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. 	)
___________________________________)
THIRD REVISED CASE MANAGEMENT ORDER
The 	Court’s 	January 	2, 	2013 	Second 	Revised 	Case
Management Order is further revised as follows.
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I. 	Phased Trial Schedule
The 	Court 	has 	set 	a 	schedule 	that 	anticipates 	the
likelihood 	of 	a 	phased 	trial 	schedule, 	beginning 	in 	or
around 	April 	of 	2014. 	Subject 	to 	the 	stay 	detailed 	in 	the
next 	paragraph, 	the 	first 	phase 	will 	address 	liability,
including 	divisibility, 	and 	whether 	the 	remedy 	is
consistent 	with 	CERCLA; 	the 	second 	phase 	(if 	required) 	will
likely 	be 	held 	approximately 	four 	months 	after 	the 	first
phase 	and 	will 	address 	costs. 	The 	Court 	will 	revisit 	the
phasing 	of 	trial 	in 	a 	status 	conference 	in 	the 	spring 	of
2013.
The 	Court 	hereby 	stays 	in 	their 	entirety 	all 	claims
against 	the 	Third-Party 	Defendants 	in 	the 	September 	28,
2012 	Third-Party 	Complaint 	(ECF 	No. 	65) 	and 	December 	18,
2012 	Amended 	Third-Party 	Complaint 	(ECF 	No. 	112) 	and 	NECC’s
October 	30, 	2012 	Third-Party 	Complaint 	(ECF 	NO. 	261 	in 	Civ.
No. 	1:06-cv-00218) 	and 	November 	12, 	2012 	Third-Party
Complaint 	(ECF 	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,
counterclaim, 	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 	Third 	Revised 	Case 	Management 	Order,
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and 	any 	amendments 	thereto, 	with 	the 	following 	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 	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 	phase 	in 	the 	Case 	Management
Order 	are 	concluded 	to 	determine 	which, 	if 	any, 	Stayed
Claims 	have 	not 	been 	resolved 	by 	settlement 	or 	by 	the 	trial
of 	the 	Main 	Claims 	and 	shall 	issue 	a 	separate 	case
management order as to those Stayed Claims.
Notwithstanding 	the 	forgoing, 	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
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Protective 	Order 	Regarding 	Confidential 	Information 	and
Documents entered by this Court on November 20, 2012.
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.
II. 	Schedule
• 	January 15, 2013: 	Any 	party 	wishing 	to
designate 	any 	portion 	of 	any 	former 	testimony 	of
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a 	declarant 	in 	any 	other 	action, 	including 	but
not 	limited 	to 	the 	Emhart 	v. 	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.
• 	July 1, 2013: 	Parties exchange expert reports.
• 	July 8, 2013: 	Deadline 	for 	amendment 	of
pleadings as to Main Claims.
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• 	August 30, 2013: 	Expert 	depositions 	on 	initial
expert reports complete.
• 	September 30, 2013:
o 	Fact discovery closes.
o 	Rebuttal expert reports due.
• 	November 15, 2013: 	Expert 	depositions 	on
rebuttal expert reports complete.
• 	January 3, 2014: 	Dispositive 	motions, 	Daubert
motions, and motions in limine due.
• 	Approximately April 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.
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.
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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, 	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
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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: 	May 15, 2013
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