Winkelmeyer et al v. DePuy Orthopedics, Inc. et al

Filing 28

ORDER by Judge Nanette K. Laughrey DENYING Defendants' motion (Doc. 15 ) to disqualify Plaintiffs' expert Dr. Stephen Li. (Sreeprakash, Netra)

UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
CENTRAL DIVISION
WILLIAM K. WINKELMEYER, M.D., and
BRENDA WINKELMEYER,
Plaintiffs,
v.

Case No. 2:13-cv-04058-NKL

DEPUY ORTHOPAEDICS, INC.; DEPUY
PRODUCTS, INC.; DEPUY SYNTHES, INC.;
JOHNSON & JOHNSON, INC.; JOHNSON &
JOHNSON SERVICES, INC.; and JOHNSON
& JOHNSON INTERNATIONAL,
Defendants.
ORDER
Defendants DePuy Orthopaedic, Inc., DePuy Products, Inc., DePuy Synthes, Inc., Johnson
& Johnson, Inc., Johnson & Johnson Services, Inc., and Johnson & Johnson International
(together, “DePuy”) move to disqualify the expert designated by plaintiffs William K.
Winkelmeyer, M.D., and Brenda Winkelmeyer, Stephen Li, Ph.D., from providing expert
testimony in this case. Doc. 15. For the reasons discussed below, the motion to disqualify is
denied.
I.

BACKGROUND1
Dr. Li, a polymer chemist, had been one of the scientists at DuPont who invented an

1

In support of its motion, DePuy has submitted the Declaration of an attorney, Kenneth Inskeep,
who formerly “had a leadership role in defending the litigation against DePuy and affiliated
companies involving the Pinnacle Cup System through the time the consolidated Aoki cases were
settled.” In response, Mr. Winkelmeyer has submitted Dr. Li’s affidavit, which states that he does
not “recall” Mr. Inskeep’s or any other DePuy lawyer’s sharing any confidential or proprietary
DePuy information or any mental impressions or litigation strategy with him. Insofar as Mr.
Inskeep’s specific recollections, which include memories refreshed by his notes and other
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enhanced polyethylene for use as the bearing surface in hip replacements. Dr. Li subsequently was
employed in the implant retrieval laboratory of the Hospital for Special Surgery in New York,
New York, where (among other things) he studied the performance of components that had been
retrieved from patients. Dr. Li also served as lead reviewer on an FDA Advisory Panel that
considered the potential down-classification of metal-on-metal devices in August 2001.
In the early 1990s, Mr. Inskeep’s law firm, Barnes & Thornburg, engaged Dr. Li on behalf
of DePuy as an expert in cases involving various hip devices, including the ACS and Duraloc cup
systems as both a consulting and testifying expert. For a period of time thereafter, Dr. Li was one
of DePuy’s principal outside consulting and testifying experts, “particularly on cases involving
polyethylene performance.”
When “significant litigation . . . involving DePuy’s metal-on-metal (‘MoM’) hip
replacement options” “emerged” in 2010, Mr. Inskeep contacted Dr. Li. Dr. Li then advised Mr.
Inskeep that a plaintiff’s personal injury firm had approached him to potentially serve as an expert
witness in an ASR MoM case against DePuy. Mr. Inskeep responded that, “under the applicable
ethical rules, [he] could not consult with him or discuss MoM hip litigation if he had received any
confidential information or performed any substantive consulting with a lawyer representing a
Plaintiff.” Dr. Li “confirm[ed] . . . that he had received no confidential information from the
lawyer involved, had performed no substantive work, and had informed the lawyer he was
declining the proposed engagement . . . .”
Mr. Inskeep met with Dr. Li on October 27 and 28, 2010 “to discuss the ASR litigation
specifically, but also MoM hips more generally, as [Mr. Inskeep] anticipated [DePuy’s legal

documents, are more precise than those of Dr. Li, the Court credits Mr. Inskeep’s statements.
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counsel] might also want to use [Dr. Li] as an expert in the litigation involving the DePuy Pinnacle
MoM device.” Mr. Inskeep states that “[m]uch of [their] discussion was applicable to both ASR
and Pinnacle devices,” but absent from Mr. Inskeep’s declaration is any indication that he
communicated to Dr. Li that the consultation would concern MoM Pinnacle devices, the type of
device at issue in this case. Mr. Inskeep supplied Dr. Li with “certain medical and scientific journal
articles [Mr. Inskeep] considered important and key regulatory documents.” The subject of their
“extensive discussion and detailed analysis” included “MoM devices generally, including the
DePuy Pinnacle device (not just the ASR), and [Mr. Inskeep’s] mental impressions and potential
strategies for defending MoM cases, and his reactions and thoughts on these topics.”2
Mr. Inskeep states that after this meeting, “it was decided,” though it is not clear by whom,
“that the Pinnacle defense team would continue to consult with Dr. Li, and that the ASR defense
team would consult with different experts.” There is no suggestion that Dr. Li was included in, or
informed of, this decision.
Mr. Inskeep was the attorney “principally responsible for dealings with Dr. Li on the
2

More specifically, the topics included:
the performance of “first generation” MoM hips; (b) the development and rationale for
reintroducing MoM devices in the 2000s; (c) clinical performance data for ASR MoM
devices, (d) specific ASR design issues being raised by Plaintiffs, in the literature and
identified by defense lawyers, and how the Pinnacle design was different, (e) wear debris
from MoM devices and what role if any it plays in various failure modes; (f) factors to
consider in evaluating the performance of any particular patient’s MoM device, (g) blood
ion levels in MoM patients and their significance from both a product performance and
biologic impact perspective, (h) an extensive review of the history of the development of
hip replacements and various design and material changes from the 1890s to the present
time and the tradeoffs involved in design and material choices, (i) the development over
time of lab testing techniques for hip replacement and the associated limitations on what
could be studied and known, (j) various FDA positions/actions related to MoM devices,
and (i) the state of knowledge when MoM devices were introduced by DePuy regarding
the benefits and risks of different bearing surfaces (i.e., various types of polyethylene,
metal, and ceramics).
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Pinnacle litigation.”

Mr. Inskeep describes periodic discussions with Dr. Li in 2011 as

“follow[-]up on various issues from our 2010 meeting, but focusing on their applicability to the
Pinnacle litigation and other matters specific to the Pinnacle litigation.” In addition, the topics
discussed between 2010 and 2013 between Mr. Inskeep and Dr. Li were:
•

respective analysis of new developments and journal articles,

•

the theories of attack by Plaintiffs,

•

refining defense themes and strategies,

•

Mr. Inskeep’s “mental impressions and other confidential and privileged information
about defense strategies, the strengths and weaknesses of each side’s respective cases,
DePuy’s product design and use, and the characteristics and complications associated
with polyethylene, metal and ceramic bearing surfaces available in the DePuy Pinnacle
cup system,

•

Potential defense expert witnesses,

•

Plaintiff expert witnesses,

•

Strategies for presenting or cross-examining expert witnesses,

•

defense strategies involving fretting, corrosion, wear, debris, product testing, design
factors impacting corrosion and other issues relating to the Pinnacle cup system,

•

the defense of Pinnacle MoM and the larger class of MoM devices, including its
performance and use as compared to polyethylene and cross-linked polyethylene, metal
debris versus polyethylene debris, and use and interpretation of clinical data sources,

•

defensive litigation strategies to respond to the evolving scientific and medical
literature regarding MoM devices,

•

evaluation of likely Plaintiff experts and expert opinions that would be critical of metalon-metal,

•

and lines of attack against Plaintiffs’ allegations and case themes.

In April 2011, Mr. Inskeep sent Dr. Li “materials, including x-rays, on a specific Pinnacle
case for which we sought his analysis.”
Mr. Inskeep acknowledges that he and Dr. Li “did not speak frequently” from 2013 through
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2015. During that period, however, Dr. Li “at times transmitted literature or shared insights
specifically relating to MoM issues relevant to the Pinnacle litigation.”
In August 2015, Plaintiffs disclosed that Al Burstein, Ph.D., who was Dr. Li’s friend and
business partner, would be one of their testifying experts in a “bellwether trial.” Mr. Inskeep,
aware of the relationship between Dr. Li and Dr. Burstein, says he asked Dr. Li “if he would be
willing to review and critique Dr. Burstein’s report to continue to assist [him] in defending the
Pinnacle litigation.”

Dr. Li communicated to Mr. Inskeep “that given his long personal,

professional and financial relationships with Dr. Burstein, he simply was not comfortable sharing
information about Dr. Burstein, or critiquing him or his report.” Mr. Inskeep states, “Dr. Li assured
me that he would not discuss the Pinnacle litigation or other matters on which he had consulted
with us on behalf of Defendants with Dr. Burstein, and that he did not think Dr. Burstein was even
aware of his consultation with DePuy in the Pinnacle litigation.” Mr. Inskeep then “concluded
that . . . we should suspend consulting with Dr. Li in the Pinnacle litigation until such time as Dr.
Burstein was no longer involved.”
While Mr. Inskeep does not mention whether Dr. Li was ever formally retained, he
specifies that “[n]either Dr. Li nor [he] formally terminated his consultancy for Defendants . . .”
Dr. Li states unequivocally that neither DePuy nor Mr. Inskeep presented him with an engagement
or nondisclosure agreement in connection with DePuy Pinnacle hips.
Mr. Inskeep states that it was his understanding that Dr. Li “continued to be available to
consult as an expert in Pinnacle or other matters provided Dr. Burstein was not involved as an
opposing expert.” Still, in 2016, DePuy, through Mr. Inskeep’s law firm, subsequently formally
subpoenaed Dr. Li to testify in an intellectual property case.
DePuy “continued to use many of the defenses and arguments Dr. Li had assisted [counsel]
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in developing even after Dr. Burstein became involved in the litigation.” Mr. Inskeep states that
“nearly all of the points included in Dr. Li’s key points summary and much of the detail in the
balance of his report” for another plaintiff in the Pinnacle litigation are “associated with” the
“defense themes and evidence” which Mr. Inskeep and Dr. Li “collaborated . . . on
developing . . . .” Specifically, Mr. Inskeep cites discussion of “the history of metal-on-metal
devices in the marketplace, the 510(k) clearance and regulatory history of Pinnacle and other
metal-on-metal devices, metal-on-metal testing, performance and wear issues, the clinical
performance of DePuy’s metal-on-metal and polyethylene components, the marketing and sales of
Pinnacle liners, DePuy’s stem/head taper junction and corrosion topics, and the importance of head
size related to dislocation and related design issues.” Thus, Mr. Inskeep states, “Dr. Li had already
received, contributed to, and helped formulate the defense positions and strategies that relate to
the very points and opinions he now renders for Plaintiffs in this litigation.”
Dr. Li received compensation for 47 hours of work amounting to $23,500 in connection
with metal-on-metal Pinnacles cases.
II.

DISCUSSION
“‘Federal district courts have the inherent power to disqualify experts.’” Owen v. Gen.

Motors Corp., No. 06-4067-CV-C-NKL, 2007 WL 1101194, at *4 (W.D. Mo. Apr. 12, 2007)
(quoting, inter alia, Koch Refining Co. v. Boudreaux MV, 85 F.3d 1178, 1181 (5th Cir.1996)).
Indeed, the Court has a “‘duty to ensure confidence in the fairness and integrity of the judicial
process.’” Owen, 2007 WL 1101194, at *4 (quoting United States v. NHC Health Care Corp., 150
F.Supp.2d 1013, 1013 (W.D.Mo.2001)).
If an expert is retained by one party to a suit and then switches sides during the litigation,
the conflict of interest is so obvious that disqualification must follow. See Koch, 85 F.3d at 1181.
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However, “[d]isqualification under the bright-line rule appears to be warranted only when it is
undisputed that the expert received relevant confidential information” Owen, 2007 WL 1101194,
at *4 (citing Wang Lab’ys, Inc. v. Toshiba Corp., 762 F. Supp. 1246, 1248 (E.D. Va. 1991); Theriot
v. Parish of Jefferson, No. 95-2453, 1996 WL 392149, at *2 (E.D. La. July 8, 1996); Freight
Tracking Techs., LLC v. Va. Int’l Gateway, Co., No. 2:13-708, 2015 WL 12602453, at *3 n.1 (E.D.
Va. Feb. 11, 2015)).
When the conflict is less obvious, courts employ a more nuanced, two-factor test,
determining: “(1) whether it was objectively reasonable for the first party who claims to have
retained the expert to conclude that a confidential relationship existed, and (2) whether any
confidential or privileged information was disclosed by the first party to the expert.” Koch, 85
F.3d at 1181, Owen, 2007 WL 1101194, at *4. Only if both questions are answered in the
affirmative is the Court to disqualify the witness, “and the party seeking disqualification bears the
burden on both elements.” Id. This is because “disqualification is a drastic measure” and should
be imposed only “when absolutely necessary.” Id., United States v. Salamanca, 244 F.Supp.2d
1023, 1025 (D.S.D. 2003).
A. Whether It Was Objectively Reasonable for DePuy to
Conclude that a Confidential Relationship Existed
In determining whether it was objectively reasonable for the movant to conclude that a
confidential relationship existed, courts have considered “whether: (1) the relationship between
the expert and the adverse party was long-standing and involved frequent contacts; (2) the adverse
party directed or funded the formation of an opinion by the expert; (3) the expert and adverse party
entered into a formal confidentiality agreement; (4) the expert was retained by the adverse party
for the purpose of assisting in the litigation; (5) a fee was paid to the expert by the adverse party;
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and (6) the expert derived specific ideas about the litigation from work done under the direction of
the adverse party.” In re C.R. Bard, Inc. Pelvic Repair Sys. Prod. Liab. Litig., No. MDL 2187,
2014 WL 6960396, at *7 (S.D.W. Va. Dec. 8, 2014) (citing cases).
1. Whether DePuy Retained Dr. Li as an Expert in the Pinnacle
Litigation
It is notable that while Mr. Inskeep specifically states that “[n]either Dr. Li nor [he]
formally terminated his consultancy for Defendants,” Mr. Inskeep does not mention when,
whether, or how any consultancy purportedly began. Nothing in Mr. Inskeep’s declaration
suggests that he or his colleagues ever engaged Dr. Li in connection with Pinnacle litigation. This
is in contrast with DePuy’s engagement of Dr. Li in the early 1990s “as an expert in cases involving
various hip devices, including the ACS and Duraloc cup systems as both a consulting and testifying
expert.”

The only express statements concerning engagement in connection with Pinnacle

litigation are from Dr. Li, who unequivocally states that neither DePuy nor Mr. Inskeep presented
him with an engagement agreement in connection with DePuy Pinnacle hips.
2. Whether DePuy and Dr. Li Entered into a Formal
Confidentiality Agreement
Here, as in Owen, Defendant has pointed to no agreement requiring Dr. Li to maintain the
confidentiality of the materials it purportedly divulged to him. See Owen, 2007 WL 1101194, at
*4 (“Had GM expected its information to be confidential, it would have [those to whom it divulged
the purportedly confidential information] to execute a confidentiality agreement, but GM has not
shown any such agreement was required.”). Indeed, Dr. Li states expressly that neither DePuy nor
Mr. Inskeep provided him with a nondisclosure agreement in connection with DePuy Pinnacle
hips.

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3. Length of Relationship and Frequency of Contacts
Here, the relationship between DePuy and Dr. Li was long-standing, but its focus largely
was on issues unrelated to the Pinnacle metal-on-metal hips at issue in this litigation, and the
contacts concerning Pinnacle metal-on-metal hip-related issues apparently were sparse.
DePuy contacted Dr. Li in 2010 when “significant litigation . . . involving DePuy’s metalon-metal (‘MoM’) hip replacement options” “emerged” in 2010. Mr. Inskeep met with Dr. Li on
October 27 and 28, 2010, over dinner and drinks, “to discuss the ASR litigation, specifically,”
though they also discussed metal-on-metal hips generally. Mr. Inskeep “anticipated [DePuy’s
legal counsel] might also want to use [Dr. Li] as an expert in the litigation involving the DePuy
Pinnacle MoM device,” but there is no indication that the attorneys actually intended to use Dr. Li
for that purpose or, more importantly, that they communicated any such intent to Dr. Li. While
Mr. Inskeep states that he shared “mental impressions and potential strategies for defending MoM
cases” with Dr. Li, he does not suggest that this confidential information pertained to Pinnacle,
rather than ASR, cases. DePuy’s “generalized and vague” assertions are not sufficient to trigger
disqualification. Novartis AG v. Apotex Inc., No. 09–5614, 2011 WL 691594, at *4 (D.N.J. Jan.
24, 2011) (finding that “generalized and vague allegation that the expert knew ‘mental impressions
and trial strategies’ did not satisfy movant’s burden).
Mr. Inskeep’s list of specific topics discussed only obliquely references Pinnacle, and that
too only to highlight how the Pinnacle design was different from the “ASR design issues being
raised by Plaintiffs . . . .” Nothing in Mr. Inskeep’s description of the meetings suggests that Dr.
Li would or should have understood that DePuy was consulting him with respect to the Pinnacle
metal-on-metal hip litigation. Indeed, it was only after this meeting that, according to Mr. Inskeep,
“it was decided that the Pinnacle defense team would continue to consult with Dr. Li, and that the
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ASR defense team would consult with different experts.” Even then, there is no indication that
Dr. Li was included in or informed of the Pinnacle defense team’s decision.
Subsequently, Mr. Inskeep, who was the attorney “principally responsible for dealings with
Dr. Li on the Pinnacle litigation,” had “follow[-]up” discussions with Dr. Li “on various issues
from [the] 2010 meeting, but focusing on their applicability to the Pinnacle litigation and other
matters specific to the Pinnacle litigation.” Mr. Inskeep mentions three topics related to Pinnacle:
“Mr. Inskeep’s “mental impressions and other confidential and privileged information about . . .
the characteristics and complications associated with polyethylene, metal and ceramic bearing
surfaces available in the DePuy Pinnacle cup system,” “defense strategies involving fretting,
corrosion, wear, debris, product testing, design factors impacting corrosion and other issues
relating to the Pinnacle cup system, and the defense of Pinnacle MoM and the larger class of MoM
devices, including its performance and use as compared to polyethylene and cross-linked
polyethylene, metal debris versus polyethylene debris, and use and interpretation of clinical data
sources . . . .” But even these few specific subjects—none of which appear to concern only
Pinnacle metal-on-metal devices—do not suggest that Dr. Li knew or should have known that
DePuy understood him to be consulting exclusively with it regarding Pinnacle metal-on-metal
litigation. These descriptions thus are insufficient to establish that it was reasonable for DePuy to
conclude that Dr. Li was its consulting expert. See Maxus Metro., LLC v. Travelers Prop. Cas.
Co. of Am., No. 20-CV-0095-FJG, 2022 WL 2826013, at *6 (W.D. Mo. Mar. 21, 2022) (denying
motion to disqualify where expert did not exclusively work for defendant and, though expert had
worked on defendant’s matters in the past, none of those matters related to the case before the
court).
The only decidedly confidential information connected with Pinnacle litigation that DePuy
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shared with Dr. Li were “materials, including x-rays, on a specific Pinnacle case,” provided by Mr.
Inskeep in April 2011, more than a decade ago and years before this case was initiated.3 Mr.
Inskeep does not specify whether that Pinnacle case was a hip implant case or even a metal-onmetal one, and more importantly, neither he nor DePuy’s current counsel suggests how any such
confidential material influenced or could have influenced Dr. Li’s opinions in this case.
From 2013 through August 2015, at which point Dr. Li specifically stated that he would
not consult with DePuy on Pinnacle metal-on-metal litigation, Dr. Li sent literature or insights
relating to metal-on-metal issues that Mr. Inskeep states were “relevant to the Pinnacle
litigation”—but nothing in the Inskeep Declaration indicates that Dr. Li was sending the material
because he thought them relevant to the Pinnacle litigation.
The contacts between DePuy and Dr. Li apparently ended more than seven years ago, in
August 2015, when DePuy asked Dr. Li if he would “review and critique” the report of one of his
friends and longtime colleagues in connection with the Pinnacle litigation and Dr. Li declined. Dr.
Li’s refusal to review and critique his colleague’s report itself undercuts DePuy’s claim that he
was its consulting expert for Pinnacle metal-on-metal litigation.
4. Whether DePuy Directed or Funded the Formation of an
Opinion by Dr. Li
DePuy does not suggest that it funded or directed the formation of an opinion by Dr. Li
regarding Pinnacle metal-on-metal issues.
5. Whether DePuy Paid Dr. Li a Fee
DePuy compensated Dr. Li approximately $23,500 for a total of 47 hours over an

3

This case was filed in the North District of Texas on March 6, 2013. See Winkelmeyer v. DePuy
Orthopedics, Inc., N.D. Tex. No. 13-1172.
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unspecified period of time for what Mr. Inskeep describes as “expert services relating to metal-onmetal Pinnacle cases.” However, Mr. Inskeep’s description does not indicate that Dr. Li knew or
should have known that he was acting as a consultant for DePuy regarding Pinnacle metal-onmetal cases specifically.
6. Whether Dr. Li Derived Specific Ideas About the Litigation from
Work Done Under DePuy’s Direction
DePuy has not suggested that Dr. Li derived any specific ideas about this litigation from
work he did under the direction of, or in consultation with, DePuy. Although DePuy argues that
Dr. Li’s expert opinions in this case are “associated with” the “defense themes and evidence” that
Mr. Inskeep and Dr. Li “collaborated . . . on developing,” it does not suggest that Dr. Li used
confidential DePuy information or insights to come up with the opinions he has offered in this
case. See Paul By & Through Paul v. Rawlings Sporting Goods Co., 123 F.R.D. 271, 280 (S.D.
Ohio 1988) (“To the extent that Dr. Goldsmith may now have given the same advice to plaintiffs,
there is nothing unfair in permitting him to do so. He did not develop any expertise in the area of
testing baseball helmets, nor derive any of those specific ideas, from work done under
[defendant’s] direction or using its funds. Dr. Goldsmith appears neither to have made use of, nor
to be in possession of, any information which could be classified as a trade secret or deserving of
protection on the same type of theory.”). If DePuy truly was concerned that Dr. Li had used its
confidential and proprietary information to form opinions in support of the Winkelmeyers’ case,
presumably it would have said so plainly.
*

*

*

In short, although Mr. Inskeep’s declaration indicates that he and his colleagues used Dr.
Li’s insights to formulate their own strategies with respect to Pinnacle metal-on-metal litigation,
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the declaration does not establish that it was reasonable for them to conclude that a confidential
relationship existed between DePuy or its attorneys and Dr. Li. Indeed, it is not even clear that
DePuy believed it had a confidential relationship with Dr. Li in connection with Pinnacle metalon-metal litigation. To the contrary, Mr. Inskeep’s Declaration indicates that there was no formal
understanding between DePuy or its lawyers on one hand and Dr. Li on the other concerning his
exclusively or confidentially consulting regarding Pinnacle metal-on-metal litigation.

The

relationship, though longstanding, consisted of only limited contacts over a period of several years
and effectively terminated nearly eight years ago. There is no suggestion that Dr. Li based his
opinions in this case on any confidential material that DePuy provided to him. Cf. C.R. Bard, Inc.
Pelvic Repair Sys. Prod. Liab. Litig., 2014 WL 6960396, at **10–11 (finding objectively
reasonable expectation of a confidential relationship where defendant and expert engaged in
multiple face-to-face meetings, lengthy telephone conversations, and email exchanges over four
years, expert appeared for deposition testimony and testified at one trial, expert provided formal
expert opinions on the subject of the litigation, defendant sent the expert two retention letters
although neither was signed, and evidence indicated that the expert developed specific ideas
regarding the litigation as a result of the work he performed for defendant). DePuy has failed to
proffer evidence sufficient to meet the first prong of the test for expert disqualification.
B. Whether DePuy Disclosed Any Confidential
or Privileged Information to Dr. Li
DePuy has not stated with any specificity what confidential material relevant to this case it
provided to Dr. Li.4 See In re: Incretin-Based Therapies Prod. Liab. Litig., 721 F. App’x 580, 584
4

As mentioned above, the only confidential material specifically identified, x-rays for a different
plaintiff from 2011, is not alleged to be relevant to this case. It is not even clear that the x-rays
concerned hip or metal-on-metal implants.
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(9th Cir. 2017) (vacating order partially disqualifying expert where “defendants did not submit
testimony or a declaration of anyone . . . who could attest to whether or how any information
provided to Dr. Fleming was relevant to the current litigation, and Dr. Fleming averred that in
reaching his opinions and preparing his report for this litigation, he did not rely on any information,
confidential or otherwise, that he obtained from his consulting relationship with Novo”). Nor has
DePuy pointed out with specificity what, if any, confidential DePuy material formed the basis of
Dr. Li’s expert opinions in this case. See In re Bard IVC Filters Prod. Liab. Litig., No. MDL 1502641-PHX DGC, 2017 WL 6603467, at *4 (D. Ariz. Dec. 21, 2017) (finding that defendants
failed to meet their burden on motion for disqualification where “aside from providing very general
descriptions, Defendants ma[d]e no effort to identify the confidential information [the expert]
received or the parts of his expert report that are based on [defendant’s] confidences”); see also
Incretin-Based Therapies, 721 F. App’x at 584 (holding that party seeking disqualification bears
“burden of showing specific and unambiguous disclosures” (emphasis in original, quotation marks
and citation omitted)).
C. Whether DePuy Has Met Its Burden Under the Two-Part Test
Both parts of the two-part test must be satisfied for expert disqualification. DePuy,
however, has satisfied neither prong of the test. Disqualification therefore is inappropriate.
D. Public Policy Considerations
Public policy and equitable considerations also support the Court’s conclusion. See C.R.
Bard, Inc. Pelvic Repair Sys. Prod. Liab. Litig., 2014 WL 6960396, at *7 (stating that, “[b]efore
making a final decision, the court should also take into account the principle of basic fairness, as
well as competing policy considerations,” noting the court’s interests in “preventing conflicts of
interest and in maintaining judicial integrity” and “maintaining accessibility to experts with
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specialized knowledge and encouraging experts to pursue their professions” (citing Novartis AG,
2011 WL 691594, at *1; Rhodes v. E.I. Du Pont De Nemours & Co., 558 F. Supp. 2d 660, 667–68
(S.D.W. Va. 2008)).
As the Court has previously recognized, “[p]ublic policy is . . . served by permitting
academics to freely circulate their research to the public,” especially “where an issue of public
safety is concerned.” Owen, 2007 WL 1101194, at *5. The Court is particularly solicitous of the
expert’s freedom in this case because of the concern, which other courts have noted, that not
exercising the power of disqualification “sparingly” could encourage unscrupulous parties to
consult with experts they know to have views that could harm them in litigation with the sole goal
of preventing them from airing those views. In re Bard IVC Filters Prod. Liab. Litig., 2017 WL
6603467, at **3–5 (“Cases granting disqualification are rare because courts are generally reluctant
to disqualify expert witnesses, especially those . . . who possess useful specialized knowledge.”
(citing Rhodes, 558 F. Supp. 2d at 664)).
Dr. Li has been a vocal critic of metal-on-metal hips since 2001. Doc. 16-1 (Dr. Li
Affidavit) ¶ 4. In public FDA advisory panel meetings in 2001, he opposed the down-classification
of safety requirements for metal-on-metal total hip implants because of “safety concerns.” Id., ¶¶
5–6. Not only did DePuy know of Dr. Li’s position regarding metal-on-metal hip implants, but in
fact they sought him out because of it. See Inskeep Declaration ¶ 6 (“As a result of our past and
ongoing working relationship, and given that Dr. Li had served as lead reviewer on an FDA
Advisory Panel that had considered the potential down-classification of metal-on-metal devices in
August 2001, when significant litigation emerged in 2010 involving DePuy’s metal-on-metal
(“MoM”) hip replacement options, I contacted Dr. Li to see if he was willing and available to
consult with DePuy.”).
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The fact that DePuy knew that Dr. Li was a critic of metal-on-metal hip implants and that
he had been approached to act as a consultant on behalf of some plaintiffs’ attorneys, yet apparently
did not ask Dr. Li to sign an engagement agreement, a non-disclosure agreement, or any other
document clarifying that their relationship with regard to Pinnacle metal-on-metal devices would
be exclusive and confidential suggests that DePuy knew that Dr. Li would not agree to an exclusive
consulting arrangement or that DePuy did not want a formal consulting arrangement with Dr. Li.
See Wang Lab’ys, 762 F. Supp. at 1248 (“Lawyers bear a burden to make clear to consultants that
retention and a confidential relationship are desired and intended. Fairness requires this.”); Eng.
Feedlot, Inc. v. Norden Lab'ys, Inc., 833 F. Supp. 1498, 1505 (D. Colo. 1993) (“First, a lawyer
seeking to retain an expert and establish a confidential relationship should make this intention
unmistakably clear and should confirm it in writing. The writing should define clearly the
consultant’s confidentiality obligation. If a consultant does not want to be bound by such
confidentiality requirement, he should decline the engagement.” (citing Wang Lab’ys, 762 F. Supp.
at 1250)). Denying the motion for disqualification under the circumstances presented here will
encourage clear communication and discourage the kinds of gamesmanship that attorneys might
otherwise wish to deploy to prevent their opponents from securing the most helpful testimony
available. See Eng. Feedlot, 833 F. Supp. at 1505 (“Courts have also expressed concern that if
experts are too easily subjected to disqualification, unscrupulous attorneys and clients may attempt
to create an inexpensive relationship with potentially harmful experts solely to keep them from the
opposing party.”).

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III.

CONCLUSION

For the reasons discussed above, Defendants’ motion to disqualify Dr. Li (Doc. 15) is
DENIED.
s/ Nanette K. Laughrey
NANETTE K. LAUGHREY
United States District Judge

Dated: March 30, 2023
Jefferson City, Missouri

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