Stephenson et al v. Wyeth et al
Filing
138
MEMORANDUM AND ORDER denying as moot 95 Motion by Defendants Wyeth LLC and Pfizer Inc. to Exclude Testimony of Plaintiff's Expert, Dr. Michael Wertheimer; granting 109 Plaintiff's Motion for Leave to Substitute Expert Witnesses; denying 122 Defendants' Motion to Reopen Discovery for a Limited Purpose. Signed by District Judge Carlos Murguia on 9/29/2011. (jw)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
CAROLE STEPHENSON, et al.,
Plaintiffs,
v.
WYETH LLC, et al.,
Defendants.
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Case No. 04-2312-CM
MEMORANDUM AND ORDER
This case is a failure-to-warn products liability action. Plaintiff Carole Stephenson claims that
she developed ductal carcinoma in situ (“DCIS”) in her right breast as a result of taking prescription
hormone therapy medications manufactured by defendants Wyeth LLC and Pfizer Inc. The case is
specially set as the court’s No. 1 civil case on January 9, 2012, and is expected to be a three-week trial.
The parties have filed a number of Daubert motions, as well as other motions regarding the scope of
the case. This matter is presently before the court on three related motions: (1) Defendants’ Motion to
Reopen Discovery for a Limited Purpose (Doc. 122); (2) Plaintiff’s Motion for Leave to Substitute
Expert Witnesses (Doc. 109); and (3) Motion by Defendants Wyeth LLC and Pfizer Inc. to Exclude the
Testimony of Plaintiff’s Expert, Dr. Michael Wertheimer (Doc. 95).
All three motions relate to one of plaintiff’s experts, Dr. Michael Wertheimer. Dr. Wertheimer
is plaintiff’s causation expert. On July 19, 2011, Dr. Wertheimer indicated that he was no longer
interested in serving as an expert in hormone replacement therapy cases. He specifically confirmed
that he no longer would serve as an expert in this case on July 21, 2011. Prior to Dr. Wertheimer’s
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announcement, defendants had moved to exclude his expert testimony from trial. After receiving
notice from Dr. Wertheimer of his desire to withdraw, plaintiff filed her motion for leave to substitute
expert witnesses. Plaintiff asks the court to allow her to de-designate Dr. Wertheimer as a testifying
expert and to designate Dr. Elizabeth Naftalis as her causation expert.
I.
Defendants’ Motion to Reopen Discovery
The court has discretion whether to reopen discovery. In exercising this discretion, the court
may consider “(1) whether trial is imminent, (2) whether the request is opposed, (3) whether the nonmoving party would be prejudiced, (4) whether the moving party was diligent in obtaining discovery
within the guidelines established by the court, (5) the forseeability of the need for additional discovery
in light of the time allowed for discovery by the district court, and (6) the likelihood that the discovery
will lead to relevant evidence.” Sloan v. Overton, No. 08-2571-JAR-DJW, 2010 WL 5476726, at *2
(D. Kan. Dec. 30, 2010) (citing Smith v. United States, 834 F.2d 166, 169 (10th Cir. 1987)).
Many of the factors weigh in favor of allowing the discovery. In this case, the trial is not
imminent, although it is only months away. It does not appear that plaintiff would be significantly
prejudiced, and the request does not reflect poorly on defendants’ diligence. Moreover, it is unlikely
that additional discovery would be required. But plaintiff opposes the motion, and defendants seek
discovery that is protected by the attorney work product doctrine, as will be explained below. These
factors weigh against reopening discovery and, in the end, tip the scales in favor of plaintiff.
The crux of the matter is whether the documents that defendants want are protected by the work
product doctrine. The court reviewed the documents submitted by plaintiff in camera.
Communications between an attorney and his or her expert are protected as work product. Fed. R. Civ.
P. 26(b)(4)(C). Defendants claim that Dr. Wertheimer is no longer an expert, making the emails
between him and plaintiff’s attorney discoverable. The court disagrees. Plaintiff has not yet formally
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taken Dr. Wertheimer off her expert list. If the court denies plaintiff’s motion to substitute, plaintiff
wants to retain the option to read Dr. Wertheimer’s deposition. The court believes that Dr. Wertheimer
should still be treated as plaintiff’s expert for the purposes of evaluating whether emails exchanged
before the date of this order are discoverable.
The court also does not believe that plaintiff has waived work product protection by reading
defense counsel the initial emails and submitting a copy of them as an attachment to her filings. Fed.
R. Evid. 502(a) provides that the protection is waived as to undisclosed communications if “(1) the
waiver is intentional; (2) the disclosed and undisclosed communications or information concern the
same subject matter; and (3) they ought in fairness to be considered together.” Plaintiff produced
communications indicating that Dr. Wertheimer wishes to withdraw from the case. Other
communications regarding possible substitute experts are of a different subject matter and need not be
considered in conjunction with the communication indicating Dr. Wertheimer’s desire to withdraw.
When plaintiff’s attorney disclosed the communication to defense counsel, she represents that she did
so with the verbal understanding that she would not be waiving any privilege claims. The court
accepts this representation and declines to find that plaintiff waived the work product privilege.
Because the discovery sought is protected by the work product doctrine, the court determines
that it is inappropriate to reopen discovery. Defendants’ motion is therefore denied.
II.
Plaintiff’s Motion to Substitute
To allow plaintiff to substitute experts, the court must evaluate whether to modify the court’s
scheduling order and pretrial order. The court may modify the scheduling order for good cause and the
pretrial order to prevent manifest injustice. Fed. R. Civ. P. 16(b)–(c). Plaintiff notified the court in a
timely manner after learning that Dr. Wertheimer no longer intended to participate. It does not appear
that plaintiff’s counsel was involved in Dr. Wertheimer’s decision—and it would be improper to
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punish plaintiff for a change in circumstances beyond her control. The court finds that plaintiff has
shown good cause to modify the scheduling order, which has been superseded by the pretrial order in
any event.
As for modification of the pretrial order, Local Rule 16.2 states that the pretrial order, when
approved by the court and filed with the clerk, “controls the subsequent course of the action.” D. Kan.
R. 16.2(c). The rule allows modification of a pretrial order “(1) by consent of the parties and court; or
(2) an order of the court to prevent manifest injustice.” Id. The party moving for modification bears
the burden of demonstrating manifest injustice. Wilson v. Sedgwick Cnty. Bd. of Cnty. Comm’rs, No.
05-1210-MLB, 2006 WL 2850326, at *5 (D. Kan. Oct. 3, 2006) (citing Koch v. Koch Indus., Inc., 203
F.3d 1202, 1222 (10th Cir. 2000)). Because defendants do not consent to plaintiff’s proposed
amendments, the court turns to whether plaintiff can establish manifest injustice.
When considering whether a party has demonstrated manifest injustice, a court considers four
factors: “(1) prejudice or surprise to the party opposing trial of the issue; (2) the ability of that party to
cure any prejudice; (3) disruption to the orderly and efficient trial of the case by inclusion of the new
issue; and (4) bad faith by the party seeking to modify the order.” Id. (quoting Koch, 203 F.3d at
1222). Additionally, courts consider the timing of when the party knew of the potential need for
modification. See id. (“[I]f the evidence or issue was within the knowledge of the party seeking
modification of the pretrial order at the time of the pretrial conference then [modification] may not be
allowed.”) (quoting Koch, 203 F.3d at 1217); Tuttle v. Eats & Treats Operations, Inc., No. 03-4139RDR, 2005 WL 2704957, at *2 (D. Kan. Aug. 8, 2005) (“[D]efendant could have raised this issue
much earlier in this litigation without impacting the trial schedule.”); Sunflower Elec. Power Corp. v.
Clyde Bergemann, Inc., No. 04-1003-WEB, 2005 WL 1842754, at *14 (D. Kan. Aug. 3, 2005)
(allowing a party to modify the pretrial order because the issues would be identical, but noting that “no
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trial date has been set; consequently any prejudice or surprise suffered by Defendant can be
ameliorated by allowing further time for discovery”).
First, defendants will not be unduly prejudiced by allowing plaintiff to substitute an expert.
This case is not set for trial until January 2012, and defendants will have ample time to depose a new
expert and file any appropriate motions. Moreover, defendants are familiar with the testimony of Dr.
Naftalis in other hormone replacement therapy cases and will likely not be surprised by her testimony
in this case.
Second, for substantially the same reasons just given, defendants should easily be able to cure
any prejudice.
Third, trial will not be interrupted—or likely even delayed—by allowing plaintiff to substitute
an expert.
Fourth, plaintiff’s actions appear to be in good faith. Dr. Wertheimer elected to terminate his
relationship with plaintiff. The decision was out of plaintiff’s control, and plaintiff acted quickly in
making efforts to address the situation.
After considering all of the factors for modifying a pretrial order, the court determines that
modification is warranted to allow plaintiff to substitute Dr. Naftalis for Dr. Wertherimer as her
causation expert. The parties should work to schedule discovery promptly. The court directs them to
discuss the extent of any discovery and attempt to agree on a schedule for production and/or
deposition. To the extent that they are unable to agree, the parties should jointly contact Judge
O’Hara’s chambers for scheduling on or before October 3, 2011. Any motion challenging the
admissibility of the expert testimony of Dr. Naftalis is due on or before November 1, 2011.
III.
Defendants’ Motion to Exclude
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Because the court has ruled that plaintiff may substitute experts, defendants’ motion to exclude
the testimony of Dr. Wertheimer is moot. The court denies it as such. Defendants may, however, file
a similar motion regarding Dr. Naftalis.
IT IS THEREFORE ORDERED that Defendants’ Motion to Reopen Discovery for a Limited
Purpose (Doc. 122) is denied.
IT IS FURTHER ORDERED that Plaintiff’s Motion for Leave to Substitute Expert
Witnesses (Doc. 109) is granted.
IT IS FURTHER ORDERED that Motion by Defendants Wyeth LLC and Pfizer Inc. to
Exclude the Testimony of Plaintiff’s Expert, Dr. Michael Wertheimer (Doc. 95) is denied as moot.
Dated this 29th day of September, 2011, at Kansas City, Kansas.
s/ Carlos Murguia
CARLOS MURGUIA
United States District Judge
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