MEMORANDUM OPINION AND ORDER
PAUL
L. FRIEDMAN UNITED STATES DISTRICT JUDGE
The
Court has reviewed the joint submissions concerning proposed
schedules filed on December 4, 2019 in the Rail
Freight case [Dkt. No. 900] and in Oxbow [Dkt.
No. 160], as well as the joint supplemental submissions filed
at the Court's request in each case on December 16, 2019
[Dkt. No. 917 in Rail Freight, Dkt. No. 162 in
Oxbow]. The Court understands that the parties now
agree that the Court is being asked to resolve two issues
within the next year or so - (1) the meaning and scope of 49
U.S.C. § 10706, and (2) summary judgment on the question
of liability only - and that no Daubert issues will
need to be resolved by this Court. Damages discovery,
involving expert witnesses, will be proceeding at the same
time on a parallel track. Any discovery disputes will be
resolved by Magistrate Judge G. Michael Harvey.
In
their supplemental submission in Rail Freight, the
parties now agree that resolution of the Section 10706 issue
and any liability-related summary judgment motions need not
await supplemental expert disclosures and expert discovery or
the resolution of Daubert motions. These matters
relate to damages, and the summary judgment motions to be
resolved by this Court will relate only to liability.
See Dkt. No.917 at 2-3, 4-5. The parties agree that
neither the expert disclosures or any subsequent
Daubert motions or damages-related summary judgment
motions need to be resolved before this Court decides the
Section 10706 issue and summary judgment as it relates to
liability. See id.at 3, 5.
While
Oxbow still believes that Daubert motions will need
to be briefed in Oxbow, they do not disagree that
the Section 10706 issue and summary judgment relating to
liability should be resolved separate and apart from
Daubert. See Dkt. No. 162 at 1-2.
In
their joint submission in Rail Freight, the parties
represent that the parties in the related cases - that is,
the eleven cases designated as related that recently have
been filed before this Court - believe that briefing should
begin promptly on the Section 10706 and liability issues
“on a single, coordinated schedule in the MDL and in
Oxbow, ” and that briefing on those issues should
proceed while damages and other case-specific issues in the
related cases proceed on parallel tracks. See Docket
No. 917 at 6. The related parties may wish to file briefs on
the Section 10706 and liability issues but will endeavor to
avoid duplicative briefing. Id.[1]
The
parties in Rail Freight disagree as to whether
additional briefing is required on the Section 10706 issue
and whether there needs to be an evidentiary hearing on the
Section 10706 issue. Compare Dkt. No. 900 at 1-5
with id. at 12-13. After carefully considering the
respective positions of the parties, the Court will allow
limited additional briefing on the Section 10706 issue, but
it sees no purpose to be served by an evidentiary hearing.
Damages discovery may proceed on separate tracks at the same
time. Setting schedules for discovery and resolving all
discovery disputes with respect to both fact and expert
discovery in all of the cases will be the responsibility of
Magistrate Judge Harvey. Accordingly, it is hereby
ORDERED
that on or before February 21, 2020, the defendants shall
file their motion and/or memorandum of law supplementing
their previous Section 10706 filings; it is
FURTHER
ORDERED that on or before April 3, 2020, the plaintiffs in
both Rail Freight and Oxbow shall file
their responses to defendants' Section 10706 motion or
memorandum (including any supplement to their previous
Section 10706 filings). Plaintiffs in the related cases may
file any responses to defendants' Section 10706 motion
(with efforts to avoid duplicative arguments) on the same
date; it is
FURTHER
ORDERED that on or before April 24, 2020, the defendants
shall file a reply in support of their Section 10706 motion;
it is
FURTHER
ORDERED that oral argument on the Section 10706 motion is
scheduled for May 7, 2020 at 10:00 a.m.; and it is
FURTHER
ORDERED that the plaintiffs and defendants' initial
briefs in Rail Freight and Oxbow are
limited to 45 pages, defendants' reply to 25 pages. The
schedule for briefing of summary judgment on the question of
liability will be set after the Court rules on the Section
10706 issue.
SO
ORDERED.
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