Stephen A. Wannall v. Honeywell, Inc.
413 U.S. App. D.C. 384
| D.C. Cir. | 2014Background
- John M. Tyler developed mesothelioma after decades of asbestos exposure; his estate (Wannall) sued Honeywell as successor to Bendix for exposure from brake shoes.
- At close of discovery Honeywell moved for summary judgment arguing Tyler’s Navy exposure precluded causation by Bendix products; plaintiff’s expert (Dr. Markowitz) had earlier declared Bendix exposure a “substantial” cause.
- After discovery closed, the Virginia Supreme Court issued Ford Motor Co. v. Boomer changing the causation standard from a "substantial" cause test to requiring that the defendant’s product exposure alone be sufficient to cause the harm.
- In response Honeywell renewed summary judgment; plaintiff submitted a new expert declaration (two years after expert discovery closed) asserting Bendix exposure was a “sufficient” cause but did not move to supplement under Rule 26(e) or seek discovery under Rule 56(d).
- Honeywell moved to strike the late declaration as untimely; the district court excluded it under Rule 26 and Rule 37(c) and granted summary judgment for Honeywell; the D.C. Circuit affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness under Fed. R. Civ. P. 26(e) of the new Markowitz declaration | New declaration was a permissible supplemental disclosure under Rule 26(e) after Boomer | Submission was untimely—expert discovery closed two years earlier and the declaration was not timely disclosed | Waived and untimely; plaintiff failed to invoke Rule 26(e) timely and thus cannot rely on it |
| Waiver under D.D.C. Local Rule 7(b) for failing to raise Rule 26(e) in opposition to strike | Plaintiff argued Boomer didn’t change Virginia law and therefore did not need to invoke supplementation | Honeywell argued plaintiff conceded untimeliness by not raising Rule 26(e) in briefing | Court found waiver; plaintiff’s strategic choice to deny Boomer’s effect amounted to waiver and was not an abuse of discretion to enforce |
| Exclusion under Fed. R. Civ. P. 37(c)(1) — whether failure was "substantially justified" or "harmless" | Late evidence was justified by intervening change in law (Boomer) and harmless because it corrected expert opinion | Late submission prejudiced Honeywell by denying opportunity for cross-examination/rebuttal and would have required reopening discovery | Not substantially justified or harmless; exclusion affirmed as within district court’s discretion |
| Effect on summary judgment after exclusion | New declaration should be considered and would defeat summary judgment under Boomer | Without the new declaration, plaintiff cannot meet Boomer’s sufficiency standard | Because the late declaration was properly excluded, summary judgment for Honeywell stands; plaintiff effectively concedes on appeal |
Key Cases Cited
- Ford Motor Co. v. Boomer, 736 S.E.2d 724 (Va. 2013) (Virginia Supreme Court changed asbestos causation standard to require defendant’s product exposure alone be sufficient to cause harm)
- FDIC v. Bender, 127 F.3d 58 (D.C. Cir. 1997) (local-rule enforcement and treating unopposed arguments as conceded)
- Geller v. Randi, 40 F.3d 1300 (D.C. Cir. 1994) (concession under local rule acts as waiver and cannot be raised on appeal)
- Twelve John Does v. District of Columbia, 117 F.3d 571 (D.C. Cir. 1997) (honoring district court enforcement when response absence treated as conceded)
- Kapche v. Holder, 677 F.3d 454 (D.C. Cir. 2012) (abuse of discretion standard for Rule 37(c) determinations)
- Weil v. Seltzer, 873 F.2d 1453 (D.C. Cir. 1989) (treatment of conceded arguments under local rules)