Sims v. Bayer Corporation et al

Filing 281

ORDER Regarding Deposition and Trial Testimony of Dr. Vikram Rao. Signed by Chief Judge David R. Herndon on 12/30/2011. (dsw)

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

ORDER
Plaintiff’s Motion for a Protective Order
Regarding Dr. Vikram Rao
Herndon, Chief Judge:
This matter is before the Court on plaintiff’s motion for a protective order
pursuant to Case Management Order Number 26. 1 Plaintiff asks the Court for a
protective order precluding defendant from taking the deposition of Dr. Vikram Rao and
from calling him to testify at trial. Dr. Rao is the radiologist from St. John’s Mercy
Medical Center, who interpreted a chest X-Ray of Kerry Sims on July 16, 2008, two days
before her first admission on July 18, 2008 when she was diagnosed with an acute leftsided pulmonary embolism.
The July 18, 2008 X-Ray report, presumably authored by Dr. Rao, was the
subject of plaintiff’s motion in limine Number 7 (Sims Doc. 144). Plaintiff’s motion in
limine Number 7 related to the admissibility of a statement contained in the X-Ray
1

Plaintiff submitted her motion via email to the Court on December 30, 2011.

report. The Court granted plaintiff’s motion in limine, concluding that the disputed
statement lacked sufficient trustworthiness and that it would be speculation to conclude
that the plaintiff was the source of the disputed statement (Sims Doc. 262).
On December 20, 2011, after the hearing addressing the parties’ motions in
limine, defendant added Dr. Rao to their witness list. On December 21, 2011
defendants served a notice of deposition for Dr. Rao with the deposition to be conducted
on January 3, 2012. Bayer states that the purpose of the deposition is to lay the
foundation for the statement in the July 18, 2008 X-Ray report.
Plaintiff contends that the deposition notice and the addition of Dr. Rao to
defendant’s witness list is untimely – discovery has been closed for months and
pursuant to Case Management Order Number 43 (CMO 43) defendant was required to
serve witness lists in the Sims case by November 21, 2011 (Doc. 2049). Plaintiff argues
that defendant has known about this record for months and should have laid a proper
foundation while discovery remained open. Further, plaintiff argues that the scheduling
of a deposition on January 3, 2012, when trial is set to begin on January 9, 2012, will
be unduly prejudicial because “the parties will be fully engaged in pretrial preparations,
preparing for jury selection and opening statements, and be otherwise engaged in getting
ready for a trial that starts six days later.” Letter to the Court from Roger Denton
December 30, 2011. Defendant responds, arguing that it reasonably believed the
affidavit of the custodian of records sufficiently laid a foundation for the disputed
statement. Defendant contends that it did not realize there would be a foundational

issue with regard to the disputed statement until plaintiff filed her motion in limine and
until that motion was granted by the Court.
The Court takes special note of plaintiff’s arguments regarding the importance of
deadlines and undue prejudice – especially in light of the untimely deposition notice
recently filed by the plaintiff. 2 The Court agrees that it would be prejudicial and
inappropriate to allow either party to pursue a deposition shortly before or during trial,
after the close of discovery, and/or in violation of this Court’s case management orders.
Discovery in this case has been closed for months, defendant’s witness list was due on
November 21, 2011, and trial is set to begin in days. Clearly, defendant’s deposition
notice and its attempt to supplement its witness list are untimely.
Further, allowing the deposition to proceed and/or allowing Dr. Rao to testify at
trial would directly contradict the provisions set forth in CMO 43. CMO 43 provides
that “[w]itnesses not included on a party’s witness list shall not be called at trial absent
agreement of the parties or a showing of good cause as to why the witness was not
included on the witness list.” Id. ¶ 3. Obviously the parties are not in agreement and
defendant’s contention that it did not know the foundation of this statement would be in
issue does not constitute good cause.
The fact that defendant “reserve[ed] the right to call any witness necessary to
authenticate, lay foundation, and/or establish the admissibility of any exhibits” does not
alter the Court’s ruling. Defendant was required to identify, by name, every fact and

2

Plaintiff served a deposition on a third-party on December 22, 2011, with a
return date of December 28, 2011 – related to documents the plaintiff has known
about for months. The Court is scheduled to hear the parties’ arguments with
regard to this untimely deposition on January 10, 2012.

expert witness whom it intended to call at trial; it is not sufficient to say that defendant
“reserves the right to call” unidentified witnesses. See FEDERAL RULE OF CIVIL
PROCEDURE 26(a)(3)(A); CMO 43 Doc. 2049.
Under the circumstances present here, the Court concludes that defendant’s
failure to timely and sufficiently identify Dr. Rao as a witness precludes defendant from
using Dr. Rao to supply evidence at trial. See Federal Rule of Civil Procedure 37(c)(1)
(“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.”). See also CMO 43 Doc. 2049. Further, defendant’s attempt to take Dr.
Rao’s deposition at this late hour is untimely and inappropriate. Accordingly, plaintiff’s
motion for a protective order is granted; the deposition of Dr. Rao is quashed and
defendant may not call Dr. Rao to offer testimony at trial.

SO ORDERED

David R. Herndon
2011.12.30
14:00:39 -06'00'
Chief Judge
United States District Court

Date: December 30, 2011