1 District Judge of the Eastern District of Louisiana, sitting by designation. United States Court of Appeals,

Fifth Circuit.

No. 94-20806.

Rosa Ann BARRETT, et al., Plaintiffs-Appellants.

v.

ATLANTIC RICHFIELD COMPANY, et al., Defendants-Appellees.

Sept. 19, 1996.

Appeal from the United States District Court for the Southern District of Texas.

Before DUHÉ and DENNIS, Circuit Judges, and DUVAL, 1 District Judge.

DUHÉ, Circuit Judge.

Appellants assert claims for personal injuries and property damage as a result of exposure to

chemicals at two superfund sites. The district court struck the testimony of four of Plaintiffs' expert

witnesses because Plaint iffs failed to comply with the court's discovery orders, held the testimony of

two experts inadmissible under Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 113 S.Ct.

2786, 125 L.Ed.2d 469 (1993), and granted Defendant's summary judgment. We affirm.

BACKGROUND

Appel lant s are part of an original group of Plaintiffs that first filed suit in A valos, et al. v.

Atlantic Richfield, et al., C.A. No. H-89-3487, in 1989, as sert ing claims for personal injuries and

property da mage as a result of alleged exposure to chemicals at two federal superfund sites. All

Plaint iffs were originally represented by Thomas Pearson. In the Fall of 1991, Mr. Pearson

determined that he could no longer represent the Avalos Plaint iffs, and Dennis C. Reich was chosen

as counsel. However, approximately 300 of the more than 1000 Plaintiffs did no t co nsent to Mr.

Reich's representation and became pro se litigants. In December of 1992, the Plaintiffs represented

by counsel settled their claims.

The district court then severed the pro se non-settling Plaint iffs into a separate action, Rosa

Ann Barrett, et al. v. Atlantic Richfield, et al., C.A. No. 89-3487-C, and allowed attorney s Samuel2 On December 18, 1992, the district court admitted Mr. Jackson as counsel for 171 pro se

Plaintiffs and Mr. Bozé as counsel for four pro se Plaintiffs, and on March 16, 1993, the district

court entered an order granting Mr. Lemond leave to appear on behalf of 67 of the pro se

Plaintiffs.

3 The Plaintiffs represented by Mr. Bozé were not subject to any of these preliminary

proceedings.

4 Plaintiffs later withdrew Mr. Stock as an expert. E. Jackson, James M. Lemond, and U. Lawrence Bozé to enter appearances on their behalf. 2 These

Plaintiffs continued to allege property damage and personal injury claims as a result of their alleged

exposure to chemicals at the waste disposal sites.

The district court entered a scheduling order requiring those Plaintiffs represented by Mr.

Jackson to identify their experts by April 1, 1993, and those Plaintiffs represented by Mr. Lemond

to identify their experts by April 15, 1993. 3 In Agreed Case Management Orders, dated March 1993,

the district court ordered that oral depositions of Plaintiffs' expert witnesses be scheduled pursuant

to fifteen working days written notice. Plaintiffs subsequently identified their experts, and Defendants

noticed the following expe rt s for depositions for April 16, 1993: Dr. Watson, Dr. Connor, Dr.

Schroeder, Mr. Cooper, Dr. Glasser and Mr. Stock. 4 These experts failed to appear. Instead, the

Jackson and Lemond Plaint iffs filed a belated motion for a protective order on May 4, 1993, stating

that their experts should not be deposed because the experts had not yet been able to formulate their

opinions.

On June 3, 1993, the district court held a hearing on Plaint iffs' m oti on and ordered that

depositions of Plaint iffs' experts be completed on or before July 30, 1993. At that hearing the court

stated:

If any of these experts—and I want excerpts of the testimony—show that they either have no knowledge, that they have insufficient knowledge, will not appear at trial to testify, or have

not had enough time to examine all the documents in this case that they feel they need to form

an expert opinion, then those experts will be struck and no additional experts will be

permitted on this case.

(Vol. 16, June 3, 1993, Tr. at 31-32). Despite the court's admonition, Plaintiffs failed to comply with

the July 30, 1993 deadline. As a result of Plaintiffs' noncompliance, the district court issued an order

striking the testimony of four experts. In addition, the court found the testimony of two experts, Dr.Schroeder and Dr. Watson, to be inadmissible under Daubert v. Merrell Dow Pharmaceuticals, 509

U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).

The court subsequently gra nted Defendants' motions for summary judgment, thereby resolving

the claims of the Plaintiffs represented by Mr. Jackson and Mr. Lemond. Defendants did not move

for summary judgment against the Plaint iffs represented by Mr. Bozé, however, and thus, the district

court's order left the claims of those Plaintiffs intact. Although it was not until March 1, 1995 that

the district court entered a final order, which disposed of the Bozé Plaint iffs, the Jackson and Lemond

Plaint iffs had already filed their notice of appeal on October 19, 1994. Appellants failed to file a new

notice of appeal after the district court entered the final order.

DISCUSSION

A. Appellate Jurisdiction

We must first determine whether this Court may exercise its jurisdiction. Rule 4(a)(1) of the

Federal Rules of Appellate Procedure requires an appellant to file its notice of appeal "within 30 days

after the date of entry of the judgment or order appeale d from." Fed.R.App.P. (4)(a)(1). The

Appellants in this case filed their notice of appeal several months before the district court entered its

final judgment. Consequently, under Rule 4(a)(1), their notice of appeal was premature.

A premature notice of appeal, however, does not always prevent a court from exercising its

jurisdiction. Under Rule 4(a)(2) notice of appeal "filed after the a nnouncement of a decision or order

but before the entry of the judgment or order shall be treated as filed after such entry and on the day

thereof." Fed.R.App.P. 4(a)(2) (emphasis added). "The Rule recognizes that, unlike a tardy notice

of appeal, certain premature notices do not prejudice the appe l lee and that the technical defect of

prematurity therefore should not be allowed to e xt inguish an otherwise proper appeal." F irsTier

Mortgage Co. v. Investors Mortgage Ins. Co., 498 U.S. 269, 273, 111 S.Ct. 648, 651, 112 L.Ed.2d

743 (1991).

In FirsTier, the Supreme Court determined the extent to which Rule 4(a)(2) grants appellate

jurisdiction despite a premature not ice o f appeal. The plaintiff in F irsTier sued alleging that the

defendant breached several insurance contracts. The district court announced from the bench its5 This Circuit has adopted a more expansive rule than the one articulated in FirsTier, whereby

appeals even from clearly interlocutory orders can be deemed effective based on Rule 4(a)(2).

See Alcom Electronic Exchange, Inc. v. Burgess, 849 F.2d 964, 967 (5th Cir.1988); Alcorn

County, Miss. v. United States Interstate Supplies, Inc., 731 F.2d 1160, 1165-66 (5th Cir.1984).

Because we find that the district court's ruling in this case satisfies even the more narrow Supreme

Court standard, we need not address whether the Fifth Circuit's rule survives FirsTier. intention to grant summary judgment for the defendant, but declined to enter judgment until the

defendant submitted proposed findings of facts and conclu sions of law. Before the di stri ct court

entered its final judgment, however, the plaint iff filed a notice of appeal from the summary judgment

ruling. The Supreme Court concluded that the premature notice of appeal was nevertheless effective

to invoke the jurisdiction of the federal appellate courts. Id. at 277, 111 S.Ct. at 653.

Rule 4(a)(2) permits a notice of appeal from a nonfinal decision to operate as a notice of

appeal from the final judgment only when a district court announces a decision that w ould

be appeala b le if immediately follow ed by the entry of judgment. In these instances, a

litigant's confusion is understandable, and permitting the notice of appeal to become effective

when judgment is entered does not catch the appellee by surprise.

Id. at 276, 111 S.Ct. at 653 (emphasis added). The bench ruling in F irsTier met this criteria because

it would have been "final" under 28 U.S.C. § 1291 had the court entered judgment immediately.

Like the notice of appeal in FirsTier, the district court's order in this case would have been

appealable if immediately followed by the entry of judgment pu r suant to Federal Rule of Civil

Procedure 54(b). Appellants (the Plaintiffs represented by Mr. Lemond and Mr. Jackson) challenge

the district court's order granting summary judgment to the Defendants. Although t he summary

judgment order did not resolve the claims of the Plaint iffs re presented by Mr. Bozé, the order

disposed of every claim asserted by Appellants. Thus, immediately after issuing this order, the district

cour t could have entered a final judgment on Appellants' claims pursuant to Rule 54(b), which

provides that "the court may direct the entry of a final judgment as to one or more but fewer than all

of the claims or parties only upon an express determination that there is no just reason for delay and

upon an express direction for the entry of judgment." Because the district court's order would have

been appealable if followed by Rule 54(b) certification and order, Rule 4(a)(2) permits this court to

exercise its jurisdiction. 5

B. Failure to Comply with Scheduling OrderIn March 1993, the district court entered a scheduling order requiring Plainti ffs to identify

their experts by April 1993 and providing for the scheduling of deposit ions pursuant to fifteen

working days written notice. Although Plaint iffs identified their experts, those experts failed to

appear at a properly noticed deposit io n scheduled for April 16, 1993. Instead, Appellants

subsequently moved for protective order in May 1993, stating that their experts had not had sufficient

time to formulate opinions. On June 3, 1993 the district court held a hearing on Plaintiffs' motion for

a protective order and made the following ruling:

I'm making an order now, and listen carefully, gentlemen, this is the last time you're going to hear me make a discovery order, as far as this matter is concerned. All depositio ns o f t he

plaint iffs' experts in this case will be taken and completed on or before July 30th, 1993. If any

of these experts—and I want excerpts of the testimony—show t hat they either have no

knowledge, that they have insufficient knowledge, will not appear at trial to testify, or have

not had enough time to examine all of the documents in this case that they feel they need to

form an expert opinion, then those experts will be struck and no additional experts will be

permitted in this case.

(Vol. 16, June 3, 1993, Tr. at 31-32).

Pursuant to this order, Defendants attempted to depose each of Plaint iffs' five design ated

expert witnesses before the July 30, 1993 deadline. On June 15, 1993, Defendants deposed Travis

Cooper, an appraiser designated by Plaint iffs as an expert witness to testify concerning the effects of

the waste sites on the value of Plaintiffs' properties. Mr. Cooper testified that he had not received

addresses or property descriptions of Plaint iffs' properties until just a few days before the deposition,

and that he had received only a small number of the expected addresses at that time. He testified that

his work would be completed by July 15, 1993, but subsequently failed to meet this deadline. Mr.

Cooper's deposition was resumed on Jul y 23, 1993, at which time he indicated that he had no

opinions on the effect of the sites on Plaint iffs' properties. Mr. Cooper's report, which purported to

create a formula for measuring diminution in value, was not delivered to Defendants until August 26,

1996, nearly a month after the court-imposed deadline.

Dr. Jay Glasser was designated by Plaint iffs as "a biostatistician and epidemiologist [who] will

testify as to the Plaint iffs [sic] health conditions, exposure and need for medical care." Although Dr.

Glasser was scheduled for three depositions prior to July 30, 1993, he failed to appear at any.

Dr. Thomas Co nnor was designated by Plaintiffs as a "toxicologist" who "will testifyconcerning the chemicals at the waste sites and their particular effects on humans and animals and the

plaint iffs [sic] health conditions, exposure and causation." Defendants initially deposed Dr. Connor

on May 27, 1993, but at that point, Dr. Connor had not yet decided whether he would participate in

the case. Dr. Connor did not appear before the July 30th deadline for a deposition despite repeated

efforts by the Defendants to set a mutually agreeable date.

Plaintiffs designated Dr. James Watson as "a licensed physician" who "will testify as to the

health conditions and problems caused by the waste sites and to the physical condition of the Plaint iffs

and their need for medical care." Defendants deposed Dr. Watson on June 4, 1993, and again on July

22, 1993. At these sessions, Dr. Watson t est ified that he had examined only seventeen of the

approximately two hundred Plaint iffs, and he was apparently unable to form any final opinions prior

to the July 30, 1993 deadline. Dr. Watson subsequently failed to appear for a deposition on

September 24, 1993. At a later court hearing, Dr. Watson testified that he had still not completed

his examinations of all of the Plaint iffs and was not in a position to offer his final opinions in this case.

Because these four experts had not formulated final opinions by the July 30, 1993 deadline,

the district court struck their testimony pursuant to Federal Rules of Civil Procedure 16 and 37. Rule

16(b) authorizes federal courts to control and expedite the discovery process through a scheduling

order. Fed.R.Civ.P. 16(b). "Consistent with the authority vested in the trial court by rule 16, our

court gives the trial court broad discretion to preserve the integrity and purpose of the pretrial order."

Geiserman v. MacDonald, 893 F.2d 787, 790 (5th Cir.1990) (internal quotati on omitted). Moreover,

Rule 37(b)(2)(B) authorizes the district court to impose sanctions on a disobedient party by refusing

to allow that party to introduce designated matters into evidence. Fed.R.Civ.P. 37(b)(2)(B). When

a district court exc ludes expert t estimony as a sanction for a violation of a discovery order, we

determine whether the court's action is an abuse of discretion by examining four factors:

(1) the explanation, if any, for the party's failure to comply with the discovery order;

(2) the prejudice to the opposing party of allowing the witnesses to testify;

(3) the possibility of curing such prejudice by granting a continuance; and

(4) the importance of the witnesses' testimony.Sierra Club, Lone Star Chapter v. Cedar Point Oil Co. Inc., 73 F.3d 546, 572 (5th Ci r .1996),

petition for cert. filed, 64 U.S.L.W. 3780 (May 10, 1996) (No. 95-1831). Upon review of these

factors, we now hold that the district court acted within it s discret ion in issuing its June 1993

scheduling order and in striking Plaintiffs' expert witnesses for failing to comply with that order.

1. The Plaintiffs' Explanation for Failing to Comply w ith the Discovery Order

Plaint iffs have offered no persuasive explanation for their failure to meet the district court's

discovery deadline. Indeed, the reco rd suggests that Plaintiffs engaged in dilatory conduct clearly

violative o f t he district court's orders. Plaintiffs originally agreed to case management orders, but

then failed t o follow them by failing to produce their experts for scheduled depositions.

Subsequently, at the June 1993 hearing, the court warned plaint iffs that the failure to have their expert

depositions completed by July 30, 1993 would result in the court striking their experts. Despite this

strong admonition, none of the experts had completed their review of the information in the case or

formulated final opinions by the court's July 30, 1993 deadline.

Plaint iffs argue that their expert witnesses, particularly Mr. Cooper, were simply unable to

complete their work within the deadline set by the Court. The failure of Mr. Cooper to complete his

work by the court's deadline, however, appears to be due in large part to the failure of counsel to

provide Mr. Cooper with the information he needed t o co mplete his analysis in a timely fashion.

Although Mr. Cooper was designated as an expert on April 1, 1993, ten weeks elapsed before Mr.

Cooper was given the addresses of the properties he needed to appraise. Thus, despite the good

intentions of Mr. Cooper, Plaint iffs' counsel contributed to his failure to com ply with the

court-imposed deadline. Moreover, even if delays beyond the co nt rol of counsel hampered Mr.

Cooper's project, Appellants have provided no explanation for their failure to file a motion seeking

an extension of the district court's deadline until the very day the depositions were required to be

completed.

The failure of Appellants' medical expert witnesses to comply with the court-imposed deadline

is also unjustifiable. Dr. Glasser and Dr. Connor never even appeared for depositions before the

deadline, resulting in several certificates of non-appearance. In addition, Dr. Watson examined onlyseventeen Plaint iffs before the deadline, despite making a commitment to complete at least seventy

examinations by that time. Again, Appellants never gave the district court any advance warnings of

these problems nor do they now offer a plausible explanation for noncompliance.

2. The Prejudice to Defendants

The district court properly determined that Defendants "would be materially prejudiced if the

plaint iffs were permitted to perpetually delay the deposit i on of these experts." Indeed, as noted

previously, the failure to meet the July 30, 1993 deadline was not the first time Plaint iffs' experts had

failed to fulfill their discovery obligations. There can be no question that each delay in producing and

deposing expert witnesses resulted in additional expense and disrupted the Defendants' preparation

of the case.

3. The Possibility of a Continuance

Although the district court might have ordered a continuance in order to cure any prejudice

to the Defendants, it is worth noting that Appellants never requested a continuance from the court.

Moreover, Appellants have offered no reason to believe a continuance would have cured their dilatory

behavior. Instead, it is likely that a continuance would have resulted only in additional delay and

would have unnecessarily increased the expense of defending the lawsuit. As this Court has noted,

a continuance do es no t , in and of itself, "deter future dilatory behavior, nor serve to enforce local

rules or court imposed scheduling orders." G eiserman v. MacDonald, 893 F.2d 787, 792 (5th

Cir.1990).

4. The Importance of the Excluded Testimony

Appellants argue that their expe rt s' testimony should not be excluded because of its

importance to their case. They emphasize that the exclusion of these witnesses was tantamount to

a dismissal of their claims.

We first note that, under Texas law, each Plaintiff could testify at trial as to property value,

and that Appellants could have attempted to prove at least some of the personal injury or nuisance

claims through other witnesses and medical records. Even granting that the expert testimony was

significant "[t]he importance of such proposed testimony cannot singularly override the enforcement6 The district court also found that Dr. Watson's testimony was inadmissible under Daubert.

However, because we hold that Dr. Watson's testimony was properly stricken for failure to

comply with the court's scheduling order, we need not also address whether his testimony was

inadmissible under Daubert. of local rules and scheduling orders." I d

. Mo reover, the claimed importance of Plaintiffs' expert

testimony merely underscores the need for Plaintiffs to have complied with the court's deadlines or

at least informed the trial judge in advance if good faith compliance was not possible.

Thus, although Appellants correctly point out that the exclusion of the experts damaged their

case, we find that the district court did not abuse its discretion in striking the testimony. Appellants'

repeated dilatory behavior even in the face of explicit wa rnings and the apparent inability of the

experts to produce relevant opinions within the specified time frame ren ders ho llow any claims of

unfair prejudice.

C. Expert Testimony Found Inadmissible under Daubert

The district court found Dr. Schroeder's proposed testimony to be inadmissible under Daubert

v. Merrell Dow P harmaceuticals, 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). 6 In

Daubert, the Supreme Court held that the proper admissibilit y test for scient ific evidence is "scientific

validity," a standard derived from the text of Federal Rule of Evidence 702. I d. at 594, 113 S.Ct. at

2797. Rule 702, which governs the admissibility of expert testimony, sets forth a broad "helpfulness"

standard:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand

the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge,

skill, experience, t raining, or education, may testify thereto in the form of an opinion or

otherwise.

Parsing the words "scientific" and "knowledge," the Supreme Court concluded that Rule 702 imposes

a "standard of evidentiary reliabilit y" that requires that proposed scient ific testimony "be derived by

the scient ific method" and be "ground[ed] in the methods and procedures of science." I d. at 590, 113

S.Ct. at 2795.

In this case, Appellants designated Dr. Schroeder as an expert who would testify concerning

a study conducted on cotton rats. This study was intended to demonstrate that mammalian species

at the sites, specifically t he co t t o n rat , had been affected by possible exposure. The district courtrejected this proposed testimony, however, stating: "An implication that the cotton rat study shows

that unidentified chemicals to which the rats were exposed may be capable of causing some effect in

humans is merely a hypothesis without valid scient ific connection to support it." (R. 210). The court

also found that Dr. Schroeder was not qualified to make the necessary correlation between the effects

of chemicals on the cotton rat and the possible effect on the Plaintiffs.

We agree with the district court that Dr. Schroeder's proposed testimony concerning t he

cotton rat study does no t satisfy Rule 702's "standard of evidentiary reliability," as interpreted in

Daubert, because Dr. Schroeder's testimony would consist of "unsupported speculation," Daubert,

509 U.S. at 590, 113 S.Ct. at 2795. We need not address the broader question whether the cotton

rat study could ever provide a basis for proving the effects of exposure in human beings. Instead, we

base our decision on the fact that Dr. Schroeder is not qualified to testify concerning the correlation,

if any, between chromosomal damage to cotton rats and the alleged exposure in human beings. Dr.

Schroeder himself testified that, as an ecologist, his expertise was limit ed to the behavior patterns of

the cotton rats and their interactions with the environment, and that he had played no role in the

toxicological analysis of the cotton rats. Thus, Dr. Schroeder lacks the appropriate expertise to offer

a credible scient ific opinion regarding the source of the chromosomal damage exhibited by the cotton

rats. Moreover, Dr. Schroeder acknowledged that he did not have the proper background to offer

a determination as to whether or not the Plaintiffs face an increased risk of suffering adverse health

effects from exposure to chemicals at the sites. In short, it is clear that Dr. Schroeder's testimony

could not establish with any scient ific reliabilit y whether there was an exposure parallel between the

cotton rats and human beings, and we therefore affirm the district court's decision not to admit the

testimony.

D. Summary Judgment

We review a

dist rict court 's grant of summary judgment d e novo. A rmstrong v. City of

Dallas, 997 F.2d 62, 65 (5th Cir.1993). Summary judgment is appropriate if the record discloses

"that there is no genuine issue as to any material fact and that the moving party is entitled to judgment

as a matter of law." Fed.R.Civ.P. 56(c). The pleadings, depositions, admissions, and answers tointerrogatories, together with affidavits, must demo nstrate that no genuine issue of material fact

remains. C elotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2552-53 , 91 L.Ed.2d 265

(1986). To that end we must "review the facts drawing all inferences most favorable to the party

opposing the motion." Reid v. State Farm Mut. Auto Ins. Co., 784 F.2d 577, 578 (5th Cir.1986).

After strikin g the experts', the district court properly determined that Appellants failed to

provide summary judgment evidence in support of their personal injury and property damage claims.

Absent the proposed expert testimony, Appellants have not produced any evidence demonstrating

a causal link between their alleged damages and the chemicals at the disposal sites. Thus, because

we find no abuse of discretion in the court's striking of the expert testimony , and no additional

relevant summary

judgment evidence, we affirm the court's order granting Defendants' motion for

summary judgment as to these claims.

Appellants contend that, even without the stricken expert testimony, their nuisance claims

s hould have survived summary judgment. Texas courts "have defined a [private] nuisance as a

condition that substantially interferes with the use and enjoyment of land by causing unreasonable

discomfort or annoyance to persons of ordinary sensibilit ies attempting to use and enjo y it."

Maranatha Temple, Inc. v. Enterprise Products Co., 893 S.W.2d 92, 98-99 (Tex.App.—Houston

[1st Dist.] 1994, writ denied). "A public nuisance is maintained by act, or by failure to perform a

legal duty, intentionally causing or permitting a condition t o exist which injures or endangers the

public health, safety or welfare." L JD Properties, Inc. v. City of Greenville, 753 S.W.2d 204, 207

(Tex.App.—Dallas 1988, writ denied) (internal quotations omitted).

Although no expert testimony is necessary to establish t he elements of a nuisance claim,

Appellants failed to introduce any evidence in opposition to the motion for summary judgment that

would demonstrat e a subst ant ial interference with the use or enjoyment of their property or an

injurious effect on the public health, safety or welfare. Although Appellants point to vario us

documents—including published articles and Defendants' inter rogatory responses—that descri bed

materials found at the sites, such evidence, by itself, is insufficient to establish a claim for a public or

private nuisance.CONCLUSION

For the foregoing reasons, the judgment of the district court is AFFIRMED.