Emhart Industries, Inc. v. New England Container Company, Inc et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
___________________________________
)
EMHART INDUSTRIES, INC., 	)
)
Plaintiff and Counterclaim 	)
Defendant, 	)
)
v. 	) 	C.A. No. 06-218 S
)
NEW ENGLAND CONTAINER COMPANY, 	)
INC; et al., 	)
)
Defendants and Counterclaim )
Plaintiffs. 	)
___________________________________)
)
EMHART INDUSTRIES, INC., 	)
)
Plaintiff and Counterclaim 	)
Defendant, 	)
)
v. 	) 	C.A. No. 11-023 S
)
UNITED STATES DEPARTMENT OF THE 	)
AIR FORCE; et al., 	)
)
Defendants, Counterclaim 	)
Plaintiffs, and Third-Party )
Plaintiffs, 	)
)
v. 	)
)
BLACK & DECKER, INC.; et al., 	)
)
Third-Party Defendants. 	)
___________________________________)
SIXTH REVISED CASE MANAGEMENT ORDER
(Reflecting deadline changes made November 13, 2013)
The 	Court’s 	September 	30, 	2013 	Fifth 	Revised 	Case
Management Order is further revised as follows.
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I. 	Phased Trial Schedule
The 	Court 	has 	set 	a 	schedule 	for 	a 	phased 	trial, 	beginning
on 	October 	1, 	2014. 	Subject 	to 	the 	stay 	detailed 	below, 	the
first 	phase 	will 	address 	the 	liability 	of 	Emhart1 and 	NECC,
including 	divisibility 	and 	the 	proper 	allocation 	if 	the 	parties
are 	found 	to 	be 	jointly 	and 	severally 	liable. 	The 	second 	phase
(if 	required) 	will 	likely 	be 	held 	approximately 	four 	months
after 	the 	first 	phase 	and 	will 	address 	costs 	and 	whether 	the
remedy 	is 	consistent 	with 	CERCLA. 	A 	third 	phase 	(again, 	if
required) 	will 	be 	held 	at 	a 	later 	date 	and 	address 	the 	liability
and 	contribution 	of 	the 	Third-Party 	Defendants 	and 	the 	United
States.
The 	position 	of 	the 	United 	States 	in 	this 	action 	is
somewhat 	unique. 	On 	the 	one 	hand, 	its 	liability 	is 	only 	in 	the
nature 	of 	cost 	recovery 	by 	either 	Emhart 	and/or 	NECC, 	thus
making 	it 	like 	the 	Third-Party 	Defendants. 	On 	the 	other 	hand,
unlike 	the 	Third-Party 	Defendants, 	the 	United 	States 	is 	alleged
to 	have 	shipped 	dioxin 	(as 	opposed 	to 	other 	chemicals 	that 	led
to 	the 	creation 	of 	dioxin) 	directly 	to 	the 	Centredale 	Site, 	thus
making 	its 	liability 	directly 	tied 	to 	Emhart 	and/or 	NECC’s
defenses. 	To 	promote 	the 	trial’s 	efficiency 	and 	prevent 	the
duplication 	of 	testimony, 	while 	at 	the 	same 	time 	respecting 	the
1 For 	the 	purpose 	of 	this 	Revised 	Case 	Management 	Order,
references to “Emhart” also refer to Black & Decker.
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broad 	purpose 	and 	statutory 	scheme 	of 	CERCLA, 	the 	liability 	of
the 	United 	States 	will 	be 	dealt 	with 	as 	follows: 	All 	evidence
pertaining 	to 	the 	United 	States’s 	liability 	for 	contamination 	of
the 	Site 	will 	be 	presented 	during 	the 	first 	phase 	(the 	liability
phase) 	of 	the 	trial. 	However, 	during 	this 	phase, 	the 	evidence
will 	be 	used 	solely 	to 	determine 	the 	liability 	of 	Emhart 	and
NECC 	and 	whether 	this 	liability 	(if 	proven) 	is 	divisible 	among
the 	two 	parties. 	The 	Court 	will 	not 	rule 	on 	the 	liability 	of
the 	United 	States, 	or 	its 	amount 	in 	contribution, 	if 	any, 	until
the 	third 	phase 	when 	it 	considers 	the 	contribution 	of 	the 	Third-
Party Defendants.
Finally, 	the 	Court 	continues 	to 	stay 	in 	their 	entirety 	all
claims 	against 	the 	Third-Party 	Defendants 	in 	the 	September 	28,
2012 	Third-Party 	Complaint 	(Docket 	No. 	65) 	and 	December 	18, 	2012
Amended 	Third-Party 	Complaint 	(Docket 	No. 	112) 	and 	NECC’s
October 	30, 	2012 	Third-Party 	Complaint 	(Docket 	No. 	261 	in 	Civ.
No. 	1:06-cv-00218) 	and 	November 	12, 	2012 	Third-Party 	Complaint
(Docket 	No. 	80) 	(including 	any 	cross-claims) 	and 	all 	claims 	that
may 	be 	asserted 	by 	any 	such 	parties 	against 	any 	other 	party 	or
any 	nonparty, 	including 	cross-claims, 	counterclaims, 	and 	fourth-
party 	claims 	(collectively, 	“Stayed 	Claims”), 	and 	all
proceedings 	relating 	to 	the 	Stayed 	Claims. 	Only 	the 	remaining
claims 	(“Main 	Claims”) 	are 	subject 	to 	this 	Revised 	Case
Management 	Order, 	and 	any 	amendments 	thereto, 	with 	the 	following
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two 	exceptions: 	1) 	the 	parties 	with 	Stayed 	Claims 	will
participate 	in 	mediation 	pursuant 	to 	Section 	IV 	of 	the 	Case
Management 	Order; 	and 	2) 	Section 	V 	regarding 	the 	EPA’s
administrative 	functions 	applies 	to 	all 	parties, 	including 	those
with 	Stayed 	Claims. 	The 	scope 	of 	this 	stay 	includes 	staying 	any
obligation 	to 	file 	an 	answer 	or 	other 	response 	to 	a 	third-party
complaint, 	to 	make 	Rule 	26(a) 	disclosures, 	to 	take 	or 	submit 	to
discovery 	(with 	the 	exception 	of 	depositions 	that 	may 	be 	ordered
to 	be 	taken 	under 	Fed. 	R. 	Civ. 	P. 	27 	for 	the 	purpose 	of
preserving 	testimony), 	or 	to 	do 	or 	take 	any 	other 	action
required 	or 	permitted 	by 	law 	or 	court 	rules. 	The 	Court 	will 	set
a 	status 	conference 	after 	the 	liability 	phase 	and
cost/consistency 	phase 	are 	concluded 	to 	determine 	which, 	if 	any,
Stayed 	Claims 	have 	not 	been 	resolved 	by 	settlement 	or 	by 	the
trial 	of 	the 	Main 	Claims, 	and 	it 	shall 	issue 	a 	separate 	case
management order at that time as to those Stayed Claims.
Notwithstanding 	the 	foregoing, 	no 	party 	with 	Stayed 	Claims
is 	prohibited 	from 	attending 	any 	deposition 	convened 	or
reviewing 	any 	documents 	produced 	as 	part 	of 	discovery 	with
respect 	to 	the 	Main 	Claims, 	so 	long 	as 	such 	parties 	agree 	in
advance 	to 	be 	bound 	by 	the 	Discovery 	Stipulation 	entered 	by 	this
Court 	on 	June 	1, 	2012, 	and 	by 	the 	Protective 	Order 	Regarding
Confidential 	Information 	and 	Documents 	entered 	by 	this 	Court 	on
November 20, 2012.
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As 	a 	result 	of 	the 	stay 	imposed 	by 	this 	Section, 	the 	Third-
Party 	Defendants 	do 	not 	have 	a 	right 	to 	examine 	any 	witness 	who
testifies 	during 	the 	period 	of 	the 	stay 	or 	to 	object 	to 	any
questions 	asked 	of 	any 	such 	witness. 	Therefore, 	with 	respect 	to
any 	deposition 	testimony 	taken 	during 	the 	period 	of 	the 	stay,
for 	purposes 	of 	Federal 	Rule 	of 	Civil 	Procedure 	32(a)(1)(A), 	no
Third-Party 	Defendant 	will 	be 	deemed 	present 	or 	represented 	at
the 	taking 	of 	the 	testimony 	or 	to 	have 	had 	reasonable 	notice 	of
it. 	Furthermore, 	for 	purposes 	of 	Federal 	Rule 	of 	Evidence
804(b)(1), 	no 	Third-Party 	Defendant 	will 	be 	deemed 	to 	have 	had
an 	opportunity 	to 	develop 	any 	deposition 	testimony 	taken 	during
the 	period 	of 	the 	stay. 	This 	does 	not 	preclude 	a 	party 	from
arguing 	under 	Federal 	Rule 	of 	Evidence 	804(b)(1) 	that 	a
“predecessor 	in 	interest” 	to 	a 	Third-Party 	Defendant 	had 	an
opportunity 	and 	similar 	motive 	to 	develop 	deposition 	testimony
taken 	during 	the 	stay 	period; 	however, 	the 	rights 	of 	the 	Third-
Party 	Defendants 	to 	challenge 	any 	such 	argument 	are 	fully
preserved. 	Just 	to 	be 	clear, 	the 	stay 	does 	not 	apply 	to
discovery 	as 	to 	the 	liability 	of 	the 	United 	States 	by 	Emhart 	or
NECC.
II. 	Schedule
• 	January 	15, 	2013: 	Any 	party 	wishing 	to 	designate 	any
portion 	of 	any 	former 	testimony 	of 	a 	declarant 	in 	any
other 	action, 	including 	but 	not 	limited 	to 	the 	Emhart 	v.
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NECC 	(C.A. 	No. 	06-218 	S) 	action, 	as 	not 	subject 	to
Federal 	Rule 	of 	Evidence 	802, 	must 	provide 	such
designation 	to 	each 	party 	in 	the 	consolidated 	action 	by
this date.
• 	January 	31, 	2013: 	Mediation 	of 	Third-Party 	Claims
begins.
• 	February 	15, 	2013: 	Each 	party 	receiving 	designation 	of
any 	testimony 	(as 	described 	above 	and 	due 	by 	January 	15,
2013) 	shall 	respond 	by 	accepting, 	or 	rejecting, 	such
designation 	by 	this 	date. 	If 	a 	party 	agrees 	that 	the
designation 	is 	acceptable, 	the 	testimony 	of 	the 	declarant
will not be subject to Federal Rule of Evidence 802 as to
that 	party, 	and, 	if 	the 	party 	does 	not 	agree 	to 	the
designation, the 	declarant may be deposed by the 	close of
fact 	discovery 	in 	the 	consolidated 	action. 	Failure 	to
respond shall be deemed non-agreement to the designation.
• 	August 	7, 	2013: 	Deadline 	for 	amendment 	of 	pleadings 	as
to Main Claims.
• 	November 	18, 	2013: 	Parties 	exchange 	all 	expert 	reports
with the exception of corporate-successor issues.2
2 The Court will establish deadlines for corporate-successor
expert reports at a later date.
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• 	February 	28, 	2014: 	Expert 	depositions 	on 	initial 	expert
reports 	complete 	with 	the 	exception 	of 	corporate
successor issues.
• 	April 	30, 	2014: 	Rebuttal 	expert 	reports 	due 	with 	the
exception of corporate-successor issues.
• 	April 30, 2014: 	Fact discovery closes.
• 	June 	27, 	2014: 	Expert 	depositions 	on 	rebuttal 	expert
reports 	complete 	with 	the 	exception 	of 	those 	regarding
corporate successor issues.
• 	July 18, 2014: Daubert motions due.
• 	August 1, 2014: Objections to Daubert motions due.
• 	August 	29, 	2014: 	Pretrial 	memoranda 	and 	dispositive
motions due.
• 	September 	12, 	2014: 	Objections 	to 	dispositive 	motions
due.
• 	October 1, 2014: 	Trial.
III. Discovery
A. 	Cost Discovery
Discovery 	with 	respect 	to 	mechanical 	cost 	issues 	(excluding
whether 	the 	remedy 	is 	consistent 	with 	CERCLA) 	will 	be 	stayed
until after the first trial phase.
B. 	Expert Discovery
Each party will pay for its own experts.
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C. 	Service
The 	parties 	may 	serve 	discovery 	requests 	and 	written
discovery 	responses 	upon 	one 	another 	by 	email. 	Such 	service
shall 	be 	considered 	“hand 	delivered” 	on 	the 	day 	the 	email 	is
sent 	for 	the 	purposes 	of 	calculating 	the 	time 	for 	any 	response
so 	long 	as 	it 	is 	sent 	before 	6:00 	p.m. 	EST. 	If 	such 	email 	is
sent 	after 	that 	time, 	it 	shall 	be 	considered 	“hand 	delivered”
the following day.
IV. 	Mediation
The 	parties 	have 	selected 	a 	mediator. 	The 	parties 	will
work 	cooperatively 	to 	fund 	the 	mediation 	and 	to 	select 	a 	process
for conducting mediation with all parties to this action.
V. 	Miscellaneous
Nothing 	in 	this 	Order 	shall 	affect 	the 	EPA’s 	ability 	to
conduct 	administrative 	functions 	authorized 	or 	required 	by
CERCLA, 	42 	U.S.C. 	§ 	9601, 	et 	seq., 	relating 	to 	the 	Site,
including 	but 	not 	limited 	to 	the 	issuance 	of 	a 	Record 	of
Decision 	selecting 	a 	remedial 	action 	for 	the 	Site 	and 	the
issuance of any notices or orders relating to the Site.
The 	EPA’s 	conduct 	of 	its 	administrative 	functions 	shall 	not
affect 	the 	conduct 	of 	discovery 	and 	trial 	in 	this 	case.
Furthermore, 	nothing 	in 	this 	Order 	shall 	be 	deemed 	an 	admission
by 	any 	party 	that 	the 	EPA’s 	conduct 	of 	its 	administrative
functions, 	including 	but 	not 	limited 	to 	any 	issuance 	of 	notices,
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administrative 	orders, 	and 	a 	Record 	of 	Decision, 	are 	reasonable,
appropriate, 	timely, 	authorized 	by 	statute 	or 	regulation,
constitutional, 	in 	accordance 	with 	the 	law, 	and 	not 	arbitrary
and 	capricious. 	Nor 	shall 	this 	Order 	prevent 	or 	prohibit 	any 	of
the 	parties 	from 	challenging, 	objecting 	to, 	or 	otherwise
responding 	to 	any 	action 	or 	conduct 	of 	the 	EPA 	as 	they 	might
deem 	appropriate 	or 	to 	raise 	issues 	concerning 	such 	action 	or
conduct in this action.
IT IS SO ORDERED.
/s/ William E. Smith
William E. Smith
United States District Judge
Date: 	November 18, 2013
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