Byer et al v. Bell Helicopter Textron Inc. et al

Filing 295

ORDER denying 284 Motion for Discovery; granting, subject to conditions, 288 Motion for Discovery. Signed by Hon. H. Kenneth Schroeder, Jr on 5/28/2015. (KER)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

NIJOLE BYER, Individually and as
Administrratrix of the Estate of
ROBERT D. BYER, Deceased
Plaintiff,

12-CV-676W(Sr)

v.
BELL HELICOPTER TEXTRON, INC.,
et al.,
Defendants.

DECISION AND ORDER
This case was referred to the undersigned by the Hon. William M.
Skretny, pursuant to 28 U.S.C. § 636(b)(1), for all pretrial matters. Dkt. #21. It is
currently assigned to the Hon. Elizabeth A. Wolford. Dkt. #283.

Currently before the Court is a joint motion by the defendants to preclude
use of Dr. Jacqueline Moline’s January 2015 expert witness disclosure and limit her
opinions to those set forth in her March and May 2014 reports (Dkt. #284), and
plaintiff’s motion to permit late service of Dr. Moline’s January 2015 expert report. Dkt.
#288. For the following reasons, defendants’ motion is denied and plaintiff’s motion is
granted.

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FACTS AND PROCEDURAL HISTORY
Robert D. Byer and his wife, Nijole Byer, commenced this action in the
New York State Supreme Court, County of Erie on June 6, 2012, seeking damages for
personal injuries sustained as a result of exposure to asbestos following his diagnosis
of mesothelioma on February 6, 2012. Dkt. #1-2. The action was removed to this
Court on July 18, 2012. Dkt. #1.

Robert D. Byer died on October 19, 2012. Dkt. #111, ¶ 1. The complaint
was amended to add a cause of action for wrongful death. Dkt. #119.

The Case Management Order set a deadline of April 18, 2014 for plaintiff
to identify any expert witnesses who may be used at trial and provide reports pursuant
to Fed. R. Civ. P. 26(a)(2)(B). Dkt. #117. This deadline was extended to May 19, 2014.
Dkt. #240. On that date, plaintiff disclosed the expert witness report of Jacqueline
Moline, MD, MSc, FACP, FACOEM, dated March 25, 2014. Dkt. #284-5 , p.7.

In response to defendants’ objection that Dr. Moline’s report failed to
comply with the Federal Rules of Civil Procedure, by letter dated May 21, 2014, Dr.
Moline supplemented her expert witness report. Dkt. #284-1, ¶ 8 & Dkt. #284-6.

Dr. Moline’s deposition was originally scheduled for October 20, 2014 and
rescheduled at her request for November 24, 2014. Dkt. #284-1, ¶ 12. On November
21, 2014, Dr. Moline advised the defendants that she needed to reschedule a second
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time. Dkt. #284-1, ¶ 12. The deposition was rescheduled for December 22, 2014, but
was again cancelled by Dr. Moline. Dkt. #284-1, ¶ 13.

By e-mail sent during the afternoon on January 7, 2015, Dr. Moline served
an updated expert report dated January 6, 2015. Dkt. #284-7 & Dkt. #284-8.

Dr. Moline was deposed on January 8, 2015. Dkt. #284-9. At the
commencement of the deposition, defendants objected to the January 6, 2015 report,
noting that
There was no prior notice of this report. There was no
revision of the scheduling order permitting a new expert
report by Dr. Moline. The defendants object to this report.
The defendants had noticed this deposition based upon Dr.
Moline’s initial report in this case, which was March of 2014,
served May 19th of 2014.
***
We are proceeding here today in accordance with our
notice, which was originally served on September 23rd, 2014
and revised thereafter rescheduling the date. The
deposition will proceed solely as to Dr. Moline’s timely
served reports in this case. We will object to and move to
strike any testimony that is offered or sought from Dr. Moline
pertaining to anything contained in her January 6th, 2015
new report, which was improper, not permitted by the
scheduling order and for which there was no leave sought
from the court.
Dkt. #284-9, pp.8-9. Plaintiff’s counsel responded
that the new report is non-substantive changes to comply
with the Federal rules.
Dr. Moline did submit a prior report that substantively is
identical to the one submitted yesterday, with the sole
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differences being that her new report complies with the
Federal rules, rather than the State rules, that her report was
originally submitted under, and we would be seeking, of
course, that it would be fully admissible.
Dkt. #284-9, p.10.
During the course of her deposition, Dr. Moline testified that she began to
work on the January 2015 Report in late November or early December of 2014 at the
request of plaintiff’s counsel to provide more on causation than she had included in her
prior report and to include a list of articles relevant to the opinions set forth in her report.
Dkt. #284-1, ¶ 19 & Dkt. #284-11, p.43.

DISCUSSION AND ANALYSIS
Defendants seek to preclude plaintiff from relying on, referring to, or
otherwise using the January 6, 2015 report of Dr. Moline, or any information, reliance
materials or opinions contained therein to supply evidence on a motion, at a hearing or
at trial and limiting Dr. Moline to the information, reliance materials and opinions
expressed in her March 2014 Moline Report and May 2014 Moline Report. Dkt. #284-2.
In support of the motion, defendants note that plaintiff served the January 2015 Moline
Report nearly eight months after plaintiff’s expert reports were due under the Case
Management Order; over five months after defendants served their expert reports; and
the afternoon of the day before defendants were scheduled to depose Dr. Moline. Dkt.
#284-2, p.4. Defendants argue that plaintiff is attempting to benefit from her unjustified
failure to comply with the Court’s Case Management Order, which is patently unfair and
prejudicial to defendants. Dkt. #284-2, p.4. Specifically, defendants note that the
January 2015 Moline report contains:
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•

61 citations to articles, studies and other materials not
mentioned in the prior reports, which fail to list any
medical or scientific literature;

•

32 new paragraphs contained in a 32-paragraph
section entitled, “Specific Causation Opinions,” only 4
of which are comparable to opinions contained in the
prior reports;

•

an alteration regarding Dr. Moline’s opinion as to the
impact of his prior radiation treatment for Hodgkin’s
disease; and

•

changes to Dr. Moline’s qualifications.

Dkt. #284-1, ¶ 17. Defendants argue that “[k]nowledge of the extensive new specific
causation opinions set forth in the January 2015 Moline Report would have affected
how Defendants consulted with their experts, what those experts would have put in their
reports and Defendants would have prepared differently and examined Dr. Struachen
and Dr. Moline differently, and perhaps plaintiff’s other experts as well.” Dkt. #284-2,
p.12.

Plaintiff’s counsel argues that the January 2015 Moline Report “does not
materially alter any case-specific opinions within the report, is substantively identical to
the Initial Moline Report, and its use does not prejudice Defendants in any material
way.” Dkt. #288-1, ¶ 14. Plaintiff’s counsel avers that “[t]here are no new theories or
additional analysis of Mr. Byer’s circumstances offered in the January 2015 Moline
Report. Dkt. #288-1, ¶ 14. Plaintiff’s counsel describes this report as “essentially
combin[ing] the Initial Moline Report, the Supplemental Information, and add[ing] Dr.
Moline’s well-known general opinions regarding asbestos and asbestos-related
diseases and the well-known literature on which she formulated her opinions.” Dkt.
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#288-1, ¶ 8. Plaintiff’s counsel argues that defendants’ counsel “have deposed Dr.
Moline extensively several times in the past and are fully familiar with her general
expertise regarding asbestos and asbestos-related diseases and the literature that she
commonly cites in relation to those general opinions.” Dkt. #288-1, ¶ 15. Plaintiff’s
counsel avers that she has offered defendants another opportunity to depose Dr.
Moline and to extend the scheduling deadlines to alleviate any prejudice defendants
might claim. Dkt. #288-1, ¶ 16.

Rule 26(a)(2) of the Federal Rules of Civil Procedure provides as follows:
(A)

In General. In addition to the disclosures
required by Rule 26(a)(1), a party must disclose
to the other parties the identity of any witness it
may use at trial to present evidence under
Federal Rule of Evidence 702, 803, or 705.

(B) Written Report. Unless otherwise stipulated or
ordered by the court, this disclosure must be
accompanied by a written report – prepared and
signed by the witness – if the witness is one
retained or specially employed to provide expert
testimony in the case or one whose duties as the
party’s employee regularly involve giving expert
testimony. The report must contain:
(I) a complete statement of all opinions the
witness will express and the basis and reasons
for them;
(ii) the data or other information considered by the
witness in forming them;
(iii) any exhibits that will be used to summarize or
support them;
(iv) the witness’s qualifications, including a list of
all publications authored in the previous 10
years;
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(v) a list of all other cases in which, during the
previous four years, the witness testified as an
expert at trial or by deposition; and
(vi) a statement of the compensation to be paid for
the study and testimony in the case.
Pursuant to Rule 26(a)(2)(D), such disclosure must be made in accordance with the
deadline set forth in the Court’s Case Management Order, which, in this case, was
extended to May 19, 2014.

Rule 26(e) requires a party to supplement or correct a written report “in a
timely manner if the party learns that in some material respect the disclosure is
incomplete or incorrect.” However, supplementation is not permitted where there is no
information that was previously unknown or unavailable to the expert. Lidle v. Cirrus
Design Corp., No. 08 Civ. 1253, 2009 WL 4907201, at *6 (S.D.N.Y. Dec. 18, 2009);
See Sandata Technologies, Inc. v. Infocrossing, Inc., No. 05 Civ. 09546, 2007 WL
4157163, at *4 (S.D.N.Y. Nov. 16, 2007) (“It is only if the expert subsequently learns of
information that was previously unknown or unavailable, that renders information
previously provided in an initial report inaccurate or misleading because it was
incomplete, that the duty to supplement arises.”).

The additional information contained in Dr. Moline’s disclosure dated
January 6, 2015 is not previously unknown or unavailable data. To the contrary, the
information omitted from Dr. Moline’s initial expert disclosure is basic evidence
regarding the nature and use of asbestos and its effect on human health, including

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scientific research establishing essential elements of plaintiff’s claim, e.g., “a consensus
among the overwhelming majority of medical and scientific professionals and
organizations that asbestos fibers of any type or size can cause mesothelioma,
including chrysotile fibers.” Dkt. #284-7, p.14. Plaintiff’s counsel concedes that the
information contained in the January 6, 2015 disclosure contains “well-known general
opinions regarding asbestos and asbestos-related diseases and the well-known
literature on which [Dr. Moline] formulated her opinions,” but proffers no excuse for
withholding such information from defendants until the eve of a deposition which had
already been scheduled three times. Dkt. #288-1, ¶ 8.

“If a party fails to provide information . . . as required by Rule 26(a) . . . the
party is not allowed to use that information . . . to supply evidence on a motion, at a
hearing, or at a trial, unless the failure was substantially justified or was harmless.” Fed.
R. Civ. P. 37(c)(1). Notwithstanding the mandatory language of the rule, courts in the
Second Circuit have viewed the imposition of sanctions under the rule as discretionary
and have generally not ordered preclusion.” Houlihan v. Invacare Corp., No. CV 20044286, 2006 WL 1455469, at *1 (E.D.N.Y. May 24, 2006) (collecting cases). In
assessing whether a district court has exercised its discretion appropriately, the Court
of Appeals for the Second Circuit considers: (1) the party’s explanation for the failure to
comply with the discovery order; (2) the importance of the testimony of the precluded
witness; (3) the prejudice suffered by the opposing party as a result of having to
prepare to meet the new testimony; and (4) the possibility of a continuance. See
Patterson v. Balsamico, 440 F.3d 104, 117 (2d Cir. 2006); Softel, Inc. v. Dragon Med. &
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Scientific Commc’ns, Inc., 118 F.3d 955, 961 (2d Cir. 1997), cert. denied, 523 U.S.
1020 (1998). In assessing prejudice, the Court considers “whether the assertion of the
new claim would: (I) require the opponent to expend significant additional resources to
conduct discovery and prepare for trial; (ii) significantly delay the resolution of the
dispute; or (iii) prevent the plaintiff from bringing a timely action in another jurisdiction.”
Block v. First Blood Assocs., 988 F.2d 344, 350 (2d Cir. 1993). “A district court abuses
its discretion when the action taken was improvident and affected the substantial rights
of the parties.” Goetz v. Crosson, 41 F.3d 800, 805 (2d Cir. 1994) (internal quotation
omitted), cert. denied, 516 U.S. 821 (1995).

Without use of the opinions set forth in Dr. Moline’s January 6, 2015
disclosure that, for example, the “causal relationship between exposure to asbestos
dust and the development of mesothelioma is so firmly established in the scientific
literature that it is accepted as scientific ‘fact,’” plaintiff’s ability to establish the elements
of his wrongful death cause of action may be severely compromised. Thus, the Court’s
grant of defendants’ motion to preclude would impose a substantial risk of prejudice to
plaintiff. Conversely, Dr. Moline’s opinions regarding the link between exposure to
asbestos and mesothelioma can hardly be characterized as novel nor can they be
expected to substantively alter the defense of this action. Moreover, discovery has not
closed and there is no trial date set. Accordingly, the Court exercises its discretion to
deny defendants’ motion to preclude and grant plaintiff’s motion to permit late service of
Dr. Moline’s January 6, 2015 expert report.

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Defendants may conduct supplemental depositions of Dr. Moline and Dr.
Strauchen solely with respect to the new information contained Dr. Moline’s January 6,
2015 report. The supplemental depositions may not exceed 6 hours each and must be
completed no later than July 31, 2015. Plaintiff’s counsel shall bear the costs of such
depositions.

Defendants may supplement their expert witness disclosure, no later than
July 31, 2015, to address the new information contained in Dr. Moline’s January 6,
2015 report.

Dispositive motions shall be filed no later than October 2, 2015.

CONCLUSION
For the foregoing reasons, subject to the foregoing conditions,
defendants’ motion to preclude (Dkt. #284), is denied and plaintiff’s motion to permit
late service of Dr. Moline’s January 6, 2015 expert report (Dkt. #288), is granted.

SO ORDERED.

DATED:

Buffalo, New York
May 28, 2015

s/ H. Kenneth Schroeder, Jr.
H. KENNETH SCHROEDER, JR.
United States Magistrate Judge

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