Hicks v. Atrium Medical Corporation et al

Filing 189

ORDER denying 183 Motion to Strike. So Ordered by Chief Judge Landya B. McCafferty.(gla)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE

Daniel Hicks and
Sandra Hicks
v.

Civil No. 17-cv-00070-LM
Opinion No. 2020 DNH 041

Atrium Medical Corporation and
Maquet Cardiovascular US Sales, LLC

In re: Atrium Medical Corp.
C-QUR Mesh Products Liability
Litigation (MDL No. 2753)

ORDER
Daniel and Sandra Hicks bring suit against Atrium Medical Corporation (“Atrium”), a
medical device company that manufactured and sold C-QUR mesh, and a related company,
Maquet Cardiovascular US Sales, LLC (“Maquet”), alleging product liability claims, a breach of
express warranty claim, violation of consumer protection laws, and a loss of consortium claim.
This suit is part of a multi-district litigation (“MDL”) proceeding involving claims that C-QUR
mesh was, among other things, defective and unreasonably dangerous and caused injury when
surgically implanted for hernia repair. This case was selected in the MDL proceeding for the
Initial Discovery Pool, making it a bellwether case. This case was then selected for the Trial
Pool, from which it may be selected by the parties as one of the first trials in this MDL
proceeding. Defendants move under Federal Rule of Civil Procedure 37(c)(1) to strike as
untimely plaintiffs’ expert disclosure and report by Dr. Christine Knabe, DMD, Ph.D. Doc. no.
183. Plaintiffs object.

STANDARD OF REVIEW
Under Federal Rule of Civil Procedure 26, a party must “disclose to other parties the
identity of any witness it may use at trial to present [expert] evidence.” Fed. R. Civ. P.
26(a)(2)(A). Where, as here, a district court has established a disclosure deadline, a party must
disclose the expert’s identity by the court-ordered deadline. See Fed. R. Civ. P. 26(a)(2)(D). If a
party’s expert disclosure is untimely under these rules, the party may not use the expert or the
expert’s report “to supply evidence on a motion, at a hearing, or at a trial, unless the failure was
substantially justified or is harmless.” Fed. R. Civ. P. 37(c)(1); see also Esposito v. Home
Depot U.S.A., Inc., 590 F.3d 72, 77 (1st Cir. 2009).

BACKGROUND
In 2012, Mr. Hicks had a surgical procedure in which his physician implanted C-QUR
mesh to repair a hernia. In February 2015, Mr. Hicks consulted with his physician after
experiencing concerning symptoms including epigastric pain and nausea. In March 2015, he
underwent a diagnostic laparotomy, during which the hernia mesh was removed. In June 2015,
plaintiffs’ counsel sent a request to the hospital where Mr. Hicks had his hernia mesh removed
(hereinafter referred to as “the explant facility”) to preserve and relinquish to them any pathology
material related to that procedure. The explant facility represented that it did not have a
pathology specimen for Mr. Hicks because it had discarded the specimen after the procedure.
In February 2017, plaintiffs filed this suit alleging the following claims: negligence; strict
liability on theories of design defect, manufacturing defect, and failure to warn; breach of

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express warranty; violation of consumer protection laws; and loss of consortium.1 The parties
selected this suit as a bellwether case for case-specific discovery in July 2018 and then selected it
for the Trial Pool in July 2019. The court-appointed deadline for plaintiffs’ expert disclosures
was September 17, 2019.
Approximately two months prior to that expert disclosure deadline, on July 22, 2019,
plaintiffs’ counsel contacted their preservation contractor, SciSafe, to confirm that no pathology
specimen for Mr. Hicks existed. SciSafe affirmed that the sample had been discarded by the
explant facility. To be doubly sure, plaintiffs’ counsel directed SciSafe to contact the explant
facility to confirm that neither the explant facility nor any affiliated facility had pathology
material in any form from Mr. Hicks. The explant facility then reversed its earlier position and
notified plaintiffs that it might have paraffin blocks containing relevant pathology material. At
some point after July 30, 2019, plaintiffs confirmed that the explant facility possessed relevant
pathology specimens.
By the end of August 2019, plaintiffs had notified defendants about the existence of the
sample. The parties agreed that the explant facility should divide the pathological material into
slides so that each party would have their own samples. The parties directed the explant facility
to divide the specimen and send plaintiffs’ slides directly to Dr. Knabe in Germany and
defendants’ slides to their pathology preservation contractor, Steelgate. The parties then learned
that the explant facility would not be able to divide the specimen into slides until September 17,
2019, at the earliest. Given this delay in acquiring the slides, the parties agreed to extend the
expert disclosure deadline related to this pathology specimen to October 1, 2019.

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Plaintiffs also asserted a claim of breach of implied warranties of merchantability and
fitness of purpose, which this court dismissed. Doc. no. 172.
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On the September 17 expert disclosure deadline, plaintiff disclosed its non-pathology
experts. But the October 1 deadline came and went without any further disclosure. On October
2, 2019, plaintiffs learned that the explant facility had mistakenly sent both plaintiffs’ and
defendants’ slides to Steelgate, rather than sending plaintiffs’ slides directly to their expert.
Plaintiffs’ slides finally reached Dr. Knabe on October 11.
Approximately two months later, on December 12, 2019, plaintiffs designated Dr. Knabe
as a case-specific retained expert witness in pathology. Her expert report opines on the cause of
Mr. Hicks’s hernia repair failure, including Atrium’s deficient design of the hernia mesh and
failure to adequately evaluate the product before it was released on the market. See doc. no. 1832. On January 6, 2020, defendants filed this motion to strike plaintiffs’ disclosure of Dr. Knabe
as untimely.

DISCUSSION
It is undisputed that plaintiffs disclosed Dr. Knabe after the court-appointed deadline and
after the parties’ agreed-to extension of the deadline. The court finds, however, that plaintiffs’
late disclosure is substantially justified under the unique circumstances presented and that, given
the parties’ agreed-to extension of deadlines, the late disclosure is harmless. See Fed. R. Civ. P.
37(c)(1).

I.

Substantially Justified
The unique sequence of events in this case demonstrates that plaintiffs’ late disclosure is

substantially justified. The facts described above show that plaintiffs’ disclosure was delayed
due, in large part, to misinformation and circumstances outside of their control. Plaintiffs did not

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even learn of the possible existence of Mr. Hicks’s pathology sample until two months prior to
their original expert disclosure deadline. Once they confirmed the existence of the sample, other
unforeseen delays arose: the explant facility took longer than expected to divide the sample and
then plaintiffs’ slides were initially delivered to the wrong location. The court finds that these
circumstances substantially justify plaintiffs’ late disclosure of Dr. Knabe. See Al-Ghena Int’l
Corp. v. Radwan, No. 13-61557-CIV, 2016 WL 8203480, at *2 (S.D. Fla. May 17, 2016)
(finding late disclosure of evidence during trial substantially justified in part because plaintiffs
were previously unaware of the evidence due to an innocent and inadvertent failure to search
email account for certain terms); Morel v. Daimler-Chrysler Corp., 259 F.R.D. 17, 21 (D.P.R.
2009) (allowing late disclosure of substitute expert when original expert suffered unforeseeable
illness and died). 2

II.

Harmless
Even if the court did not find plaintiffs’ late disclosure substantially justified, it would

nonetheless find the late disclosure harmless. A late disclosure is harmless if it “occurs long
before trial and is likely subject to correction without much harm to the opposing party.” Samos
Imex Corp. v. Nextel Commc’ns, Inc., 194 F.3d 301, 305 (1st Cir. 1999). Here, since the filing
of defendants’ motion to strike, the parties have agreed to extend the deadlines for disclosure of
certain experts, filing of pre-trial motions, and for trial in the first of the Trial Pool cases. See In
re: Atrium Medical Corp. C-Qur Mesh Products Liability Litg., 16-md-02753-LM, Endorsed

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The court notes, however, that plaintiffs could and should have communicated with
defendants about these delays more effectively by, for example, requesting an extension of the
October 1 deadline when it became clear that it was unrealistic.
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Order Feb. 7, 2020 (granting joint motion to extend deadlines, doc. no. 1182). For example, the
parties have agreed that plaintiffs should have more time to disclose their regulatory expert
because the regulatory expert they previously designated had unexpected health issues. And,
importantly, the parties have agreed to push the date of the first trial of the Trial Pool from May
to September 2020. Given this timeline, defendants will have ample time to depose Dr. Knabe
and prepare to adequately cross-examine her at trial—should this case be selected as the first
trial. See Ferrara & DiMercurio v. St. Paul Mercury Ins. Co., 240 F.3d 1, 10-11 (1st Cir. 2001)
(affirming district court’s denial of motion to strike late-disclosed expert when substitute expert
was disclosed three months before trial); Downeast Ventures, Ltd. v. Washington Cty., 450 F.
Supp. 2d 106, 112 (D. Me. 2006) (finding plaintiffs’ late disclosure of expert harmless when
defendants had time before trial to depose that expert and to designate any opposing experts).
In addition to having an opportunity to depose Dr. Knabe, the court will permit
defendants to designate their own pathology expert to opine on Mr. Hicks’s pathology slides.
The court will also allow defendants to amend and/or supplement their other expert reports as
they deem necessary. Based on the parties’ history of working cooperatively to set deadlines, the
court expects that the parties will be able to agree to deadlines regarding completion of this
additional expert discovery. Should the parties be unable to do so, they may raise the issue for
discussion at the court’s next regularly scheduled status conference. If, due to the need to
conduct additional expert discovery, the parties find that the current deadlines and trial selection
schedule are no longer feasible, the court will favorably entertain another joint motion to extend
deadlines.
In sum, defendants learned of this late-disclosed expert well before the potential trial date
and will have a fair opportunity to depose her and supplement their expert discovery accordingly.

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Under these circumstances, the court finds that plaintiffs’ late disclosure of Dr. Knabe is
harmless.

CONCLUSION
Because the court finds that plaintiffs’ late disclosure of Dr. Knabe was substantially
justified and is harmless, see Fed. R. Civ. P. 37(c)(1), the court denies defendants’ motion to
strike (doc. no. 183).
SO ORDERED.

__________________________
Landya McCafferty
United States District Judge
March 19, 2020
cc: Counsel of Record

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