Lary, M.D. et al v. Boston Scientific Corporation et al

Filing 177

ORDER granting 140 Motion to Strike. Signed by Magistrate Judge John J. O'Sullivan on 6/11/2013. (tro)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 11-cv-23820-LENARD/O’SULLIVAN
BANNING LARY, M.D. and KATHERINE
LARY, TODD LARY, AND SCOTT LARY
as Successor Trustees of the STARBRIGHT
GRANTOR FAMILY TRUST,
Plaintiffs,
vs.
BOSTON SCIENTIFIC CORPORATION, a
Delaware corporation, and BOSTON
SCIENTIFIC SCIMED, INC., a Minnesota
corporation,
Defendants.
____________________________________/

ORDER
This matter is before the Court on Boston Scientific’s Motion to Strike the
Supplemental Expert Report of Christian Tregellis (DE # 140, 4/29/13). Having considered
the applicable filings and law and having held a hearing in this matter, it is
ORDERED AND ADJUDGED that Boston Scientific’s Motion to Strike the
Supplemental Expert Report of Christian Tregellis (DE # 140, 4/29/13) is GRANTED and
the Supplemental Expert Report of Christian Tregellis is stricken.
Fed.R.Civ.P. 26(a) requires that an expert report contain “a complete statement of
all opinions the witness will express and the basis and reasons for them; [and] the facts or
data considered by the witness in forming them[.]” Fed.R.Civ.P. 26(a)(2)(B)(I) and (ii).
Fed.R.Civ.P. 26(a)(2)(D) requires that the disclosures must be made at the times and in
the order that the Court directs they be made. The expert’s statements and opinions
should have been made in the initial report. Fed.R.Civ.P. 26(e) provides in part that

[a] party who has made a disclosure under Rule
26(a) .... must supplement or correct its
disclosure or response:
(A) in a timely manner if the party learns that in
some material respect the disclosure or
response is incomplete or incorrect, and if the
additional or corrective information has not
otherwise been made known to the other parties
during the discovery process or in writing; or
(B) as ordered by the court.
Fed.R.Civ.P. 26(e).
The Supplemental Expert Report of Christian Tregellis is a new theory of damages
and is a new opinion, not a supplement to the expert’s initial opinion and report. The
defendant was prejudiced due to the late filing of the “supplemental report” because the
discovery period expired shortly after the filing of the “supplemental report” which did not
provide the defendant sufficient time to file a rebuttal report within the time frame provided
by Judge Lenard’s Scheduling Order.
DONE AND ORDERED in chambers in Miami, Florida this 11th day of June, 2013.

________________________________
JOHN J. O’SULLIVAN
United States Magistrate Judge
Copies to:
United States District Judge Lenard
Counsel of Record