In re Sulfuric Acid Antitrust Litigation, MDL No. 1536.

• Citation: 446 F.Supp.2d 910
• Decision Date: 29 August 2006
• Docket Number: MDL No. 1536.,No. 03 C 4576.,03 C 4576.
• Parties: In re SULFURIC ACID ANTITRUST LITIGATION.
• Court: U.S. District Court — Northern District of Illinois

446 F.Supp.2d 910

In re SULFURIC ACID ANTITRUST LITIGATION.

MDL No. 1536.

No. 03 C 4576.

United States District Court, N.D. Illinois, Eastern Division.

August 29, 2006.

COPYRIGHT MATERIAL OMITTED

Mary Jane Fait, Adam J. Levitt, Wolf, Haldenstein, Adler, Freeman & Herz LLC, Chicago, IL, for Plaintiffs.

Edward M. Ordonez, Hugo Chaviano, Sanchez & Daniels, David C. Gustman, Jill Christine Anderson, Jeffery Moore Cross, Freeborn & Peters, Michael H. Cramer, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., Adam R. Chiss, Michael David Richman, Sachnoff & Weaver, Ltd., R. Mark McCareins, Andrew David Shapiro, Edward L. Foote, Todd Jay Ehlman, William Charles O'Neil, Winston & Strawn, Matthew Patrick Connelly, William Edward Snyder, Cory D. Anderson, Connelly, Roberts & McGivney, Joel Gerald Chefitz, Todd Lawrence McLawhorn, Howrey Simon Arnold & White, LLP, John Reid Malkinson, Malkinson & Halpern, P.C., Michael Gerard Bruton, Ross, Dixon & Bell, L.L.P., Chicago, IL, K Scott Hamilton, Dickinson Wright PLLC, Detroit, MI, James T. Kilbreth, Dylan Smith, Verrill Dana, LLP, Portland, ME, Susan G. Kupfer, Glancy & Binkow LLP, San Francisco, CA, for Defendants.

MEMORANDUM OPINION AND ORDER

JEFFREY COLE, United States Magistrate Judge.

I. INTRODUCTION AND FACTUAL BACKGROUND

For a variety of psychological and perfectly sound institutional reasons, motions for reconsideration are viewed with a measure of skepticism. But, even though generally disfavored, Bank of Waunakee v. Rochester Cheese Sales, Inc., 906 F.2d 1185, 1191 (7th Cir.1990); Quaker Alloy Casting Co. v. Gulfco Industries, Inc., 123 F.R.D. 282, 288 (N.D.Ill.1988)(Shadur, J.), motions for reconsideration can serve a valuable function by helping, under appropriate circumstances, to ensure judicial accuracy. Judges are not omniscient, and "in any given opinion, [a court] can misapprehend the facts . . . or even overlook important facts or controlling law." Olympia Equipment v. Western Union, 802 F.2d 217, 219 (7th Cir.1986).¹

Since our adversarial system depends upon input from counsel,² the risk of mistake is enhanced where a court decides a case on a ground that was not submitted by one of the parties and of which they had no notice before the announcement of the decision. In that context, a motion for reconsideration not only serves an invaluable function, but a refusal even to consider the motion may constitute an abuse of discretion. See De Jesus-Mangual v. Rodriguez, 383 F.3d 1, 5-6 (1st Cir.2004); See also Loeffel Steel Products, Inc. v. Delta Brands, Inc., 387 F.Supp.2d 794, 822 (N.D.Ill.2005)(inviting additional briefs to address grounds of decision not argued by either side in the briefs).³

On May 24, 2006, I issued an opinion denying the motion of defendants, Marsulex ChemTrade, Koch, Intertrade Holdings, and PVS Chemicals (hereinafter, the "expert movants" or "Marsulex"), to bar the opinions of two of plaintiffs' expert witnesses, Drs. McClave and Tollison. The Opinion denied the Marsulex motion on various grounds, including Rules 703 and 803(17), Federal Rules of Evidence. The Noranda defendants (i.e., Noranda, Inc. Falconbridge, Ltd., Norfalco LLC), DuPont, and GAC Chemical Corp. (hereinafter, the "reconsideration movants"), have asked that the May 24th Opinion be withdrawn or reconsidered in light of the recently filed motions to bar testimony based on Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). The motion contends that the May 24th Opinion went "beyond the narrow focus of Rule 26," "on the untimely disclosure of expert witnesses under Rule 26(a)(2)(A) and (C)," and consequently, the grounds of the decision could not have been anticipated. (Objections and Request for Clarification, at 1). The reconsideration movants did not join in the original motion because, they now say, "neither the original motion nor the response focused on the issue of whether the Tampa `prices' published in the Fertecon/Penta Sul newsletter were the kind of data that may be relied upon by an expert in the manner that Dr. McClave did in his damages study." (Objections and Request for Clarification or Reconsideration at 1 n. 2). As will be seen, this explanation is singularly unconvincing. Curiously, the original movants, Marsulex, et al., have not asked for reconsideration and have made no claim that their original motion was misunderstood in the May 24th Opinion.⁴

The premise of the motion to reconsider subordinates the substance of the motion to bar to its title, which specified Rule 26(a)(2) as its basis. But in the federal courts, pleadings, motions, and supporting memoranda are measured by their content, not their title. Cf. Bartholet v. Reishauer A.G., 953 F.2d 1073, 1078 (7th Cir.1992); Shannon v. Shannon, 965 F.2d 542, 552-52 (7th Cir.1992). Simply phrased, the substance of a party's submission takes precedence over its form, "no matter what title [a party] plasters on the cover." Guyton v. United States, 453 F.3d 425, 427 (7th Cir.2006).⁵

A. The Motion To Bar And The Supporting Memorandum

The expert movants filed their motion to bar on January 13, 2006. The first sentence of the supporting memorandum relied explicitly on Dura Automotive Sys. of Ind., Inc. v. CTS Corp., 285 F.3d 609 (7th Cir.2002) to "bar the opinions of Drs. McClave and Tollison." In so doing, Marsulex wove into the fabric of the motion the issue of whether Rule 703 allowed the defendants' disclosed experts to have relied on data and information from Robert Boyd, whom the defendants labeled an undisclosed expert. See In re Sulfuric Acid Antitrust Litigation, 235 F.R.D. 646, 651 (N.D.Ill.2006). In Dura Automotive, the question of the timeliness of disclosure was ancillary to and contingent upon resolution of the Rule 703 issue. That is, if it was permissible for the expert in Dura Automotive to have relied on data from a third party who was not disclosed as an expert, there could be no violation of Rule 26's requirement that all experts be disclosed in accordance with a court ordered schedule.

Although the Marsulex motion was titularly brought pursuant to Rule 26(a)(2), the supporting memorandum left no doubt that the applicability of Rule 703 was at the core of the motion. Beyond the fact that Rule 26(a)(2)(A) makes specific reference to Rules 702 and 703 of the Federal Rules of Evidence, the substance of the memorandum dealt with the permissibility of the reliance by disclosed experts on information provided by others, thereby necessarily triggering an analysis of the applicability of Rule 703 (or some other rule of evidence):

"Courts in the Seventh Circuit have barred an expert's testimony when the expert impermissibly relied upon the opinions of undisclosed third-parties. See Dura Automotive Sys. of Ind., Inc. v. CTS Corp., 285 F.3d 609 (7th Cir. 2002); Loeffel Steel Prods., Inc. v. Delta Brands, Inc., 387 F.Supp.2d 794 (N.D.Ill.2005); Grant v. Chemrex, Inc., No. 93 C 0350, 1997 WL 223071, 1997 U.S. Dist. LEXIS 6058 (N.D.Ill. Apr.28, 1997)."

(Memorandum of Law in Support of Certain Defendants' Motion to Bar the Opinions of Dr. McClave and Dr. Tollison Pursuant to Federal Rules of Civil Procedure 26(a) (2), at 4)(Emphasis supplied).

The permissibility, vel non, of reliance on information from non-testifying third parties is a function of Rule 703, which provides that "the facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence in order for the opinion or inference to be admitted." (Emphasis supplied).

The answer to a Rule 703 analysis preordains the answer to the question of whether there has been a violation of Rule 26's disclosure requirements. Phrased differently, the claimed failure seasonably to have named Dr. Boyd as an expert was meaningless from a Rule 26 perspective unless Rule 703 prohibited Drs. McClave and Tollison's reliance on the Boyd data. If it was not, there was obviously no violation of Rule 26, for there was no additional expert to be disclosed.

As the three cases on which the memorandum relied made luminously clear, the permissibility of reliance on the data from the third party who will not be testifying is a question answered by the Federal Rules of Evidence, not by Rule 26. Each spoke at length to the principle that while Rule 703 was intended to liberalize the rules relating to expert testimony, it was not intended either to abolish the hearsay rule or to allow oblique evasions of it. In Dura Automotive, a hydrogeologist relied on groundwater models developed by geotechnicians simulating conditions that might have prevailed twenty years earlier. The issue was the permissibility of that reliance under Rule 703. Where the providers of the underlying data are merely "gofers or data gatherers," analysis is simple and Rule 703 allows the disclosed expert to rely on the data provided to him. Since the data is not offered for its truthfulness, the hearsay rule is not implicated.

"Analysis becomes more complicated if the assistants exercise professional judgment that is beyond the expert's ken. In that context, it must be determined whether the disclosed expert is genuinely formulating an opinion based in part on the underlying data or whether he is acting as the `mouthpiece' for the non-testifying individual on whose data he is relying. If the latter, the hearsay rule prohibits the testimony unless the non-testifying individual also testifies." 285 F.3d at 613. See also Matter of James Wilson Associates, 965 F.2d 160, 172-73 (7th Cir.1992); TK-7 Corp. v. Estate of Barbouti, 993 F.2d 722, 732 (10th Cir.1993).⁶ In that event, failure to have seasonably named the individual on whose data the disclosed expert relied would run...