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City of Wyoming v. Procter & Gamble Co.

United States District Court, D. Minnesota

January 16, 2019

City of Wyoming, Minnesota; Village of Holmen, Wisconsin; City of Elk River, Minnesota; City of Mankato, Minnesota; City of Perham, Minnesota; City of Princeton, Minnesota; City of Fergus Falls, Minnesota; Sauk Centre Public Utilities Commission; and Chisago Lakes Joint Sewage Treatment Commission; on behalf of themselves and all others similarly situated, Plaintiffs,
v.
Procter & Gamble Company; Kimberly-Clark Corporation; Nice-Pak Products, Inc.; Professional Disposables International, Inc.; Tufco Technologies Inc.; and Rockline Industries, Defendants.

          Anthony D. Shapiro, Hagens Berman, Brant D. Penney, Garrett W. Blanchfield, Jr., Mark Reinhardt, and Roberta A. Yard, Reinhardt Wendorf & Blanchfield, Daniel E. Gustafson, Jason S. Kilene, Joshua J. Rissman, and Raina Borrelli, Gustafson Gluek PLLC, David M. Cialkowski, James P. Watts, and June Pineda Hoidal, Zimmerman Reed, PLLP, Eric W.Valen, Kristin J. Moody, Berman Tabacco, and Charles J. Kocher, Patrick Howard, and Simon Bahne Paris, Saltz, Mongeluzzi, Barrett & Bendesky, PC, (for Plaintiffs);

          Alexander B. Porter and Eamon P. Joyce, Sidley Austin LLP, Kara L. McCall, Sidley Austin LLP, and Tracy J. Van Steenburgh, Nilan Johnson Lewis PA, (for Defendant Kimberly-Clark Corporation); and

          Charmaine K. Harris, Emily A. Ambrose, Jerry W. Blackwell, Mary S. Young, Patrick Hauswald, and S. Jamal Faleel, Blackwell Burke PA, (for Defendant Rockline Industries).

          ORDER

          Tony N. Leung United States Magistrate Judge

         I. INTRODUCTION

         This matter comes before the Court on Plaintiffs' Motion to Compel Documents Improperly Withheld as Privileged by Kimberly-Clark's Non-Reporting, Employee Expert, David Powling (ECF No. 664). A hearing was held on November 26, 2018. Dan Gustafson, Patrick Howard, and Simon Paris appeared on behalf of Plaintiffs. Emily A. Ambrose appeared on behalf of Defendant Rockline Industries (“Rockline”).[1] Kara L. McCall appeared telephonically on behalf of Defendant Kimberly-Clark Corporation (“Kimberly-Clark”).

         II. BACKGROUND

         David Powling is the “Research & Engineering Technical Leader for Kimberly-Clark.” (Pls.' Mem. in Supp. at 3, ECF No. 666; Powling Disclosure at 1, ECF No. 667-1; Decl. of David Powling ¶ 1, ECF No. 631-43.) Powling “has been employed by Kimberly-Clark for nearly twenty years.” (Pl.'s Mem. in Supp. at 3; see, e.g., Powling Decl. ¶ 3.) “Since 2005, [Powling] ha[s] been involved in the research, development, and testing of Kimberly-Clark's flushable moist wipes.” (Powling Decl. ¶ 3; see also Pl.'s Mem. in Supp. at 3 (Powling “has worked almost exclusively with [Kimberly-Clark's] flushable wipe products since 2007.”); July 7, 2018 Letter from Kara L. McCall at 2 (“As you well know, Mr. Powling has been involved in events related to flushable wipes for more than a decade prior to the commencement of this litigation . . . .”), ECF No. 667-1 at 12.) In this capacity “Powling has studied extensively the performance and construction of Kimberly-Clark's flushable wipes in consumer and municipal settings, as well as the performance of other manufacturers' flushable wipes, wipes not labeled as flushable, other materials not labeled as flushable, and toilet paper.” (Powling Am. Discl. at 2, ECF No. 667-1 at 15; accord Powling Decl. ¶ 3.)

         Kimberly-Clark designated Powling as a non-retained, employee expert witness under Rule 26(a)(2)(C). Distinguished from individuals “retained or specially employed to provide expert testimony in the case or . . . whose duties as the party's employee regularly involve giving expert testimony, ” Fed.R.Civ.P. 26(a)(2)(B), non-retained employee experts whose duties do not regularly involve giving expert testimony are not required to provide a written report, see Fed. R. Civ. P. 26(a)(2)(B), (C). Rather, these “[n]on-reporting experts must disclose the subject matter of their testimony and a summary of the facts and opinions they will testify to.” United States v. Sierra Pac. Indus., No. CIV S-09-2445 KJM EFB, 2011 WL 2119078, at *2 (E.D. Cal. May 26, 2011); see Fed. R. Civ. P. 26(a)(2)(C).

         In its initial disclosure, Kimberly-Clark identified five topics on which Powling might testify “in rebuttal to Plaintiffs' experts on the testing conducted by Plaintiffs' experts Todd Menna[, Ph.D., ] and Frank Dick, and conclusions drawn by Plaintiffs from such testing.” (Powling Discl. at 2.) These topics were:

[(1)] The slosh box testing conducted by Dr. Menna does not establish that Kimberly-Clark's flushable wipes are capable of causing the pump clogs or damage to equipment alleged by Plaintiffs; that, in fact, they did cause such problems; or that they are capable of causing or likely to cause such problems in the future. Moreover, [D]r. Menna's parameters for assessing flushability simply do not measure whether a flushable wipe is capable of causing harm to a pump or other equipment under any conditions . . . .
[(2)] The drop testing conducted by Mr. Dick does not establish that Kimberly-Clark's flushable wipes are capable of causing the pump clogs or damage to equipment alleged by Plaintiffs; that, in fact, they did cause such problems; or that they are capable of causing or likely to cause harm to Plaintiffs in the future. Moreover, Mr. Dick's testing simply does not measure whether a flushable wipe is capable of causing harm to a pump or other equipment under any conditions . . . .
[(3)] Pump studies internal to Kimberly-Clark establish that Kimberly-Clark's flushable wipes are not capable of causing the pump clogs about which Plaintiffs complain, and that non-flushable wipes and other non-flushable products exert far greater strains on pumps than Kimberly-Clark's flushable wipes.
[(4)] The results of Mr. Rob Johnson's analysis of the composition of Plaintiffs' collection samples confirms that products other than flushable wipes are much more likely to have caused the increased equipment maintenance, repair, and costs about which Plaintiffs complain.
[(5)] The testing parameters being espoused by Plaintiffs' experts are inconsistent with various wastewater proposals at various points in time as part of the INDA GD4, IWSFG, and ISO processes; the IWSFG guidelines and other flushability proposals by wastewater are untethered to whether a wipe labeled flushable is capable of causing clogs or damage to equipment . . . .

(Powling Discl. at 2.)

         In addition to these five topics, Kimberly-Clark also included a catch-all provision, disclosing that

[a]s a longtime employee of Kimberly-Clark, with knowledge regarding various issues in the case, . . . Powling may also provide opinions or inferences based on his knowledge and experience, even if the subject matter is specialized or technical. Some of those opinions are included in or related to the above and are within his personal knowledge and do not require explicit disclosure.

(Powling Discl. at 2-3.)

         Kimberly-Clark subsequently provided an amended disclosure for Powling.[2] This amended disclosure included additional and more detailed information about Powling's background and experience. (See Powling Am. Discl. at 1-2.) The amended disclosure also included additional and more detailed information relating to Powling's expert testimony, including without limitation that Powling's opinions would be based “on his knowledge of the proprietary technologies that allow Kimberly-Clark flushable wipes to immediately begin losing strength when they come into contact with water” and his “knowledge of the results of other collections studies . . . (all of which have been produced . . .).” (Powling Am. Discl. at 3, 4.) The amended disclosure contained the same catch-all provision. (Powling Am. Discl. at 4-5.)

         III. ANALYSIS

         Plaintiffs assert that Kimberly-Clark's designation of Powling as a non-reporting employee expert under Rule 26(a)(2)(C) has waived any otherwise applicable attorney- client privilege and work-product protection, and move to compel the production of documents considered by Powling that were withheld, redacted, or otherwise not produced on these bases.

         A. Nature of Rule 26(a)(2)(C) Experts

          Kimberly-Clark disclosed Powling as a non-reporting employee expert under Rule 26(a)(2)(C). “Rule 26(a)(2)(C) addresses the disclosure of expert witnesses who were involved in the events leading up to litigation and may testify both as an expert and as a fact witness.” LaShip, L.L.C. v. Hayward Baker, Inc., 680 Fed.Appx. 317, 324 (5th Cir. 2017); see also Fed. R. Evid. 703 (“An expert may base an opinion on facts or data in the case that the expert has been made aware of or personally observed.”). “A non-retained expert's testimony under Rule 26(a)(2)(C) ‘arises not from his enlistment as an expert, but, rather, from his ground-level involvement in the events giving rise to the litigation.'” Diamond Consortium, Inc. v. Manookian, No. 4:16-CV-00094, 2017 WL 2936218, at *2 (E.D. Tex. July 10, 2017) (quoting DiSalvatore v. Foretravel, Inc., No. 9:14-CV-00150-KFG, 2016 WL 7742996, at *2 (E.D. Tex. May 20, 2016)); accord Cooper v. Meritor, Inc., Civil Action Nos. 4:16-CV-52-DMB-JMV, 4:16-CV-53-DMB-JMV, 4:16-CV-54-DMB-JMV, 4:16-CV-55-DMB-JMV, 4:16-CV-56-DMB-JMV, 2018 WL 1513006, at *2 (N.D. Miss. Mar. 27, 2018); see also Sierra Pac. Indus., 2011 WL 2119078, at *4 (“The distinguishing characteristic between expert opinions ...


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