Cuffee et al v. C. R. Bard, Inc.
Filing
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MEMORANDUM OPINION AND ORDER granting 29 MOTION by Carolyn D. Cuffee, Donald Cuffee for Leave to Serve Plaintiffs' Supplemental Report of Dr. Bruce Rosenzweig, as more fully set forth herein. Signed by Judge Joseph R. Goodwin on 9/25/2017. (cc: counsel of record; any unrepresented party) (brn)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON DIVISION
IN RE: C. R. BARD, INC.,
PELVIC REPAIR SYSTEM
PRODUCTS LIABILITY LITIGATION
MDL NO. 2187
THIS DOCUMENT RELATES TO:
CAROLYN D. CUFFEE, ET AL
2:14-CV-02528
MEMORANDUM OPINION AND ORDER
I.
Introduction
Pending before the court is Plaintiffs’ Motion for Leave to Serve Plaintiffs’
Supplemental Report of Dr. Bruce Rosenzweig (“Pl.’s Mot. Leave”) [ECF No. 29]. The
defendant filed a Response [ECF No. 30], and the plaintiffs filed a Reply [ECF No.
31]. For the reasons detailed below, the plaintiffs’ motion is GRANTED.
II.
Background
On May 12, 2017, the last day scheduled to serve expert reports, the plaintiffs
served on the defendants the expert report of Bruce Rosenzweig, M.D. Pl.’s Mot.
Leave 1. On August 2, 2017, the plaintiffs filed this motion to supplement Dr.
Rosenzweig’s report. Id. The supplemental report adds the fact that Dr. Rosenzweig
reviewed the deposition transcripts of Dr. William K. Rand and Dr. John L. Crockford
when drawing his conclusions. Id. Dr. Rosenzweig’s supplemental report expresses
this by listing “Rand, III, M.D., William K. — dated 06/29/2017” and “Crockford, M.D.,
Jon L. — dated 06/09/2017” under the “deposition transcript” section of the reliance
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list in his report. Id. Dr. Crockford was deposed on June 9, 2017. Id. at 2. The final
draft of the transcript of his deposition became available on June 15, 2017. Def.’s
Opp’n to Pl.’s Mot. 3 (“Def.’s Opp’n”) [ECF No. 30]. Dr. Rand was deposed on June 29,
2017, and the final draft of the transcript of his deposition became available on July
10, 2017. Id. at 2–3.
Dr. Rosenzweig “has no wish to alter the opinions within his report,” as he
believes that his opinions are still fully supported. Id. at 2. Instead, he only wishes to
supplement the list of materials he relied on. Id. The plaintiffs argue that this
supplementation is proper under Federal Rules of Civil Procedure 26(e). Pl.’s Reply
to Def.’s Opp’n to Pl.’s Mot. 2 (“Pl.’s Reply”) [ECF No. 31].
The defendant argues that “[t]he purpose of Rule 26 would not be served by
permitting [the plaintiff] to now serve a supplemental report, adding new bases for
an expert’s opinions, at the close of discovery when the expert has already been
deposed regarding his opinions of this case.” Def.’s Opp’n 3. Discovery closed on
August 11, 2017. Pretrial Order # 259 [ECF No. 28]. Additionally, the defendant
argues that if Dr. Rosenzweig was going to rely on these depositions, then he should
have been prepared to discuss them at his deposition on July 9, 2017. Def.’s Opp’n 4–
5. Lastly, the defendant requests that, if the court allows the supplementation, the
defendant “be permitted additional time to depose Dr. Rosenweig on the newly added
bases for his opinions.” Id. at 5.
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III.
Legal Standard
The Federal Rules of Civil Procedure require that a party “disclose to the other
parties the identity of any witness it may use at trial.” 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—prepared and signed by the witness—if the witness
is one retained or specially employed to provide expert testimony in the case.” Fed.
R. Civ. P. 26(a)(2)(B). Disclosures of expert testimony are to be made “at the times
and in the sequence that the court orders.” Fed. R. Civ. P. 26(a)(2)(D). Parties who
make a disclosure under Rule 26(a):
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.
Fed. R. Civ. P. 26(e)(1).
IV.
Discussion
“Fed. R. Civ. P. 26(e) does not grant a license to supplement a previously filed
expert report because a party wants to, but instead imposes an obligation to
supplement the report when a party discovers the information it has disclosed is
incomplete or incorrect.” Coles v. Perry, 217 F.R.D. 1, 4 (D.C. 2003); Bresler v.
Wilmington Trust Co., 855 F.3d 178, 212 (4th Cir. 2017) (citing Mineba Co., LTD v.
Papst, et al., 231 F.R.D. 3, (D.C. 2005)) (“Rule 26(e) ‘permits supplemental reports
only for the narrow purpose of correcting inaccuracies or adding information that was
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not available at the time of the initial report.’”). “When considering supplemental
information provided under Rule 26(e) the issues are (1) does the supplemental
information correspond to a prior Rule 26(a) disclosure, and (2) was the supplemental
information available at the time set for the initial disclosure.” Carrillo v. B&J
Andrews Enters., LLC, No. 2:11-cv-01450-rcj-cwh, 2013 WL 420401, at *4 (D. Nev.
Jan. 31, 2013).
“Supplementations need not be made as each new item of information is
learned but should be made at appropriate intervals during the discovery period, and
with special promptness as the trial date approaches.” EQT Gathering, LLC v.
Marker, No. 2:13-cv-08059, 2015 WL 9165960, at *6 (S.D. W. Va. Dec. 16, 2015) (citing
Fed. R. Civ. P. 26(e) advisory committee’s note to 1993 amendment.). “The timing of
supplementation is best gauged in relation to availability of the supplemental
information.” Carrillo, 2013 WL 420401, at *4.
Here, Dr. Rosenzweig wants to supplement his report by listing the depositions
of Dr. Rand and Dr. Crockford in the reliance materials section of his report. Pl.’s
Mot. Leave 1–2. This is proper supplementation. During his deposition, Dr.
Rosenzweig testified that he had not yet had the opportunity to review Dr. Rand or
Dr. Crockford’s depositions and that some of the material in his reports about the
doctors was currently speculation. Pl.’s Mot. Leave, Ex. E, at 19 [ECF No. 29–6] (“I
had not read his deposition and there are a couple of corrections that I was going to
make on the record to the report. On page 14, where I state what Dr. Rand may or
may not have known, that is speculation on my part as I had not read his
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deposition.”). Dr. Rosenzweig later reviewed the depositions and came to the
conclusion that his original opinions were still supported. Pl.’s Mot. Leave 2. He now
wishes to include the fact that he reviewed the depositions in his report to support
his conclusions, which were originally mere speculation. Id.
The supplemental information corresponds to Dr. Rosenzweig’s prior Rule
26(a) disclosure, because his initial report sets forth conclusions about the doctors
whose depositions he now wishes to add. See Carrillo, 2013 WL 420401, at *4.
Additionally, “the supplemental information [was not] available at the time set for
the initial disclosure,” because the depositions were not taken until after the
scheduled deadline for submission of expert reports. Id. Lastly, the supplementation
was timely. The plaintiffs filed this motion for leave to supplement Dr. Rosenzweig’s
report less than two months after the final transcript of Dr. Rand’s deposition became
available. While in a perfect world Dr. Rosenzweig would have reviewed the final
transcript of Dr. Crockford’s deposition, and the draft of the transcript of Dr. Rand’s
deposition before he was deposed, the fact that he had not yet done so does not mean
his supplemental report is untimely.
Given the information that was added in the supplemental report, the court
does not see why the defense would need to depose Dr. Rosenzweig again. The
plaintiffs, however, have repeatedly offered to allow the defendant to depose Dr.
Rosenzweig again based on his supplemental report. Pl.’s Mot. Leave 2; Pl.’s Reply 8.
Thus, the court leaves it up to the discretion of the parties whether the defendant
needs additional time to depose Dr. Rosenzweig. If there is any additional deposition
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time, it must solely focus on the information that was added in the supplemental
report.
V.
Conclusion
The Plaintiffs’ Motion for Leave to Serve Plaintiffs’ Supplemental Report of Dr.
Bruce Rosenzweig is GRANTED. The Clerk is DIRECTED to send a copy of this Order
to counsel of record and any unrepresented party.
ENTER: September 25, 2017
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