Ballard et al v. Union Carbide Corporation et al, No. 2:2011cv00366 - Document 206 (S.D.W. Va. 2012)
Court Description: MEMORANDUM OPINION AND ORDER granting defendants' 194 EXPEDITED MOTION to to modify the 10/5/2012 181 scheduling order and to compel the deposition of Steven Cole, modifying the schedule as follows: The depositions of Mr. Haunschild a nd Mr. Cole are to be completed by 11/13/2012; the defendants' expert disclosures must be served by 11/15/2012; the defendants' counter-expert, if any, must be deposed by 11/21/2012; motion for class certification due by 12/02/2012, with r esponses due by 12/21/2012, and replies due by 1/14/2013; the plaintiffs are directed to disclose to the defendants all discoverable information in the files of both Mr. Haunschild and Mr. Cole no later than 3 days prior to their respective depositions. Signed by Judge John T. Copenhaver, Jr. on 11/8/2012. (cc: attys; any unrepresented parties) (taq)
Download PDF
<![CDATA[
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF WEST VIRGINIA AT CHARLESTON JAMES COLEMAN and LARRY KIMBRO and CARL MOTEN and ADELLE NEWBELL and PHILLIP SCHULTE and NAOMI TACKETT and DAVID TAMPLIN and CAROLYN TURNER and PATRICIA WARD and TERRY WHITE and BRIAN and CYNTHIA WRIGHT, husband and wife, all of whom are residents of the State of West Virginia, Plaintiffs, v. Civil Action No. 2:11-0366 UNION CARBIDE CORPORATION, a Delaware corporation, having its principal place of business in the State of West Virginia and THE DOW CHEMICAL COMPANY, a Delaware corporation, with its principal place of business in Michigan, and EMC ALLOY, L.P. f/k/a ELKEM METALS COMPANY -- ALLOY, L.P., a Norwegian corporation, having its principal offices in the State of Pennsylvania, and GLOBE SPECIALTY METALS, INC., a Delaware corporation, having its principal place of business in the State of New York, and GLOBE METALLURGICAL, INC., a Delaware corporation, having its principal place of business in the State of Ohio, and WEST VIRGINIA ALLOYS, INC., a Delaware corporation, having its principal place of business in the State of West Virginia, and WVA MANUFACTURING LLC, a Delaware corporation, having its principal place of business in the State of West Virginia, Defendants. MEMORANDUM OPINION AND ORDER Pending is the defendants' expedited motion (1) to modify the October 5, 2012, scheduling order, and (2) to compel the deposition of Steven Cole ("expedited motion"), filed October 31, 2012. The defendants seek an order permitting them leave to depose one of the plaintiffs' experts, Greg Haunschild1, before the deadline set for the defendants' counter-expert reports. The Agreed Scheduling Order entered December 30, 2011, provided a 30-day interval between the plaintiffs' deadline -- August 10, 2012 -- and defendants' deadline -- September 10, 2012 -- for their respective expert witness disclosures. This approach resulted in a sufficient interval within which the defendants could depose any expert witnesses disclosed by the plaintiffs prior to the defendants tendering their own disclosures. The interval also served the interests of both time and economy inasmuch as it would allow the defendants to retain an expert on a certain point only after determining if they deemed one 1 Mr. Haunschild entered the case on October 26, 2012, after the court granted the plaintiffs' motion to substitute him as their air modeling expert in the place of Steven Cole, who ostensibly was unable to serve his supplemental expert report by the October 19, 2012, deadline previously imposed by the court. 2 to be necessary in light of the opinions expressed by the plaintiffs' expert on that point. On August 8, 2012, the court extended the aforementioned expert disclosure deadlines by two weeks, preserving the potential for both time and cost savings. On October 5, 2012, the court allowed the plaintiffs until October 19, 2012, to serve their supplemental expert report of Mr. Cole long after the August 24, 2012, extended plaintiff-expert-disclosure deadline set by the August 8, 2012, order. The defendants were correspondingly given leave until November 2, 2012, a very compressed interval indeed, to file their counter-expert reports. The defendants appear to have thereafter exercised due diligence to depose Mr. Cole, and then his successor, Mr. Haunschild, on or before their November 2, 2012, expert disclosure deadline. Their inability to do so appears to have been caused primarily by the unavailability of one of the plaintiffs' lawyers, J. Paul Gignac. The defendants are hampered as well by the apparent failure of both Mr. Haunschild and the plaintiffs' counsel to provide sufficient detail respecting the steps that Mr. Haunschild took to arrive at his opinions in this action. The plaintiffs' crystallized opposition to the defendants' request for relief appears below: This Court should deny Defendants motion because granting it would: (1) require the Court to redo the entire schedule yet again to address the substantial prejudice against 3 Plaintiffs, who need sufficient time to prepare their class certification motion by November 30, 2012; (2) impose additional and unnecessary expenses on Plaintiffs to make two separate cross-country trips when Defendants conceded in two separate emails that they already are available to take Mr. Haunschild s deposition on November 13; and (3) require Plaintiffs to depose Defendants counter expert during Thanksgiving week if Plaintiffs do not receive Defendants expert designation until after November 13, as Defendants propose. (Pls.' Resp. at 4). The plaintiffs appear to desire two full weeks to prepare and file their class certification motion following the completion of class certification discovery. The October 5, 2012, order set the conclusion of class certification discovery at November 16, 2012, with any motion seeking class certification to be filed no later than November 30, 2012. Any response and reply are to be filed no later than December 20, 2012, and January 11, 2013, respectively. The defendants have demonstrated good cause for modification of the scheduling order. There is no indication that they have acted other than diligently in attempting to ascertain the opinions of the plaintiffs' experts, exhibited most recently by their rapid pivot to adhere to the schedule despite the late substitution of Mr. Haunschild for Mr. Cole. Respecting the defendants' requested deposition of Mr. Cole, the plaintiffs do not contest that Mr. Cole collaborated with some of the plaintiffs' other experts and that those experts relied, 4 and that they apparently continue to rely, upon Mr. Cole concerning some of their opinions. Mr. Cole may also need to be questioned in the event that Mr. Haunschild relied upon any of Mr. Cole's data or opinions in the course of Mr. Haunschild rapidly arriving at his opinions in October. It is thus a sensible request that Mr. Cole appear for deposition in Charleston, West Virginia, according to the same schedule set for Mr. Haunschild. It is, accordingly, ORDERED that the schedule be, and it hereby is, modified as follows: The date by which the depositions of Mr. Haunschild and Mr. Cole are to be completed. The date by which the defendants= expert disclosures must be served. 11/13/2012 The date by which the defendants' counter-expert, if any, must be deposed. Filing of motion for class certification. Response regarding class certification. Reply regarding class certification. 11/21/2012 11/15/2012 12/02/2012 12/21/2012 01/14/2012 3 Based upon the foregoing discussion, it is ORDERED that the expedited motion be, and it hereby is, granted. It is additionally ORDERED that the plaintiffs be, and they hereby are, directed to disclose to the defendants all discoverable information in the files of both Mr. Haunschild and Mr. Cole no later than three days prior to their respective depositions. 5 The Clerk is directed to forward copies of this written opinion and order to all counsel of record and any unrepresented parties. DATED: November 8, 2012 John T. Copenhaver, Jr. United States District Judge 6
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
