Higgins, et al. v. Boston Scientific Corporation

Filing 580

ORDER: Relator's Objections to Magistrate Judge Leung's April 28, 2021 Order [ECF No. 570 ] are OVERRULED. The magistrate judge's April 28, 2021 Order is AFFIRMED. (Written Opinion) Signed by Judge Joan N. Ericksen on 6/2/2021. (CBC)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
United States of America and the State
of California, ex rel. Steven Higgins,
Plaintiffs,
v.
Boston Scientific Corp.,

Case No. 11-cv-2453 (JNE/TNL)
ORDER

Defendant.
This case is before the Court on Relator’s objections to the magistrate judge’s
order excluding testimony by Dr. Lawrence Mayer. For the reasons discussed below, the
objections are overruled and the magistrate judge’s order is affirmed.
On April 28, 2021, the Honorable Tony N. Leung, United States Magistrate Judge,
granted Defendant’s Motion to Strike and Exclude the Testimony of Lawrence Mayer.
The background of this dispute is detailed in the magistrate judge’s order. In short,
Defendant offered testimony of an expert witness, Dr. Kenneth Ellenbogen, who opined
that Version 1 of the medical devices in this case were safe and effective based on his
clinical experience. Relator offered, as rebuttal, the testimony of an epidemiologist and
biostatistician, Dr. Mayer, who conducted a statistical analysis to determine that there
was a higher mortality rate for patients with Version 1 devices as compared to patients
with Version 2 devices.
After the deadline for disclosing expert witnesses passed, Relator moved to
substitute one of his experts with Dr. Mayer. The magistrate judge denied the motion on

the basis that Relator was not diligent in meeting the disclosure deadline. Relator then
tried to submit Dr. Mayer’s testimony as rebuttal to Dr. Ellenbogen. The magistrate judge
concluded that Dr. Mayer’s report was not proper rebuttal because it compared the
relative safety of Version 1 and Version 2 devices whereas Dr. Ellenbogen’s report
concerned the safety and effectiveness of only Version 1 devices. The magistrate judge
found that Relator’s failure to disclose Dr. Mayer as an expert before the deadline was
neither justified nor harmless. See Fed. R. Civ. P. 26(a)(2)(A). As a sanction for that
failure to disclose, the magistrate judge struck and excluded Dr. Mayer’s testimony. See
Fed. R. Civ. P. 37(c)(1).
Relator filed timely objections and Defendant responded. When a party objects to
a magistrate judge’s order on a nondispositive pretrial matter, “[t]he district judge in the
case must consider timely objections and modify or set aside any part of the order that is
clearly erroneous or is contrary to law.” Fed. R. Civ. P. 72(a); see 28 U.S.C.
§ 636(b)(1)(A); LR 72.2(a)(3).
First, Relator argues that the magistrate judge’s order was contrary to law because
it noted that Dr. Mayer could have been offered as an affirmative witness. The Eighth
Circuit has explained that where testimony “would have been more appropriate as part of
the case-in-chief, that fact ‘does not preclude the testimony if it is proper both in the casein-chief and in the rebuttal.’” Everett v. S.H. Parks & Assocs., Inc., 697 F.2d 250, 252
(8th Cir. 1983) (quoting United States v. Luschen, 614, F.2d 1164, 1170 (8th Cir. 1980)).
The magistrate judge did not find that Dr. Mayer’s testimony was improper only because
it could have been affirmative testimony. The magistrate judge concluded that Dr.
2

Mayer’s testimony was not responsive to Dr. Ellenbogen’s and, therefore, was not proper
rebuttal. This analysis considered whether Dr. Mayer’s report was “intended solely to
contradict or rebut evidence on the same subject matter identified by another party” and
was not contrary to law. Fed. R. Civ. P. 26(a)(2)(D)(ii).
Next, Relator argues that the magistrate judge left out an element of the standard
for determining whether testimony is proper rebuttal. According to Relator, the
magistrate judge misstated the law by failing to note that “rebuttal evidence may be used
to challenge the evidence or theory of an opponent.” See Marmo v. Tyson Fresh Meats,
Inc., 457 F.3d 748, 759 (8th Cir. 2006). But the magistrate judge’s order quoted the very
line from Marmo, in full, that Relator argues was misstated. See Mag. J. Order at 4.
Furthermore, the substance of the magistrate judge’s analysis considered Dr.
Ellenbogen’s evidence and theories. Relator’s problem is not that the magistrate judge
misquoted the law, but that Dr. Mayer’s testimony does not contradict or rebut Dr.
Ellenbogen’s.
Relator also explains that a rebuttal witness may use “new testing or
methodologies.” Huawei Techs., Co. Ltd. v. Samsung Elecs. Co., Ltd., 340 F. Supp. 3d
934, 995 (N.D. Cal. 2018). Here, the problem the magistrate judge identified was not
simply that Dr. Mayer used a different methodology than Dr. Ellenbogen. The problem
was that Dr. Mayer introduced an entirely new theory: that mortality rates were higher for
patients with Version 1 devices than those with Version 2 devices. Relator also argues
that Dr. Ellenbogen was performing rudimentary statistical analysis based on his personal
experience. Even if this creative interpretation of Dr. Ellenbogen’s report is true, it does
3

not change the fact that Dr. Mayer made no conclusion about the safety of Version 1 and
only pointed out a statistical difference in mortality rates between the two devices.
Finally, Relator argues that the magistrate judge erred by failing to consider that
Dr. Lawrence Rosenthal, another expert witness, used Dr. Mayer’s statistical analysis to
challenge Dr. Ellenbogen’s testimony. The fact that a properly disclosed expert
considered Dr. Mayer’s analysis does not transform Dr. Mayer’s testimony into proper
rebuttal. The magistrate judge did not clearly err by evaluating Dr. Mayer’s testimony on
its own terms.
Based on the files, records, and proceedings herein, and for the reasons stated
above, IT IS ORDERED THAT:
1. Relator’s Objections to Magistrate Judge Leung’s April 28, 2021 Order [ECF
No. 570] are OVERRULED.
2. The magistrate judge’s April 28, 2021 Order is AFFIRMED.
Dated: June 2, 2021

s/ Joan N. Ericksen
JOAN N. ERICKSEN
United States District Judge

4