Cole et al v. Ethicon, Inc. et al

Filing 96

ORDER (Re: Motion to Exclude the Case-Specific Opinions of Dr. Vladimir Iakovlev) denying 63 MOTION by Ethicon, Inc., Johnson & Johnson to Exclude the Case-Specific Opinions of Dr. Vladimir Iakovlev, as more fully set forth herein. Signed by Judge Joseph R. Goodwin on 4/21/2016. (cc: counsel of record; any unrepresented party) (ts)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON DIVISION
IN RE: ETHICON, INC.,
PELVIC REPAIR SYSTEM
PRODUCTS LIABILITY LITIGATION

MDL NO. 2327

THIS DOCUMENT RELATES TO:

Cole, et al. v. Ethicon, Inc., et al.

Civil Action No. 2:12-cv-00483
ORDER

(Re: Motion to Exclude the Case-Specific Opinions of Dr. Vladimir Iakovlev)
Pending before the court is Defendants’ Motion to Exclude the Case-Specific
Opinions of Dr. Vladimir Iakovlev [ECF No. 63]. The plaintiffs have responded [ECF
No. 72], and the defendants have replied [ECF No. 77]. For the following reasons, the
defendants’ motion is DENIED.
This case resides in one of seven MDLs assigned to me by the Judicial Panel
on Multidistrict Litigation concerning the use of transvaginal surgical mesh to treat
pelvic organ prolapse and stress urinary incontinence. In the seven MDLs, there are
over 75,000 cases currently pending, approximately 30,000 of which are in the
Ethicon MDL, MDL 2327. As a part of this MDL, I ordered the plaintiffs and
defendants to select 200 of the oldest cases in the Ethicon MDL that name only
Ethicon, Inc., Ethicon, LLC, and/or Johnson & Johnson or allege claims only against
the Ethicon defendants’ products. Once selected, those cases became part of a “wave”
of cases to be prepared for trial and, if necessary, remanded or transferred to the
appropriate court. The instant case was selected as an Ethicon Wave 1 case that is

governed by discovery deadlines set forth in Pretrial Order (“PTO”) # 217. 1 Pursuant
to PTO # 217, the plaintiffs’ expert disclosure was due by February 1, 2016. PTO #
217 [ECF No. 71]. Pursuant to Rule 26(a)(2) of the Federal Rules of Civil Procedure,
the plaintiffs were to submit a written report accompanying the expert disclosure.
Fed. R. Civ. P. 26(a)(2). On February 1, 2016, the plaintiffs served their expert
disclosure in this case designating Dr. Vladimir Iakovlev as a case-specific and
general pathology expert. At the time, however, the plaintiffs did not serve an expert
report regarding the case-specific pathology opinions of Dr. Iakovlev (“case-specific
report”). The parties agreed to extend the deadline for submitting the case-specific
report to February 16, 2016. On February 29, 2016, without seeking leave of the
court or a further extension from the defendants, the plaintiffs submitted to the
defendants a “supplemental” written report regarding Dr. Iakovlev’s case-specific
report.
Rule 37(c)(1) of the Federal Rules of Civil Procedure provides that if a party
fails to comply with the disclosure requirements of Rule 26(a), the party will not be
able to use that witness or information to supply evidence unless the failure was
“substantially justified or is harmless.” Fed. R. Civ. P. 37(c)(1).

In Hoyle v.

Freightliner, LLC, the Fourth Circuit outlined five factors to consider whether a
failure to fully comply with Rule 26(a) is substantially justified or harmless:
(1) the surprise to the party against whom the witness was to have
testified; (2) the ability of the party to cure that surprise; (3) the extent
to which allowing the testimony would disrupt the trial; (4) the

PTO # 217 amends PTO # 205, which first set scheduling deadlines for “Wave 1” cases in the
Ethicon MDL.
1

2

explanation for the party's failure to name the witness before trial; and
(5) the importance of the testimony.

Hoyle v. Freightliner, LLC, 650 F.3d 321, 329 (4th Cir. 2011).
The defendants move to exclude the case-specific report of Dr. Iakovlev on the
grounds that, despite an extension, the plaintiffs failed to submit her report in a
timely fashion. The defendants argue that the plaintiffs needed to show “excusable
neglect” in order to file Dr. Iakovlev’s case-specific report after the stipulated
deadline. The defendants also argue that each of the Hoyle factors point towards
excluding the plaintiffs’ case-specific report.
In response, the plaintiffs argue that the Hoyle factors direct a finding that the
failure to provide the report was harmless. The plaintiffs argue that: (1) the casespecific report is key to her ability to establish a connection between a defect in the
mesh and her injuries; (2) Dr. Iakovlev is well known to the defendants and has been
a primary pathology expert for plaintiffs’ counsel in “Wave 1 cases”; and (3)
defendants will neither be surprised nor unfairly prejudiced by Dr. Iakovlev. The
plaintiffs then assert numerous other excuses for why her case-specific report has not
been submitted to the defendants, including issues with Dr. Iakovlev and Steelgate,
Inc., which is a third party repository vendor of mesh material that has been holding
pathology materials for certain parties in the Ethicon MDL. Finally, the plaintiffs
argue that the report to be submitted is merely “supplemental” and thus permissible
to be submitted after the deadline.
In reply, the defendants argue that the case-specific report the plaintiffs
submitted is not a supplement. Further, the defendants argue that this situation was
3

caused by the mere fact that plaintiffs’ counsel assigned 40 case-specific pathology
reports to Dr. Iakovlev without determining whether he alone would be able to
develop his reports and submit them to the defendants within the court-ordered
deadlines.
I am concerned by the plaintiffs’ action in submitting these late reports without
moving the court for leave to do so or an extension on the deadline for submission.
However, because these plaintiffs were able to submit the case-specific expert
pathology report before the close of discovery for Wave 1 cases pursuant to PTO #
217, I find that the Hoyle factors lean towards not excluding the expert pathology
report.
Accordingly, the Defendants’ Motion to Exclude the Case-Specific Opinions of
Dr. Vladimir Iakovlev [ECF No. 63] is DENIED.
The court DIRECTS the Clerk to send a copy of this Order to counsel of record
and any unrepresented party.
ENTER: April 21, 2016

4