Schroeder et al v. Ethicon, Inc. et al
ORDER granting the Motion by Certain Plaintiffs in Wave 2 Cases to Strike Dr. Shelby F. Thames' Supplemental Reports or, in the Alternative, for Leave to File a Daubert Motion Based on the Flawed Methodology Employed Therein filed in MDL 2327 at ECF No. 2882, as more fully set forth herein. Signed by Judge Joseph R. Goodwin on 3/28/2017. (cc: counsel of record; any unrepresented party) (REF: MDL 2327; Cases Listed on Exhibit A) (ts)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
PELVIC REPAIR SYSTEM
PRODUCTS LIABILITY LITIGATION
MDL No. 2327
THIS DOCUMENT RELATES TO:
Cases identified in Exhibit A attached hereto
Pending before the court is the plaintiffs’ Motion to Strike the Dr. Shelby F.
Thames’s Supplemental Reports or, in the Alternative, for Leave to File a Daubert
Motion [ECF No. 2882]. Ethicon filed its Response [ECF No. 3020]. The plaintiffs’
Motion requests exclusion of Dr. Thames’s two supplemental reports but also
requests that the court, in the alternative, allow them additional time to depose Dr.
Thames. For the reasons detailed below, the plaintiffs’ Motion is GRANTED as to the
cases in Exhibit A. 1
Pursuant to the Fourth Amended Wave 2 Docket Control Order [ECF No. 1790]
(“Docket Control Order”), Ethicon was required to disclose its experts (and their
opinions) on or before June 3, 2016. Docket Control Order 1. Discovery closed on July
On Exhibit A, I have marked through cases that are closed, on the inactive docket, not in Wave 1,
could not be identified because of an error in the style or case number, or assigned to another District
1, 2016. Id. Further, all Daubert briefing was to be completed by August 18, 2016,
with Daubert motions due July 21, 2017. Id. Ethicon timely disclosed Dr. Thames as
an expert, along with his initial expert report. In the plaintiffs’ Wave 1 Daubert
motion on Dr. Thames, they questioned the reliability of Dr. Thames’s explant
cleaning protocol. Mem. Supp. Mot. Exclude Ops. Dr. Thames 8–10 [ECF No. 2042].
It was this argument that prompted the design and execution of a new experiment to
test the reliability of his cleaning protocol, to buttress the strength and reliability of
his prior opinion. Mot. Strike Ex. B, at 1 [ECF No. 2882-2] (“First Supplemental
Report”). Ethicon then served the First Supplemental Report with the preliminary
conclusions of this experiment on August 8, 2016, and the Second Supplemental
Report with the formal conclusions on September 28, 2016. See id. at 1; Mot. Strike
Ex. C, at 1 [ECF No. 2882-3] (“Second Supplemental Report”). Both reports were
served after the disclosure deadline, motion deadline, and close of discovery.
The plaintiffs argue for exclusion under Rule 37(c) on the grounds that the
supplemental reports were untimely served. Mot. Strike 2–3. Ethicon does not
dispute that the reports were untimely served and responds that its delayed
disclosures were justified and harmless. Ethicon focuses its attention on the fivefactor test from Hoyle v. Freightliner, LLC, 650 F.3d 321, 329 (4th Cir. 2011). See
Pursuant to Rule 37(c) of the Federal Rules of Civil Procedure,
If a party fails to provide information or identify a witness as required
by Rule 26(a) or (e), the party is not allowed to use that information or
witness to supply evidence on a motion, at a hearing, or at a trial, unless
the failure was substantially justified or is harmless.
According to the Fourth Circuit, the appropriate factors to consider in determining
whether to sanction a party under Rule 37(c) are the following:
(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, 650 F.3d at 329.
I am simply unable to find that Ethicon’s late disclosures of Dr. Thames’s
supplemental expert reports were substantially justified. Dr. Thames has a
longstanding relationship with Ethicon, and Ethicon has provided no reason why this
testing could not have been done prior to the disclosure of the initial expert report.
Essentially, because the plaintiffs questioned the reliability of Dr. Thames’s protocol,
Ethicon decided to bolster its case by having Dr. Thames perform more testing of the
testing. In essence, the supplemental expert reports are atonement for initial
inadequacies or incomplete preparation. However, I must also evaluate whether the
late disclosures were nevertheless harmless before I can determine whether sanctions
The plaintiffs’ arguments support a finding of surprise. Although the plaintiff
attacked the adequacy of Dr. Thames’s cleaning protocol in their Daubert motion,
they had no reason to suspect that an entirely new test would be performed to rebut
their argument of reliability and then disclosed after the discovery deadline had
closed. However, both parties have agreed to allow additional time for Daubert
briefing should the reports not be excluded. Thus, the ability to cure the surprise
weighs in favor of permitting the reports.
I recognize that a trial date has not been set in this case, and I also recognize
that any harm to the plaintiffs regarding this matter may be easily remedied by
allowing them to have additional time to depose Dr. Thames. However, I must be
particularly cognizant of the realities of multidistrict litigation and the unique
problems an MDL judge faces. Specifically, when handling seven MDLs, each
containing thousands of individual cases, case management becomes of utmost
importance. See In re Phenylpropanolamine Prods. Liab. Litig., 460 F.3d 1217, 1231
(9th Cir. 2006) (emphasizing the “enormous” task of an MDL court in “figur[ing] out
a way to move thousands of cases toward resolution on the merits while at the same
time respecting their individuality”). I must define rules for discovery and then
strictly adhere to those rules, with the purpose of ensuring that pretrial litigation
flows as smoothly and efficiently as possible. See id. at 1232 (“[T]he district judge
must establish schedules with firm cutoff dates if the coordinated cases are to move
in a diligent fashion toward resolution by motion, settlement, or trial.”); see also Fed.
R. Civ. P. 1 (stating that the Federal Rules of Civil Procedure “should be construed
and administered to secure the just, speedy, and inexpensive determination of every
action and proceeding”). In turn, counsel must collaborate with the court “in
fashioning workable programmatic procedures” and cooperate with these procedures
thereafter. In re Phenylpropanolamine, 460 F.3d at 1231–32. 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. 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.”).
The fourth factor, importance of the testimony, also weighs in favor of striking
the reports. Both supplemental reports are twelve pages long, whereas the original
report is 132 pages long. The testimony contained in the reports does not go to the
heart of the case, but instead serves only to enforce the reliability of Dr. Thames’s
cleaning protocol. I cannot find that the supplemental reports are crucial to either
Accordingly, the plaintiffs’ Motion to Strike the Dr. Shelby F. Thames’s
Supplemental Reports or, in the Alternative, for Leave to File a Daubert Motion [ECF
No. 2882] is GRANTED.
The court DIRECTS the Clerk to send a copy of this Order to counsel of record
and any unrepresented party.
ENTER: March 28, 2017
Civil Action Number
Ankenman, Cathleen & John J.
Kowalski, Judith Mary
Hart, Mary Ann & William J.
Schroeder, Carreen & Matthew
Almendarez, Angela M.
Hines, Lynn & Gregory
Vandergriff, Debbie & Carl
Eaton, Cynthia & Frank
Aldrich, Jacqueline Marie & Darryl
Higgins, Susan & Bob
McDonald, Maria & Thomas
Fitzgerald, Alina & Christopher
Boudreau, Linda L. & Charles J.
Simpson, Sherry Gill & Ricky
Watson, Sandra Rosalie & Earl L.
Brady, Victoria Lee & Maurice Joseph
Grayson, Pamela Sue
Perry, Mary Lou
Ford, Deborah K. & Donald K. Blowers, Jr.
Blackston, Ossie & John
Martin, Diann & Donald
Schomer, Margaret A.
Smith, Patricia G. & Mark
Cruse, Peggy D.
Raney, Barbara A. & Marcus
Majors, Jennifer A. & Jonathan S.
Flanigan, Iris & Earl David
Gologan, Didina & Alexandru
Burton, Kimberly Lee & Christopher Carl
McGathey, Elizabeth M.
Crews, Lillie Harriet & Wain E.
Spitzner, Bobbie Dianne & James W.
Sanders, Melissa & Charles, Jr.
Childress, Sandra & Timothy
Cottrell, Teresa & Joe Palazzolo
Wilson, Marcia & Robert
Walkingstick, Margaret Christine
Lindberg, Patricia & Carl
Perez, Leezel & Jeffrey
Cole, Phyllis Smith & Willie Ray
Hatfield, Nona & Billy Ray
Cooper, Jennifer & Dave
Carter, Tamara & David
Smallwood, Nancy & Leon, Sr.
Glenn, Rhonda & Era Fox, III
Allen, Diana & Timothy
Fleck, Jean E.
Lenz, Debera & Robert
Mooney, Konnie L. & James
Bailey, Pamela & Houston
Colbert, Rhonda & Joseph
Hoch, Susan & Christopher
Johnson, Cynthia & Robert
Meyer, Linda & Steve
Muir, Marilyn & Scott
Shelton, Mary & Frank
Swanson, Karen & Thomas
Hutchison, Deanna Gail
Suter, Carol Ann & Troy W.
Denton, Shirley & Marvin
Frazier, Margaret & William Allen
Raines, Myra & Kenneth
Rhodes, Rebecca & Scott
Sidwell, Loretta & Jimmy
Williamson, Betty & Donald
Gibson, Susan & Michael
Savage, Stacey D. & Ebbie E. Ferrell
Blevins, Vickie Lea & Robert Oliver
Slade, Sebrina & Eric
Paris, Christin & Michael
Young, Tina L. & Jeffrey
Patrick, Lottie M. & John D.
Lane, Ann Jennette & Daniel Mark
Cutter, Jenesta & Larry A.
Burnett, Mary K.
Hammett, Carolyn R.
Brookman, Lesley Mitchell & Michael
Merten, Janet & Gerard
Zutovsky, Linda & Leonard
Sierra, Ana & Luis
Hemingway, Veda & Gary
Strickland, Deborah J. & Matthew
Guy, Sheryl C.
Abell, Emily S. & Michael K.
Bishop, Cheryl L.
Symank, Bernie & Herman
Gallehugh, Michelle & Ronnie
Parton, Lori Anne Copeland, Executrix of
the Estate of Sue Bilbrey Copeland,
Peterson, Winnie Elise
Jernigan, Joan E. & Fred T.
Luna, Tracy L.
Hays, Brenda & Roger
Hensley, Mary M.
Bowles, Phyllis & Charles
Rogers, Ruby G. & Dwayne L.
Irwin, Priscilla A. & Daniel S.
Dycus, Myrtle Frances
Henry, Lana & Phillip Dean
Riggs, Donna & Gary
Hughes, Brenda L. & Ronnie
Poole, Cheryl & Kenneth
Devoe, Debra & Randy
Covington‐Branker, Barbara M. & Brian B.
Cope, Michele A. & Barry
Deforrest, Patricia Ann & John H.
Cambre, Terri L.
Trimper, Carolyn S.
West, Peggy Sue & Larry R.
Phillips, Eleanor F. & John R.
Higgins, Anna R.
Brennon, Rebecca J.
Carr, Gwendolyn N. & Rundell D.
Bowers, Betty Jean
Beard, Gavie & Kenneth
Gullett, Brenda & Carl
Peterson, Tracy & Kevin
Reed, Deborah F. & Dale K.
Daugherty, Angela & Jimmy
Marshall, Natalie C. & David R.
Hand, Wanda M. & Charles W.
Burns‐Martin, Dayna & Kevin
Brady, Deborah D.
Hicks, Shannon H. & James D.
McClain, Barbara Sue
Roberts, Brenda C. & Dwight
Clay, Crystal Lynn
Nelson, Kathryn M.
Loomis, Barbara & Dighton
Doucette, Karen L.
Dunham, Lynne & David
Crabtree, Reba & Jack
Lary, Sheryl & Kevin E.
Manor, Kristy & John E., III
Messina, Laritza & John
Panske‐Phillips, Emma & Luther Y., Jr.
Pippin, Laura & Donald
Bihlmeyer, Donna & Joe
Hreiz, Amy Elizabeth & Adel Elias
Villarreal, Katherine & Carlos
Ogletree, Linda J. & John A.
Partin, Patricia Graham
Pageau, Tina Marie
Lambert, Corrie Ann & Ronson
Martin, Patricia J. & Dennis R., Sr.
Miller, Rose M.
Pieper, Laura & Mike
Pridmore, Hope Elaine & James O.
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