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Cooper v. Meritor, Inc.

United States District Court, N.D. Mississippi, Greenville Division

February 7, 2018

BRENDA J. COOPER, ET AL. PLAINTIFFS
v.
MERITOR, INC., ET AL. DEFENDANTS JOE E. SLEDGE, ET AL. PLAINTIFFS
v.
MERITOR, INC., ET AL. DEFENDANTS AND KATHERINE LONGSTREET COOKE, ET AL. PLAINTIFFS
v.
MERITOR, INC., ET AL. DEFENDANTS AND SRA INVESTMENTS, LLC, ET AL. PLAINTIFFS
v.
MERITOR, INC., ET AL. DEFENDANTS AND FELICIA WILLIS, ET AL. PLAINTIFFS
v.
MERITOR, INC., ET AL. DEFENDANTS

          ORDER

          JANE M. VIRDEN UNITED STATES MAGISTRATE JUDGE

         This matter came before the court on plaintiffs' motion to compel [466] defendants, Meritor Inc., Rockwell Automation Inc., and the Boeing Company (hereinafter, collectively, “Meritor”) to produce certain “T and M production documents” inadvertently provided to, and currently sequestered by, plaintiffs' counsel (hereinafter “the clawback documents”). T&M is an environmental firm who has done work for Meritor for many years. Jim Peeples, T&M's vice president, has been designated by Meritor as a testifying expert in this case-a designation which lies at the heart of the issues addressed herein. Following briefing and a hearing on the motion, the court has ordered the production of all, except one, of the clawback documents[1] for the reasons expressed at the hearing and set forth below.

         Background

         This is an environmental tort case[2] filed on March 16, 2016 by the owners of homes in the Eastern Heights neighborhood of Grenada, Mississippi who contend that defendants' manufacturing facility, next door, is responsible for contamination-primarily in the form of TCE and hexavalent chromium, of their air, ground water, and soil. The claims asserted are under state law and are for fraud and fraudulent concealment, negligence, nuisance, civil conspiracy, trespass, and intentional or negligent infliction of emotional distress.

         The case management order [83] entered in this matter set the original discovery deadline as November 29, 2017, the deadline for designation of plaintiffs' experts as April 28, 2017, and the deadline for designation of defendants' experts as July 28, 2017. The trial date was set for June 4, 2018.

         Meritor's Expert Designation

         On April 28, 2017, plaintiff timely designated their experts, and, on motion of the defendants, their expert designation deadline was extended to August 18, 2017. On that date, Meritor designated its experts, and Textron, Inc., also a defendant, filed a separate, but-the court is advised-identical designation. The defendants' expert designation, the most relevant portions of which are italicized below, provides as follows:

         A. RETAINED EXPERT WITNESSES

         Defendants designate and disclose the following retained experts pursuant to Fed.R.Civ.P. 26 (a)(2)(B) in each of the above styled cases:

Barbara D. Beck, Ph.D., D.A.B.T.
Fellow ATS, ERT, Principal Gradient
20 University Road Cambridge, Massachusetts 02138
A copy of Dr. Beck's Curriculum Vitae and report is attached as Exhibit A.
Trevor E. Phillips, FRICS, ASA, CRE
Managing Director
Alvarez & Marsal Disputes and Investigations, LLC
700 Louisiana Street, Suite 3300 Houston, Texas 77002
A copy of Mr. Phillips' Curriculum Vitae and report are attached as Exhibit B.
Robert L. Powell Ph.D., P.E
Ramboll Environ
10150 Highland Manor Drive Suite 440 Tampa, FL 33610
A copy of Dr. Powell's Curriculum Vitae and report is attached as Exhibit C.
Ranjit Machado, PE
Managing Principal
Environment & Health
Ramboll Environ
4350 North Fairfax Drive Suite 300 Arlington, VA 22203
A copy of Mr. Machado's Curriculum Vitae and report is attached as Exhibit D.
Billy Hall, PE
Chairman
NewFields Companies
Suite 2000 1349 West Peachtree Street Atlanta, Ga. 30309
A copy of Mr. Hall's Curriculum Vitae and report is attached as Exhibit E.

         B. EXPERTS NOT SPECIFICALLY RETAINED PURSUANT TO RULE 26(a)(2)(C) AND RETAINED PURSUANT TO RULE 26(a)(2)(B)[3]

         Defendants identify the following expert, pursuant to Rule 26(a)(2)(C) and 26(a)(2)(B), in each of the above-styled cases:

James Peeples, PE
Vice President, Senior Technical Environmental
Engineer T&M Associates, Inc.
4675 Lakehurst Court, Suite 250

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