Mullins et al v. Johnson & Johnson et al

Filing 1625

MEMORANDUM OPINION AND ORDER granting 1534 MOTION by Ethicon, Inc., Johnson & Johnson to Strike Plaintiffs' Supplemental Expert Reports; the court ORDERS that the plaintiffs' supplemental expert reports are STRICKEN. Signed by Judge Joseph R. Goodwin on 2/2/2017. (cc: counsel of record; any unrepresented party) (kp)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON DIVISION
TERRESKI MULLINS, et al.,
Plaintiffs,
v.

CIVIL ACTION NO. 2:12-cv-02952

ETHICON, INC., et al.,
Defendants.

MEMORANDUM OPINION AND ORDER
Pending before the court is Defendants’ Motion to Strike Plaintiffs’
Supplemental Expert Reports [ECF No. 1534]. The plaintiffs filed their Response
[ECF No. 1570], and the defendants filed their Reply [ECF No. 1596]. For the reasons
provided below, the Motion is GRANTED.
I.

Background
In June 2016, the Supreme Court of Appeals of West Virginia published its

West Virginia Pattern Jury Instructions for Civil Cases: Instructions on the Law in
Plainer Language (2016 ed.) (“PJI”). Subsequent to the PJI’s publication, Ethicon
filed a Motion to Reconsider [ECF No. 819], wherein Ethicon requested that the court
reconsider its prior ruling regarding the necessity of proving the existence of a safer,
alternative design as part of a plaintiff’s prima facie case in a strict products liability
design defect case under West Virginia law. On December 9, 2016, the court entered

its Memorandum Opinion & Order [ECF No. 1525], reconsidering its prior Order
[ECF No. 38] and ruling that “in a West Virginia strict liability design defect products
liability case, a plaintiff must prove that there was an alternative, feasible design—
existing at the time of the product’s manufacture—that would have eliminated the
risk that injured the plaintiff.” Mem. Op. & Order, Dec. 9, 2016, at 12; see also Mem.
Op. & Order, Aug. 4, 2015 [ECF No. 38].
On January 12, 2017, five months after the close of discovery, the plaintiffs
served four supplemental general expert reports, as well as a supplemental casespecific expert report in each of these consolidated cases. See Defs.’ Mot. 1. Ethicon
argues that these supplemental reports are untimely and, if permitted, will require
the reopening of expert discovery and the continuance of the March 6, 2017, trial date.

See generally id. The plaintiffs argue that the supplemental reports were completed
as quickly as possible after the court’s December 9, 2016, Order. Pls.’ Resp. 3–9. The
plaintiffs alternatively argue that, even if their supplemental reports are untimely,
the court should permit the supplementation under the five-part balancing test
discussed in Hoyle v. Freightliner, LLC, 650 F.3d 321 (4th Cir. 2011). Id. at 9–11.
II.

Legal Standard
Rule 26(a)(2)(A) requires that “a party must disclose to the other parties the

identity of any witness it may use at trial to present evidence under Federal Rule of
Evidence 702, 703, or 705.” Fed. R. Civ. P. 26(a)(2)(A). “Unless otherwise stipulated
or ordered by the court, this disclosure must be accompanied by a written report—
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prepared and signed by the witness—if the witness is one retained or specially
employed to provide expert testimony in the case or one whose duties as the party’s
employee regularly involve giving expert testimony.” Fed. R. Civ. P. 26(a)(2)(B). In
regards to the duty to supplement disclosures, the Federal Rules of Civil Procedure
state the following:
(e) Supplementing Disclosures and Responses.
(1) In General. A party who has made a disclosure under
Rule 26(a)—or who has responded to an interrogatory,
request for production, or request for admission—must
supplement or correct its disclosure or response:
(A) in a timely manner if the party learns that
in some material respect the disclosure or
response is incomplete or incorrect, and if the
additional or corrective information has not
otherwise been made known to the other
parties during the discovery process or in
writing; or
(B) as ordered by the court.
(2) Expert Witness. For an expert whose report must be
disclosed under Rule 26(a)(2)(B), the party’s duty to
supplement extends both to information included in the
report and to information given during the expert’s
deposition. Any additions or changes to this information
must be disclosed by the time the party’s pretrial
disclosures under Rule 26(a)(3) are due.
Fed. R. Civ. P. 26(e). Rule 37 of the Federal Rules of Civil Procedures provides for
sanctions in the event a party fails to properly disclose or supplement a disclosure:

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(c) Failure to Disclose, to Supplement an Earlier Response, or to Admit.
(1) Failure to Disclose or Supplement. 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. In addition to or instead of this
sanction, the court, on motion and after giving an
opportunity to be heard:
(A) may order payment of the reasonable
expenses, including attorney's fees, caused by
the failure;
(B) may inform the jury of the party's failure;
and
(C) may impose other appropriate sanctions,
including any of the orders listed in Rule
37(b)(2)(A)(i)-(vi).
Fed. R. Civ. P. 37(c)(1). “The court has ‘broad discretion’ to determine whether an
untimely disclosure is substantially justified or harmless.” Gallagher v. S. Source

Packaging, LLC, 568 F. Supp. 2d 624, 631 (E.D.N.C. 2008) (citing S. States Rack &
Fixture, Inc. v. Sherwin-Williams Co., 318 F.3d 592, 597 (4th Cir. 2003)). In
determining whether nondisclosure of evidence is substantially justified or harmless,
the Fourth Circuit considers the following factors:
(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 (citing Sherwin-Williams Co., 318 F.3d at 596).
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III.

Discussion
Ethicon argues that the plaintiffs’ disclosure of the supplemental expert

reports is “plainly untimely and prejudicial.” Defs.’ Mot. 4. According to Ethicon, “the

Hoyle factors support striking these untimely supplemental reports.” Id. First,
Ethicon states that it was unfairly surprised because the disclosures came more than
five months after the close of discovery. Id.
Defendants have always maintained that safer alternative design was
part of Plaintiffs’ prima facie case, and Plaintiffs’ original expert reports
included opinions about safer alternative designs. The alternative
designs Plaintiffs’ experts now propose in their supplemental reports
were in existence at the time of their original reports, and yet they did
not include them. They have done so now to the unfair surprise of
Defendants.

Id. at 4–5. Ethicon also argues that the second Hoyle factor weighs against the
plaintiffs because it cannot cure the surprise within the current pretrial deadlines.

Id. at 5 (“There is no way to cure the prejudice of allowing new Plaintiffs’ expert
opinions at this time without reopening all expert discovery and motions practice.”).
Relatedly, Ethicon argues that the third Hoyle factor weighs against the plaintiffs
because the court would need to “reopen Daubert motions, motions in limine, and
dispositive motion practice . . . . All of this would be impossible to do while still
maintaining the upcoming March 6 trial date.” Id. Regarding the fourth Hoyle factor,
Ethicon argues that the plaintiffs have not been diligent and have been given “ample
opportunity to develop their safer alternative design evidence before now.” Id.
Ethicon states that the plaintiffs “did not act diligently in waiting over one month
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after the Court’s December 9, 2016 Order before serving their supplemental reports.
Nor did they provide Defendants or the Court with notice that they intended to serve
supplemental reports.” Id. at 6 (emphasis removed). Finally, Ethicon concedes that
the fifth Hoyle factor favors the plaintiffs. Id. (“Certainly, evidence of safer
alternative design is important to the Plaintiffs’ case.”).
The plaintiffs oppose Ethicon’s Motion on three grounds. First, the plaintiffs
argue that because the court had previously ruled that a safer alternative design was
not a necessary element of the plaintiffs’ prima facie case, they had to supplement
the expert reports based on the court’s December 9, 2016, Order. Pls.’ Resp. 2. Second,
the plaintiffs argue that the supplemental reports were “not confined to the feasible
alternative design arguments; they also addressed the issue of specific causation in
the December 9, 2016 [O]rder. . . .” Id. Finally, the plaintiffs argue that they “made
every effort to incorporate relevant statements made by their experts during
depositions that were not addressed in the initial reports.” Id. at 3.
A.

General Causation Supplemental Reports (Safer Alternative Design)

The plaintiffs have failed to show that their disclosure was a true
supplementation under Rule 26(e) of the Federal Rules of Civil Procedure. Rule 26(e)
“is not a device to allow a party’s expert to engage in additional work, or to annul
opinions or offer new ones to perfect a litigating strategy.” Cochran v. Brinkmann

Corp., No. 1:08-cv-1790, 2009 WL 4823858, at *5 (N.D. Ga. Dec. 9, 2009). “To construe
[Rule 26(e)] supplementation to apply whenever a party wants to bolster or submit
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additional expert opinions would [wreak] havoc in docket control and amount to
unlimited expert opinion preparation.” Campbell v. United States, 470 F. App’x 153,
157 (4th Cir. 2012) (citation omitted). “A party has a clear obligation to disclose and
supplement expert witness information in a timely fashion, ‘[b]ut this duty does not
permit a party to make an end-run around the normal timetable for conducting
discovery.’” Kanawha-Gauley Coal & Coke Co. v. Pittston Minerals Grp., No. 2:09-cv01278, 2011 WL 320909, at *2 (S.D. W. Va. Jan. 28, 2011) (Goodwin, J.) (quoting

Colony Apartments v. Abacus Project Mgmt., Inc., 197 F. App’x 217, 223 (4th Cir.
2006)). “Rule 26(e) envisions supplementation when a party’s discovery disclosures
happen to be defective in some way so that the disclosure was incorrect or incomplete
and, therefore, misleading.” Akeva L.L.C. v. Mizuno Corp., 212 F.R.D. 306, 310
(M.D.N.C. 2002).
The plaintiffs are only partially correct when they state that “the rule directs
parties to supplement expert reports that are ‘incomplete or incorrect’ before the
deadline for pretrial disclosures.” Pls.’ Resp. 3. Rule 26(e) requires supplementation
in a timely manner “if the party learns that in some material respect the disclosure
or response is incomplete or incorrect.” Fed. R. Civ. P. 26(e) (emphasis added). The
plaintiffs state the following: “Plaintiffs believe that their original reports contained
sufficient information to make a prima facie case, as to both the existence of a safer
alternative design and also to specific causation.” Pls.’ Resp. 8–9 (emphasis removed).
Thus, the plaintiffs cannot rightfully argue that any previous expert report as to these
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topics is “in some material respect” incomplete or incorrect because the plaintiffs
point out that the prior reports are sufficient to present their respective cases.
Moreover, every remaining plaintiff in these consolidated cases, except one, opposed
summary judgment as to their respective strict liability–design defect claims on the
grounds that they have provided sufficient evidence to prove the existence of a safer
alternative design, even though they argued such a showing is not required.1 See
ECF Nos. 1260, 1268, 1271, 1278, 1281, 1293, 1297, 1301, 1303, 1313, 1317, 1321,
1322, 1328, 1336, 1337, 1343, 1347, 1351, 1355, 1362, 1367, 1420, 1424, and 1433.
Accordingly, the court FINDS that the plaintiffs had no duty to supplement their
general causation expert disclosures regarding the existence of a safer alternative
design under Rule 26(e); thus, Rule 37(c) and the Hoyle factors do not apply here. See
Fed. R. Civ. P 37(c) (providing a sanction when a party fails to provide information or
identify a witness as required by Rule 26(a) or (e)); see also Hoyle, 650 F.3d at 329
(applying the relevant factors to determine whether nondisclosure of evidence is
substantially justified or harmless). Instead, the plaintiffs attempted to bolster their
positions with discovery disclosures outside of the discovery deadline. Accordingly,
Ethicon’s Motion on this point is GRANTED.

On February 1, 2017, the Fourth Circuit held in a published opinion that West Virginia’s strict
products liability law requires a plaintiff to identify a reasonable alternative design in a design defect
case. Nease v. Ford Motor Co., No. 15–1950, slip op. 31–32 (4th Cir. Feb. 1, 2017) (“While it is true
that West Virginia law on the matter is not crystal clear, we agree with Ford that Morningstar ‘can
only be read to require the production of evidence on reasonable alternative design, to gauge what
‘should have been.’ Although Morningstar does not use the phrase ‘alternative design,’ a plaintiff in a
design case, for all practical purposes, must identify an alternative design in order to establish the
‘state of the art.’” (citations omitted)).
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B.

Specific Causation Supplemental Reports

The plaintiff argues that the court’s December 9, 2016, Order “addressed the
issue of specific causation—an issue that Plaintiffs could not have predicted would be
addressed based on the new pattern jury instruction.” Pls.’ Resp. 7. In the Order, the
court stated the following:
Once the trier of fact determines that the plaintiff has satisfied the riskutility test, the product’s design is considered defective as to the design
feature singled-out by the plaintiff. To prevail, however, the plaintiff
must still satisfy the entirely separate issue of whether the defective
design proximately caused the plaintiff’s injury. These steps must be
repeated for each design feature that a plaintiff alleges is defective.
Mem. Op & Order 11 [ECF No. 1525]. The plaintiffs argue that at first blush, this
statement appears to conflict with a previous ruling by this court in another case.
Pls.’ Resp. 7; see also Campbell v. Bos. Sci. Corp., No. 2:12-cv-08633, 2016 WL
5796906, at 5 (S.D. W. Va. Oct. 3, 2016) (Goodwin, J.) (“To begin, the law in West
Virginia, on which the jury was properly instructed, does not require evidence of a
specific design flaw to succeed on a claim for strict liability.” (citing Syl. pt. 3,

Anderson v. Chrysler Corp., 403 S.E.2d 189 (W.Va. 1991))). The court recognizes that
under the law of West Virginia, “[a] plaintiff is not required to establish a strict
products liability cause of action by identifying the specific defect that caused the
loss, but instead may permit a jury to infer the existence of a defect by circumstantial
evidence.” Bennett v. Asco Servs., Inc., 621 S.E.2d 710, 717 (W. Va. 2005). When a
plaintiff does identify specific product defects, however, the plaintiff must establish
proximate causation as between the identified defect and the injury sustained. See
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Morningstar v. Black & Decker Mfg. Co., 253 S.E.2d 666, 682 (W. Va. 1979) (“We do
state that [strict products liability] rests in tort, and that the initial inquiry, in order
to fix liability on the manufacturer, focuses on the nature of the defect and whether

the defect was the proximate cause of plaintiff's injury.” (emphasis added)). Thus,
these two methods of proving a strict products liability case are equally permitted
under West Virginia law.
The court’s December 9, 2016, Order did not limit the plaintiffs’ ability to
present their cases under the “malfunction” theory announced in Anderson. See Syl.
pt. 3, Anderson, 403 S.E.2d at 190 (“Circumstantial evidence may be sufficient to
make a prima facie case in a strict liability action, even though the precise nature of
the defect cannot be identified, so long as the evidence shows that a malfunction in
the product occurred that would not ordinarily happen in the absence of a defect.
Moreover, the plaintiff must show there was neither abnormal use of the product nor
a reasonable secondary cause for the malfunction.”). The law of West Virginia
remains unchanged on this issue. Thus, to the extent that the plaintiffs’ supplemental
disclosures are based on the misconception that the court altered the plaintiffs’
burden regarding proof of specific causation, those supplemental disclosures are
inappropriate. Ethicon’s Motion as to this point is GRANTED.
C.

Deposition Testimony and Scientific Literature

The plaintiff states that “Rule 26(e)(2) requires that opinions given in
depositions be added to the reports, if not already included.” Pls.’ Resp. 8. The
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plaintiffs further state that “where experts gave new opinions in depositions, or
further elaborated on existing opinions that the expert is likely to give at trial,
Plaintiffs also updated the expert reports to so reflect.” Id. Additionally, the plaintiffs
state that “some of the supplemental reports include references to scientific literature
that was not available at the time of the original reports, to which the expert might
refer while testifying at trial.” Id. Again, the plaintiffs have misapplied Rule 26(e).
While the plaintiffs are correct that they had a duty to supplement the expert
reports to reflect information provided by an expert during his or her deposition, Rule
26(e) requires that supplementation be timely. See Fed. R. Civ. P. 26(e)(1), (2). The
discovery deadline in these cases was July 25, 2016. Fourth Am. Docket Control
Order 5 [ECF No. 258]. Yet the plaintiffs waited until January 2017 to disclose any
supplementation based on deposition testimony. These supplementations are simply
untimely. See e.g., Gallagher v. S. Source Packaging, LLC, 568 F. Supp. 2d 624, 631
(E.D.N.C. 2008) (determining that just because supplementation may occur at any
time prior to the pretrial disclosure deadline, a party may not simply hold onto
information until the pretrial deadline).
The plaintiffs have also failed to make any compelling argument regarding
supplementation based on previously unavailable scientific literature. First, the
plaintiffs indicate that only “some of the supplemented reports include references to
scientific literature that was not available at the time of the original reports.” Pls.’
Resp. 8 (emphasis added). The plaintiffs have not identified which supplemental
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reports rely on previously unavailable scientific literature. Second, the plaintiffs have
not stated when the literature became available, preventing the court from assessing
the timeliness of the supplementation. Last, the plaintiffs state that the relevant
expert(s) “might refer” to the previously unavailable scientific literature at trial,
indicating that the previously unavailable scientific literature is not crucial to their
cases. Id. (emphasis added).
The Hoyle factors weigh against the plaintiffs here. Ethicon’s surprise is
justified given that discovery closed in July 2016. Ethicon’s ability to cure the surprise
is also limited due to the lateness of the disclosure as compared to the March 6, 2017,
trial date. Further, Ethicon makes a strong argument that allowing these
supplemental reports will disrupt the current trial schedule, as there is now little
time for Ethicon to review the many new opinions offered and the methodologies on
which they are supported. The plaintiffs have also not explained why it took them
over five months to supplement the reports after depositions had been completed.
Further, the plaintiffs have not explained when relevant scientific literature first
became available. Last, the plaintiffs have not explained the importance of the
deposition and literature supplementations as they relate to their cases. Accordingly,
the court FINDS that the untimely supplementations are not substantially justified
or harmless. See Hoyle, 650 F.3d at 329. Accordingly, Ethicon’s Motion on this point
is GRANTED.

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IV.

Conclusion
For the reasons provided above, the court orders that Defendants’ Motion to

Strike Plaintiffs’ Supplemental Expert Reports [ECF No. 1534] is GRANTED. The
court ORDERS that the plaintiffs’ supplemental expert reports are STRICKEN.
The court DIRECTS the Clerk to send a copy of this Order to counsel of record
and any unrepresented party.
ENTER:

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February 2, 2017