Hershberger et al v. Ethicon Endo-Surgery, Inc.
Filing
358
MEMORANDUM OPINION AND ORDER granting plaintiffs' 292 MOTION to File a Motion in Limine to Exclude the Testimony of Dr. Jeffrey Brandon; granting plaintiffs' 296 MOTION to File Amended Responses to Ethicon's Motions in Limine; and granting Ethicon Endo-Surgery, Inc.'s 338 MOTION to Strike the Newly-Disclosed Opinions of Dr. Younis. Signed by Judge Thomas E. Johnston on 5/7/2012. (cc: attys; any unrepresented party) (cbo)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON DIVISION
SANDRA HERSHBERGER, et al.
Plaintiffs,
v.
CIVIL ACTION NO. 2:10-cv-00837
ETHICON ENDO-SURGERY, INC., et al.
Defendants.
MEMORANDUM OPINION AND ORDER
Pending before the Court are: (1) Plaintiffs’ Motion to File a Motion in Limine to Exclude
the Testimony of Dr. Jeffrey Brandon [Docket 292]; (2) Plaintiffs’ Motion to File Amended
Responses to Ethicon’s Motions in Limine [Docket 296]; and Defendants’ Motion to Strike the
Newly-Disclosed Opinions of Dr. Younis [Docket 338]. The full factual background of this case
is set out in the Court’s February 15, 2012, Memorandum Opinion and Order addressing Defendant
Ethicon’s motions in limine to exclude various expert witnesses and need not be repeated here. (See
Docket 334.)
I. MOTIONS TO FILE OUT OF TIME
The Court has already ruled on the substantive issues underlying the motions to file motions
and responses out of time. In so doing, the Court gave due consideration to the supplemental filings.
Therefore, Plaintiffs’ Motion to File a motion in limine regarding Dr. Brandon [Docket 292] and
Motion to File Amended Responses to Ethicon’s Motions in Limine [Docket 296] are GRANTED.
II. MOTION TO STRIKE OPINION OF DR. MARK YOUNIS
As the parties are aware, on January 19, 2012, the Court held a hearing pursuant to Daubert
v. Merrell Dow Pharmaceuticals to assess the reliability and helpfulness to the jury of the expert
witnesses in this case. (Docket 330.) At the Daubert hearing, Plaintiffs’ radiology expert, Dr. Mark
Younis, rendered an opinion that CT scanners may average density readings and thereby obscure
the clarity and accuracy of CT scans. (Docket 337 at 181-82.) Dr. Younis suggested that this
“volume averaging” phenomenon may cause formed staples to appear unformed. (Id.)
On March 15, 2012, Ethicon filed a Motion to Strike Dr. Younis’s opinion relating to
“volume averaging” and his conclusion that formed staples may appear unformed due to this
phenomenon. (Docket 338.) The basis for the motion is that Dr. Younis never disclosed his opinion
related to volume averaging or its ability to make formed staples appear unformed on CT scans.
Plaintiffs respond that the objection is untimely and that Ethicon’s own experts mentioned volume
averaging in their depositions. In an effort to reallocate the burden of disclosure, Plaintiffs also fault
Ethicon for not fully inquiring into the range of Dr. Younis’s opinions at his deposition. (Docket
339.)
Rule 26 of the Federal Rules of Civil Procedure requires disclosure of expert witnesses along
with a written report containing, inter alia, “a complete statement of all opinions to be expressed and
the basis and reasons therefor.” Fed. R. Civ. P. 26(a)(2)(B). This provision is intended to “impose
an additional duty to disclose information regarding expert testimony sufficiently in advance of trial
that opposing parties have a reasonable opportunity to prepare for effective cross examination and
perhaps arrange for expert testimony from other witnesses.” Id., advisory committee’s notes to 1993
amends. The time for making such expert disclosures and filing the corresponding reports is
2
determined by Rule 26(a)(2)(D) or by court order, if one exists. Supplementation of expert reports
is permitted, but “[a]ny additions or changes to [the] information must be disclosed by the time the
party’s pretrial disclosures under Rule 26(a)(3) are due.”1 Fed. R. Civ. P. 26(e)(2). The parties
agree that in this case, Rule 26(a)(3) disclosures were due on July 6, 2011. (Docket 338 at 2; Docket
192-3 at 1-2 & n.1.) To date, Plaintiffs have not attempted to disclose any expert opinion related
to the process of “volume averaging” or the manner in which this process may result in misleading
CT scan images.
Rule 37 provides the sanction for improperly disclosed expert opinions.2 Rule 37(c) states
relevantly that “[a] party that without substantial justification fails to disclose information required
by Rule 26(a) or 26(e)(1), or to amend a prior response to discovery as required by Rule 26(e)(2),
is not, unless such failure is harmless, permitted to use as evidence at trial, at a hearing, or on a
motion any witness or information not so disclosed.” Fed. R. Civ. P. 37(c). Defendants argue that
the failure to timely disclose Dr. Younis’s volume averaging opinion was prejudicial to their case.
The Court agrees and finds Plaintiffs’ untimely disclosure is neither justified nor harmless.
Although expert disclosures were due no later than July 6, 2011, Plaintiffs advanced the
volume averaging opinion for the first time at a hearing in January 2012. By the time Defendants
1
It is debatable whether supplementation to include the opinion at issue in this case would even be
permissible. See, e.g., Aveka LLC v. Mizuno Corp., 212 F.R.D. 306, 310 (M.D.N.C. 2002) (“[Rule
26(e)] does not cover failures of omission because the expert did an inadequate or incomplete
preparation. To constue supplementation to apply whenever a party wants to bolster or submit
additional expert opinions would wreak havoc in docket control and amount to unlimited expert
opinion preparation.”).
2
The Court is also conscious of the instruction to construe the Federal Rules of Civil Procedure “to
secure the just, speedy, and inexpensive determination of every action and proceeding.” Fed. R. Civ.
P. 1. Although the latter two goals appear somewhat out of reach in this case, fair administration
of discovery is, as always, an important consideration.
3
were able to reliably identify the new opinion (upon receipt and review of the 215-page hearing
transcript on March 9, 2012), the parties and the Court were turning an eye toward trial. Curing
Plaintiff’s error by re-deposing Dr. Younis and searching for a rebuttal expert would be costly, time
consuming, and perhaps impossible for Defendants. Furthermore, the Court is hesitant to condone
the non-disclosure of Dr. Younis’s opinion by requiring Defendants to engage in these eleventh hour
maneuvers. Finally, it is telling that Plaintiffs put forward no excuse for the late disclosure. Instead,
they argue that Defendants never asked the right questions of Dr. Younis to learn of his various
opinions. Such an argument turns the discovery process on its head, and it will not be tolerated.
For the foregoing reasons, the Court FINDS that Plaintiffs violated Rules 26 and 37 of the
Federal Rules of Civil Procedure by failing to disclose Dr. Younis’s volume averaging opinion. The
Court further FINDS that the failure is not harmless and therefore GRANTS Ethicon’s Motion to
Strike [Docket 338]. Dr. Younis may not render the opinion at trial, nor may counsel reference the
relevant portion of his testimony from the Daubert hearing at trial.
III. CONCLUSION
For the foregoing reasons, Plaintiffs’ Motion to File a motion in limine regarding Dr.
Brandon [Docket 292] and Motion to File Amended Responses to Ethicon’s Motions in Limine
[Docket 296] are GRANTED. Ethicon’s Motion to Strike the Newly-Disclosed Opinions of Dr.
Younis [Docket 338] is also GRANTED.
4
IT IS SO ORDERED.
The Court DIRECTS the Clerk to send a copy of this Order to counsel of record and any
unrepresented party.
ENTER:
5
May 7, 2012
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