Moore et al v. C. R. Bard, Inc.
MEMORANDUM OPINION AND ORDER The 36 MOTION by C. R. Bard, Inc. to Strike and Request for Emergency Hearing is DENIED, and defendant's request that Dr. Ostergard's deposition be held in abeyance is DENIED, as more fully set forth herein. Signed by Judge Joseph R. Goodwin on 9/15/2017. (cc: counsel of record; any unrepresented party) (mks)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
IN RE: C. R. BARD, INC.,
PELVIC REPAIR SYSTEM
PRODUCTS LIABILITY LITIGATION
MDL NO. 2187
THIS DOCUMENT RELATES TO:
Moore, et al. v. C. R. Bard, Inc.
Civil Action No. 2:16-cv-03842
MEMORANDUM OPINION AND ORDER
Pending before the court is the defendant, C.R. Bard, Inc.’s, Motion to Strike
and Request for Emergency Hearing. [ECF No. 36]. In this motion, the defendant
asks the court to: (1) strike Dr. Ostergard’s supplemental reports, (2) hold Dr.
Ostergard’s deposition in abeyance, and (3) hold an emergency hearing on the
matter. [ECF No. 36]. The plaintiffs filed a Consolidated Response, [ECF No. 38]
and the defendants filed a Reply. [ECF No. 39]. For the reasons detailed below, the
defendant’s motion is DENIED.
The defendant filed identical motions in 14 individual cases in this MDL. All
plaintiffs at issue are in Wave 4 and Wave 5. Pursuant to Pretrial Order # 236,
Wave 4 plaintiffs were required to disclose their experts by May 12, 2017. Pursuant
to Pretrial Order # 244, Wave 5 plaintiffs were required to disclose their experts by
June 12, 2017. The plaintiffs disclosed urogynecologist Donald Ostergard, M.D., as
both a general causation expert and as a case-specific expert before the dates
required. They also timely served Dr. Ostergard’s reports disclosing his opinions
and the bases thereof. Dr. Ostergard’s deposition was originally scheduled to occur
from July 26-28, 2017. The deposition was rescheduled for Aug. 29-31, 2017, and
then later re-scheduled again for August 29-31, 2017 to accommodate a health issue
Dr. Ostergard was experiencing.
On Thursday, August 24, 2017, five days before Dr. Ostergard’s deposition
was scheduled to take place, plaintiffs’ counsel informed defense counsel that Dr.
Ostergard was preparing a supplemental report which would be sent over later in
the day. A few hours later, plaintiffs’ counsel served fourteen supplemental reports
to defense counsel. The supplemental reports were substantially similar to the
original reports served, but had additional information including: (1) new
depositions that Dr. Ostergard was relying on and summaries of the deposition
information he was relying on; (2) additional facts regarding plaintiffs’ symptoms
and treatment; and (3) additional opinions regarding causation. After the plaintiffs’
counsel sent the supplemental reports to the defendant, but before the defendant
filed this motion, plaintiffs’ counsel and defense counsel agreed to move Dr.
Ostergard’s deposition to October 20-22, 2017 to give defense counsel more time to
The defendant argues that the supplemental reports are not proper
supplements under Federal Rules of Civil Procedure Rule 26(e), and instead are
entirely new reports that are untimely. The defendant moved to strike the reports
as untimely, and requested an emergency hearing to discuss the matter. The
defendant further requested that Dr. Ostergard’s deposition be held in abeyance
until the court ruled on the motion.
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). 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.
“Courts distinguish true supplementation (e.g., correcting inadvertent errors
or omissions) from gamesmanship, and have therefore repeatedly rejected attempts
to avert summary judgment by supplementing an expert report with a new and
improved expert report.” Kanawha—Gauley Coal & Coke Co. v. Pittston Minerals
Group, Inc., No. 2:09-cv-01278, 2011 WL 320909, at *2 (S.D. W. Va. Jan. 28, 2011)
(quoting Gallagher v. S. Source Packaging, LLC, 568 F. Supp. 2d 624, 631 (E.D.N.C.
2008)). Thus, the first question is whether the plaintiffs’ supplemental reports are
true supplementation or gamesmanship and delay. Id.
If the defendant’s supplemental disclosures are true supplementation then
they are timely. If the reports are not true supplementation, then the plaintiff may
not use the new information in the reports on a motion, at a hearing, or at trial,
unless the failure was substantially justified or is harmless. Fed. R. Civ. P. 37(c)(1);
Pittston Minerals Group, Inc., No. 2:09-cv-01278, 2011 WL 320909, at *2 (citing S.
States Rack and Fixture, Inc. v. Sherwin–Williams Co., 318 F.3d 592, 695–96 (4th
Cir. 2003)). “The court has ‘broad discretion’ to determine whether an untimely
disclosure is substantially justified or harmless.” Mullins et al. v. Ethicon, Inc., No.
2:12-cv-02952, 2017 WL 455938, at *2 (S.D. W. Va. Feb. 2, 2017) (quoting Gallagher,
568 F. Supp. 2d at 631). The Fourth Circuit has held that:
in exercising its broad discretion to determine whether a
nondisclosure of evidence is substantially justified or
harmless for purposes of a Rule 37(c)(1) exclusion
analysis, a district court should be guided by the following
factors: (1) the surprise to the party against whom the
evidence would be offered; (2) the ability of that party to
cure the surprise; (3) the extent to which allowing the
evidence would disrupt the trial; (4) the importance of the
evidence; and (5) the nondisclosing party’s explanation for
to disclose the evidence.
Sherwin–Williams Co., 318 F.3d at 695–96; see also Mullins, No. 2:12-cv-02952,
2017 WL 455938, at *2 (applying the five factor analysis to determine whether a
supplemental report was proper).
After reviewing the defendant’s motion, the plaintiffs’ response, and the
defendant’s reply, the court finds that an emergency hearing is unnecessary.
Additionally, the court finds that holding Dr. Ostergard’s deposition in abeyance is
unnecessary given that the parties already stipulated to move the deposition to the
end of October.
As to striking Dr. Ostergard’s reports, the defendant contends that Dr.
Ostergard’s supplemental reports are not true supplements, but instead are
“entirely new reports,” that include “previously undisclosed opinions.” [ECF No. 37].
Dr. Ostergard’s supplemental reports include new information such as additional
depositions he relied on and medical issues the plaintiffs experienced. [ECF No. 393]. Dr. Ostergard also draws several new, important conclusions. Id. For example, in
Plaintiff Strubles’ report he states that “more likely than not the Align SP is
responsible for this device mitigation.” Id. Similarly, in Plaintiff Knernschield’s
report, he concludes for the first time that:
[a]s evidenced by the less than expected amounts of mesh
excised from the mid urethra to the pubic arches
bilaterally the Align SP device shrunk significantly to
cause urinary obstruction with elevated post void residual
urine volumes. The device itself and the chronic
inflammatory reaction caused by it was more likely than
not responsible for the shrinkage.
Id. In the same report, Dr, Ostergard goes on to further conclude for the first time
[a]lthough Ms. Knernschield had urge incontinence prior
to the implantation of the Align SP device, it was
controlled with an anticholinergic. After implantation, the
control of the urge incontinence was more difficult and
incomplete. The differential diagnosis of the overactive
bladder with urge, urge incontinence, frequency and
nocturia includes the intense inflammatory reaction
caused by the inflammatory effect of the TVT device
(present), vaginal hypoestrogenism (present and treated),
obesity (present), smoking (non-smoker), vaginal trauma
(none diagnosed), urethrovesical infections, stones and
interstitial cystitis (none diagnosed) all are ruled out as
non-causative and the intense cumulative inflammatory
reaction of the Align SP device is the only remaining more
likely than not plausible cause.
Id. Dr. Ostergard added new opinions such as these in other plaintiffs’ reports as
well. Ultimately, while some of the content of the new reports could be regarded as
true supplementation, much of the content is instead new opinions, and cannot be
regarded as true supplementation.
Since the plaintiffs maintain that the new reports are merely supplements,
they have not provided a reason for the reports untimeliness. Thus, the court cannot
conclude that the supplemental reports are substantially justified. Nevertheless,
the court finds that any portion of the reports that cannot be regarded as true
supplementation are harmless under the five factors described in Sherwin–
Williams. 318 F.3d at 695–96. As to the first two factors, the defendant was
unquestionably surprised by the supplemental reports given that they were not
released until less than a week before Dr. Ostergard’s deposition was scheduled,
and during a time when they believed he was recovering from health complications.
[ECF No. 37]. The parties, however, were able to cure the surprise by moving Dr.
Ostergard’s deposition to October 20-22, 2017, almost two months after the last
scheduled deposition was to take place. [ECF No. 38]. Regarding the third factor,
since a trial date is not yet set, the trial cannot be delayed. As to the fourth factor,
Dr. Ostergard’s causation opinions are very important to the plaintiffs’ ability to
proceed with their lawsuit. Without having Dr. Ostergard’s full opinions, plaintiffs
may struggle to prove causation, an essential element to their claim. Lastly, since
the plaintiffs did not provide a reason for the reports untimeliness, this factor
weighs against plaintiffs. Ultimately, the ability to cure the surprise, the fact that
the supplemental reports do not delay the trial, and the importance of the opinions
to the plaintiff’s case all lead to the conclusion that the nondisclosure was harmless.
The court stresses, however, that “when handling seven MDLs, each
containing thousands of individual cases, case management becomes of utmost
importance.” In re: Ethicon, Inc., MDL No. 2327, 2017 WL 1175363, at *2 (S.D. W.V.
Mar. 28, 2017). Thus, counsel is expected to “collaborate with the court in
fashioning workable programmatic procedures’ and cooperate with these procedures
thereafter.” Id. In the future, the court may resort to sanctions in order to ensure
compliance with pretrial orders. See id. (“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.”); 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 defendant’s Motion for an Emergency Hearing is DENIED. The
defendant’s Motion to Strike the Untimely Reports is DENIED. The defendant’s
request that Dr. Ostergard’s deposition be held in abeyance is DENIED. The Clerk
is DIRECTED to send a copy of this Order to counsel of record and any
ENTER: September 15, 2017
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