Blaes v. Johnson & Johnson et al

Filing 212

MEMORANDUM AND ORDER... IT IS HEREBY ORDERED that Defendant Johnson & Johnson Consumer Companies, Inc., and Imerys Talc America, Inc.'s Motion to Strike Plaintiffs Expert Dr. Graham A. Colditz (ECF No. 116 ) is GRANTED. Dr. Colditz is STRICKEN as an expert witness. Signed by District Judge Ronnie L. White on 1/20/2016. (NEB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

MICHAEL BLAES,
Plaintiff,
vs.
JOHNSON & JOHNSON, et al. ,
Defendants.

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Case No. 4:14CV213 RLW

MEMORANDUM AND ORDER
This matter is before the Court on Defendant Johnson & Johnson Consumer Companies,
Inc., and Imerys Talc America, Inc.'s Motion to Strike Plaintiff's Expert Dr. Graham A. Colditz
(ECF No. 116). This matter is fully briefed and ready for disposition.
DISCUSSION
This Court' s Case Management Order provides that "Plaintiff shall disclose all expert
witnesses and shall provide the reports ... no later than April 17, 2015, and shall make expert
witnesses available for depositions, and have depositions completed, no later than June 12, 2015."
Defendants made their expert disclosures, in accordance with the time limit set in the Case
Management Order, on July 17, 2015.

On August 14, 2015, Plaintiff disclosed Dr. Graham A.

Colditz as a rebuttal expert, as well as his report. Defendants have moved to strike Dr. Colditz as
an expert because his disclosure and report were untimely under the Court' s Case Management
Order, which does not provide for rebuttal experts. (ECF No. 116).
Blaes argues that he complied with Rule 26(a)(2)(D), as he identified Dr. Colditz as a
rebuttal expert within 30 days of Defendants' expert disclosures. (ECF No. 118 at 1). Blaes
further argues that it is "certainly within the Court' s discretion to admit Dr. Colditz's rebuttal
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report and opinions." (ECF No. 118 at 4).
This Court holds that Blaes' rebuttal expert disclosure of Dr. Colditz was not timely.
Where a court issues a scheduling order that provides a deadline for expert disclosures, but does
not expressly permit disclosure ofrebuttal experts by plaintiff to the third-party defendant's report,
the 30-day disclosure deadline for rebuttal reports in Rule 26(a)(2)(D) does not apply. See
Eckelkamp v. Beste, 315 F.3d 863, 872 (8th Cir.2002); Bachtel v. Taser Int'/, Inc., No. 2: 11 CV69

JCH, 2012 WL 5308052, at *2 (E.D. Mo. Oct. 29, 2012); Mas/er v. Marshall Fields, No. CIV.
06-4917PAMJSM, 2007 WL 6815352, at *3 (D. Minn. Dec. 21, 2007); see also IBMv. Fasco Ind. ,
Inc., C- 93- 20326, 1995 WL 115421 at *2 (N.D. Cal. 1995); Akeva, L.L.C. v. Mizuno Corp., 212

F.R.D. 306, 310 (M.D. N .C. 2002). The Eighth Circuit has also noted " [e]ven if plaintiffs did not
have all the data needed to produce a timely rebuttal report, they knew one was needed and could
have moved for leave to file much earlier." Eckelkamp, 315 F.3d at 872.

Blaes has not

demonstrated good cause to explain why he never moved to amend the scheduling order to allow
him to have an opportunity to issue a rebuttal report, nor has he offered any explanation as to why
he did not seek to amend the Case Management Order.

This Court' s case order set its

management requirements and did not provide for rebuttal experts, and the Court is entitled to hold
the parties to that order. Eckelkamp, 315 F.3d at 872.

Accordingly,
IT IS HEREBY ORDERED that Defendant Johnson & Johnson Consumer Companies,
Inc. , and Imerys Talc America, Inc.'s Motion to Strike Plaintiffs Expert Dr. Graham A. Colditz
(ECF No. 116) is GRANTED. Dr. Colditz is STRICKEN as an expert witness.

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Dated this 20th day of January, 2016.

~nvuVL~
ONNIE

L. WHITE
UNITED STATES DISTRICT JUDGE

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