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City of Mankato v. Kimberly-Clark Corp.

United States District Court, D. Minnesota

May 28, 2019

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,
v.
KIMBERLY-CLARK CORPORATION and ROCKLINE INDUSTRIES, Defendants.

          Daniel 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 plaintiffs.

          Emily A. Ambrose, Jerry W. Blackwell, and S. Jamal Faleel, BLACKWELL BURKE PA, for Defendant Rockline Industries.

          Kara L. McCall, SIDLEY AUSTIN LLP, Eamon P. Joyce, Tracy J. Van Steenburgh, NILAN JOHNSON LEWIS PA, for Defendant Kimberly-Clark Corporation.

          MEMORANDUM OPINION AND ORDER

          John R. Tunheim, Chief Judge.

         Plaintiffs 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.

         Second, 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.

         Third 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.

         BACKGROUND

         I. FACTUAL BACKGROUND

         This 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.)

         A. Industry Standards

         As an 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.)

         The 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. at 3-4.)

         Around 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.

         In May 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.)

         B. Slosh Box Testing

         One of 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.)

         C. Rockline Expert Dr. Maureen Reitman

         Rockline 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.)[1] 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.)

         On 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.)

         D. Kimberly-Clark Employee Expert David Powling

         On July 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.)

         Specifically, 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 equipment.” (Id.)

         Kimberly-Clark 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.)

         In an 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.)

         II. PROCEDURAL BACKGROUND

         Since 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).

         Plaintiffs 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 115.)

         The 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. ...


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