United States v. Brace

UNITED STATES OF AMERICA, Plaintiff, v. ROBERT BRACE, et al., Defendants.

Civil Action No. 90-229E

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA

March 20, 2020

District Judge Susan Paradise Baxter

MEMORANDUM OPINION

Pending before the Court is a motion by Plaintiff, the United States of America (at times hereafter, the "Government") to exclude and strike certain exhibits that Defendants Robert Brace and Robert Brace Farms submitted in support of their Redrafted 60(b)(5) Motion to Vacate Consent Decree and to Deny Stipulated Penalties. ECF No. 289. After careful review of the parties' briefs and related filings, the Court finds the motion to be well taken. Accordingly, the Court will grant the Government's motion to strike for the reasons that follow.

Background

The instant litigation concerns the Defendants' activities relative to a 30-acre parcel of property located in Waterford Township in Erie County, Pennsylvania. The subject 30-acre parcel, referred to herein as the "Murphy Site," is located within a larger 58-acre tract of land known as the "Murphy Farm," and has been designated by the United States as a statutorily protected wetlands area.

The United States initiated this civil action in 1990, seeking injunctive relief and civil penalties against Defendants based on the Defendants' drainage activities on the Murphy Site. The Government claimed that Defendants' drainage actvities resulted in unpermitted dredged or fill material being discharged into waters of the United States, in violated Section 404 of the Clean Water Act ("CWA"), 33 U.S.C. §1344.

United States District Judge Glenn Mencer initially ruled in favor of Defendants on the ground that their activities were exempt from the permitting requirements of Section 404; however, the U.S. Court of Appeals for the Third Circuit subsequently reversed the District Court's judgment and held that Defendants' activities relative to the Murphy Site had violated the CWA. See U.S. v. Brace, 41 F3d 117 (3d Cir. 1994). Thereafter, on September 23, 1996, the parties entered into a consent decree (the "Consent Decree") which, among other things, required Defendants to undertake certain remedial actions, including (1) removing drainage tiles that had been illegally installed in the wetlands, (2) filling certain surface drainage ditches that had been illegally excavated, and (3) installing a check dam in the creek running through the wetlands, with the goal of restoring the wetland hydrology that had previously been disturbed. See ECF No. 207-2.

On January 9, 2017, the United States initiated separate litigation (the "2017 Litigation") against Robert Brace, Robert Brace Farms, Inc. and Robert Brace and Sons, Inc. relative to the Defendants' similar conduct on an adjacent 20.01-acre parcel of land known as the "Marsh Site." As in the present case, the Government charged the Defendants in the 2017 Litigation with unlawfully clearing statutorily protected wetlands and, in the process, discharging pollutants into the waters of the United States in violation of the CWA. That case was assigned to the Honorable Barbara Rothstein, who has since presided over the litigation.

On the same day that the Government initiated the 2017 Litigation relative to the Marsh Site, the Government also filed in the within action a "Motion to Enforce Consent Decree and for Stipulated Penalties" ("Motion to Enforce") ECF No. 82. The United States claimed thatDefendants had "cleared, ditched, drained, plowed, and planted approximately eighteen (18) acres of wetlands [on the Murphy Site], causing the unpermitted discharge of pollutants into waters of the United States that were required to be restored pursuant to the Consent Decree, violating both the Consent Decree and the Clean Water Act." ECF No. 82 at 1.

Since that time, the parties (primarily Defendants) have sought and received numerous extensions of discovery relative to the arguments raised in the Government's Motion to Enforce. Because of these discovery extensions and the evolving contours of the evidentiary record, the Government's Motion to Enforce has undergone various iterations. See ECF Nos. 82, 206, 285. Along the way, Defendants have filed their own motion to vacate the Consent Decree and deny the stipulated penalties, as well as a Motion for Relief from Judgment Based on Extraordinary Circumstances. ECF No. 215, 220, 278.

Presently, the Government moves to exclude and strike seventeen (17) documents that Defendants submitted in support of their recently filed "Redrafted 60(b)(5) Motion to Vacate Consent Decree and to Deny Stipulated Penalties" (hereafter, "Redrafted 60(b)(5) Motion"), ECF No. 278. The Government argues that "without valid explanation or excuse," Defendants have proffered these exhibits after failing to disclose them in discovery. ECF No. 289 at 3.

Defendants responded to the pending motion with a sixty-page brief and thirty-one (31) appended exhibits that total over 1400 pages. ECF No. 294. On July 3, 2019, the Government filed its reply brief. ECF no. 299. As a result, the issues are sufficiently joined for adjudication.

Standard of Review

Pursuant to Federal Rule of Civil Procedure 26(a)(1)(A)(ii), a party is required to disclose, even in the absence of a discovery request, copies "of all documents, electronically stored information, and tangible things that the disclosing party has in its possession, custody, orcontrol and may use to support its claims or defenses, unless the use would be solely for impeachment[.]" In addition, a party must disclose "the identity of any witness it may use at trial" to present expert testimony. Fed. R. Civ. P. 26(a)(2)(A). If the witness is "retained or specially employed to provide expert testimony in the case," the disclosure "must be accompanied by a written report." Fed. R. Civ. P. 26(a)(2)(B).

"If a party fails to provide information or identify a witness as required by Rule 26(a) ... , the party is not allowed to use that information or witness to supply evidence on a motion ... unless the failure was substantially justified or is harmless." Fed. R. Civ. P. 37(c)(1). The burden is on the non-producing party to prove substantial justification or that its failure to produce was harmless. Crouse v. Allegheny Cty., Case No. 2:09cv1221, 2016 WL 6086066, at *3 (W.D. Pa. Jan. 25, 2016); U.S. Fire Ins. Co. v. Omnova Solutions, Inc., No. 10-1085, 2012 WL 5288783, at *2 (W.D. Pa. Oct. 23, 2012).

"In addition to or instead of this sanction [of excluding evidence]," the court "(A) may order payment of the reasonable expenses, including attorney's fees, caused by the failure; (B) may inform the jury of the party's failure; and (C) may impose other appropriate sanctions, including any of the orders listed in Rule 37(b)(2)(A)(i)-(iv). Fed. R. Civ. P. 37(c)(1). When considering whether to exclude evidence relating to an untimely or otherwise improper disclosure, the Third Circuit has directed courts to weigh the following "Pennypack factors":

(1) the prejudice or surprise in fact of the party against whom the excluded witnesses would have testified, (2) the ability of that party to cure the prejudice, (3) the extent to which waiver of the rule against calling unlisted witnesses would disrupt the orderly and efficient trial of the case or of other cases in the court, (4) the presence of bad faith or willfulness on the part of the non-disclosing party, and (5) the importance of the excluded testimony.

Konstantopoulos v. Westvaco Corp., 112 F.3d 710, 719 (3d Cir. 1997); Meyers v. Pennypack Woods Home Ownership Assn., 559 F.2d 894, 904-05 (3d Cir. 1977), overruled on other groundsby Goodman v. Lukens Steel Co., 777 F.2d 113 (3d Cir. 1985). In evaluating these factors, we are mindful that "the exclusion of critical evidence is an 'extreme' sanction, not normally to be imposed absent a showing of willful deception or 'flagrant disregard' of a court order by the proponent of the evidence." Meyers, 559 F.2d at 905.

Discussion

A. Expert Report of Dr. Susan Kagel

The Government first moves to strike and exclude the February 11, 2019 "Wetlands Rebuttal Report" of Dr. Susan Kagel, a professed "Wetlands, Wildlife and Permitting Specialist." ECF No. 279-199. As set forth in Dr. Kagel's Report (hereafter, "Kagel Report"), Kagel Environmental, LLC ("KE") was initially retained by Defendants "to examine and rebut the Government expert opinions concerning the wetland status" of the adjacent Marsh [Site]. Id. at 10. "While inspecting the Marsh [Site]," in late April-early May 2018, "KE had opportunity to also visit the Murphy [Site] and examine the now defunct drainage ditches and, in particular, the extensive beaver dam system that extends both on and off the Consent Decree Area (CDA) within the Murphy [Site]." Id. At some point thereafter, Defendants engaged KE "to perform a forensic analysis of the 1989-1990 EPA wetland evaluation of the Murphy [Site] . . . for purposes of responding to the Government consent decree enforcement action" in this case. Id.

In her February 11, 2019 report, Dr. Kagel offers the following key opinions:

a. "Normal circumstances" on the Murphy [Site] as of 1984-1985 were farmable, non-wetland.

b. Prior to implementation of the Consent Decree, normal hydrological status for the Murphy [Site] was non-wetland.

c. Wetlands Have Appeared as the Result of the Consent Decree, both on and [o]ff of the Murphy [Site] Where None Existed Before.d. Changes in Government Oversight of Beaver Management Removed Brace's Ability to Maintain His Farm Ground.

e. The Government's 1989-1990 Wetland Delineation on the Murphy Site Was Flawed and Biased.

f. The Governments [sic] Wetland Restoration Plan was Seriously Flawed.

Id. at 10-13. Dr. Kagel concludes that:

Mr. Brace was a victim of agency incompetence, a lack of science application and severe bias in what should have been objective studies. Finally, he was involuntarily left with a confusing "restoration plan" that had no

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