Ballard et al v. Union Carbide Corporation et al, No. 2:2011cv00366 - Document 296 (S.D.W. Va. 2012)
Court Description: MEMORANDUM OPINION AND ORDER granting the plaintiffs' 238 MOTION to file the proposed third amended class action complaint; deeming the previously-filed 83 MOTION to Dismiss, the defendants' response to the third amended pleading such that no further briefing on that motion is required; denying the 289 MOTION to Strike, with the exception that the plaintiffs are directed to pay over to the defendants the attorney fees and costs reasonably and necessarily attributabl e to the defendants' taking the additional discovery necessitated by the plaintiffs' failure to include the now-expanded scope of the issues in the original reports of the three challenged experts; denying without prejudice the plaintif fs' 286 MOTION for deferral in view of the schedule modification directed and set forth more fully herein; denying without prejudice the defendants' 228 MOTION to Exclude the opinions of the plaintiffs' expert wit nesses Dr. Dahlgren, Mr. Haunschild, Mr. Horsak, and Mr. Cheremisinoff, to the defendants' filing of their reformulated Daubert motion as earlier noted herein; modifying the schedule as follows: Plaintiffs produce all discoverable informatio n in the files of Mr. Haunschild, Dr. Dahlgren, and Mr. Horsak relating to their affidavits and any subsequently filed supplemental reports authored by them by 01/04/2013; plaintiffs serve their amended expert reports to formalize and elaborate u pon the opinions expressed in the affidavits of Mr. Haunschild, Dr. Dahlgren, and Mr. Horsak by 01/11/2013; defendants' re-depose plaintiff experts as necessary by 01/18/2013; defendants' serve their amended responsive expert disclosures by 01/22/2013; plaintiffs re-depose defendant experts as necessary by 01/24/2013; response on class certification motion due by 02/08/2013; plaintiffs' Daubert motion and defendants' reformulated Daubert motion due by 02/08/2013; reply on class certification motion due by 02/25/2013; responses on Daubert motions due by 02/25/2013; replies on Daubert motions due by 03/08/2013; class certification hearing on 04/10/2013 at 10:00 a.m. Terminating the plaintiffs' 186 EXPEDITED M OTION for an order modifying the court's 10/5/2012 181 order as it applies to Steven Cole; the motion was addressed in an order entered 10/26/2012. The Clerk is directed to amend the style as reflected in the caption. Signed by Judge John T. Copenhaver, Jr. on 12/27/2012. (cc: attys; any unrepresented parties) (taq)
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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.1 1 The Clerk is directed to amend the style as reflected in the caption. MEMORANDUM OPINION AND ORDER Pending are the plaintiffs' motions (1) to file a third amended class action complaint, filed December 10, 2012, and (2) for an order deferring further briefing and any hearing on defendants' Daubert motion pending a ruling by the Supreme Court in Comcast Corporation v. Behrend ("deferral motion"), filed December 14, 2012, and the defendants' motions (1) to exclude the opinions of the plaintiffs' expert witnesses Dr. James Dahlgren, Greg Haunschild, Randy Horsak, and Nicholas Cheremisinoff, and (2) to strike the untimely affidavits of the plaintiff's expert witnesses, namely, Mr. Haunschild, Dr. Dahlgren, and Randy Horsak, filed December 18, 2012.2 Inasmuch as it is unopposed, it is ORDERED that the motion to file the proposed third amended class action complaint be, and it hereby is, granted. The previously-filed motion to dismiss is deemed the defendants response to the third amended pleading such that no further briefing on that motion is required. On December 26, 2012, the court conducted a telephonic status conference with counsel. As more fully reflected on the 2 Also listed as pending on the docket is the plaintiffs' expedited motion for an order modifying the court's October 5, 2012, order as it applies to Steven Cole, filed October 19, 2012. Inasmuch as the motion was addressed in an order entered October 26, 2012, the Clerk is directed to terminate the motion. 2 record of the proceeding, the court found that the subject affidavits expand considerably the scope of the issues presented on class certification without a concomitant showing of good cause or other substantial justification. As further more fully reflected on the record, and with the parties' agreement to the extent set forth on the record, it is ORDERED that the motion to strike be, and it hereby is, denied, with the exception that the plaintiffs be, and they hereby are, ORDERED to pay over to the defendants the attorney fees and costs reasonably and necessarily attributable to the defendants' taking the additional discovery necessitated by the plaintiffs' failure to include the now-expanded scope of the issues in the original reports of the three challenged experts. Inasmuch as the plaintiffs' actions have necessitated a substantial modification of time frame in this action, it is further ORDERED that the schedule be, and it hereby is, modified as follows: Plaintiffs produce all discoverable information in the files of Mr. Haunschild, Dr. Dahlgren, and Mr. Horsak 01/04/2013 relating to their affidavits and any subsequently filed supplemental reports authored by them. Plaintiffs serve their amended expert reports to formalize and elaborate upon the opinions expressed in 01/11/2013 the affidavits of Mr. Haunschild, Dr. Dahlgren, and Mr. Horsak Defendants' re-depose plaintiff experts as necessary. 01/18/2013 Defendants' serve their amended responsive expert disclosures. 01/22/2013 Plaintiffs re-depose defendant experts as necessary. 01/24/2013 3 Response on class certification motion. 02/08/2013 Plaintiffs' Daubert motion and defendants' reformulated 02/08/2013 Daubert motion. Reply on class certification motion. 02/25/2013 Responses on Daubert motions. 02/25/2013 Replies on Daubert motions. 03/08/2013 Class certification hearing. 04/10/2013 10:00 am It is further ORDERED that the plaintiffs' deferral motion be, and it hereby is, denied without prejudice in view of the schedule modification ordered above. It is additionally ORDERED that the motion to exclude the opinions of the plaintiffs' expert witnesses Dr. Dahlgren, Mr. Haunschild, Mr. Horsak, and Mr. Cheremisinoff be, and it hereby is, denied without prejudice to the defendants' filing of their reformulated Daubert motion as earlier noted. The Clerk is directed to forward copies of this order to all counsel of record and any unrepresented parties. DATED: December 27, 2012 John T. Copenhaver, Jr. United States District Judge 4
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