Avendt et al v. Covidien Inc.

Filing 103

ORDER Entered 99 Motion Plaintiffs' Motion for Clarification of Scheduling Order - Signed by Magistrate Judge Mona K. Majzoub. (LBar)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

ROBERT AND KAROL AVENDT,
Plaintiffs,

CIVIL ACTION NO. 11-cv-15538

v.

DISTRICT JUDGE PAUL D. BORMAN

COVIDIEN INC.,

MAGISTRATE JUDGE MONA K. MAJZOUB

Defendant.
_______________________________/

OPINION AND ORDER REGARDING PLAINTIFFS’ MOTION FOR
CLARIFICATION OF SCHEDULING ORDER [99]
This matter comes before the Court on Plaintiffs Robert and Karol Avendt’s Motion for
Clarification of Scheduling Order. (Docket no. 99.) Defendant Covidien, Inc. responded to
Plaintiffs’ Motion. (Docket no. 100.) The Motion has been referred to the undersigned for
consideration. (Docket no. 101.) The undersigned has reviewed the pleadings and dispenses
with oral argument pursuant to Eastern District of Michigan Local Rule 7.1(f)(2). The Court is
now ready to rule pursuant to 28 U.S.C. § 636(b)(1)(A).
I.

Background
Plaintiffs filed this action against Defendant on November 21, 2011 in the Genesee

County Circuit Court. (Docket no. 1, ex. A.) Defendant removed the action to this Court on
December 19, 2011. (Docket no. 1.) The Complaint raises claims of Products Liability (Count
I) and Loss of Consortium (Count II) for injuries that allegedly resulted from the implantation of
Permacol surgical mesh during an abdominal wall surgery. (See docket no. 1, ex. A.) In the
parties’ January 23, 2012 joint Discovery Plan, they agreed that Plaintiffs’ expert disclosures

would be due on October 15, 2012, and that Defendant’s expert disclosures would be due on
November 15, 2012. (Docket no. 6 at 2.) Through multiple extensions of the deadlines in the
Court’s Scheduling Order, Plaintiffs’ and Defendant’s expert disclosure deadlines were extended
to June 17, 2013, and July 17, 2013, respectively. (Docket no. 32.)
On June 17, 2013, Plaintiffs identified two economic damages experts, Dr. Robert Ancell
and David Hammel, and exchanged expert reports. (Docket no. 42-4.) Defendant disclosed its
experts on July 17, 2013. (Docket no. 100 at 5.) Also on July 17, 2013, Plaintiffs served a copy
of a supplemental expert disclosure identifying Dr. Michael J. Rosen, one of Plaintiffs’ treating
physicians, as an expert. (Docket no. 42-5.) Plaintiffs served another supplemental expert
disclosure identifying Dr. Guy Voeller as an expert on July 29, 2013. (Docket no. 42-6.)
Defendant then filed a motion to strike Plaintiffs’ supplemental expert disclosures as untimely
and improper. (Docket no. 42.) The Court denied Defendant’s motion, finding that Plaintiffs’
failure to meet the expert disclosure deadline was substantially justified, and modified the
Scheduling Order, extending the deadline for Plaintiffs’ supplemental expert reports to February
21, 2014. (Docket nos. 75 and 76.)
Plaintiffs submitted supplemental expert disclosures for Drs. Rosen and Voeller on
February 21, 2014. (Docket nos. 87-3 and 87-4.) On February 28, 2014, Plaintiffs filed a
Motion for Leave to File First Amended Complaint. (Docket no. 78.) On April 9, 2014,
Defendant filed a Motion to Strike Plaintiffs’ Second Supplemental Expert Disclosure and the
Supplemental Expert Report of Dr. Guy Voeller for failure to comply with Federal Rule of Civil
Procedure 26. (Docket no. 87.) The Court then vacated the deadlines in its March 11, 2014
Scheduling Order (docket no. 81) and declared that upon resolution of the pending motions, the
Court would set a scheduling conference to set the remaining deadlines in this action. (Docket

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no. 89.) The Court denied Plaintiffs’ Motion for Leave to File First Amended Complaint on
September 11, 2014. (Docket no. 94.) And in a December 20, 2014 Opinion and Order, the
Court granted Defendant’s Motion to Strike with regard to Dr. Voeller and denied Defendant’s
Motion with regard to Dr. Rosen. (Docket no. 95.)
Thereafter, as requested by the Court, Defendant submitted a proposed scheduling order
to Plaintiffs, which establishes new deadlines for the items listed in the Court’s March 11, 2014
Scheduling Order. (Docket no. 100 at 6.) These items are:






Depositions of Plaintiffs’ Experts;
Defendant’s Rebuttal Expert Disclosures;
Depositions of Defendant’s Experts;
Closing Date for Expert Discovery; and
Dispositive Motions.

(Docket no. 81.) Plaintiffs seek to add a deadline to the Scheduling Order for submitting their
own rebuttal expert disclosures after the depositions of Defendant’s experts are complete;
Defendant objects to Plaintiffs’ proposal. As requested by the Court at a Scheduling Conference
held on March 17, 2015, the parties have submitted briefs to the Court, which set forth their
respective positions and legal arguments on the issue. (Docket nos. 99 and 100.) This matter is
currently pending before the Court.
II.

Governing Law
Federal Rule of Civil Procedure 26(a)(2) governs the disclosure of expert testimony.

Generally, a party is required to disclose the identity of any witness it may use at trial to present
evidence under Federal Rule of Evidence 702, 703, or 705. Fed. R. Civ. P. 26(a)(2)(A). These
disclosures must occur at the times and in the sequence that the court orders. Fed. R. Civ. P.
26(a)(2)(D). In the absence of a stipulation or court order, the disclosures must be made at least
ninety days before the trial date or the date the case is to be ready for trial. Fed. R. Civ. P.

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26(a)(2)(D)(i). If the expert testimony is intended solely to rebut evidence on the same subject
matter identified by another party, the disclosure must be made within 30 days after the other
party’s disclosure. Fed. R. Civ. P. 26(a)(2)(D)(ii). Additionally, these disclosures must be
supplemented when required under Rule 26(e). Fed. R. Civ. P. 26(a)(2)(E). The party’s duty to
supplement extends to information included in the expert report and to information given during
the expert’s deposition. Fed. R. Civ. P. 26(e)(2). Any additions or changes are required to be
made by the time the party’s pretrial disclosures under Rule 26(a)(3) are due. Fed. R. Civ. P.
26(e)(2).
Federal Rule of Civil Procedure 37(c) provides for sanctions for failing to disclose or
supplement an earlier disclosure. “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.”

Fed. R. Civ. P. 37(c)(1).

This sanction has been described as

“automatic” in order to provide a strong inducement for disclosure of material. Vaughn v.
HomeGoods, Inc., No. 07-CV-15085, 2008 WL 4239505, at *3 (E.D. Mich. Sept. 11, 2008).
The exceptions for “harmless” or “substantially justified” failures to disclose are meant to avert
the harshness of the sanction. Id. The “harmless” requirement is independent of the prejudice
caused to the opposing party, and instead applies when the party makes an inadvertent or honest
mistake and the opposing party has sufficient knowledge of the expert or of his opinions. See
Sommer v. Davis, 317 F.3d 686, 692 (6th Cir. 2003).
III.

Analysis
Plaintiffs assert that they are entitled to submit rebuttal expert disclosures within the 30-

day period following Defendant’s experts’ disclosures in their depositions even though such a

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disclosure was not contemplated in previous scheduling orders because “it only seems prudent to
allow both parties the same opportunity to rebut the opposing expert(s)’ testimony.” (Docket no.
99 at 3, 7.) Plaintiffs elaborate that their request comports with Rule 26(a)(2)(D)(ii) and that
neither party will suffer prejudice if it is granted. (Id. at 7.) Defendant asserts that Plaintiffs
should not be permitted to insert a deadline for rebuttal expert disclosures into the scheduling
order because such a deadline was not contemplated in any prior scheduling order, and Plaintiffs’
request comes a year and a half after the deadline for rebuttal expert disclosures under Rule
26(a)(2)(D)(ii). (Docket no. 100 at 1, 4, 5.) Defendant adds that granting Plaintiffs an additional
rebuttal period after one of their retained liability experts, Dr. Voeller, was stricken, would be
tantamount to allowing Plaintiffs to take “a second bite at the apple.” (Docket no. 100 at 9.)
Both parties rely on Hennigan v. Gen. Electric Co., No. 09-11912, 2014 WL 4415954
(E.D. Mich. Mar. 25, 2014) to support their positions. In Hennigan, the plaintiffs disclosed a
new rebuttal expert three weeks after the deposition of the defendants’ expert witness, more than
two months after the disclosure of the expert witness’s report, and more than fourteen months
after the initial disclosure of the expert witness and his anticipated testimony. Hennigan, 2014
WL 4415954, at *1. The court found that the plaintiffs’ rebuttal expert disclosure was untimely
and not substantially justified or harmless and, therefore, precluded the plaintiffs’ use of their
newly-disclosed rebuttal expert. Id. at *2, *4. In doing so, the court followed the majority view
that a lack of deadlines for rebuttal witnesses in a scheduling order does not mean that rebuttal
witnesses are prohibited; it means that rebuttal witnesses must be disclosed according to Rule
26(a)(2)(D)(ii).1 Id. at *1 (quoting Teledyne Instruments, Inc. v. Cairns, No. 6:12-cv-854-Orl28TBS, 2013 WL 5781274, at *17 (M.D. Fla. Oct. 25, 2013)). The court reasoned that since the
plaintiffs were on notice of the general substance of the expert witness’s opinions upon receipt of
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It is this premise of Hennigan on which Plaintiffs rely.
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his expert report, they should have submitted a rebuttal expert disclosure and report within 30
days of receiving the defendants’ expert witness’s report.2 Id. at *2. The court elaborated that a
timely rebuttal expert disclosure may be supplemented if necessary after the deposition of the
expert witness. Id.
In light of Hennigan, Plaintiffs’ argument that they should be able to submit rebuttal
expert disclosures even though such disclosures were not contemplated in any of the Court’s
previous scheduling orders holds merit. However, those disclosures must comply with Rule
26(a)(2)(D)(ii). Plaintiffs interpret the Rule to mean that they are entitled to submit rebuttal
expert disclosures within the 30-day period following Defendant’s experts’ disclosures in their
depositions. Plaintiffs are mistaken; Rule 26(a)(2)(D)(ii) plainly states, and Hennigan reinforces,
that rebuttal expert disclosures must be made within 30 days of the other party’s expert
disclosure, not the expert witness’s deposition. Fed. R. Civ. P. 26(a)(2)(D)(ii); see Hennigan,
2014 WL 4415954, at *2. Here, Defendant disclosed its experts on July 17, 2013. In the
absence of a directive in the Court’s Scheduling Order, Plaintiffs were required to disclose their
rebuttal experts by August 17, 2013. Plaintiffs have not demonstrated how their failure to do so
was substantially justified or harmless. Nor have they convinced the Court that such a disclosure
at this stage in the litigation would not prejudice Defendant. Accordingly, the Court will not
include a deadline for Plaintiffs’ rebuttal expert disclosures in the Scheduling Order to be issued
contemporaneously with this Opinion and Order.
While Defendant argues against the inclusion of a deadline in the scheduling order for
Plaintiffs to make rebuttal expert disclosures, Defendant includes a deadline for its own rebuttal
expert disclosures in its proposed scheduling order. (See docket no. 100-1.) Defendant claims
that such a deadline is justified because, upon denying Defendant’s first Motion to Strike
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Defendant relies on this premise of Hennigan.
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Plaintiffs’ Untimely Expert Disclosures, the Court permitted Defendant a short period of time to
disclose rebuttal expert witnesses, given that Defendant was in the “unusual position” of having
disclosed its expert witnesses before Plaintiffs. (Docket no. 100 at 6 n.3 (citing docket nos. 75
and 76).) Plaintiffs submitted their expert disclosures on February 21, 2014; according to the
Court’s December 10, 2013 Scheduling Order, Defendant’s rebuttal expert reports were due on
March 21, 2014. (Docket no. 76.) This deadline was ultimately extended to April 25, 2014, and
was then vacated by the Court pending resolution of Plaintiffs’ Motion to Amend and
Defendant’s Motion to Strike Plaintiffs’ Second Supplemental Expert Disclosure and the
Supplemental Expert Report of Dr. Guy Voeller. (Docket no. 81; docket no. 89.)
On December 20, 2014, the Court resolved Defendant’s Motion to Strike, thereby settling
Defendant’s issues related to Plaintiffs’ expert disclosures. (Docket no. 95.) It was at this time
that Defendant became fully aware of which of Plaintiffs’ liability experts would be permitted to
testify in this matter. Also, already having received the reports of Plaintiffs’ expert witnesses,
Defendant was on notice of the general substance of their opinions. The same premise of
Hennigan on which Defendant relies to defeat Plaintiffs’ request for rebuttal expert disclosures
applies here.

Accordingly, in the absence of a scheduling order, Defendant should have

submitted its rebuttal expert disclosures by January 20, 2015. Defendant has not established how
its failure to do so is substantially justified or harmless. Thus, any such disclosures would be
untimely, and the Court will not permit Defendant to submit rebuttal expert disclosures under the
new Scheduling Order.
IT IS THEREFORE ORDERED that neither Plaintiffs nor Defendant are permitted to
submit rebuttal expert disclosures under the Court’s new Scheduling Order, which has been
issued contemporaneously with this Opinion and Order.

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NOTICE TO THE PARTIES
Pursuant to Federal Rule of Civil Procedure 72(a), the parties have a period of fourteen
days from the date of this Order within which to file any written appeal to the District Judge as
may be permissible under 28 U.S.C. § 636(b)(1).

Dated: April 14, 2015

s/ Mona K. Majzoub
MONA K. MAJZOUB
UNITED STATES MAGISTRATE JUDGE

PROOF OF SERVICE
I hereby certify that a copy of this Opinion and Order was served upon Counsel of
Record on this date.
Dated: April 14, 2015

s/ Lisa C. Bartlett
Case Manager

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