Stubblefield v. Johnson & Johnson et al
Filing
88
ORDER (Re: Motion to Exclude the Case-Specific Opinions of Dr. Vladimir Iakovlev) denying 51 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) (kp)
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:
Stubblefield v. Ethicon, Inc., et al.
Civil Action No. 2:12-cv-00842
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. 51]. The plaintiff has responded [ECF
No. 64], and the defendants have replied [ECF No. 75]. 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, expert disclosure by the plaintiffs was due by February 1, 2016. PTO #
217 [ECF No. 74]. Pursuant to Rule 26(a)(2) of the Federal Rules of Civil Procedure,
the plaintiff was to submit a written report accompanying the expert disclosure. Fed.
R. Civ. P. 26(a)(2). On February 1, 2016, the plaintiff served her expert disclosure in
this case designating Dr. Vladimir Iakovlev as a case-specific and general pathology
expert. At the time, however, the plaintiff 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 15, 2016. On February 23, 2016, without seeking leave of the court or a
further extension from the defendants, the plaintiff submitted Dr. Iakovlev’s casespecific report with the defendants.
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
explanation for the party's failure to name the witness before trial; and
(5) the importance of the testimony.
PTO # 217 amends PTO # 205, which first set scheduling deadlines for “Wave 1” cases in the
Ethicon MDL.
1
2
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 plaintiff failed to submit her report in a timely
fashion. The defendants argue that the plaintiff 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
plaintiff’s case-specific report.
In response, the plaintiff argues that the Hoyle factors direct a finding that the
failure to provide the report was harmless. The plaintiff argues 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 plaintiff’s counsel in “Wave 1 cases”; and (3)
defendants will neither be surprised nor unfairly prejudiced by Dr. Iakovlev. The
plaintiff then asserts numerous other excuses for why her case-specific report has not
been submitted to the defendants, including issues with Dr. Iakovlev and Vanderbilt
University Medical Center, which had been storing Ms. Stubblefield’s pathology
materials.
In reply, the defendants argue that the case-specific report the plaintiff
submitted is not a supplement. Further, the defendants argue that this situation was
caused by the mere fact that plaintiff’s counsel assigned 40 case-specific pathology
reports to Dr. Iakovlev without determining whether he alone would be able to
3
develop his reports and submit them to the defendants within the court-ordered
deadlines.
I am concerned by the plaintiff’s 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 this plaintiff was 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. 51] 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
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?