United States District Court, D. Minnesota
CITY OF MANKATO, MINNESOTA; CHISAGO LAKES JOINT SEWAGE TREATMENT COMMISSION; SAUK CENTRE PUBLIC UTILITIES COMMISSION; VILLAGE OF HOLMEN, WISCONSIN; CITY OF FERGUS FALLS, MINNESOTA; CITY OF ELK RIVER, MINNESOTA; and CITY OF PRINCETON, MINNESOTA, Plaintiffs,
KIMBERLY-CLARK CORPORATION and ROCKLINE INDUSTRIES, Defendants.
E. Gustafson, Jason S. Kilene, Joshua J. Rissman, and Raina
C. Borrelli, Charles J. Kocher, Patrick Howard, and Simon B.
Paris, SALTZ, MONGELUZZI, BARRETT & BENDESKY, for
A. Ambrose, Jerry W. Blackwell, and S. Jamal Faleel,
BLACKWELL BURKE PA, for Defendant Rockline Industries.
L. McCall, SIDLEY AUSTIN LLP, Eamon P. Joyce, Tracy J. Van
Steenburgh, NILAN JOHNSON LEWIS PA, for Defendant
MEMORANDUM OPINION AND ORDER
R. Tunheim, Chief Judge.
brought this action in April 2015 against companies marketing
and selling “flushable wipes.” Plaintiffs allege
that the wipes do not degrade as advertised and have caused
damages to sewer systems and wastewater treatment plants. The
Court has before it three matters:
First, Plaintiffs object to the Report and Recommendation
(“R&R”) of United States Magistrate Judge
Tony N. Leung recommending that Plaintiffs' Motion to
Limit the Testimony of Defense Expert Dr. Maureen Reitman
(the “Reitman Motion”) be denied without
prejudice. Because the Magistrate Judge did not clearly err
in recommending that the motion be denied without prejudice,
the Court will overrule Plaintiffs' objections and adopt
the R&R in full.
Plaintiffs appeal the Magistrate Judge's Order (the
“Supplemental Discovery Order”) denying
Plaintiffs' Motion to Compel Rockline to Supplement its
Discovery Pursuant to Rule 26(e)(1) (the “Supplemental
Discovery Motion”). Because the Magistrate Judge's
ruling was not clearly erroneous, the Court will deny
Plaintiffs' appeal and affirm the order.
and finally, Defendant Kimberly-Clark Corporation
(“Kimberly-Clark”) appeals the portion of the
Magistrate Judge's order (the “Powling
Order”) granting Plaintiffs' Motion to Compel
Documents Withheld as Privileged by Kimberly-Clark's
Employee Expert, David Powling (the “Powling
Motion”). Because the majority of the Magistrate
Judge's conclusions were not clearly erroneous, the Court
will deny Kimberly-Clark's appeal and affirm the Powling
Order except as to Document Numbers 92, 100, and 895.
action centers on the “flushability” of
Defendants' hygienic wipes. See City of Wyoming v.
Procter & Gamble Co., 210 F.Supp.3d 1137, 1145 (D.
Minn. 2016). Plaintiffs claim the wipes are not flushable,
degradable, and/or septic system safe as marketed by the
Defendants. (See, e.g., Am. Compl. ¶¶ 1,
126, 131, 141, 156-58, 164, 170, 176, 184-87, 191, Aug. 10,
2015, Docket No. 61.) Plaintiffs allege that the wipes have
impaired, obstructed, and damaged their sewer systems.
(See, e.g., id. at ¶¶ 1, 6-14,
127, 165, 171, 177, 187, 192.) Plaintiffs also allege that
Defendants have manipulated industry guidelines, allowing
them to label their wipes as “flushable” when
they are not. (Id. ¶¶ 50-57.)
affirmative defense, Rockline asserts that it
“complie[s] with industry standards.”
(Rockline's Answer to Pls.' First Am. Compl.
(“Rockline's Answer”) at 84, Oct. 12, 2016,
Docket No. 151.)
Association of Nonwoven Fabrics Industry (“INDA”)
publishes guidelines for marketing wipes as
“flushable.” (Am. Compl. ¶¶ 51-52.)
These guidelines include a series of tests that a wipe must
pass to be labeled “flushable.” (Decl. of S.
Jamal Faleel (“Faleel Decl.”) ¶ 8, Ex. 6
(“Menna Rep.”) at 3-4, Oct. 12, 2018, Docket No.
601; Decl. of Daniel E. Gustafson (“Gustafson
Decl.”) ¶ 3, Ex. 1 (“Reitman Rep.”) at
4, Sept. 21, 2018, Docket No. 512.) The third edition of the
INDA guidelines (“GD3”) was published in 2013;
thus, it was in effect before and during most of this
litigation. (Reitman Rep. at 4 n. 12; see Menna Rep.
July 2013, a technical working group was formed to develop a
fourth edition of the flushability guidelines
(“GD4”). (2d Declaration of Daniel E. Gustafson
(“2d Gustafson Decl.”) ¶ 3, Ex. A
(“Rouse Letter”) at 2-3, Nov. 12, 2018, Docket
No. 658-1.) The technical working group included members of
INDA and members of the wastewater industry, including Robert
Villee, Cynthia Finley, and Frank Dick. (Id. at 2;
2d Decl. of S. Jamal Faleel (“2d Faleel Decl.”)
¶ 16, Ex. 9 (“Loftus Dep.”) at 116-17, Nov.
19, 2018, Docket No. 698-1.) Villee and Finley were
identified by Plaintiffs as possible witnesses, and Dick is
one of Plaintiffs' experts.
2018, during expert discovery, INDA published GD4.
(See Reitman Rep. at 4 n.12.) In June, Rockline
commissioned testing of its wipes under the new guidelines by
an independent lab. (Gustafson Decl. ¶ 5, Ex. 3
(“GD4 Testing Report”) at 2, Sept. 21, 2018,
Docket No. 514.) The resulting lab report is dated July 23,
2018. (Id.) Defense counsel obtained the report on
August 13 and provided it to Plaintiffs' counsel on
August 24 as a supplement per Rule 26(e). (Defs.' Opp. to
Reitman Mot. at 13 n.6, Oct. 12, 2018, Docket No. 596;
Pls.' Objs. at 5, Jan. 31, 2019, Docket No. 876.)
Slosh Box Testing
the INDA guideline tests-the validity of which is debated in
the present action-is the “slosh box” test.
(Menna Rep. at 9.) This test measures “a wipe's
potential to disintegrate when subjected to mechanical
agitation in wastewater.” (Id.) GD4 shortened
the amount of time allowed for wipes to disintegrate under
the “slosh box” test from 180 minutes to 60
minutes. (Faleel Decl. ¶ 5, Ex. 3 (“GD4”) at
33, October 12, 2018, Docket No. 598-1.)
Rockline Expert Dr. Maureen Reitman
retained Dr. Maureen Reitman to rebut the flushability
analysis provided by Plaintiffs' expert, Dr. Todd Menna.
(See Reitman Rep. at 2.) Reitman's report was
submitted on July 2, 2018. (Id.) The report
summarized Menna's report and critiqued his testing and
analysis in light of the GD3 and GD4. (Id. at
5-12.) Specifically, Reitman criticized
Menna's variation of the slosh-box testing duration,
noting the testing did not conform to GD3 or GD4 parameters.
(Id. at 9-11.) Reitman ultimately opined that
“Rockline products acceptably disintegrate during GD3
[slosh-box testing], and under certain of Dr. Menna's
modified conditions.” (Id. at 12.) Following
submission of Reitman's report, Rockline received the
results of the GD4 testing of its wipes that it had
commissioned. (GD4 Testing Report at 2.)
September 5, 2018, Reitman was deposed. (Faleel Decl. ¶
10, Ex. 8 (“Reitman Dep.”), Oct. 12, 2018, Docket
No. 602.) Reitman testified that she had reviewed additional
materials since her report, including the results of the GD4
testing. (Id. at 5-6.) She characterized the GD4
test results as a “newer piece of information that is
not contained in the existing report, but . . . simply
consistent with everything else.” (Id.) She
stated: “I already referenced the GD4 development and
the Slosh Box Disintegration Test in general in the report,
and that doesn't change.” (Id.) She
testified that the GD4 slosh box test results were
“consistent with the existing analysis” and noted
the results “do not change the primary
opinions.” (Id. at 7). Instead of providing
fodder for a new opinion, she described the GD4 results as
“expand[ing] one of the existing opinions in which
[she] state[s] that the Rockline products acceptably
disintegrate during GD3 [slosh-box testing], and [she] would
expand that to include the GD4.” (Id. at 6.)
Kimberly-Clark Employee Expert David Powling
2, 2018, Kimberly-Clark disclosed that it might call David
Powling as a non-retained employee expert witness under
Federal Rule of Civil Procedure 26(a)(2)(C). (3d Decl. of
Daniel E. Gustafson (“3d Gustafson Decl.”) ¶
3, Ex. A at 2, Nov. 12, 2018, Docket No. 667-1.) Powling is
the Research and Engineering Technical Leader for
Kimberly-Clark. (Id.) Kimberly-Clark indicated that
Powling might provide expert testimony to rebut
Plaintiffs' experts, Menna and Dick. (Id. at 3.)
Kimberly-Clark stated that Powling might testify that: (1)
Menna's slosh box testing was flawed and does not
demonstrate that Kimberly-Clark's wipes are capable of
causing or did cause the damages Plaintiffs allege; (2)
Dick's drop testing was flawed and does not demonstrate
that Kimberly-Clark's wipes are capable or did cause the
damages Plaintiffs allege; (3) Kimberly-Clark's internal
pump studies show that its wipes are not capable of causing
the damages Plaintiffs allege and that non-flushable products
“exert far greater strains on pumps” than do
Kimberly-Clark's flushable wipes; (4) Rob Johnson's
analysis of samples collected from Plaintiffs' systems
confirm that non-flushable products are more likely to have
caused the damages Plaintiffs allege; and (5) “[t]he
testing parameters being espoused by Plaintiffs' experts
are inconsistent with various wastewater [industry] proposals
at various points in time as part of” industry
processes, and other flushability proposals by the wastewater
industry are “untethered to whether a wipe labeled
flushable is capable of causing clogs or damage to
also indicated that Powling “may provide opinions or
inferences based on his knowledge and experience” and
that such opinions “are included or related to the
above [, ] . . . within his personal knowledge[, ] and do not
require explicit disclosure.” (Id. at 3-4.)
amended disclosure, Kimberly-Clark offered more detailed
information regarding Powling's background and
experience. (3d Gustafson Decl. ¶ 6, Ex. D (“Am.
Powling Disclosure”) at 16, Nov. 12, 2018, Docket No.
667-1.) It also added that Powling's opinions would be
based, in part, “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 collection studies.” (Id. at 17.)
the initial filing of this case, numerous plaintiffs and
defendants have been dismissed. See City of Wyoming,
Minnesota v. Procter & Gamble Co., No. CV 15-2101
(JRT/TNL), 2019 WL 458388, at *1 (D. Minn. Feb. 5, 2019).
and Rockline agreed that the cutoff for production would be
January 2017. (See 2d Faleel Decl. ¶ 9, Ex. 2
at 15-16, Nov. 19, 2018, Docket No. 698-1.) During discovery,
Plaintiffs sought information related to development of INDA
guidelines and, specifically, to the anticipated GD4
guidelines. (See, e.g., 2d Gustafson Decl.
¶¶ 4-5, Exs. B-C at 14-15, 36, Nov. 12, 2018,
Docket No. 658-1.) Plaintiffs also asked about the
development of GD4 when deposing Rockline's corporate
designee, and deposed INDA. (2d Faleel Decl. ¶ 17, Ex.
10 at 3-4, Nov. 19, 2018, Docket No. 699; Loftus Dep. at
year-long discovery period concluded on December 1, 2017.
(Am. Pretrial Scheduling Order, Sept. 12, 2017, Docket No.
189.) Around the end of June or early July 2018, Plaintiffs
approached Rockline about supplementing production based on
the publication of GD4. ...