Africano et al v. Atrium Medical Corporation
Filing
209
MEMORANDUM Opinion and Order Signed by the Honorable Young B. Kim on 10/10/2019. (ma,)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
RANDY J. AFRICANO,
Plaintiff,
v.
ATRIUM MEDICAL CORPORATION,
a Delaware Corporation,
Defendant.
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No. 17 CV 7238
Magistrate Judge Young B. Kim
October 10, 2019
MEMORANDUM OPINION and ORDER
Before the court is Defendant Atrium Medical Corporation’s (“Atrium”) motion
to strike the report and exclude the opinions of Plaintiff Randy J. Africano’s expert
witness, Scott Guelcher, Ph.D. For the following reasons, the motion is granted:
Background
Africano is suing Atrium claiming strict liability, negligence, and failure to
warn in connection with its ProLite mesh, which is a medical product made of
polypropylene mesh that is used in hernia repairs.
During discovery, Africano
submitted an initial expert report authored by Duane Priddy, Ph.D. Dr. Priddy
asserts in his report that polypropylene mesh, such as that used in ProLite, is
inherently unstable and readily oxidizes and is therefore inappropriate to implant in
the human body for long-term use. (R. 193, Def.’s Mot. Ex. C at 2.) Atrium produced
its own expert, Stephen Spiegelberg, Ph.D., who opines that polypropylene mesh is a
safe biomaterial. 1 (R. 204, Def.’s Reply at 3.)
On July 12, 2019, Africano reported to the court that he intends to offer expert
opinions to rebut Atrium’s expert opinions. (R. 180.) Specifically, Africano advised
the court that he intends to retain Scott Guelcher, Ph.D., to “testify to the adverse
effects caused by degradation of polypropylene mesh in vivo” in rebuttal to “a new
issue” Dr. Spiegelberg raised in his report. (Id. at 2.) On July 13, 2019, this court
ordered Africano to disclose his rebuttal experts. (R. 181.) The order also required
that Africano’s “experts must restrict themselves to the expert opinions offered by
[Atrium].” (Id.) In response, Atrium asked this court to reconsider its order because
it feared that Africano would misuse Dr. Guelcher’s opinions to merely support his
evidence on a central issue rather than to actually rebut the opinions of
Dr. Spiegelberg. (R. 182.) This court denied Atrium’s motion but reiterated that
Africano’s “experts must restrict themselves to the expert opinions offered by
[Atrium].” (R. 185.) This court further explained that if Africano “fails to comply
with this order, [Atrium] may seek to have the new opinions excluded.”
(Id.)
Following that order, Africano produced three rebuttal expert reports prepared
respectively by Dr. Priddy, Dr. Guelcher, and Dr. Pamela B. Sylvestre. (R. 193, Def.’s
Mot. at 3.) Atrium then filed the current motion to strike Dr. Guelcher’s report.
Plaintiff filed Dr. Spiegelberg’s report under seal because it is subject to a protective
order. (R. 200, Pl.’s Resp. Ex. B.) In deference to the protective order, the court will
limit its references here to information that is available in the parties’ publicly-filed
briefs. In doing so, the court does not agree or disagree with Atrium’s confidential
designation.
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Analysis
This court has discretion over discovery determinations, including whether to
exclude improper expert reports. See Karum Holdings LLC v. Lowe’s Companies,
Inc., 895 F.3d 944, 950 (7th Cir. 2018). Under Federal Rule of Civil Procedure
26(a)(2)(D)(ii), rebuttal expert reports must be “intended solely to contradict or rebut
evidence on the same subject matter identified by another party.” Accordingly, proper
rebuttal evidence should be used to “contradict, impeach, or defuse the impact of the
evidence offered by an adverse party.” Frerck v. Pearson Educ., Inc., No. 11 CV 5319,
2014 WL 477419, at *2 (N.D. Ill. Feb. 6, 2014) (quoting Peals v. Terre Haute Police
Dep’t, 535 F.3d 621, 680 (7th Cir. 2008)). Evidence that is only offered as additional
support of a party’s argument and that does not contradict any evidence introduced
by the opposing party is not proper rebuttal. Noffsinger v. The Valspar Corp., No. 09
CV 916, 2011 WL 9795 at *6 (N.D. Ill. Jan. 3, 2011) (“[A] party may submit an expert
rebuttal witness who is limited to contradicting or rebutting evidence on the same
subject matter identified by another party in its expert disclosures.” (internal
quotations omitted)).
In moving to strike Dr. Guelcher’s opinions Atrium argues that his report is
improper rebuttal for two reasons. First, Atrium argues that Dr. Guelcher’s report
does not actually refute Dr. Spiegelberg’s opinions and is not a true rebuttal, but
rather an untimely causation report intended to bolster and expand upon Dr. Priddy’s
original report. (R. 193, Def.’s Mot. at 2.) Second, it asserts that Dr. Guelcher’s
opinions are not rebuttal opinions because his report “focuses on central elements of
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Plaintiff’s claims that either were, or should have been, addressed in Plaintiff’s initial
expert reports.” (Id.) In response, Africano contends that it is of no concern that
Dr. Guelcher’s report touches on the same matter as Dr. Priddy’s report, so long as
Dr. Guelcher’s report contradicts Dr. Spiegelberg’s opinions. (R. 199, Pl.’s Resp. at
5.) According to Africano, Dr. Guelcher’s report does just that.
As to Atrium’s first argument, rebuttal should be the result of a winnowing
process, not an expansion of a party’s original expert report, with a narrower focus
than the initial expert opinion. McCann v. Cullinan, No. 11 CV 50125, 2016 WL
4593835, at *2 (N.D. Ill. Sept. 2, 2016), report and recommendation adopted sub nom,
McCann v. Ogle Cty., 2016 WL 5807922 (N.D. Ill. Oct. 5, 2016). The court in McCann
offers the following example of proper rebuttal:
[A] plaintiff’s initial (sometimes referred to as “affirmative”) expert report may
identify opinions #1, #2, and #3. Subsequently, a defendant’s expert report
(sometimes referred to as “response reports”) may rebut opinions #1, #2, and
#3, but also add opinions #4, #5, and #6. That defendant’s expert report is a
proper rebuttal in that it contradicts the first three opinions. But that
defendant’s expert report may also be an appropriate initial expert report by
presenting opinions #4, #5, and #6. Under these circumstances, Rule
26(a)(2)(D)(ii) envisions that the plaintiff be given the opportunity to provide—
if it chooses—a rebuttal expert to contradict opinions #4, #5, and #6. But what
is not permissible is allowing plaintiff to now—by way of a “rebuttal”—offer
opinions #7, #8, and #9.
2016 WL 4593835, at *2.
Furthermore, the measure of proper rebuttal is not whether it offers support
for arguments that could have been raised in the case-in-chief, but whether it directly
refutes arguments offered by the opposition. Pantaleo v. Hayes, No. 08 CV 6419, 2011
WL 2517265, at *1 (N.D. Ill. June 23, 2011). A “party may not offer testimony under
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the guise of ‘rebuttal’ only to provide additional support for his case in chief.”
Noffsinger, 2011 WL 9795, at *6. Rather, the rebuttal report must address issues
raised by the opposition’s expert instead of simply bolstering support for issues for
which the party already bears the burden of proof. Stanfield v. Dart, No. 10 CV 6569,
2013 WL 589222, at *3-*4 (N.D. Ill. Feb. 14, 2013) (striking the expert’s report for
failing to address the defendant’s expert’s conclusions or methodology and instead
attempting to bolster the prima facie case); Butler v. Sears Roebuck & Co., No. 06 CV
7023, 2010 WL 2697601, at *1 (N.D. Ill. July 7, 2010) (“Rebuttal reports should be
limited to contradict[ing] or rebut[ting] evidence on the same subject matter
identified by another party in its expert disclosures.” (internal quotations omitted)).
Accordingly, this court may strike an expert report that does not conform to the
requirements for proper rebuttal. Stanfield, 2013 WL 589222, at *4.
Here Atrium has demonstrated that rather than contradicting or impeaching
its expert’s report, Dr. Guelcher's report serves primarily to shore up Africano’s casein-chief. In his report, Dr. Guelcher references Dr. Spiegelberg’s report in only two
places, with both references pointing out undisputed facts rather than any matters
in contention. (R. 193, Def.’s Mot. Ex. A at 1 n.1 (identifying the mesh’s composition)
& 13 n.39 (noting the name of a chemical compound in the mesh).) Beyond these two
references, Dr. Guelcher’s report does not address Dr. Spiegelberg’s opinions.
Recognizing that defect, Africano argues that the entirety of Dr. Guelcher’s report
rebuts Dr. Spiegelberg’s broad thesis that polypropylene mesh is safe, regardless of
whether it directly references any of Dr. Spiegelberg’s opinions.
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This court agrees with Atrium that not only does Dr. Guelcher’s report fail to
contribute any new perspective rebutting Dr. Spiegelberg’s opinions, but his opinions
simply reiterate the same arguments Dr. Priddy made in the initial expert report.
Dr. Priddy’s initial report focuses on polypropylene’s oxidative degradation following
implantation—the same thesis Dr. Guelcher offers.
(Id. at 6.)
Rather than
questioning the conclusions or methodology Dr. Spiegelberg offers, Dr. Guelcher
repeats the points raised by Dr. Priddy.
Dr. Priddy’s initial report opines that
polypropylene is “inherently prone to oxidative degradation and loss of strength in
vivo.” (Id. Ex. C at 3.) Similarly, Dr. Guelcher opines that “[a]fter implantation [i.e.
in vivo], the surface of the polypropylene mesh reacts with reactive oxygen species
that are secreted by inflammatory cells, causing it to oxidize and degrade.” (Id. Ex. A
at 3.) Dr. Priddy states that, as the mesh fibers “rapidly degrade and become brittle,”
the mesh integrity weakens and the “brittle surface layer flakes off the fibers causing
inflammation/infection of the surrounding tissue.”
(Id. Ex. C at 3.)
Likewise,
Dr. Guelcher states that “[t]he dynamic environment where the ProLite device is
implanted coupled with the foreign body reaction leads to oxidation, chain scission,
reduction in molecular weight, embrittlement, degradation, flaking, pitting, and
cracking.” (Id. Ex. A at 3.) Both Drs. Priddy and Guelcher focus on the oxidative
properties of polypropylene and the tertiary bond cleavage, (id. Ex. A at 4 & Ex. C at
4), the foreign body reaction of the body in response to polypropylene implantation,
(id. Ex. A at 7 & Ex. C at 4), the problems with relying on antioxidants to stabilize
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the plastic, (id. Ex. A at 13 & Ex. C at 5), and the embrittlement of the mesh while
implanted, (id. Ex. A at 12 & Ex. C at 6).
In responding to the current motion Africano asserts that Dr. Guelcher’s five
contentions in his summary are all direct refutations of Dr. Spiegelberg’s central
thesis that polypropylene mesh is a safe biomaterial. (R. 199, Pl.’s Resp. at 2; see also
R. 204, Def.’s Reply at 3.) But Africano has not shown that Dr. Guelcher’s report
responds to any specific new arguments or evidence that Dr. Spiegelberg raised.
Specifically, Dr. Guelcher’s summary of opinions, (R. 193, Def.’s Mot. Ex. A at 3),
which Africano offers as evidence of rebuttal, (R. 199, Pl.’s Resp. at 3-4), does not
convey any new information not already covered by Dr. Priddy. In fact, in that
summary Dr. Guelcher describes his report as “an examination and assessment of
the polypropylene mesh utilized in the Atrium ProLite mesh device marketed for
hernia repair,” not as a rebuttal to Dr. Spiegelberg’s opinion.
(Id. Ex. A at 3.)
Dr. Guelcher’s report is not proper rebuttal, as it only supplements the arguments
already made in Dr. Priddy’s initial expert report. To allow Dr. Guelcher’s report
would effectively undermine the purpose of Rule 26(a)(2)(D)(ii), which is to give a
party the chance to respond to arguments raised by the opposition.
As to its second argument, Atrium contends that all of Dr. Guelcher’s opinions
go to the question of causation, a central element of Africano’s prima facie case. For
matters on which Africano bears the burden of proof, such opinions must be offered
in the initial expert reports, not in a rebuttal report. See Baldwin Graphic Sys., Inc.
v. Siebert, Inc., No. 03 CV 07713, 2005 WL 1300763, at *2 (N.D. Ill. Feb. 22, 2005);
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see also Braun v. Lorillard Inc., 84 F.3d 230, 237 (7th Cir. 1996) (“The plaintiff who
knows that the defendant means to contest an issue that is germane to the prima
facie case . . . must put in his evidence on the issue as part of his case in chief.”).
Nonetheless, “the mere fact that opinions offered in a rebuttal report touch upon the
same subjects covered in an initial expert report does not require that the rebuttal
report be stricken.”
Green v. Kubota Tractor Corp., No. 09 CV 7290, 2012 WL
1416465, at *5 (N.D. Ill. April 24, 2012); see also Lott v. ITW Food Equip. Group LLC,
10 CV 1686, 2013 WL 3728581, at *23 (N.D. Ill. July 15, 2013) (noting that if an
expert report could be stricken for such a reason, then vast amounts of otherwise
appropriate rebuttal could be excluded simply because the party failed to anticipate
an argument proffered by the defense). However, the rebuttal opinions must still add
something new to the discovery process and not merely bolster previous opinions. See
Noffsinger, 2011 WL 9795, at *6.
In distinguishable circumstances in Pantaleo, the proposed expert rebuttal
opinion was permitted, even though it could have been disclosed as part of the initial
expert reports. 2011 WL 2517265, at *1. The plaintiff there did not employ any
experts in support of his case-in-chief, but after the defendants submitted expert
reports on the standard of care, the plaintiff submitted rebuttal expert reports
addressing the defense experts’ reliance on the standard of care. Id. The plaintiff’s
rebuttal report responded to an affirmative defense—the medical standard of care—
for which the defendants had the burden of proof. Therefore, the rebuttal report was
the appropriate forum to refute those arguments. Id. at *2.
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Unlike the affirmative defense issue in Pantaleo, Africano admits that
Dr. Guelcher’s report only addresses Dr. Spiegelberg’s broad conclusion that
polypropylene mesh is a safe material. (R. 199, Pl.’s Resp. at 2; see also R. 204, Def.’s
Reply at 3.) The question of polypropylene’s safety for human implantation directly
relates to causation, a core element of Africano’s case that Dr. Priddy has already
addressed. Dr. Guelcher’s report focuses broadly on the matter of polypropylene’s
safety and, therefore, could and indeed should have been presented as an initial
expert report.
Without substantial justification or proof that the omission was
harmless, the failure to provide an expert report at the appropriate time results in
the report being barred. 2 See Fed. R. Civ. P. 37(c) (“If a party fails to provide
information or identify a witness as required by Rule 26(a) or (e), the party is not
allowed to use that information or witness to supply evidence on a motion, at a
hearing, or at a trial, unless the failure was substantially justified or is harmless.”);
McCann, 2016 WL 4593835, at *3. Dr. Guelcher does not respond to an affirmative
defense as the rebuttal report in Pantaleo did or offer a response to new arguments
that Africano did not anticipate, given that he repeats the arguments Dr. Priddy
offered in the initial expert report. Accordingly, Dr. Guelcher’s report is not a proper
rebuttal report.
See Nelson v. Ipalco Enters., Inc., No. IP02477CHK, 2005 WL
1924332, at *8 (S.D. Ind. Aug. 11, 2005) (striking expert report that plaintiff “tried to
In insisting that Dr. Guelcher’s report is proper rebuttal evidence, Africano fails to
address substantial justification or harmlessness under Rule 37(c).
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slip . . . in as supposed ‘rebuttal,’” noting “[s]uch tactics contribute to the length,
complexity, and expense of litigation”).
In circumstances where part of an expert’s report “constitutes improper
bolstering while other parts fairly respond to the conclusions of the opposing party’s
experts, the appropriate course is to limit the proposed rebuttal expert’s testimony
rather than striking it altogether.” Cage v. City of Chi., No. 09 CV 3078, 2012 WL
5557410, at *2 (N.D. Ill. Nov. 14, 2012); Noffsinger, 2011 WL 9795, at *7. Thus, were
Dr. Guelcher’s report to respond to Dr. Spiegelberg’s conclusions by challenging his
methodology or evidence, those portions of rebuttal would be permissible.
See
Noffsinger, 2011 WL 9795, at *7 (permitting the portion of the expert report that
“reviewed and critiqued the reports of defendants’ experts [by] challenging their
methodology and the evidence on which they relied”). However, Africano has not
identified any selection of the report that could be salvaged as rebuttal, and because
Dr. Guelcher’s report nowhere directly contradicts Dr. Spiegelberg’s methods or
opinions, this court does not see an avenue to selectively allow parts of Dr. Guelcher’s
report.
In other clashes over rebuttal reports the court has pointed out how advisable
it is for rebuttal experts to clearly identify what contentions they are contradicting or
refuting. Ernst v. City of Chi., No. 08 CV 04370, 2013 WL 4804837 at *3 (N.D. Ill.
Sept. 9, 2013) (“If an expert truly were to respond to another expert’s report, the
obvious thing to do—and the most useful thing for a jury or a judge—would be to
address that expert’s points, either in sequence or by identifying them and critiquing
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them.”). For example, the rebuttal expert report provided by Dr. Sylvestre follows
this technique, and Atrium has not moved to strike it as an improper rebuttal.
(R. 193, Def.’s Mot. at 3-4 & Ex. B.) While this structured approach to identifying the
object of rebuttal is not legally required, its absence “requires painstaking comparison
and scrutiny from the judge” as well as “contortions” by the presenting party to try to
“rehabilitate and explain” the report. Ernst, 2013 WL 4804837, at *4. Here, that lack
of structure has resulted in the predicted expenditures of the court’s and the parties’
energies, but when all is said and done, the court concludes that Dr. Guelcher’s report
does not comply with the court’s discovery orders, (R. 181; R. 185), and does not
qualify as a proper rebuttal opinion.
Conclusion
For the foregoing reasons, Atrium’s motion to strike is granted.
ENTER:
____________________________________
Young B. Kim
United States Magistrate Judge
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