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

Filing 34

ORDER by Judge Nanette K. Laughrey. Defendants' motion for in camera review (Doc. 29 ) of exhibits submitted in support of their motion for reconsideration is granted. Nonetheless, Defendants' motion for reconsideration (Doc. 30 ) of the Court's order denying Defendants' motion for disqualification (Doc. 28 ) is DENIED. (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 for reconsideration of the Court’s Order (Doc. 28) denying Defendants’
motion to disqualify Stephen Li, Ph.D., the expert designated by William K. Winkelmeyer, M.D.,
and Brenda Winkelmeyer (the “Plaintiffs”). Doc. 30. For the reasons discussed below, the Court
denies the motion for reconsideration.
I.

STANDARD
“The district court has the inherent power to reconsider and modify an interlocutory order

any time prior to the entry of judgment.” K.C.1986 Ltd. P'ship v. Reade Mfg., 472 F.3d 1009,
1017 (8th Cir. 2007).

The Court has “substantial discretion in ruling on motions for

reconsideration,” but generally,“‘[m]otions for reconsideration serve a limited function: to correct
manifest errors of law or fact or to present newly discovered evidence.’” Fant v. City of Ferguson,
Missouri, No. 4:15-CV-00253-AGF, 2022 WL 17414956, at *2 (E.D. Mo. Dec. 5, 2022) (quoting
1
Case 2:13-cv-04058-NKL Document 34 Filed 04/17/23 Page 1 of 3

Hagerman v. Yukon Energy Corp., 839 F.2d 407, 414 (8th Cir. 1988) (citation omitted)).
II.

DISCUSSION
DePuy seeks reconsideration of the Court’s order denying its motion to disqualify

Plaintiffs’ expert Dr. Li on the basis of an in camera submission that was available to it when it
first moved for disqualification. DePuy did not supply or offer to supply in its original motion
papers the documents it has now submitted for in camera review.1 Thus, DePuy’s motion is not
premised on any purportedly newly discovered evidence or error of law or fact, and for that reason
alone the motion warrants denial out of hand.
In moving for reconsideration based on evidence it had but did not present with its original
motion papers, DePuy in effect seeks a second bite at the apple. But the deadline for the parties to
file a motion for disqualification had long passed by the time DePuy’s motion papers were filed in
this Court. See N.D. Tex. No. 3:13-cv-01172-K, Doc. 14 (setting December 26, 2022 deadline for
Daubert motions). DePuy has not presented any compelling circumstances that would warrant
permitting it to make a second attempt at disqualifying Dr. Li months after the deadline for such a
motion has passed. See Shipp v. Murphy, 9 F.4th 694, 702 (8th Cir. 2021) (“[A] ‘schedule may be
modified only for good cause and with the judge’s consent.’” (emphasis added, quoting Petrone
v. Werner Enters., Inc., 940 F.3d 425, 434 (8th Cir. 2019); citing Fed. R. Civ. P. 16(b)(4))).
In any event, the Court has reviewed the documents submitted for in camera inspection
and sees no basis in them for altering its conclusion. To the contrary, the in camera submission

1

DePuy did offer on reply to submit the documents for in camera inspection, but nothing in
Plaintiff’s response to the motion warranted the belated offer to submit documents for in camera
inspection. See Nielsen v. U.S. Bureau of Land Mgmt., 252 F.R.D. 499, 528 (D. Minn. 2008)
(declining to reach argument made “that th[e] Court should conduct an in camera inspection of”
documents because “argument was improperly brought up by plaintiff for the first time in his reply,
thus preventing defendants from having any opportunity to respond to it”).
2
Case 2:13-cv-04058-NKL Document 34 Filed 04/17/23 Page 2 of 3

merely confirms what Mr. Inskeep’s Declaration showed: sporadic communications over a
lengthy period of time in which Dr. Li was paid for sharing his expertise about joint devices
generally and even other types of metal-on-metal devices, with Pinnacle devices serving as a
comparator. The relatively short submission does not indicate that Pinnacle metal-on-metal
devices—the type of device at issue in this lawsuit—was the focus of Dr. Li’s advice or work or
that Dr. Li’s opinions in this case are based on confidential information that DePuy or its attorneys
supplied to him (indeed, to the contrary, the documents show that the opinions Dr. Li expressed
were formed independently). In short, nothing in the in camera submission suggests that it was
objectively reasonable for DePuy to conclude that it had a confidential relationship with Dr. Li in
connection with Pinnacle metal-on-metal devices.
III.

CONCLUSION

For the reasons discussed above, Defendants’ motion for reconsideration (Doc. 30) of the
Court’s order denying their motion to disqualify Plaintiffs’ expert Dr. Li is DENIED.
s/ Nanette K. Laughrey
NANETTE K. LAUGHREY
United States District Judge

Dated: April 17, 2023
Jefferson City, Missouri

3
Case 2:13-cv-04058-NKL Document 34 Filed 04/17/23 Page 3 of 3