United States v. Price

No. 80-4104 (D.N.J. May 31, 1984)

In a case management order, the court bifurcates the trial of an action under the Comprehensive Environmental Response, Compensation, and Liability Act and other statutes and directs that the issue of remedies be tried before the issue of liability. The court issues various other orders concerning inter alia addition of third-party defendants, conduct of studies, listing of expert and other witnesses, taking of depositions, conduct of settlement conference, submission of trial briefs, and commencement of the trial of the issue of remedies.

[Related decisions are published at 11 ELR 21047, 12 ELR 20120, and 13 ELR 20843. The amended complaint; briefs of the parties; and motion for, and opposition to motion for, summary judgment are digested at ELR PEND. LIT. 65722, 65761, and 65793, and are available from ELR — Ed.]

Counsel for Plaintiff
Ralph A. Jacobs, Ass't U.S. Attorney
970 Broad St., Rm. 502, Newark NJ 07102
(201) 645-2155

Clifford Griggs
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2056

Counsel for Defendants
Ralph N. Del Deo
Crummy, Del Deo, Dolan & Purcell
Gateway I, Newark NJ 07102
(201) 622-2235

David A. Parker
Parker, McCay & Criscuolo
115 High St., Mt. Holly NJ 08060
(609) 267-2850

[14 ELR 20502]

Simandle, J.:

Case Management Order

The court having conducted a discovery conference pursuant to Rule 26(f), FED. R. CIV. P., upon notice to all counsel, and the court having considered the views of all counsel and having determined that the appropriate management of this complex litigation requires entry of the following order;

IT IS this 31st day of May, 1984 hereby ORDERED:

1. That the trial of this action be bifurcated between (a) liability and (b) remedies including selection of an appropriate remedial plan and determining the appropriate cost thereof [hereinafter "remedies"]; and that the issue of remedies upon all plaintiff's claims shall be tried first;

2. That discovery as provided herein shall proceed upon all remedies issues, and that further discovery shall be temporarily stayed upon all liability-related issues, subject to the provisions of P14;

3. That third-party defendants may be added as follows, and that the temporary stay against addition of third-party defendants previously entered is lifted.

(a) Within fifteen (15) days of the entry of this order, each party shall identify all non-parties of which it has knowledge concerning the nexus between that non-party and Price's Pit as to issues in this litigation. This information, together with a summary of the non-party's nexus and the source of such nexus information shall be set forth in a certification or affidavit served upon all counsel. Any party may seek leave of court, on short notice, to serve limited discovery requests upon any other party if the information received is inadequate, if informal attempts to obtain more adequate information have failed pursuant to General Rule 12G (D.N.J.)

(b) Within thirty (30) days of the entry of this order, any defendant may file a third-party complaint, without further leave of court, against any entity who is or may be liable to that defendant for all or part of plaintiff's claim against that defendant. Service of the third-party summons and third-party complaint shall be made promptly, and shall also be accompanied by service of a copy of this case management order. This case management order shall be binding upon each third-party defendant as if they were presently a defendant, unless relief is sought upon motion filed by the third-party defendant within ten (10) days of service of the third-party complaint.

(c) Upon the filing of a third-party complaint against a third-party defendant, each defendant shall be deemed to have filed a third-party complaint against that third-party defendant, without the necessity of additional pleading.

(d) Answers to the third-party complaints shall be timely served and filed, and upon the filing of the answer to the third-party complaint, all crossclaims and counterclaims thereon shall be deemed to have been made, filed, and served and denied without the necessity of pleading.

4. That it appears that studies related to remedies are being undertaken by proposed expert witnesses retained on behalf of the plaintiff United States, the Defendants' Study Group, and defendant Charles Price. (Efforts of the "Defendants' Study Group" are coordinated in this litigation by William H. Hyatt, Jr., Esquire, who may be contacted by any party desiring further information.) With respect to such experts' studies:

(a) Each such party will give one week's notice of intent to take samples, to each other party which has identified experts;

(b) Every such party shall split all samples and exchange protocols used in such sampling;

(c) Within fourteen (14) days of entry of this order, there shall be a mutual exchange of information among such parties regarding the following or their equivalent with respect to proposed experts' studies:

(1) scope of work

(2) work plan

(3) contract between party and identified expert(s)

(4) protocols being used.

(d) There shall be a continuing duty to supplement the information provided in (c) above within fourteen (14) days of the existence of such information.

5. That any other party which intends to rely upon expert opinion testimony at the remedies trial, other than through the proposed expert witnesses identified in P (4) above, shall identify the proposed expert witness by serving notice of same upon all counsel as soon as such proposed expert witness is known but not later than August 1, 1984, or be barred from presenting separate expert testimony at the remedies trial; each party newly identifying a proposed expert witness shall comply with PP4(a), (b), (c) and (d) above;

6. That by August 1, 1984, plaintiff and Defendants' Study Group shall provide to each other an identification of the parameters used in their computer modeling studies;

7. That, due to concerns raised at the conference and the absence of any pleading by the intervenor Atlantic County Municipal Utilities Authority [ACMUA] upon the docket of this case, the intervenor ACMUA is hereby directed to file and serve a motion for leave to file an appropriate pleading to clarify its status within twenty (20) days of the date of this order;

8. That by September 1, 1984, the parties proposing to use experts in PP4 and 5 above shall exchange final reports by their proposed expert witnesses; in the event the Administrator of the Environmental Protection Agency subsequently approves a final feasibility study which varies from the plaintiff's final report, then the plaintiff shall supplement its final report accordingly, and other parties may apply for leave to supplement their final reports if it becomes necessary;

9. That the final reports in P8 above shall state in full detail, at a minimum, the subject matter upon which the expert is expected to testify at the remedies trial, the substance of the facts and opinions to which the expert is expected to testify and the grounds for each opinion, including but not limited to the results of all sampling, testing, surveying and other site studies upon which the expert relies as a basis for the expert's opinion, all exhibits upon which the proposed expert intends to rely at trial, and an annotated bibliography of any source materials in the literature that are cited as an authoritative basis for the expert's opinions expressed in the final report;

10. That by September 17, 1984, each party intending to present factual (non-expert) testimony at the remedies trial shall serve upon all counsel a notice which shall identify each proposed fact witness together with a detailed statement of the substance of the anticipated remedies trial testimony of that witness; no party may call a non-expert witness at the remedies trial for whom this procedure has not been timely followed; depositions of such fact witnesses shall require leave of court for good cause shown by motion filed no later than October 1, 1984; and such motion shall also include the proposed time amd place of the requested deposition, and such time and place when set by the court shall bind each witness and all parties;

11. That by September 30, 1984 each party furnishing a final report in P8 above may serve a supplemental expert's report responding to the other parties' final reports; any such supplemental report shall contain a critique or rebuttal of the other reports in a manner reasonably apprising the adverse parties of the expert's opinion regarding the adequacy, appropriateness or correctness of the adversary's final report;

12. That all information required in PP3-11 above will be provided as soon as feasible and in no event later than the date specified;

13. That depositions of all proposed expert witnesses shall commence and conclude between October 1, 1984 and November 15, 1984, and (a) the sequence of such experts' depositions shall be (1) United States' experts, (2) Defendants' Study Group experts, (3) defendant Price's experts, and (4) any other party's experts identified in P5 above; (b) the date, place and time of such experts' depositions shall be established by agreement of counsel for the United States, Defendants' Study Group, Charles Price and any other party identifying a proposed expert, and counsel shall cause a deposition notice fixing all such dates to be served upon all other counsel in this case on not less than fourteen (14) days' notice, and that such expert witness depositions once scheduled shall not be adjourned by any party or attorney and (c) in the absence of agreement of counsel in (b) above the court shall fix the date, place and time of each expert's deposition;

14. That no other discovery request may be served without leave of court, and no motion for summary judgment or dismissal may be filed without leave of court;

[14 ELR 20503]

15. That any application for an extension of the foregoing deadlines must be in writing and served upon counsel for each party having an interest in the extension. The application must disclose (a) the precise relief sought; (b) the reasons for such extension; (c) a showing that manifest injustice would result if the extension is not granted; and (d) a statement regarding the positions of counsel for other interested parties regarding the application.

16. A settlement conference will be convened before the undersigned on Monday, July 23, 1984 at 10:00 A.M. Each participating party shall deliver its proposed settlement plan to the court under seal before the close of business on Friday, July 20, 1984. No party may disclose any party's proposed settlement plan to a non-party (other than to entities in privity with the party) prior to the conclusion of the settlement conference.

17. Final Pre-Trial Order. Instructions for preparation of the Final Pre-Trial Order will be mailed to all counsel; the Final Pre-Trial Conference will be convened on November 26, 1984 at 2:00 P.M. in Courtroom No. 2, Camden, subsequent to which the Final Pre-Trial Order will be entered;

18. Trial Briefs, Proposed Findings of Fact and Conclusions of Law, shall be submitted to the court not less than seven (7) days before trial.

19. Trial. The trial of this action on the issue of remedies shall commence before the Honorable Stanley S. Brotman on December 10, 1984 at 9:30 A.M.