Wiebelhaus et al v. Biomet, Inc. et al

Filing 202

ORDER that the Defendants' Motion for Extension of Time to File Response to Plaintiffs' Motion to Qualify Experts, Filing 197 , is denied. Defendants are ordered to respond to Plaintiffs' Motion to Qualify Experts, Filing 192 , on or before December 11, 2019. Plaintiffs may file a reply seven days after Defendants' response to Plaintiffs' Motion to Qualify Experts. Ordered by Judge Brian C. Buescher. (LAC)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
JAMES WIEBELHAUS, and SHARON
WIEBELHAUS,
8:15-CV-291
Plaintiffs,
vs.

ORDER

BIOMET, INC., and BIOMET
ORTHOPEDICS, LLC,
Defendants.
This matter comes before the Court on Defendants’ Motion for Extension of Time to File
Response to Plaintiffs’ Motion to Qualify Experts. Filing 197.
On October 29, 2019, Plaintiffs filed a Motion for Rule 702 Order Qualifying Plaintiffs’
Experts. Filing 192. Instead of responding to Plaintiffs’ Motion, Defendants filed their Motion for
Extension of Time claiming that Plaintiffs’ request to qualify experts was premature because
discovery is still ongoing in this case. Filing 197 at 1.
The Court previously issued a scheduling order setting the filing deadline for motions to
exclude testimony on Daubert and related grounds for July 17, 2020. Filing 189 at 2. Furthermore,
prior to remand, the multidistrict litigation panel judge addressed the admissibility under Fed. R.
Evid. 702 of two of the witnesses Plaintiffs seek to now qualify as experts, George S. Kantor,
M.D., and Mari Truman, M.S.M.E., P.E. Filing 155 at 8-9. The multidistrict litigation panel judge
refrained from ruling on the admissibility of these experts’ testimony under Rules 401, 403, 703,
or any other rule. Filing 155 at 9.
Defendants seek an extension until July 17, 2020 (the Daubert motions deadline), to
respond to Plaintiffs’ motion to qualify experts. Filing 197 at 3. Defendants further argue that

Plaintiffs’ motion also seeks preliminary rulings regarding the admissibility and manner of
presentation of evidence which should be reserved for a motion in limine immediately prior to
trial. Filing 201 at 6-7.
Plaintiffs counter that their motion seeking qualification of experts under Rule 702 is not
premature because discovery has already been completed with respect to the witnesses it seeks to
qualify as experts. Filing 200 at 3-4. Plaintiff does not address Defendants’ argument that its
motion is premature to the extent it seeks evidentiary rulings on the admissibility of evidence on
grounds other than expert qualification or the presentation of evidence by video testimony.
The Court finds nothing in its prior orders or the Rules of Evidence which would prevent
Plaintiffs from seeking qualification of their witnesses under Rule 702 at this time. In accordance
with the previously issued scheduling order, Filing 198, Defendants are ordered to respond to
Plaintiffs’ Motion to Qualify Experts on or before December 11, 2019. Plaintiffs may file a reply
seven days after Defendants’ response. Upon review of the briefing, the court will then determine
whether the motion should be ruled upon in whole or in part at this time.
IT IS THEREFORE ORDERED:
1. Defendants’ Motion for Extension of Time to File Response to Plaintiffs’ Motion
to Qualify Experts, Filing 197, is denied;
2. Defendants are ordered to respond to Plaintiffs’ Motion to Qualify Experts, Filing
192, on or before December 11, 2019;
3. Plaintiffs may file a reply seven days after Defendants’ response to Plaintiffs’
Motion to Qualify Experts.

Dated this 26th day of November, 2019.

BY THE COURT:

____________________
Brian C. Buescher
United States District Judge