Sims v. Bayer Corporation et al

Filing 263

Order sustaining defendants' objection to Dr. Botney's supplemental report. Signed by Chief Judge David R. Herndon on 12/23/2011. (msdi)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF ILLINOIS

IN RE: YASMIN AND YAZ
(DROSPIRENONE) MARKETING, SALES
PRACTICES AND PRODUCTS LIABILITY
LITIGATION

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3:09-md-02100-DRH-PMF
MDL No. 2100

This Document Relates to: Kerry Sims v. Bayer Corp., et al., No. 3:09-cv10012-DRH-PMF

MEMORANDUM AND ORDER
Plaintiff submitted a supplemental report from Dr. Botney on December 21,
2011 (a report dated December 16, 2011). The report purports to rebut the
deposition testimony of defendant expert Dr. Waxman.
The defendant argues, in essence, that the supplemental report is out of
time, opines on matters that are not rebuttal and were known prior to the
Waxman deposition, opines on x-ray and CT reports that were not discussed in
Botney’s expert report or deposition – constituting unfair surprise, and will result
in a new series of experts and depositions; all on the eve of trial virtually.
The plaintiff counters, essentially, that the opinions expressed in the
supplemental report are completely in keeping with expert’s prior opinions, yet is
necessary to avoid the jury being confused that Dr. Botney actually agrees with Dr.
Waxman regarding the issue of a second PE as diagnosed on the July 24, 2008
CT. Further, plaintiff argues that it is not technically out of time because although
the supplementation discussed on November 29th was primarily designed for any
changes that might result from the Advisory Committee, it was not actually limited
to that expressly.
The Court finds that the supplementation approved on November 29, 2011
was for Advisory Committee issues only and this effort is untimely. If either party
wishes to make an effort at supplementation of expert witnesses, expert witness
reports, or any exchange of information beyond a deadline, without the express

written agreement of the other party, leave of court must first be obtained. In this
instance, the Court would not have granted that leave. The fears expressed by the
plaintiff are unfounded with respect to any confusion that one might feel there is
agreement between these two experts. Having said that, much of the
supplemental report is spent discussing x-ray reports and CT scans that could
have been discussed in Dr. Botney’s original report. He only discussed one of
those. A supplemental report late in the litigation, insofar as this individual
plaintiff is concerned, is hardly the time to do that.
The Defendant’s objection to the supplemental report is sustained.
IT IS SO ORDERED.
This 23rd day of December, 2011.

David R. Herndon
2011.12.23
13:22:28 -06'00'
CHIEF JUDGE
UNITED STATES DISTRICT COURT