Bodenstab et al v. Saint-Gobain Performance Plastics Corp. et al
Filing
115
DECISION and ORDER: ORDERED, that Defendants' Joint Motion to Strike the Expert Reports of Plaintiff Schrom (Dkt. No. 105) is DENIED; and it is further ORDERED, that Plaintiff's case is removed from the Expert Discovery Pool and returned to the Fact Discovery Pool. SO ORDERED. Signed by Magistrate Judge Daniel J. Stewart on 5/26/2023. (khr)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
BRYAN SCHROM, et al.,
Plaintiffs,
v.
1:16-CV-1367
(LEK/DJS)
SAINT-GOBAIN PERFORMANCE
PLASTICS CORP., et al.,
Defendants.
DANIEL J. STEWART
United States Magistrate Judge
DECISION and ORDER
Defendants have jointly moved to strike the Expert Reports of Dr. John Adgate
and Dr. Bruce Charash, prepared for, and served on behalf of, Plaintiff Bryan Schrom.
Dkt. No. 105. Counsel for Mr. Schrom has opposed the Motion. Dkt. No. 108, Pl.’s
Brief. While counsel acknowledges that the expert reports are untimely, he points out
that the delay was relatively short and the remedy of striking the reports is a drastic one
and, in Mr. Schrom’s case, would effectively end his claims. Id. The Court agrees with
Plaintiff’s position, and therefore denies the Motion to Strike the Expert Reports outright,
and instead fashions a lesser remedy which would eliminate any potential prejudice to
Defendants.
I. PROCEDURAL HISTORY
Bryan Schrom’s case, originally titled Cynthia Bodenstab, et al. v. Saint-Gobain
Performance Plastics Corp., et al., was commenced on November 16, 2016. Dkt. No. 1.
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In July 2022, Mr. Schrom was selected by Defendants as one of the eight Claimants for
the Expert Discovery Pool. See In Re: Hoosick Falls PFOA Cases, 19-MC-018, Dkt. No.
91. From the Defendants’ perspective, his case presented primarily a claim for diabetes
and medical monitoring and was selected for that reason. Dkt. No. 105-1, Defs’ Brief at
p. 9. During the expert discovery process, Plaintiff’s counsel requested an extension of
time to submit experts on the medical monitoring claim, and that request was granted,
extending the deadline first to November 28, 2022, and then again until December 30,
2022. See Dkt. Nos. 105-4-105-8. On January 6, 2023, two expert reports on behalf of
Mr. Schrom were served by Plaintiff’s counsel. Those reports, according to defense
counsel, do not relate to any medical monitoring claim, but rather allege a causal relation
between Plaintiff’s PFOA exposure and his high blood pressure and high cholesterol
conditions. See Dkt. Nos. 105-11 & 105-12. In addition to maintaining that the expert
reports were untimely, even under the previous extensions granted, the Defendants more
significant argument is that they feel misled regarding Mr. Schrom’s claims. Defs’ Brief
at pp. 2 & 6-10. In particular, in Mr. Schrom’s April 2022 deposition and previously
provided fact sheets, Plaintiff indicated only his diabetes as being related to PFOA
exposure, and not high blood pressure or elevated cholesterol. Id.
In opposition, counsel for Mr. Schrom notes that he and his client are faced with
the ever-developing nature of medical science with PFOA and PFAS exposure cases, and
that any delay is to be expected and any prejudice can be ameliorated. See generally, Pl.’s
Brief. Counsel explains that the matter was being reviewed as a medical monitoring case,
and Plaintiff’s deposition responses reflected that, but during expert review it was
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determined that Plaintiff does have a present injury and that “[a]s Mr. Schrom’s attorneys,
we have a duty to our client to make sure we present his strongest claims.” Id. at p. 2.
After submission of the Motion, the Court held an extensive telephone conference
on May 5, 2023, during which the Court heard from attorney Elissa Preheim on behalf of
the Defendants and from Patrick Lanciotti, counsel for Mr. Schrom. Dkt. No 115, Tr.
The Court then indicated it would issue an order on this dispute.
II. ANALYSIS
Rule 26(a)(2) of the Federal Rules of Civil Procedure requires a party to “disclose
to the other parties the identity of any witness it may use at trial to present evidence under
Federal Rule of Evidence 702, 703, or 705.” FED. R. CIV. P. 26(a)(2)(A). Such
disclosure “must be accompanied by a written report - prepared and signed by the
witness” which must contain, among other things, “a complete statement of all opinions
the witness will express and the basis and reasons for them.” FED. R. CIV. P. 26(a)(2)(B).
Furthermore, parties “must make these disclosures at the times and in the sequence that
the court orders.” FED. R. CIV. P. 26(a)(2)(D). Pursuant to Rule 37(c), if a party fails
to disclose such information, “the party is not allowed to use that information or witness
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).
In considering whether to preclude an expert’s testimony based on the failure to
provide timely disclosures, courts consider (1) the reason for the failure to timely disclose,
(2) the importance of the testimony, (3) potential prejudice in allowing the testimony, and
(4) the availability of a continuance to cure such prejudice. Softel, Inc. v. Dragon Med.
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& Sci. Commc’ns, Inc., 118 F.3d 955, 961 (2d Cir. 1997) (citing Outley v. City of N.Y.,
837 F.2d 587, 590-91 (2d Cir. 1988)). “None of these factors are dispositive and each
factor is to be balanced against the others in making the determination.” Lab Crafters,
Inc. v. Flow Safe, Inc., 2007 WL 7034303, at *6 (E.D.N.Y. Oct. 26, 2007).
“The decision to strike an expert disclosure is entrusted to the discretion of the
district court.” Regalado v. Ecolab Inc., 2016 WL 94139, at *2 (S.D.N.Y. Jan. 7, 2016).
“Before the extreme sanction of preclusion may be used by the district court, a judge
should inquire more fully into the actual difficulties which the violation causes, and must
consider less drastic responses.” Outley v. City of New York, 837 F.2d at 591. Having
considered the relevant factors, the Court concludes that complete preclusion of the expert
reports is not warranted here.
There is no dispute that Plaintiff’s expert disclosure was not timely provided. Pl.’s
Brief at p. 5. The excuse offered regarding the untimely disclosure is that “[i]t simply
took longer than anticipated for Plaintiff’s experts to finalize their opinions given the
developing and complex science behind PFAS exposure.” Id. at p. 9. Given the
sophistication of Plaintiff’s counsel and the nature of these claims which have involved
litigation of this complex science throughout, the Court does not find this a particularly
compelling explanation. Outley’s first factor, therefore, weighs in favor of preclusion.
From the perspective of defense counsel, however, delay is somewhat of a
secondary issue. The primary concern relates to the information provided by Plaintiff that
was utilized by defense counsel to select the case for the expert pool, and how the case
has now, based upon the untimely expert reports, developed under a different theory.
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Plaintiff’s opposition to the Motion also does not address in any meaningful way
Defendants’ arguments regarding the reliance on arguably new theories. The Court
recognizes that the expert evidence is critically important to Plaintiff, as discussed during
this Court’s conference with counsel:
THE COURT: As far as the prejudice goes, you know, if I strike your
expert, that effectively marks the end of Mr. Schrom’s case, right?
MR. LANCIOTTI: Yes, your Honor.
Tr. at p. 38. The importance of the expert opinions, of course, only heightens the
prejudice to Defendants if Plaintiff were permitted to rely on these reports. The second
factor, therefore, does not tip in favor of either party.
The third and fourth factors concern the extent of the prejudice and the availability
of a continuance to cure it. “The touchstone for determining whether to exclude an
untimely expert report is whether the party opposing their admission is prejudiced.” Lore
v. City of Syracuse, 2005 WL 3095506, at *4 (N.D.N.Y. Nov. 17, 2005) (citing In re Paoli
R.R. Yard PCB Litigation, 35 F.3d 717, 791 (3d Cir. 1994)). Here, the Court finds that
there is clear prejudice. There is, however, also a clear remedy for that prejudice. At the
recently held conference counsel for the Defendants provided a direct and concise
response to the Court’s inquiry concerning prejudice:
THE COURT: So if, as a resolution, we excluded him from the pool and
allow you to pick somebody else, does that – – does that alleviate the
prejudice to you?
MS. PREHEIM: That would, your Honor.
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Tr. at p. 37. Plaintiff’s counsel acquiesces to removal of Mr. Schrom’s case from the
expert pool as well.
THE COURT: What’s your view about eliminating him from the expert
pool, replacing him with someone else?
MR. LANCIOTTI: I think, your Honor . . . we are not opposed to that. . ..
So I think to answer your Honor’s question, we wouldn’t oppose that, so
long as Mr. Schrom’s case is not dismissed with any prejudice, just
removed from the pool.
Tr. at p. 38.
Based upon the foregoing, and considering all the arguments made both in the
papers and at the Court’s conference, the Court denies Defendants’ Motion to Strike Mr.
Schrom’s expert reports. However, in order to alleviate any potential prejudice to the
Defendants, the Court removes Mr. Schrom’s case from the Expert Pool and returns it
back to the Discovery Pool. As the remaining cases in the Discovery Pool have not yet
undergone expert discovery, any untimeliness of Mr. Schrom’s expert disclosure will no
longer be relevant and Mr. Schrom’s case will be preserved for another day.
III. CONCLUSION
WHEREFORE, it is hereby
ORDERED, that Defendants’ Joint Motion to Strike the Expert Reports of
Plaintiff Schrom (Dkt. No. 105) is DENIED; and it is further
ORDERED, that Plaintiff’s case is removed from the Expert Discovery Pool and
returned to the Fact Discovery Pool; and it is further
ORDERED, that the Clerk of the Court serve a copy of this Decision and Order
upon the parties to this action.
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SO ORDERED.
Dated: May 26, 2023
Albany, New York
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