen Report I"). Prepared "for the purpose of sampling metals in dust and soil" and in reliance on emission spectroscopy performed at a Massachusetts laboratory to identify the metal content, Tuomanen Report I compares the metal content of soil samples taken from the dust and soil in and around SMM's scrap metal piles with dust taken from Providence Piers' roof and inside its buildings. ECF No. 133-2 at 3. Based on arithmetic average metal concentrations and on comparator soil data drawn from "literature, " such as studies of a pitch pine forest and unspecified urban gardens, he concluded that contaminated metal particulate was being carried from SMM's operations onto and over Providence Piers' building. ECF No. 133-2 at 5-6, 7, 12, 16, 18.
On the appropriate deadline, SMM's soil expert, Donna Pallister of Arcadis (ECF No. 133-4) rebutted Tuomanen Report I with the Pallister Report. ECF No. 133-4. The Pallister Report uses the same method (comparison of averages) used in Tuomanen Report I, but compared the metals found in the SMM soil and the Providence Piers dust with actual Providence samples that she collected from various locations, rather than with the hypothetical urban soil data drawn from "literature" used by Mr. Tuomanen. She concluded that all three sources are substantially similar and that the differences are unrelated to dust migration from SMM's operation to Providence Piers' land. Based on this conclusion, she opined that both the SMM and the Providence Piers samples are consistent with the background Providence urban soil and that the results do not support the conclusion that SMM's scrap metal operation is contaminating Providence Piers' land. ECF No. 133-4 at 11-14. In October 2014, Mr. Tuomanen was deposed; he candidly acknowledged that the Pallister Report's use of site-specific soil samples as comparators is preferable, but he "didn't get any" nor did he consult any of various published local soil composition data. ECF No. 133-3 at 12, 15, 16 (Tuomanen Depo. at 133, 153, 155). Based on these and other flaws, SMM has labeled Tuomanen Report I as "junk science, " vulnerable to being stricken pursuant to Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).
In March 2015, Providence Piers asked for leave of Court to return to SMM's property to take and test new soil samples from beneath the shredded pile and scrap piles, as well as water samples from the scrap pile. Three changed conditions formed the basis for the Court's decision to permit new sampling of the shredded pile, but to deny the other relief sought: first, the source of the shredded pile had changed, creating the potential that there has also been a change in its content; second, SMM had introduced its "Big Gun Misters" to prevent the migration of dust onto Providence Piers' property, the success of which was unknown with respect to the shredded pile; and, third, Providence Piers claimed that the size and position of the pile of shredded material had changed in that it had become much larger and had been moved from the opposite side to the portion of SMM's property immediately adjacent to Providence Piers' land. ECF No. 120 at 2-4. The Court's ruling allowed Providence Piers to make a supplemental expert disclosure based on new samples taken from the shredded pile. The resulting order specifically contemplated that Providence Piers would test for materials other than just metals. However, the ruling did not allow Providence Piers an opportunity for a do-over; that is, Providence Piers was not given leave to resample the scrap metal piles and rewrite Toumanen Report I, using Pallister's data and a different analytical framework to cure the deficiencies identified during Mr. Tuomanen's deposition.
On June 8, 2015, Mr. Tuomanen returned to SMM's land and took four new samples, not just from the shredded pile, but also from the scrap pile, which he used to prepare Tuomanen Report II, a report in two parts signed on August 25, 2015. ECF No. 133-5.
In the first part of the Tuomanen Report II, using site-specific soil data that he lifted from the Pallister Report, and abandoning his analytical method (comparison of averages) in favor of a more sophisticated statistical analysis, Mr. Tuomanen concludes that his opinions from Tuomanen Report I remain sound in that contaminated particulates continue to be carried from the scrap pile on SMM's property to Providence Piers' property, despite SMM's use of various methods to prevent dust migration. ECF No. 133-5 at 4. This portion of the report is quintessential rebuttal to the Pallister Report; it essentially analyzes analogous data using a different methodology to reach a different conclusion from hers. Moreover, the only new aspects of this portion of Tuomanen Report II are the use of site-specific Providence soil samples and a statistical analytical method, both of which could readily have been used at the outset and incorporated in Tuomanen Report I.
The second part of Tuomanen Report II is new; focused on the shredded pile samples, it relies on a "morphology analysis, " derived from the use of Scanning Electron Microscopy done at a California laboratory. This part of Tuomanen Report II concludes that the shredded pile contains auto fluff, which has contaminated Providence Piers' property. ECF No. 133-5 at 9-12, 14. It appears to be well within the scope of the supplementation contemplated by the May 13, 2015 R.
II. APPLICABLE LAW
The requirement to make timely disclosure of new expert witnesses and their reports is set out in Fed.R.Civ.P. 26(a)(2). The consequence of noncompliance is governed by Fed.R.Civ.P. 37(c)(1), which provides that a party that "fails to... identify a witness as required by Rule 26(a)... 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." See Pena-Crespo v. Puerto Rico, 408 F.3d 10, 13 (1st Cir. 2005) ("[E]xclusion of evidence is a standard sanction for a violation of the duty of disclosure under Rule 26(a)."). While Fed.R.Civ.P. 26(e) permits supplementation of a timely expert disclosure under limited circumstances, including pursuant to an order of the court, Fed.R.Civ.P. 26(e)(1)(B), if a party discloses a "supplemental" expert report that includes new methodologies, tests and opinions, attempts to correct deficiencies or omissions in its original report, or otherwise seeks to bolster the conclusions contained its original report, the report is not actually a supplement. Jones Creek Investors, LLC v. Columbia Cnty., Ga., No. CV 111-174, 2015 WL 1541409, at *8 (S.D. Ga. Mar. 31, 2015); 3M Innovative Props. Co. v. Dupont Dow Elastomers, LLC, No. CIV. 03-3364MJDJGL, 2005 WL 6007042, at *5 (D. Minn. Aug. 29, 2005). Such a report is treated as an untimely expert disclosure subject to preclusion or an alternative sanction pursuant to Fed.R.Civ.P. 37(c)(1). Palmer v. Asarco Inc., No. 03-CV-0498-CVE-PJC, 2007 WL 2254343, at *2-3 (N.D. Okla. Aug. 3, 2007).
Courts determining whether a report is a proper supplementation or an untimely disclosure focus on the well-settled principle that an expert may not "fix" analytical or methodological flaws in its expert's original report by way of a supposed "supplement." See, e.g., Estate of Cape v. United States, No. 11-C-0357, 2013 WL 4522933, at *5 (E.D. Wis. Aug. 27, 2013) ("[S]upplementation is not properly used to remedy defects in an expert's report or testimony after the weaknesses have been revealed."); United States v. 14.3 Acres of Land, No. 07CV886-AJB NLS, 2011 WL 2414348, at *4 (S.D. Cal. June 10, 2011) ("party may not rely on Rule 26(e)(1) as a way to remedy a deficient expert report or as a means of getting in, in effect, a brand new report.") (citations omitted); In re Ready-Mixed Concrete Antitrust Litig., 261 F.R.D. 154, 159 (S.D. Ind. 2009) (rules do not countenance expert do-overs based on the criticisms of opposing parties or differing approaches of opposing experts). 3M Innovative Props., 2005 WL 6007042, at *3-5 (same). The operative question is whether the expert could have performed the new tests at the outset. Palmer v. Asarco Inc., No. 03-CV-0498-CVE-PJC, 2007 WL 2254343, at *2-4 (N.D. Okla. Aug. 3, 2007).
In Palmer, an environmental expert who initially used general models of lead migration responded to a Daubert challenge with a supplemental expert affidavit that abandoned the general models in favor of site-specific modeling. 2007 WL 2254343, at *2. In striking the affidavit, the court rejected the plaintiffs' attempt to characterize the new test results as a Fed.R.Civ.P. 26(e) supplementation, noting that the expert "could have performed the same modeling in a timely fashion" and that such an attempt to strengthen the original opinions "exceeds the bounds of permissible supplementation and is subject to exclusion under Rule 37(c)(1)." Id. at *3-4. In a cautionary note that resonates in the context of this case, the Palmer court held:
To rule otherwise would create a system where preliminary [expert] reports could be followed by supplementary reports and there would be no finality to expert reports, as each side, in order to buttress its case or position, could supplement' existing reports and modify opinions previously given. This result would ...