Our plain-English summary of Dugger v. Union Carbide Corporation (U.S. District Court, District of Maryland, September 30, 2019).
John Dugger, Jr., individually and as personal representative of the estate of John Dugger, Sr., along with his spouse and surviving children, sued Honeywell International, successor to Bendix Corporation. They alleged that Mr. Dugger developed mesothelioma from asbestos in Bendix brakes. Honeywell planned to call three experts, Dr. Crapo, Mr. Watson and Dr. Chirieac, to testify about Mr. Dugger's asbestos exposure in the Navy and the likelihood that it, rather than the brakes, caused his disease. Expert discovery had closed in August 2018. Afterward Honeywell hired a firm to find more documents about his service on Navy boats, and its experts then wrote supplemental reports given to the plaintiffs in October 2018. The plaintiffs asked the court to exclude testimony relying on those documents, arguing the reports were not true supplements. The court denied the motions. It assumed the reports were not proper supplements but found the late disclosure harmless: the experts had not changed their opinions, Honeywell offered depositions, and no trial date was set. The court ordered Honeywell to pay reasonable deposition costs.
We wrote this summary from the court's opinion with the help of AI. It is not the court's wording, and it is not legal advice. The full opinion is below.
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The decision
- Court: U.S. District Court, District of Maryland
- Decided: September 30, 2019
- Docket: Civil Action No. CCB-16-3912
- Stage: Discovery or evidence ruling
- State: Maryland
Outcome. The court denied the plaintiffs' motions in limine to exclude supplemental reports by Honeywell's experts Crapo, Watson and Chirieac, finding the late disclosure harmless, but ordered Honeywell to pay reasonable costs of deposing the experts on the new material.
What the court held. Even if late expert reports are not true supplements under Rule 26(e), they need not be excluded under Rule 37(c)(1) when the late disclosure is harmless, judged by factors such as surprise, ability to cure, trial disruption, importance and explanation.
Issues decided: Causation, Expert Testimony, Trial Procedure and Discovery.
The people and their exposure
- John C. Dugger, Sr.: mesothelioma; died
| Who | Work | Where | When | Products |
|---|---|---|---|---|
| John C. Dugger, Sr. | Navy service member (the Navy) | brakes, clutches and friction materials, Bendix brakes (Honeywell, successor to Bendix Corporation) | ||
| John C. Dugger, Sr. | Navy service member (the Navy); military service | Navy boats |
The defendants
- Honeywell International Inc., successor-in-interest to Bendix Corporation (manufacturer)
Other decisions in this case
Other rulings from the same court in the same case, in our library:
- Dugger v. Union Carbide Corporation (September 30, 2019). The court denied Honeywell's motion for summary judgment, finding a genuine factual dispute over whether Bendix brake boxes carried asbestos warnings, so the plaintiffs' claims against Honeywell proceed.
- Dugger v. Union Carbide Corporation (September 30, 2019). The district court granted in part and denied in part Honeywell's Daubert motion: plaintiffs' experts Dr. Frank, Dr. Maddox and Dr. Finkelstein may testify, but may not rely on the 'each and every exposure' theory.
The court's opinion
The text below is Google Scholar's copy of the court's opinion, a public record. Numbers in brackets, such as [*921], mark where each page of the printed reporter begins.
JOHN DUGGER, JR., etal.,
v.
UNION CARBIDE CORPORATION, etal.
Civil Action No. CCB-16-3912.
September 30, 2019.
United States District Court, D. Maryland.
John Dugger, Jr., Personal Representative of the Estate of John C. Dugger, Sr., Plaintiff, represented by Andrew M. Cantor, Law Offices of Peter G Angelos, Gary J. Ignatowski, Law Offices of Peter G Angelos, James Edward Garland, Law Offices of Peter Angelos, P.C. & James Steven Zavakos, Law Offices of Peter G Angelos.
John Dugger, Jr., Surviving Son of John C. Dugger, Sr., Plaintiff, represented by Andrew M. Cantor, Law Offices of Peter G Angelos, Gary J. Ignatowski, Law Offices of Peter G Angelos & James Edward Garland, Law Offices of Peter Angelos, P.C. Dana Buzgierski, Surviving Daughter of John C. Dugger, Sr., Rana Sanchez, Surviving Daughter of John C. Dugger, Sr., Matthew Dugger, Surviving Son of John C. Dugger, Sr., Julia Dugger, Surviving Daughter of John C. Dugger, Sr., To The Use of Sandra Dugger, Spouse of John C. Dugger, Sr., Now Deceased C/O John Dugger, Jr. & To The Use of Sandra Dugger, Spouse of John C. Dugger, Sr., Now Deceased C/O Melody Natishin, Plaintiffs, represented by Andrew M. Cantor, Law Offices of Peter G Angelos, David L. Palmer, Law Offices of Peter G Angelos PC, Gary J. Ignatowski, Law Offices of Peter G Angelos & James Edward Garland, Law Offices of Peter Angelos, P.C.
General Electric Company, Defendant, represented by David J. Quigg, DeHay & Elliston LLP.
Foster Wheeler LLC, Defendant, represented by Patrick C. Smith, Dehay and Elliston LLP.
Georgia-Pacific, LLC, Individually and as Successor in interest to Bestwall Gypsum Co., Defendant, represented by Robin Silver, Miles and Stockbridge PC, F. Ford Loker, Jr., Miles and Stockbridge PC & Joshua Franklin Kahn, Miles & Stockbridge P.C.
Greene, Tweed & Co., Individually and as Successor in Interest to Palmetto, Inc., Defendant, represented by Brendan Henderson Fitzpatrick, Goldberg Segalla LLP, Scott J. McDowell, Goldberg Segalla LLP & Thomas Peter Bernier, Goldberg Segalla.
Honeywell International Inc., formerly known as Allied Signal Inc. formerly known as Bendix Corporation, Defendant, represented by Michael K. Atkins, Baker O'Kane Atkins and Thompson PLLP, pro hac vice, Alicia N. Ritchie, Miles and Stockbridge PC, F. Ford Loker, Jr., Miles and Stockbridge PC, Jonathan James Huber, Miles & Stockbridge P.C., Matthew R. Schroll, Nelson Mullins Riley & Scarborough, LLP & Matthew Thomas Wagman, Miles & Stockbridge PC. Ford Motor Company, Inc., Defendant, represented by Michelle Noorani, Whiteford Taylor and Preston LLP. The Gorman-Rupp Company, Individually and as Successor-in-Interest to Patterson Pump Co. and C.H. Wheeler Manufacturing, Defendant, represented by F. Ford Loker, Jr., Miles and Stockbridge PC.
Goulds Pumps (IPG), Inc., c/o President, Defendant, represented by Steven Andrew Luxton, Morgan Lewis and Bockius LLP.
I.M.O. Industries, Inc., Individually and as Successor-in-Interest to De Laval Turbine, Inc. and Warren Pumps, Inc. formerly known as De Laval, Inc. formerly known as IMP Delaval, Inc., Defendant, represented by F. Ford Loker, Jr., Miles and Stockbridge PC, Joel D. Newport, Moore and Jackson LLC, Meggie Hogan, Swanson Martin and Bell, pro hac vice, Neil MacCallum, Collins Einhorn Farrell PC, pro hac vice & Stephen Jacobites, Collins Einhorn Farrell PC, pro hac vice. Ingersoll-Rand Co., Individually and as Parent corporation and Successor-in-Interest to Terry Steam Turbines, f/k/a Terry Turbines, Blaw-Knox Co., and Cameron Pumps, Defendant, represented by F. Ford Loker, Jr., Miles and Stockbridge PC, Jermaine Derville Haughton, Nelson Mullins Riley & Scarborough & Michael L. Haslup, Miles and Stockbridge PC.
Warren Pumps, Inc., Defendant, represented by Malcolm Sean Brisker, Goodell DeVries Leech and Dann LLP, Meggie Hogan, Swanson Martin and Bell, pro hac vice & Terri Lynn Goldberg, Goodell DeVries Leech and Dann LLP. Alfa Laval, Inc., Individually and as Successor-in-Interest to Sharples, INc., and DeLaval Separation, Inc. and DeLaval Separator Co., Cooper Industries, Inc., Individually and as Successor in Interest to Crouse Hinds Co., Foster Wheeler LLC, FMC Corporation, Individually and as Successor in Interest to Peerless Pumps, Northern Pumps and Stearns Electric Co., Pfizer, Inc., Pneumo Abex Corporation, Individually and as Successor in Interest to Abex Corporation and American Brake Shoe Co. & The William Powell Company, Cross Defendants, represented by Patrick C. Smith, Dehay and Elliston LLP. Burnham, LLC, Cross Defendant, represented by Vincent J. Palmiotto, Clyde & Co. US LLP & Patrick C. Smith, Dehay and Elliston LLP.
Dana Companies, LLC, Individually and as Successor in Interest to Victor Manufacturing and Gasket Co., Warner Electric Brake and Clutch Co. and Echlin, Inc., Cross Defendant, represented by Vincent J. Palmiotto, Clyde & Co. US LLP & Patrick C. Smith, Dehay and Elliston LLP.
General Electric Company, Cross Defendant, represented by David J. Quigg, DeHay & Elliston LLP.
Georgia-Pacific, LLC, Individually and as Successor in interest to Bestwall Gypsum Co., Cross Defendant, represented by Robin Silver, Miles and Stockbridge PC & F. Ford Loker, Jr., Miles and Stockbridge PC.
Goodrich Corporation, Cross Defendant, represented by John C. Ruff, DeHay and Elliston LLP & Patrick C. Smith, Dehay and Elliston LLP.
I.M.O. Industries, Inc., Individually and as Successor-in-Interest to De Laval Turbine, Inc. and Warren Pumps, Inc., Cross Defendant, represented by Neil MacCallum, Collins Einhorn Farrell PC, pro hac vice, Stephen Jacobites, Collins Einhorn Farrell PC, pro hac vice, Joel D. Newport, Moore and Jackson LLC & F. Ford Loker, Jr., Miles and Stockbridge PC. Riley Power, Inc, Cross Defendant, represented by Vincent J. Palmiotto, Clyde & Co. US LLP & Patrick C. Smith, Dehay and Elliston LLP.
The Gorman-Rupp Company, Individually and as Successor-in-Interest to Patterson Pump Co. and C.H. Wheeler Manufacturing & Eaton Hydraulics, Inc., Cross Defendants, represented by F. Ford Loker, Jr., Miles and Stockbridge PC. Trane U.S. Inc., Ind./Succ. In Int. To Kewanee Boiler Mfg. Co., Westinghouse Air Brake Co. & Union Switch Signal, Cross Defendant, represented by Michael L. Haslup, Miles and Stockbridge PC, Jermaine Derville Haughton, Nelson Mullins Riley & Scarborough & F. Ford Loker, Jr., Miles and Stockbridge PC.
Warren Pumps, Inc., Cross Defendant, represented by Meggie Hogan, Swanson Martin and Bell, pro hac vice, Terri Lynn Goldberg, Goodell DeVries Leech and Dann LLP & Malcolm Sean Brisker, Goodell DeVries Leech and Dann LLP. Trane U.S. Inc., Ind./Succ. In Int. To Kewanee Boiler Mfg. Co., Westinghouse Air Brake Co. & Union Switch Signal, Cross Claimant, represented by Michael L. Haslup, Miles and Stockbridge PC.
Alfa Laval, Inc., Individually and as Successor-in-Interest to Sharples, INc., and DeLaval Separation, Inc. and DeLaval Separator Co., Cooper Industries, Inc., Individually and as Successor in Interest to Crouse Hinds Co., FMC Corporation, Individually and as Successor in Interest to Peerless Pumps, Northern Pumps and Stearns Electric Co., Foster Wheeler LLC, Pfizer, Inc., Pneumo Abex Corporation, Individually and as Successor in Interest to Abex Corporation and American Brake Shoe Co. & The William Powell Company, Cross Claimants, represented by Patrick C. Smith, Dehay and Elliston LLP. Greene, Tweed & Co., Individually and as Successor in Interest to Palmetto, Inc., Cross Defendant, represented by Scott J. McDowell, Goldberg Segalla LLP & Thomas Peter Bernier, Goldberg Segalla.
Burnham, LLC, Cross Claimant, represented by Vincent J. Palmiotto, Clyde & Co. US LLP & Patrick C. Smith, Dehay and Elliston LLP.
Dana Companies, LLC, Individually and as Successor in Interest to Victor Manufacturing and Gasket Co., Warner Electric Brake and Clutch Co. and Echlin, Inc., Cross Claimant, represented by Vincent J. Palmiotto, Clyde & Co. US LLP & Patrick C. Smith, Dehay and Elliston LLP.
Honeywell International Inc., Cross Defendant, represented by Alicia N. Ritchie, Miles and Stockbridge PC, Jonathan James Huber, Miles & Stockbridge P.C., Matthew Thomas Wagman, Miles & Stockbridge PC, Matthew R. Schroll, Nelson Mullins Riley & Scarborough, LLP & F. Ford Loker, Jr., Miles and Stockbridge PC.
Goodrich Corporation, Cross Claimant, represented by John C. Ruff, DeHay and Elliston LLP & Patrick C. Smith, Dehay and Elliston LLP.
Riley Power, Inc, Cross Claimant, represented by Vincent J. Palmiotto, Clyde & Co. US LLP & Patrick C. Smith, Dehay and Elliston LLP.
Ingersoll-Rand Co., Individually and as Parent corporation and Successor-in-Interest to Terry Steam Turbines, f/k/a Terry Turbines, Blaw-Knox Co., and Cameron Pumps, Cross Defendant, represented by Michael L. Haslup, Miles and Stockbridge PC & F. Ford Loker, Jr., Miles and Stockbridge PC.
I.M.O. Industries, Inc., Individually and as Successor-in-Interest to De Laval Turbine, Inc. and Warren Pumps, Inc., Cross Claimant, represented by Neil MacCallum, Collins Einhorn Farrell PC, pro hac vice & Stephen Jacobites, Collins Einhorn Farrell PC, pro hac vice.
CBS Corporation, a Delaware Corporation, Cross Defendant, represented by Philip A. Kulinski, Evert Weathersby Houff, Clare Marie Maisano, Evert Weathersby Houff & F. Ford Loker, Jr., Miles and Stockbridge PC.
Ford Motor Company, Inc., Cross Defendant, represented by Michelle Noorani, Whiteford Taylor and Preston LLP. Goulds Pumps (IPG), Inc., c/o President, Cross Defendant, represented by Steven Andrew Luxton, Morgan Lewis and Bockius LLP.
Hampshire Industries, Inc., Cross Defendant, represented by David W. Allen, Goodell DeVries Leech and Dann LLP & Terri Lynn Goldberg, Goodell DeVries Leech and Dann LLP.
Holman Enterprises, Inc. & Zurn Industries, LLC, Individually and as Successor in INterest to Erie City Boilers, Cross Defendants, represented by Malcolm Sean Brisker, Goodell DeVries Leech and Dann LLP & Terri Lynn Goldberg, Goodell DeVries Leech and Dann LLP.
International Paper Company, Individually and as Successor in Interest to Champion International Corporation and U.S. Plywood Corp., Cross Defendant, represented by Clare Marie Maisano, Evert Weathersby Houff & F. Ford Loker, Jr., Miles and Stockbridge PC.
Koppers Company, Inc. & Universal Refractories Company, Cross Defendants, represented by Joel D. Newport, Moore and Jackson LLC & F. Ford Loker, Jr., Miles and Stockbridge PC.
Koppers Company, Inc. & Universal Refractories Company, Cross Claimants, represented by Joel D. Newport, Moore and Jackson LLC.
CBS Corporation, a Delaware Corporation & International Paper Company, Individually and as Successor in Interest to Champion International Corporation and U.S. Plywood Corp., Cross Claimants, represented by Clare Marie Maisano, Evert Weathersby Houff.
Warren Pumps, Inc., Cross Claimant, represented by Meggie Hogan, Swanson Martin and Bell, pro hac vice. Ford Motor Company, Inc., ThirdParty Plaintiff, represented by Michelle Noorani, Whiteford Taylor and Preston LLP. Alfa Laval, Inc., Individually and as Successor-in-Interest to Sharples, INc., and DeLaval Separation, Inc. and DeLaval Separator Co. & Foster Wheeler LLC, ThirdParty Plaintiffs, represented by Patrick C. Smith, Dehay and Elliston LLP. Goodrich Corporation, ThirdParty Plaintiff, represented by John C. Ruff, DeHay and Elliston LLP & Patrick C. Smith, Dehay and Elliston LLP.
Honeywell International Inc., ThirdParty Plaintiff, represented by Alicia N. Ritchie, Miles and Stockbridge PC, F. Ford Loker, Jr., Miles and Stockbridge PC, Jonathan James Huber, Miles & Stockbridge P.C., Matthew R. Schroll, Nelson Mullins Riley & Scarborough, LLP & Matthew Thomas Wagman, Miles & Stockbridge PC.
Ingersoll-Rand Co., Individually and as Parent corporation and Successor-in-Interest to Terry Steam Turbines, f/k/a Terry Turbines, Blaw-Knox Co., and Cameron Pumps, ThirdParty Plaintiff, represented by Michael L. Haslup, Miles and Stockbridge PC.
MEMORANDUM
CATHERINE C. BLAKE, District Judge.
Before this court are the plaintiffs' motion in limine regarding defense expert James Crapo, M.D. (ECF 931), plaintiffs' motion in limine regarding defense expert Tony Watson, C.I.H. (ECF 932), and plaintiffs' motion in limine regarding defense expert Lucian Chirieac, M.D. (ECF 933). The motions have been fully briefed and no oral argument is necessary. For the reasons set forth below, the court will deny the plaintiffs' motions in limine.
FACTS
This is a case brought by John Dugger, Jr., individually and as personal representative of the estate of John Dugger, Sr.,[1] as well as John Dugger's spouse and surviving children (the "plaintiffs") against Honeywell International Inc. ("Honeywell"), successor-in-interest to Bendix Corporation, alleging that Mr. John Dugger developed mesothelioma as a result of his exposure to asbestos contained within Bendix brakes. Honeywell intends to call expert witnesses Dr. James Crapo, Tony Watson, and Dr. Lucian Chirieac to testify at trial. These three witnesses will all generally testify as to Mr. Dugger's exposure to asbestos while in the Navy and the likelihood that his mesothelioma was caused by that exposure rather than his exposure to asbestos in Bendix brakes. ECF 934-1 at 2-3 (Dr. Crapo); ECF 935-1 at 2-3 (Dr. Chirieac); ECF 936-1 at 2-3 (Mr. Watson).
Expert discovery closed in this case on August 8, 2018. Scheduling Order, ECF 571. On August 13, 2018, Honeywell retained McCaffrey & Associates to search for additional documents relating to Mr. Dugger's service on Navy boats. Honeywell's Mem. in Supp. of its Opp'n to Pls.' Mot. in Limine regarding James Crapo, ECF 934-1 at 3. McCaffrey & Associates gave Honeywell these documents and an accompanying memorandum on August 24, 2018. Mem. in Supp. of Pls.' Mot. in Limine, ECF 931-1 at 3-4; ECF 934-1 at 3. Honeywell then provided these additional documents to its experts for review, and the experts drafted supplemental reports, which were provided to the plaintiffs in October 2018. ECF 931-1 at 2 (Dr. Crapo); ECF 932-1 at 2 (Mr. Watson); ECF 933-1 at 2 (Dr. Chirieac). The plaintiffs seek to exclude any testimony by Dr. Crapo, Mr. Watson, and Dr. Chirieac that relies on the documents from McCaffrey & Associates. ECF 931-1 at 3 (Dr. Crapo); ECF 932-1 at 4 (Mr. Watson); ECF 933 at 4 (Dr. Chirieac). The plaintiffs contend that the additional reports are not "supplemental" reports under Rule 26(e), are not based on new evidence or facts, and are instead meant to cure perceived deficiencies in the deposition testimony of Honeywell's naval expert John Graham. See ECF 931-1 at 4-6 (Dr. Crapo); ECF 932-1 at 3-7 (Mr. Watson); ECF 933-1 at 3-7 (Dr. Chirieac). Honeywell responds that the additional reports are valid supplements and were properly disclosed under Rule 26(e), that the evidence relied on in the supplemental reports was newly discovered, and regardless, that the supplemental reports are substantially justified and there is no prejudice. ECF 934-1 at 6-12 (Dr. Crapo); ECF 935-1 at 6-12 (Dr. Chirieac); ECF 936-1 at 6-12 (Mr. Watson).
STANDARD OF REVIEW
Fed. R. Civ. P. 26(e)(2) requires a party to supplement its expert report if it learns that the report is incomplete or incorrect. This rule, however, is not a way to revise testimony based on criticisms and challenges from the other party. EEOC v. Freeman, 961 F. Supp. 2d 783, 797 (D. Md. 2013). Untimely opinions that do not qualify as supplements under Rule 26 may be excluded under Rule 37(c). Id. Rule 37(c)(1) provides that a party that fails to disclose information "is not allowed to use that information ... to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless." The nondisclosing party bears the burden of establishing the nondisclosure was substantially justified or harmless. Wilkins v. Montgomery, 751 F.3d 214, 222 (4th Cir. 2014). The "basic purpose" of Rule 37(c)(1) is to prevent surprise and prejudice to the opposing party. S. States Rack & Fixture, Inc. v. Sherwin-Williams Co., 318 F.3d 592, 596 (4th Cir. 2003).
In Southern States, the Fourth Circuit set out a five-factor test to determine if nondisclosure was substantially justified or harmless: "(1) the surprise to the party against whom the evidence would be offered; (2) the ability of that party to cure the surprise; (3) the extent to which allowing the evidence would disrupt the trial; (4) the importance of the evidence; and (5) the nondisclosing party's explanation for its failure to disclose the evidence." 318 F.3d at 597. District courts have "broad discretion" to decide whether a nondisclosure is substantially justified or harmless and are not required to examine explicitly all of the factors in Southern States. Wilkins, 751 F.3d at 222.
ANALYSIS
Even assuming that the supplemental expert reports do not qualify as supplemental opinions under Rule 26, the failure to disclose them earlier is harmless. There is minimal surprise to the plaintiffs here because none of the experts changed their opinions based on the new materials. Rather, they all concluded that the materials further supported their original conclusions. ECF 934-1 at 3 (Dr. Crapo); ECF 935-1 at 3 (Dr. Chirieac); ECF 936-1 at 3 (Mr. Watson). Honeywell has also offered to make these experts available for deposition on the information in the supplemental reports. Further, the court will order Honeywell to pay for reasonable costs associated with these depositions, to further reduce any potential harm to the plaintiffs. Finally, there is no trial date set, so allowing the evidence would not disrupt the trial. CONCLUSION
Accordingly, the court will deny the plaintiffs' motions in limine regarding the supplemental reports by Dr. Crapo, Mr. Watson, and Dr. Chirieac. A separate order follows.
[1] John Dugger, Sr. will be referred to as "John Dugger."
Sources
How to cite it
Cite the decision
Dugger v. Union Carbide Corporation, No. Civil Action No. CCB-16-3912 (U.S. District Court, District of Maryland September 30, 2019).
Cite our summary
“Summary of Dugger v. Union Carbide Corporation.” AsbestosClaims.Law Library. https://asbestosclaims.law/library/cases/dugger-v-union-carbide-corporation-2019-09-30-2.
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