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. 	)
___________________________________)
MEMORANDUM AND ORDER
WILLIAM E. SMITH, Chief Judge.
Before 	the 	Court 	is 	Emhart 	Industries 	Inc.’s 	(“Emhart”)
Motion 	to 	Lift 	a 	Discovery 	Stay 	with 	Respect 	to 	Third-Party
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Defendant 	The 	Original 	Bradford 	Soap 	Works, 	Inc. 	(“Bradford
Soap”) 	(ECF 	No. 	244). 	For 	the 	reasons 	set 	forth 	below, 	the
motion is DENIED.
I. 	Background
A 	limited 	recitation 	of 	the 	facts 	is 	sufficient 	to 	dispose
of 	this 	motion. 	Generally, 	this 	case 	involves 	determining
liability 	for 	the 	pollution 	and 	environmental 	remediation 	of 	the
Centredale 	Manor 	Restoration 	Project 	Superfund 	Site 	(the
“Site”), 	located 	in 	North 	Providence, 	Rhode 	Island. 	According
to 	Emhart’s 	Third-Party 	Complaint, 	during 	the 	time 	period 	at
issue, 	Bradford 	Soap 	operated 	a 	facility 	in 	West 	Warwick, 	Rhode
Island 	that 	produced 	soaps 	and 	specialty 	chemicals. 	To 	make
these 	products, 	Bradford 	Soap 	used 	various 	chemical 	ingredients,
which 	were 	contained 	in 	drums. 	Once 	emptied 	of 	their 	contents,
Bradford 	Soap 	sent 	these 	drums 	to 	the 	New 	England 	Container
Company 	(“NECC”) 	facility 	at 	the 	Site, 	where 	they 	were 	either
disposed of or treated to be reused.
The 	chemical 	hexachlorophene 	is 	of 	particular 	importance 	in
this 	case. 	The 	Government 	has 	alleged 	that 	Emhart’s
predecessor, 	Metro-Atlantic, 	Inc., 	polluted 	the 	Site 	by
manufacturing 	hexachlorophene 	there. 	In 	2008, 	Emhart 	took 	a
Federal 	Rules 	of 	Civil 	Procedure 	Rule 	30(b)(6) 	deposition 	of
Bradford 	Soap. 	Bradford 	Soap’s 	chief 	executive 	officer 	denied
ever 	using 	hexachlorophene 	to 	make 	any 	of 	the 	company’s 	products
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after 	the 	substance 	was 	banned 	for 	nonprescription 	use 	in 	the
early 	1970s, 	but 	admitted 	he 	did 	no 	research 	regarding 	whether
his 	company 	used 	the 	chemical 	before 	it 	was 	prohibited.
According 	to 	its 	motion, 	Emhart 	recently 	discovered 	an 	entry 	in
the 	Congressional 	Record 	from 	October 	5, 	1972, 	which 	indicated
that 	Bradford 	Soap 	did 	indeed 	use 	hexachlorophene 	before 	it 	was
prohibited.1 In 	early 	2013, 	discovery 	was 	stayed 	as 	to 	all
third-party 	defendants 	in 	this 	case, 	including 	Bradford 	Soap.
Emhart 	requests 	the 	Court 	lift 	this 	stay 	to 	further 	examine
Bradford Soap’s use of hexachlorophene.
II. 	Discussion
As 	the 	parties 	have 	long 	been 	aware, 	the 	complexity 	of 	this
case 	necessitates 	a 	phased 	approach 	to 	trial. 	To 	facilitate
this 	approach, 	on 	January 	3, 	2013, 	the 	Court 	stayed 	discovery 	as
to 	all 	third 	party 	defendants, 	so 	that 	Emhart, 	NECC 	and 	the
Government 	could 	focus 	on 	the 	main 	claims 	at 	issue. 	See 	Fed. 	R.
Civ. 	P. 	16(b)(3) 	(permitting 	district 	court 	to 	modify 	timing 	and
extent 	of 	discovery 	disclosures 	through 	a 	case 	management
order). 	This 	schedule 	may 	be 	modified 	“only 	for 	good 	cause 	and
with 	the 	judge’s 	consent.” 	Fed. 	R. 	Civ. 	P. 	16(b)(4). 	As
Emhart, 	NECC 	and 	the 	Government 	work 	to 	complete 	discovery,
1 Emhart 	does 	not 	allege 	that 	this 	portion 	of 	the
Congressional Record only recently became available.
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Emhart 	has 	requested 	the 	stay 	be 	lifted 	with 	respect 	to 	Bradford
Soap, potentially opening an entirely new avenue for discovery.
Emhart’s 	request 	comes 	too 	late 	in 	the 	discovery 	process.
To 	permit 	Emhart 	to 	take 	discovery 	from 	Bradford 	Soap 	at 	this
juncture 	would 	side-track 	the 	discovery 	process, 	and 	further
postpone 	an 	already 	long-delayed 	trial. 	If 	Emhart 	is 	found
liable 	in 	the 	first 	phase 	of 	trial, 	it 	will 	certainly 	be
permitted 	to 	take 	discovery 	from 	Bradford 	Soap 	and 	other 	third
parties at a future date. 	That time, however, is not now.2
As 	a 	fallback 	argument, 	Emhart 	claims 	that 	its 	2008
deposition 	of 	Bradford 	Soap 	was 	left 	open 	by 	agreement 	of 	the
parties. 	The 	deposition 	was 	left 	open, 	however, 	so 	that 	Emhart
could 	receive 	certain 	documents 	about 	Bradford 	Soap’s 	pension
program.3 After 	Emhart 	received 	the 	requested 	documents, 	it 	was
“incumbent 	upon 	[Emhart] 	to 	renotice 	and 	resume 	the 	deposition”
in 	a 	timely 	fashion 	or 	risk 	waiving 	its 	rights. 	Daigle 	v. 	Maine
Med. 	Center, 	Inc., 	14 	F.3d 	684, 	692 	(1st 	Cir. 	1994); 	see 	also
Martial 	Arts 	Indus. 	Ass'n, 	L.L.C. 	v. 	Scott, 	No. 	CIV-09-140-M,
2010 	WL 	2721034, 	at 	*1 	(W.D. 	Okla. 	July 	7, 	2010) 	(denying
request 	to 	re-open 	deposition 	stating 	that 	“the 	Court 	is
2 As 	the 	Government 	correctly 	notes, 	Emhart 	has 	articulated
essentially 	a 	claim 	for 	contribution 	against 	Bradford 	Soap.
Such claims will be addressed in the third phase of trial.
3 Bradford 	Soap’s 	Motion 	for 	Leave 	to 	File 	a 	Surreply 	(ECF
No. 257) is granted.
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somewhat 	troubled 	by 	the 	lengthy 	delay 	between 	the 	time 	that
plaintiffs 	became 	aware 	of 	the 	alleged 	need 	to 	re-open 	Scott's
deposition 	and 	the 	time 	that 	plaintiffs 	actually 	requested
leave 	to 	retake/re-open 	the 	deposition.”). 	Six 	years 	is 	far 	too
long 	for 	Emhart 	to 	have 	waited. 	Additionally, 	the 	“newly”
discovered 	evidence 	contained 	in 	the 	Congressional 	Record 	was
available 	to 	Emhart 	at 	the 	time 	of 	the 	initial 	deposition.
Emhart 	could 	have 	questioned 	Bradford 	Soap 	at 	that 	time 	about
this public information but failed to do so.
III. Conclusion
Emhart’s 	Motion 	to 	Lift 	a 	Discovery 	Stay 	with 	Respect 	to
Third-Party 	Defendant 	The 	Original 	Bradford 	Soap 	Works, 	Inc. 	is
DENIED.
IT IS SO ORDERED.
William E. Smith
Chief Judge
Date: 	July 9, 2014
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