Barrett v. Atlantic Richfield Co.
| Decision Date | 19 September 1996 |
| Docket Number | No. 94-20806,94-20806 |
| Citation | 95 F.3d 375 |
| Parties | , 45 Fed. R. Evid. Serv. 776 Rosa Ann BARRETT, et al., Plaintiffs-Appellants. v. ATLANTIC RICHFIELD COMPANY, et al., Defendants-Appellees. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Samuel Edward Jackson, Houston, TX, Jay Patrick Harvey, Gibbins, Winckler & Harvey, Austin, TX, for plaintiffs-appellants.
Solace H. Kirkland, Michael O. Connelly, Mayor, Day, Caldwell & Keeton, Houston, TX, Charles L. Berry, Catherine Legro Gentry, Arthur Edward Murphy, Vinson & Elkins, Houston, TX, for defendants-appellees.
Appeal from the United States District Court for the Southern District of Texas.
Before DUHE and DENNIS, Circuit Judges, and DUVAL, 1 District Judge.
Appellants assert claims for personal injuries and property damage as a result of exposure to chemicals at two superfund sites. The district court struck the testimony of four of Plaintiffs' expert witnesses because Plaintiffs failed to comply with the court's discovery orders, held the testimony of two experts inadmissible under Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and granted Defendant's summary judgment. We affirm.
Appellants are part of an original group of Plaintiffs that first filed suit in Avalos, et al. v. Atlantic Richfield, et al., C.A. No. H-89-3487, in 1989, asserting claims for personal injuries and property damage as a result of alleged exposure to chemicals at two federal superfund sites. All Plaintiffs were originally represented by Thomas Pearson. In the Fall of 1991, Mr. Pearson determined that he could no longer represent the Avalos Plaintiffs, and Dennis C. Reich was chosen as counsel. However, approximately 300 of the more than 1000 Plaintiffs did not consent to Mr. Reich's representation and became pro se litigants. In December of 1992, the Plaintiffs represented by counsel settled their claims.
The district court then severed the pro se non-settling Plaintiffs into a separate action, Rosa Ann Barrett, et al. v. Atlantic Richfield, et al., C.A. No. 89-3487-C, and allowed attorneys Samuel E. Jackson, James M. Lemond, and U. Lawrence Boze to enter appearances on their behalf. 2 These Plaintiffs continued to allege property damage and personal injury claims as a result of their alleged exposure to chemicals at the waste disposal sites.
The district court entered a scheduling order requiring those Plaintiffs represented by Mr. Jackson to identify their experts by April 1, 1993, and those Plaintiffs represented by Mr. Lemond to identify their experts by April 15, 1993. 3 In Agreed Case Management Orders, dated March 1993, the district court ordered that oral depositions of Plaintiffs' expert witnesses be scheduled pursuant to fifteen working days written notice. Plaintiffs subsequently identified their experts, and Defendants noticed the following experts for depositions for April 16, 1993: Dr. Watson, Dr. Connor, Dr. Schroeder, Mr On June 3, 1993, the district court held a hearing on Plaintiffs' motion and ordered that depositions of Plaintiffs' experts be completed on or before July 30, 1993. At that hearing the court stated:
Cooper, Dr. Glasser and Mr. Stock. 4 These experts failed to appear. Instead, the Jackson and Lemond Plaintiffs filed a belated motion for a protective order on May 4, 1993, stating that their experts should not be deposed because the experts had not yet been able to formulate their opinions
If any of these experts--and I want excerpts of the testimony--show that they either have no knowledge, that they have insufficient knowledge, will not appear at trial to testify, or have not had enough time to examine all the documents in this case that they feel they need to form an expert opinion, then those experts will be struck and no additional experts will be permitted on this case.
(Vol. 16, June 3, 1993, Tr. at 31-32). Despite the court's admonition, Plaintiffs failed to comply with the July 30, 1993 deadline. As a result of Plaintiffs' noncompliance, the district court issued an order striking the testimony of four experts. In addition, the court found the testimony of two experts, Dr. Schroeder and Dr. Watson, to be inadmissible under Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).
The court subsequently granted Defendants' motions for summary judgment, thereby resolving the claims of the Plaintiffs represented by Mr. Jackson and Mr. Lemond. Defendants did not move for summary judgment against the Plaintiffs represented by Mr. Boze, however, and thus, the district court's order left the claims of those Plaintiffs intact. Although it was not until March 1, 1995 that the district court entered a final order, which disposed of the Boze Plaintiffs, the Jackson and Lemond Plaintiffs had already filed their notice of appeal on October 19, 1994. Appellants failed to file a new notice of appeal after the district court entered the final order.
We must first determine whether this Court may exercise its jurisdiction. Rule 4(a)(1) of the Federal Rules of Appellate Procedure requires an appellant to file its notice of appeal "within 30 days after the date of entry of the judgment or order appealed from." Fed.R.App.P. (4)(a)(1). The Appellants in this case filed their notice of appeal several months before the district court entered its final judgment. Consequently, under Rule 4(a)(1), their notice of appeal was premature.
A premature notice of appeal, however, does not always prevent a court from exercising its jurisdiction. Under Rule 4(a)(2) notice of appeal "filed after the announcement of a decision or order but before the entry of the judgment or order shall be treated as filed after such entry and on the day thereof." Fed.R.App.P. 4(a)(2) (emphasis added). "The Rule recognizes that, unlike a tardy notice of appeal, certain premature notices do not prejudice the appellee and that the technical defect of prematurity therefore should not be allowed to extinguish an otherwise proper appeal." FirsTier Mortgage Co. v. Investors Mortgage Ins. Co., 498 U.S. 269, 273, 111 S.Ct. 648, 651, 112 L.Ed.2d 743 (1991).
In FirsTier, the Supreme Court determined the extent to which Rule 4(a)(2) grants appellate jurisdiction despite a premature notice of appeal. The plaintiff in FirsTier sued alleging that the defendant breached several insurance contracts. The district court announced from the bench its intention to grant summary judgment for the defendant, but declined to enter judgment until the defendant submitted proposed findings of facts and conclusions of law. Before the district court entered its final judgment, however, the plaintiff filed a notice of appeal from the summary judgment ruling. The Supreme Court concluded that the premature notice of appeal was nevertheless effective to invoke the jurisdiction of the federal appellate courts. Id. at 277, 111 S.Ct. at 653. Rule 4(a)(2) permits a notice of appeal from a nonfinal decision to operate as a notice of appeal from the final judgment only when a district court announces a decision that would be appealable if immediately followed by the entry of judgment. In these instances, a litigant's confusion is understandable, and permitting the notice of appeal to become effective when judgment is entered does not catch the appellee by surprise.
Id. at 276, 111 S.Ct. at 653 (emphasis added). The bench ruling in FirsTier met this criteria because it would have been "final" under 28 U.S.C. § 1291 had the court entered judgment immediately.
Like the notice of appeal in FirsTier, the district court's order in this case would have been appealable if immediately followed by the entry of judgment pursuant to Federal Rule of Civil Procedure 54(b). Appellants (the Plaintiffs represented by Mr. Lemond and Mr. Jackson) challenge the district court's order granting summary judgment to the Defendants. Although the summary judgment order did not resolve the claims of the Plaintiffs represented by Mr. Boze, the order disposed of every claim asserted by Appellants. Thus, immediately after issuing this order, the district court could have entered a final judgment on Appellants' claims pursuant to Rule 54(b), which provides that "the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment." Because the district court's order would have been appealable if followed by Rule 54(b) certification and order, Rule 4(a)(2) permits this court to exercise its jurisdiction. 5
In March 1993, the district court entered a scheduling order requiring Plaintiffs to identify their experts by April 1993 and providing for the scheduling of depositions pursuant to fifteen working days written notice. Although Plaintiffs identified their experts, those experts failed to appear at a properly noticed deposition scheduled for April 16, 1993. Instead, Appellants subsequently moved for protective order in May 1993, stating that their experts had not had sufficient time to formulate opinions. On June 3, 1993 the district court held a hearing on Plaintiffs' motion for a protective order and made the following ruling:
I'm making an order now, and listen carefully, gentlemen, this is the last time you're going to hear me make a discovery order, as far as this matter is concerned. All depositions of the plaintiffs' experts in this case will be taken and completed on or before July 30th, 1993. If any of these experts--and I want excerpts of the testimony--show that they either have no knowledge, that they have insufficient knowledge, will not appear at trial to testify, or have not had enough time to examine all of the documents in this case that the...
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