                             UNITED STATES DISTRICT COURT
                             FOR THE DISTRICT OF COLUMBIA


__________________________________________
                                          )
In re RAIL FREIGHT FUEL SURCHARGE         )
ANTITRUST LITIGATION                      )
__________________________________________)                 MDL Docket No. 1869
                                          )                 Miscellaneous No. 07-0489 (PLF)
This document relates to:                 )
                                          )
ALL DIRECT PURCHASER CASES                )
__________________________________________)
                                          )
OXBOW CARBON & MINERALS LLC, et al.,      )
                                          )
             Plaintiffs,                  )
                                          )
       v.                                 )
                                          )                 Civil Action No. 11-1049 (PLF/GMH)
UNION PACIFIC RAILROAD COMPANY            )
and                                       )
BNSF RAILWAY COMPANY,                     )
                                          )
             Defendants.                  )
__________________________________________)


                           MEMORANDUM OPINION AND ORDER

               The Court has reviewed the joint submission concerning proposed schedules filed

in the Rail Freight case [Dkt. No. 900] and the joint status report filed in Oxbow [Dkt. No. 160].

The Court had understood that it is being asked within the next year or so to resolve two issues:

(1) the meaning and scope of 49 U.S.C. § 10706; and (2) summary judgment on the question of

liability only. It understood that damages discovery, involving expert witnesses, would be

proceeding at the same time on a parallel track, but that there would be little or nothing for the

undersigned to do with respect to damages or expert witnesses during that period. The Court has

already said that all discovery issues that arise during the period in which the undersigned
remains involved in these cases – both fact discovery and expert discovery – will be referred to

Magistrate Judge Michael Harvey.

               While there were some passing references to Daubert at the November 14, 2019

status conference, the Court nevertheless was surprised to see mention in both the joint

submission in the Rail Freight case and the joint status report in Oxbow to Daubert and its

linkage to summary judgment, and a cryptic statement from plaintiffs in the Rail Freight case

that “summary judgment briefing cannot begin before completion of the expert disclosures and

related depositions.” See Dkt. No. 900 at 7. The Court does not understand why this is so, if

summary judgment relates to liability only and not to damages. The Court has already done its

Daubert analysis with respect to Dr. Rauser, Dr. Kalt, Dr. Leitzinger, Dr. Carlton, and Dr.

McClave. See In re Rail Freight Surcharge Antitrust Litig., 292 F Supp. 3d 14, 43-87 (D.D.C.

2017). It does not see the need to revisit any of its determinations in the context of resolving

summary judgment motions on liability only. The Court would like clarification from all parties

before proceeding further. For these reasons, it is hereby

               ORDERED that the parties shall file joint supplemental submissions clarifying

these matters on or before December 16, 2019.

               SO ORDERED.



                                                              __________________________
                                                              PAUL L. FRIEDMAN
                                                              United States District Judge

DATE: December 9, 2019




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