Background
Four representative plaintiffs sought certification of a class action against Rotem Amfert Negev Ltd. and Periclase Dead Sea Ltd., alleging that industrial wastewater from their plants contaminated groundwater in the Rotem Plain near the Dead Sea. The district court initially denied certification on limitations and property-right grounds. In an earlier appeal, the Supreme Court permitted the action to proceed on behalf of class members exposed to the contaminated water, though not on behalf of the public generally, and remanded the case for adjudication on the merits.
During the remanded proceedings, the parties exchanged hydrogeological and geochemical expert evidence concerning whether wastewater could pass through the chalk layer beneath Rotem Amfert’s reservoirs and whether groundwater salinity was increasing or decreasing. After the defendants submitted an additional opinion by engineer Yoni Goren advancing what the district court regarded as a new hydrological theory, the court allowed the plaintiffs to respond with a supplemental opinion by Dr. Avihu Burg. It then denied the defendants permission to file yet another responsive opinion, finding that the proposed submission would impermissibly improve Goren’s evidence and further delay the long-running litigation.
Rotem Amfert sought leave to appeal, arguing that Burg’s supplemental opinion introduced important new scientific theories—including the solubility of the chalk layer and explanations for declining salinity—and that fairness and accurate factfinding required an expert response. It also sought to introduce results from recently conducted drilling.
The Court’s Holding
Justice Ofer Grosskopf denied leave to appeal without requesting a response. Under Regulation 87(i) of Israel’s Civil Procedure Regulations, parties have no vested right to submit additional nonmedical expert opinions after the opinions authorized by the ordinary evidentiary sequence; further opinions require the trial court’s permission. Decisions granting or withholding that permission are procedural matters committed to the trial court’s broad discretion, and appellate intervention is reserved for exceptional cases involving serious injustice or an extreme departure from reasonableness.
The district court acted within that discretion. It was entitled to allow Burg’s supplemental opinion because Goren’s opinion introduced a new theory, while requiring the defendants to raise any objection that Burg exceeded the permitted scope in their closing submissions. At the advanced stage of the case, the trial judge was also best positioned to determine whether another opinion was needed to complete the scientific record.
The Supreme Court additionally found that the claimed innovations were overstated. The proposition that the relevant geological formation was thin or absent had appeared in Burg’s 2000 research and was addressed in Goren’s own opinion, while Goren had already discussed the alleged “hydrological short circuit” explanation for declining chloride concentrations. The proposed new drilling results also went beyond a response to Burg and amounted to an impermissible effort to improve the defendants’ evidentiary case. The Court ordered the defendants to pay the representative plaintiffs NIS 5,000 in costs.
Key Takeaways
- A party has no automatic right under Regulation 87(i) to continue exchanging nonmedical expert opinions; additional opinions require the trial court’s approval.
- Appellate courts will rarely disturb case-management decisions concerning supplemental expert evidence absent serious injustice or an extreme departure from reasonableness.
- A proposed expert response may be rejected when it repeats matters already addressed, introduces newly generated evidence, or would prolong an iterative “ping-pong” of expert submissions.
Why It Matters
The decision reinforces Israeli trial courts’ authority to bring expert-evidence exchanges to an end, even in technically complex and consequential environmental class actions. The interest in a fuller scientific record does not entitle parties to repeated opportunities to refine their evidence after seeing the opposing side’s response.
It also shows that procedural fairness is assessed against the entire evidentiary chronology, not merely the wording of the latest expert submission. Courts may consider whether an allegedly new theory was already present in cited research or addressed by the moving party’s own expert, and may leave scope objections for closing arguments rather than authorize another evidentiary round.