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Food & Water Watch, Inc. v. United States Environmental Protection Agency

United States District Court, N.D. California

September 25, 2019

FOOD & WATER WATCH, INC., et al., Plaintiffs,




         Plaintiffs filed suit against the Environmental Protection Agency and Scott Pruitt, in his official capacity as Administrator of that Agency, seeking to “compel the initiation of rulemaking pursuant to the Toxic Substances Control Act (“TSCA”), 15 U.S.C. § 2605(a), to prohibit the addition of fluoridation chemicals to drinking water supplies.” Complaint at 1–2, Docket No. 1. Over the last two years, the parties have stipulated to numerous scheduling agreements, several of which pertained to expert discovery issues. See Plaintiff’s Opposition to Defendant’s Motion to Enlarge Time (“Opp.”) at 1, Docket No. 114. However, a dispute has now arisen, and Defendants have filed a motion for extension of time to conduct additional expert discovery. See Docket No. 113. Plaintiffs oppose the motion. See Opp.


         Defendants seek an extension of time pursuant to Civil Local Rule 6-3 for limited additional expert discovery. Defendants contend that “two new developments” necessitate this change: (1) the completion of a forthcoming Monograph on Systematic Review of Fluoride Exposure and Neurodevelopmental and Cognitive Health Effects by the National Toxicology Program, and (2) the identification by EPA of “one additional expert witness who is not required to submit an expert report.”[1] See Motion to Enlarge Time for Limited Expert Discovery (“Mot.”) at 1, Docket No. 113. The EPA seeks an additional 65 days to “conduct additional expert discovery” and a “temporary stay of the remaining deadlines . . . which may include seeking a new trial date.” Id. at 2.

         Three reasons counsel against granting Defendants’ Motion for Enlargement of Time. First, it appears that Defendants waited a long time before contacting their new expert witness, Dr. Angeles Martinez-Mier. The deadline for disclosure of experts was June 27, 2019. See Docket No. 98. On that date, the parties exchanged initial expert disclosures, and Plaintiffs disclosed the identities of two non-retained experts-Dr. Bruce Lanphear and Dr. Howard Hu-along with scientific papers they had published. Mot. at 3. As Defendants note, “Dr. Martinez-Mier [was listed as] a co-author on all of the studies that Drs. Hu and Lanphear attached to their June 27, 2019 ‘expert reports.’” Mot. at 4. However, Defendants did not speak with Dr. Martinez-Mier until September 11, 2019, approximately two and a half months later. Id.; see also Opp. at 3.

         After speaking with Dr. Martinez-Mier, Defendants “supplemented [their] expert designations and disclosures . . . [on] September 18, the close of expert discovery under the existing schedule.” Mot. at 5. However, this amendment was long after the deadlines for expert disclosures and disclosure of rebuttal experts had passed. See Docket No. 98. As Plaintiffs note, “Rule 37 provides that ‘If a party fails to . . . identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that . . . witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless.’” Opp. at 3 (citing Fed.R.Civ.P. 37). Because EPA’s motion “fails to provide any intelligible justification for its late last-minute disclosure of Dr. Martinez-Mier, ” (aside from accounting for the fact that she was traveling just prior to the close of expert discovery) Opp. at 3, the EPA will not be permitted to use Dr. Martinez-Mier as a witness.

         Second, it is not necessary to extend time “to minimize the inefficiency and/or confusion that could otherwise result from proceeding with litigation prior to public disclosure of the NTP Monograph.” Mot. at 2. For one thing, the upcoming release will be a draft version of the document only. See Opp. at 1. And the National Toxicology Program disclaims the finality of the draft’s conclusions because it must still “undergo 12 months of peer review by the National Academy of Sciences” as well as “extensive public comment” prior to finalization. Opp. at 2; see also Mot. at 2. In addition, Defendants note that the forthcoming publication is a “systematic review of the existing . . . studies, ” Mot. at 2-3, and as Plaintiff notes, “it is not a study generating new data. Both parties’ experts have already reviewed the same scientific literature that the NTP reviewed.” Opp. at 2. As a result, both parties are currently free to utilize the information and studies that will be the basis of the forthcoming Monograph; the current availability of these resources counsels against delaying the existing schedule.

         Third and finally, Plaintiffs note that they would be prejudiced by an enlargement of time because of the expenses associated with such a change at this stage. In particular, Plaintiffs fear “substantial expenses . . . including re-deposing multiple experts (at a cost of over $5, 000 per deposition), and paying Plaintiffs’ experts (at a rate of $225 to 300/hour) to supplement their reports so as to not be at a disadvantage vis-à-vis EPA. EPA’s requested relief will also inherently vacate the trial date, which therein invites uncertainty as to whether Plaintiffs’ experts will all be available on the future replacement date.” Opp. at 5. This also counsels against granting Defendants’ motion.

         For the forgoing reasons, the Court DENIES Defendants’ Motion for Enlargement of Time.

         This order disposes of Docket No. 113.

         IT IS SO ORDERED.


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