United States District Court, D. Kansas
IN RE SYNGENTA AG MIR 162 CORN LITIGATION, This Document Relates to The Nationwide and Kansas Class Actions No. 14-md-2591-JWL
P. O'Hara U.S. Magistrate Judge
have filed a motion to amend the scheduling order to permit
an expert report in rebuttal to the report of one of
Syngenta's designated experts on damages, Dr. Barry
Goodwin (ECF No. 2856). Dr. Goodwin's report discussed
the results of a damages model that no other expert in this
case had used. Plaintiffs assert they could not have
anticipated use of such a model when the court entered the
scheduling order prohibiting rebuttal expert reports, and
seek to provide a rebuttal report critical of the use and
application of the model. Because plaintiffs have not
demonstrated good cause to modify the scheduling order, the
motion is denied.
multidistrict litigation, which was coordinated for discovery
purposes with related actions pending in state and federal
courts,  the court solicited input from all parties
regarding the nature and structure of both fact and expert
discovery. After carefully considering the
parties' written submissions and oral arguments,
court set out a clear expert discovery plan in Scheduling
Order No. 2, which included the following provision:
Merits Experts. Limited to the cases approved by the court
for the bellwether trial pool, plaintiffs must serve their
merits (non-class-related) expert reports and reliance
materials, with regard to both liability and damages issues,
by September 9, 2016. The parties must complete discovery of
plaintiffs' merits experts by October 10, 2016. Syngenta
must serve its merits experts and reliance materials by
November 4, 2016. The parties must complete discovery of
Syngenta's merits experts by November 23, 2016. No
further expert disclosures will be
motion seeks to amend this provision of Scheduling Order No.
2 to allow one of plaintiffs' damages experts, Dr. Colin
Carter, to submit a rebuttal report addressing Dr.
Goodwin's use and application of a so-called
“vector error correction model” (or
to modify scheduling orders are governed by Fed.R.Civ.P.
16(b)(4), which provides that “[a] schedule may be
modified only for good cause and with the judge's
consent.” This good-cause standard does not focus on
the “bad faith” of the movant, nor the
“lack of prejudice” to the opposing
party. “Rather, it focuses on the diligence
of the party seeking to modify the scheduling
order.” Ultimately, whether to modify the
scheduling order lies within the court's sound
argue there is good cause to modify the scheduling order
because Dr. Goodwin's expert report, after criticizing
the reports of plaintiffs' damages experts, set forth a
new type of damages model not used by plaintiffs'
experts. The court disagrees that this occurrence
demonstrates good cause to allow a rebuttal expert report.
Plaintiffs have cited no case, and the court is aware of
none, in which an expert's use of a specific economic
model was the basis for amending a scheduling order to permit
a rebuttal expert report. Although Dr. Goodwin used a new
model to analyze the information in this case, plaintiffs do
not suggest Dr. Goodwin's report went beyond the
topics addressed by plaintiffs' experts. Nor do
plaintiffs assert that Dr. Goodwin's report identified or
analyzed new evidence that plaintiffs' damages experts
could not have considered under the discovery structure set
in the scheduling order. When a party seeks to present a
supplemental report of its expert “in response to [an
opposing expert's] analysis, rather than in response to
new information or discovery of a technical miscalculation,
” it should not be permitted.
June 5, 2017 trial setting in this complex case is fast
approaching, with summary judgment and Daubert
motions having already been filed. Granting plaintiffs'
motion would disrupt the pre-trial process that has been in
place for over fifteen months. Plaintiffs have not
demonstrated the good cause necessary to warrant straying
from the court's carefully constructed discovery plan
designed to put the parties on equal footing. Under the
status quo, plaintiffs will have the opportunity to
cross-examine Dr. Goodwin on his use of VECM and prepare
their case accordingly.
it should be noted that by this order, the undersigned U.S.
Magistrate Judge is only deciding the request raised in
plaintiffs' motion, i.e., to permit a rebuttal report by
Dr. Carter to Dr. Goodwin's report. This order does not
address the appropriateness of Dr. Carter's declaration
filed in support of plaintiffs' Daubert motion
directed at Goodwin (ECF Nos. 2886 & 2887-2), nor whether
Dr. Carter will be permitted at trial to give testimony
critical of Dr. Goodwin's VECM analysis. These related
issues are more appropriately addressed, if and when
presented, by the U.S. District Judge presiding over the
trial, the Honorable John W. Lungstrum.
THEREFORE ORDERED that plaintiffs' motion to modify the
scheduling order to permit a rebuttal expert report to the
report of Dr. Goodwin is denied.
See Coordination Order, ECF