Kaiser et al v. Johnson & Johnson et al
OPINION AND ORDER: GRANTING 196 MOTION Strike Supplemental Rule 26 Expert Report re 194 Discovery, 195 Notice (Other) Motion to Strike Supplemental Case Specific Rule 26 Expert Report of Bruce Rosenzweig, M.D. by Defendants Ethicon Inc, Johnson & Johnson and Dr. Rosenzweig's Supplemental Expert Report, 194 , is STRICKEN. Signed by Judge Philip P Simon on 11/13/2017. (lhc) Modified on 11/14/2017, per chambers to correct stricken docket entry from 94 to 194 (lhc).
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
BARBARA KAISER and
JOHNSON & JOHNSON and
CAUSE NO. 2:17-CV-114-PPS-JEM
OPINION AND ORDER
Defendants Ethicon, Inc. and Johnson and Johnson (collectively “Ethicon”) seek
to preclude supplemental opinions of plaintiffs Barbara and Anton Kaiser’s expert,
Bruce Rosenzweig, M.D., claiming their disclosure was tardy. [DE 196] The
supplemental opinions are not new. Indeed, the Kaisers tell me that Dr. Rosenzweig
knew about them long ago. Yet the Kaisers have not provided me any explanation for
their dilatory disclosure. Dr. Rosenzweig’s supplemental opinions will, therefore, be
barred from this case.
Let’s start with some background. This action was filed on March 28, 2012 and
was part of a MDL in the Southern District of West Virginia. [DE 1.] The MDL Court
transferred the case to this Court on February 22, 2017 after discovery and dispositive
and Daubert motion practice were complete. [DE 157.] On August 8, 2017, the Kaisers
filed with the Court a Supplemental Case Specific Rule 26 Expert Report of Bruce
Rosenzweig, M.D. [DE 194.] As a matter of course, discovery, including expert reports,
is not to be filed with the Court, but perhaps the Kaisers chose to do so in anticipation of
the conflict to come.
Before transfer to this Court, the MDL Court imposed a deadline of February 1,
2016 for Plaintiffs to disclose their experts. Plaintiffs disclosed the case-specific report
of Dr. Rosenzweig a week late but no one seems to have squawked about it. On March
11, 2016, Ethicon took the deposition of Dr. Rosenzweig, and on April 1, 2016, discovery
closed. Daubert motions were filed twenty days later. The Plaintiffs do not challenge
this timeline. On August 8, 2017, approximately a year and a half after the MDL Court’s
deadline, the Kaisers filed a supplemental case-specific report of Dr. Rosenzweig. The
parties agree that the supplemental report is identical to Dr. Rosenzweig’s original
report except that it sets forth a number of additional opinions about “safe alternative
Ethicon moves to strike the supplemental report as untimely, unjustified, and
prejudicial to Ethicon. [DE 197.] The Kaisers have three responses. First, they tell me
the opinions were already disclosed because Dr. Rosenzweig generally adopted the
opinions of another expert, Dr. Daniel Elliot. Second, they say there’s no harm here
because Dr. Rosenzweig’s opinion on safer alternative designs was disclosed in two
different Prolift cases. In other words, according to the Kaisers, Ethicon was well aware
of the opinions. [DE 201 at 3-9.] Finally, the Kaisers argue that the supplemental report
should be allowed because Federal Rule of Civil Procedure 26 permits this kind of
supplementation in a “timely manner.” [Id. at 9-11.]
Expert reports are governed by Federal Rule of Civil Procedure 26, which
requires that a party disclose the identity of any expert witness it intends to use at trial
and to submit a written report prepared and signed by that expert. NutraSweet Co. v.
X-L Eng’g Co., 227 F.3d 776, 785 (7th Cir. 2000). This disclosure must be made at the
time the court orders or as stipulated to by the parties. Fed. R. Civ. P. 26(a)(2)(D). The
written expert report must contain, in relevant part: “(i) a complete statement of all
opinions the witness will express and the basis and reasons for them; (ii) facts or data
considered by the witness in forming them; [and] (iii) any exhibits that will be used to
summarize or support them.” Fed. R. Civ. P. 26(a)(2)(B)(i-iii). A party who has
disclosed such an expert report “must supplement or correct its disclosure . . . in a
timely manner if the party learns that in some material respect the disclosure . . . is
incomplete or incorrect.” Fed. R. Civ. P. 26(e)(1)(A). These rules are primarily designed
to remove surprise from the process and to allow for adequate trial preparation.
Spearman Indus., Inc. v. St. Paul Fire & Marine Ins. Co., 138 F. Supp. 2d 1088, 1093-94
(N.D. Ill. 2001) (citing Sherrod v. Lingle, 223 F.3d 605, 613 (7th Cir. 2000)).
Rule 26 is enforced through Rule 37 which provides that a failure to abide by
Rule 26 prevents use of the information at trial, “unless the failure was substantially
justified or is harmless.” Fed. R. Civ. P. 37(c)(1). The determination of whether the
failure to disclose new expert opinions is “harmless or justified is left to the broad
discretion of the district court.” Westefer v. Snyder, 422 F.3d 570, 584 n.21 (7th Cir. 2005).
While the Court need not make explicit findings when determining if the failure was
substantially justified or harmless, the Court is guided by four factors: “(1) the
prejudice or surprise to the party against whom the evidence is offered; (2) the ability of
the party to cure the prejudice; (3) the likelihood of disruption to the trial; and (4) the
bad faith or willfulness involved in not disclosing the evidence at an earlier date.”
Tribble v. Evangelides, 670 F.3d 753, 670 (7th Cir. 2012).
I will start by noting that in the Kaisers’ response to Ethicon’s motion, they
provide absolutely no explanation as to why they neglected to notify Ethicon of Dr.
Rosenzweig’s new opinions before the expert disclosure deadline set by the MDL Court
and before Ethicon deposed Dr. Rosenzweig. In fact, two of the arguments that the
Kaisers make in their response brief actually highlight the fact that the supplement was
not made in a timely matter and indicate their potential willfulness in not disclosing the
evidence at an earlier date. Specifically, they demonstrate that, at the time he filed his
initial report, Dr. Rosenzweig had the relevant information regarding safer alternative
designs and could have proffered his “new” opinions. However, for some reason, he
neglected to do so, and then waited a year and a half after the expert disclosure
deadline to attempt to remedy his error. Perhaps this delay was out of fear that the
MDL Court would not allow expert reports to be supplemented and in hopes that given
my fresh perspective on the case, I might be more lax. Regardless, given that Dr.
Rosenzweig had the relevant information a year and a half prior to attempting to
supplement his report, his supplementation certainly was not done in a “timely
manner” pursuant to Rule 26.
The Kaisers make several arguments as to why Dr. Rosenzweig’s failure to
comply with the requirements of Rule 26 was either justified or harmless. First, they
argue that because, in his initial report, Dr. Rosenzweig stated the he “reviewed, relied
upon and independently verified the MDL Prolift Expert Report of Dr. Daniel Elliot,” a
general causation expert, the supplemental disclosure simply gives Ethicon notice of
more specific opinions by Dr. Rosenzweig. [DE 201 at 3-7.] Dr. Rosenzweig, however,
did not assert that he was adopting Dr. Elliot’s opinions; nor could he. But that is of no
matter because if Dr. Rosenzweig reviewed Dr. Elliot’s opinions on feasible alternative
designs and believed that they applied to Mrs. Kaiser’s specific case, he could have
specifically included them in his initial report back when it was first filed. Clearly he
knew about Dr. Elliot’s opinions regarding feasible alternative designs. But for
whatever reason he did not include those opinions in his report. This leads me to
believe Dr. Rosenzweig’s decision not to include these opinions about safer alternative
design in his initial report was a conscious one, thus making the later tardy disclosure,
at least in part, willful.
The Kaisers also argue that Ethicon was on notice of Dr. Rosenzweig’s opinions
on safer alternative design before the supplemental report was filed because Dr.
Rosenzweig offered them in a January 2017 report in another case and gave deposition
testimony regarding them in July 2015 in yet another case. This strikes me as a rather
expansive reading of what constitutes adequate disclosure. Surely not all Prolift cases
are alike. Safer design alternatives may be pertinent in one case; not in another. In all
events, what this tells me is that Dr. Rosenzweig could have included these opinions in
his February 8, 2016 report in this action but, for whatever reason, chose not to. It seems
disingenuous to argue that Ethicon was on notice of these opinions because they were
asserted in the past in other actions, when Dr. Rosenzweig did not include them in his
report in this action and put Ethicon on notice when he clearly was able to do so. Again,
the omission appears to be willful. And even if the omission was, at least initially,
accidental, surely the Kaisers and Dr. Rosenzweig could have attempted to remedy it at
a much earlier date instead of a year and a half later, when the case is only months
away from trial.
What’s more, Ethicon would be prejudiced if Dr. Rosenzweig is permitted to
supplement his opinion at this late date in the action, more than eighteen months after
the expert disclosure deadline and more than sixteen months after the close of
discovery, with the February 26, 2018 trial date rapidly approaching. Ethicon did not
have an opportunity to address these new opinions with Dr. Rosenzweig during his
deposition, respond to these opinions through disclosures of Ethicon’s experts, or to
challenge these opinions in a Daubert motion. If I were to permit supplementation of
Dr. Rosenzweig’s report, Ethicon would need to be permitted to depose Dr.
Rosenzweig, amend its expert reports to respond to the new evidence, file an additional
Daubert motion, and potentially be required to produce their experts to be deposed
again. This would almost assuredly jeopardize the trial date.
In summary, the MDL Court set very clear expert disclosure and discovery
deadlines and the Kaisers’ own response brief highlights the fact that Dr. Rosenzweig
could have offered his opinions on safer alternative designs before those deadlines, yet
failed to do so. Furthermore, the Kaisers neglected to move to supplement Dr.
Rosenzweig’s report while this case was before the MDL Court. Rather, they now ask
me to ignore the law of the case as established by the MDL Court and allow them to
supplement with information that was known prior to the initial deadlines. They have
failed to give me an adequate reason to do so. Dr. Rosenzweig’s supplemental report
was filed in violation of the deadline for expert disclosures, his attempt at
supplementation was not done in a timely manner pursuant to Rule 26, and his
violation of Rule 26 is not harmless or substantially justified. As such, the supplemental
report is stricken.
Defendants Ethicon, Inc. and Johnson and Johnson’s Motion to Strike
Supplemental Case Specific Rule 26 Expert Report of Bruce Rosenzweig, M.D., DE 196,
is GRANTED and Dr. Rosenzweig’s Supplemental Expert Report, DE 94, is
ENTERED: November 13, 2017.
_s/ Philip P. Simon
PHILIP P. SIMON, JUDGE
UNITED STATES DISTRICT COURT
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