Waynick et al v. Johnson & Johnson et al

Filing 75

ORDER (Re: Motion to Exclude the Case-Specific Opinions of Dr. Vladimir Iakovlev) granting 46 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:

Waynick, et al. v. Ethicon, Inc., et al.

Civil Action No. 2:12-cv-01151
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. 46]. The plaintiffs have not responded,
and the time for doing so has expired. Thus, this motion is ripe for my review. For the
following reasons, the defendants’ motion is GRANTED.
The defendants move to exclude the case-specific expert pathology report of Dr.
Iakovlev on the grounds that the plaintiffs failed to submit the report.

The

defendants note that they still do not have the plaintiffs’ case-specific report despite
that it was due two months ago. The plaintiffs did not respond.
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

Hoyle v. Freightliner, LLC, 650 F.3d 321, 329 (4th Cir. 2011).
The court has been transparent about the need to comply with deadlines
throughout the Ethicon MDL. Pretrial orders—and the parties’ compliance with those
orders and the deadlines set forth therein—“are the engine that drives disposition on
the merits.” Id. at 1232. And a “willingness to resort to sanctions” in the event of
noncompliance can ensure that the engine remains in tune, resulting in better
administration of the vehicle of multidistrict litigation. Id.; see also Freeman v.

Wyeth, 764 F.3d 806, 810 (8th Cir. 2014) (“The MDL judge must be given ‘greater
discretion’ to create and enforce deadlines in order to administrate the litigation
effectively. This necessarily includes the power to dismiss cases where litigants do
not follow the court’s orders.”).
I agree with the defendants and find that the Hoyle factors weigh in favor of
excluding Dr. Iakovlev’s case-specific report. Plaintiffs’ counsel never once sought an
extension to comply with these deadlines from the court despite knowledge of both
the discovery deadlines and Dr. Iakovlev’s ability to process the reports in a timely
fashion, nor did they contest this motion. Furthermore, pursuant to Pretrial Order #
217 [ECF No. 55], discovery for Wave 1 cases concluded on April 1, 2016.

Accordingly, Defendants’ Motion to Exclude the Case-Specific Opinions of Dr.
Vladimir Iakovlev [ECF No. 46] is GRANTED. It is ORDERED that all case-specific
opinions of Dr. Vladimir Iakovlev are EXCLUDED from this case.
The court DIRECTS the Clerk to send a copy of this Order to counsel of record
and any unrepresented party.
ENTER: April 21, 2016